(1) The appellant in both the appeals was the plaintiff in O. S. No. 396 of 1957 on the file of the District Munsiff's court Kuzhithurai and his suit was for redemption of two items of property over which he claimed a jenman right. The trial court decreed the suit without costs. On appeal preferred by the defendants, the learned Subordinate Judge upheld the title put forward by the plaintiff and found that the right to redeem did not subsist and allowed the appeals and dismissed the suit with costs.
(2) The only point for determination in these second appeals is whether the suit for redemption is barred by limitation
(3) The appellant has not even given in his plaint the details of the mortgage which he wants to redeem in the suit. It appears from Ex. P. 12 in this case that the mortgage over suit item 1 was created in 19-11-1034 (ME). Under the Law of Travancore then in force, the period of redemption for a usufructuary mortgage was 50 years. The Indian Limitation Act has been extended to the Travancore State on 1-4-1951. If the suit mortgage was subsisting on 1-4-1951, the plaintiff would be entitled to claim the extended period of 60 years under the Indian Limitation Act. The present suit was filed on 24-8-1957. Under O. VII Rule 6 C.P.C., where a suit is instituted after the expiration of the period prescribed by law of limitation the plaint shall show the ground upon which exemption from such a law is claimed. But it has not been done in this case.
(4) In the trial court the appellant relied on the averments contained in the Plaint in O. S. No. 709 of 1119 filed by the present first respondent-first defendant as an acknowledgment of the suit mortgage, so far as the suit item 1 was concerned. So far as suit item 2 was concerned, the trial court relied on the recitals in Exs. D. 1 and D 2 to find that there was an othi on the property. But the appellant did not even file a copy of the plaint ill O. S. No. 709 of 1119 in the trial court, but filed only a decree, copy. A copy of the plaint in O. S. No. 709 of 1119 was filed as Ex. P. 12 only in the appellate Court and it is dated 23-6-1119. The sale deeds Ex. D. 1 and E. 2 were written a year before and after the date of the plaint Ex. P. 12. Even if Ex. P. 12 and D. 1 and D. 2 are assumed to contain an acknowledgment of the suit mortgage they would not save the suit claim from limitation unless they are proved to have been made within 50 years from the date of the suit mortgage. Both in the lower appellate court and in this court, the appellant relied on the statements, given by some persons in the settlement enquiry proceedings as acknowledgment of the right to redeem claimed in his suit.
(5) I shall first proceed to consider how fair the right to redeem suit item 1 has been acknowledged by the agents in the plaint, Ex. P. 12. The appellants' case is that one Raman Kali, a younger brother of a prior mortgages had acknowledged the suit mortgage on 19-6-1070; but, as pointed out by the lower appellate court, there is no independent proof about the said acknowledgment apart from the recitals in Ex. P. 12 and about the competency of the person who made statement to make the said acknowledgment. It could not he said that the lower appellate court has erred in stating that the averment in Ex. P. 12 with regard to the alleged acknowledgment cannot help plaintiff who has to prove independently that there was in fact such an acknowledgment and that Raman Kali who made the acknowledgement was competent to make it. It is clear from Ex. P. 12 that the alleged acknowledgment was by the younger brother of a prior mortgages. Thus in the absence of satisfactory proof, that there was a valid acknowledgment of the suit mortgage on 19-6-1070 in the settlement enquiry by the mortgagees then in possession of the suit mortgage, the suit claim would be clearly barred by limitation.
(6) The next question to be considered is whether, even assuming that there was a valid acknowledgment of the suit mortgage in the settlement enquiry, the suit is still in time. This would depend upon the question whether there was an acknowledgment of the right to redeem the suit mortgage in Ex. P. 12. The first defendant in the present suit filed O. S. No. 709 of 1119 against the plaintiff in the present suit and others for redemption of the suit othi on the ground that ice had acquired the jenman right and obtained a decree. In the said plaint he has made averments about the subsisting character of the suit mortgage. In pursuance of the decree in this suit, the present first defendant got possession of item 1 of the suit properties. But the first defendant in the present suit did lot acquire the jenman right in item 1 of the suit property as the sale deed in his favour was not executed by all the members of the kalyan tarwad. Hence the appellant's contention is that the first defendant in the present suit acquired only the rights of a mortgagee.
