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Aravapalli Subbi Setti and anr. Vs. Burle Lakshminarasamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1946Mad88; (1945)2MLJ556
AppellantAravapalli Subbi Setti and anr.
RespondentBurle Lakshminarasamma and ors.
Cases ReferredLiquidation) v. Robert Hercules Skinner
Excerpt:
- - though i listened to an interesting and exhaustive argument from mr. it is well known that costs are in the absolute discretion of the court and though no reason has actually been assigned by the lower appellate court in disallowing her, though the successful party, her full costs, i do not think i should interfere in second appeal with the discretion exercised by the learned district judge......by the recent decision of the judicial committee in bank of upper india, ltd. (in liquidation) v. robert hercules skinner (1942) 2 m.lj. 559 : i.l.r. (1942) lah. 686. the facts necessary for the disposal of these appeals are as follows : the plaintiffs in the two suits sued for the recovery of the balance of money due to each of them under two mortgages dated 7th august, 1924, by sale of one item out of the properties secured by the deeds (exs. p-1 and p-2) respectively. the contesting defendant claims title to this item under a deed of sale dated 28th april, 1926, from the mortgagor. the suits were brought in 1939 and would prima facie be barred by limitation. the plaintiffs, however, rely upon an acknowledgment made by the mortgagor in respect of their two mortgages in a deed of trust.....
Judgment:

Rajamannar, J.

1. The same question arises in both these second appeals, a question of limitation. Though I listened to an interesting and exhaustive argument from Mr. V. Suryanarayana for the appellants, the cases appear to be directly governed by the recent decision of the Judicial Committee in Bank of Upper India, Ltd. (in liquidation) v. Robert Hercules Skinner (1942) 2 M.LJ. 559 : I.L.R. (1942) Lah. 686. The facts necessary for the disposal of these appeals are as follows : The plaintiffs in the two suits sued for the recovery of the balance of money due to each of them under two mortgages dated 7th August, 1924, by sale of one item out of the properties secured by the deeds (Exs. P-1 and P-2) respectively. The contesting defendant claims title to this item under a deed of sale dated 28th April, 1926, from the mortgagor. The suits were brought in 1939 and would prima facie be barred by limitation. The plaintiffs, however, rely upon an acknowledgment made by the mortgagor in respect of their two mortgages in a deed of trust dated 26th September, 1927 (Ex. P-4). If the acknowledgment is valid and binding against the contesting defendant, first respondent, then the suit would be in time. It may be noticed that the acknowledgment was made by the mortgagor after he had conveyed his interest in the item now in suit to the first respondent in 1926.

2. The question for determination is whether an acknowledgment made by a mortgagor after transfer of his interest in a particular property forming part of the hypotheca will bind the transferee. The identical question was answered in the negative by the recent decision referred to in Bank of Upper India, Ltd. (in Liquidation) v. Robert Hercules Skinner (1942) 2 M.LJ. 559 : I.L.R. (1942) Lah. 686 It was there held that an acknowledgment made by the mortgagors after they had parted with their interest to the purchasers does not bind the purchasers.

3. During the course of his argument Mr. Suryanarayana tried to rely on certain features, which, according to him, distinguish this case from other cases, viz., that in this case the personal remedy against the mortgagor was alive on the date of acknowledgment and that the mortgagor had not parted with all the property hypothecated at the time when he made the acknowledgment. Unfortunately for him, however, it appears from the report in Bank of Upper India {in Liquidation) v. Robert Hercules Skinner (1942) 2 M.LJ. 559 : I.L.R. (1942) Lah. 686, that in the appeals which went up to the Judicial Committee from Allahabad, the mortgagor's interest in some only of the properties had been transferred and the judgment of the Judicial Committee proceeds on the assumption that the personal remedy had not become barred {vide page 689). The suits were therefore barred by limitation and the decision of the lower Court is correct. The appeals are dismissed with costs of the first respondent.

4. The first respondent has preferred memoranda of cross-objections in respect of a moiety of the costs disallowed to her in both the Courts. It is well known that costs are in the absolute discretion of the Court and though no reason has actually been assigned by the lower appellate Court in disallowing her, though the successful party, her full costs, I do not think I should interfere in second appeal with the discretion exercised by the learned District Judge. The memoranda of cross-objections are dismissed but without costs.


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