If the suit othi is subsisting the contention would no doubt be well founded as the appellant has acquired the jenman right. The lower appellate court has pointed out that the first defendant in the present suit could not have made any valid acknowledgment in his plaint. Ex. P. 12, as he filed the suit in his capacity as a mortgagor and that it would be a contradiction in terms to say that the first defendant in this suit had acknowledged his liability to be redeemed by his filing the suit for redemption. At the time when the first defendant in the present suit filed O. S. No. 719 of 1119 on the file of the District Munsif Court Kuzhithurai, he had no interest in the suit mortgage as mortgagee. He claimed redemption on the strength of an imperfect title and got possession of item 1 of the suit property. Thus if he became a mortgagee of the suit mortgage, it was only by virtue of the decree in that suit. Hence the acknowledgment alleged to have been made by the first defendant in the present suit in his prior plaint Ex. P. 12 was one made at a time when he had no interest in the suit mortgage.
(7) The learned advocate for the appellant relied on the decision in Pena Parayan Ambalam v. Venkatachala Chettiar : (1960)1MLJ346 , for the position that an acknowledgment or statement in a cafe proclamation about the subsisting character of a mortgage by the decree-holder who becomes ultimately the auction purchaser and purchases the property for a low value on the ground that the purchase is subject to the subsisting mortgage would operate as an acknowledgment to save limitation in so far as that mortgage is concerned. But it is clear from the decision that it is only a contention put forward by the appellant in that case and the learned Judge who decided the case merely expressed his view that he was greatly inclined to uphold the contention if he had to decide the question. Thus the observations in the decision are only obiter. The decision however refers to an earlier decision of the High Court, in Krishnayya v. Venkatappayya : AIR1925Mad134 . It was a case of an acknowledgment by a son of a judgment debtor who was impleaded as a defendant in that suit and it was held that it did not matter whether at the time of making the acknowledgment the claim could have been enforced against him. The single Judge who decided the case relied on the decision in Jugal Kishore v. Fakhr-ud-din ILR 29 All 90, in support of his decision. The decision in : (1960)1MLJ346 , also refers to the decision of the single Judge in Bombay High Court in Fakitchand Janakiram v. Narmada Bai, : AIR1943Bom461 . But that decision was subsequently reversed in a Letters Patent Appeal reported in Fakirchand Janakiram v. Narmada Bai, AIR 1948 m 125. In my opinion, the finding of the learned Subordinate Judge that there was no acknowledgment of liability in Ex. P. 12 by the first defendant in the present suit is correct.
(8) So far as item 2 of the suit property is concerned, there is a reference to a mortgage over it in Exs. D. 1 and D. 2. But there is no such reference in Ex. D. 3. The appellant relied on the deposition of one Mayitti Kumara in Ex. P. 2 in the settlement case. The lower appellate court has pointed out that the deposition has not been proved in the manner required by law. Further Mayitti Kumaran has merely stated in his deposition that his father had a othi over the property and that his father was alive at that time. The learned Subordinate Judge was justified in finding that the alleged acknowledgment in Ex. P. 2 cannot be construed as a valid acknowledgment as it was not proved that it was made by a person who was liable under the mortgage or that it was made when the mortgage was subsisting.
(9) For the foregoing reasons the finding of the lower appellate court that the suit mortgage was not subsisting to he redeemed by the plaintiff is correct, and it follows that the suit for redemption is barred by limitation. The decree and judgment of the lower appellate court are therefore confirmed and the appeals are dismissed with costs in S. C. 859 of 1960. No leave.
(10) Appeals dismissed.