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The Official Assignee of Madras Vs. S. Natesa Acbari and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1941Mad892; (1941)2MLJ460
AppellantThe Official Assignee of Madras
RespondentS. Natesa Acbari and ors.
Excerpt:
- - therefore, before that section can apply, the words used must be words which clearly indicate an acknowledgment of liability of the particular debt......section 19 of the limitation act. one sundaravela achari mortgaged the property in the suit to one manicka chetty on 9th august, 1921, to secure a sum of rs. 5,000. on 6th january, 1923, he executed a second mortgage of the property in favour of manicka chetty to secure a further advance of rs. 1,000. on 4th july, 1924, sundaravela achari executed a usufructuary mortgage of the property in favour of one rajagopala chetty for the sum of rs. 1,000. the first two mortgages fell to the share of one kuppuswami on a partition. kuppuswami is now an insolvent and is represented by the appellant, the official assignee. the creditors will be entitled to the benefit of the first two mortgages if they are still enforceable. the suit out of which this appeal arises was not, however, filed until 13th.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The sole question in this appeal is whether certain words used in a deed of mortgage dated 4th July, 1924, amount to an acknowledgment of liability in respect of two earlier mortgages within the meaning of Section 19 of the Limitation Act. One Sundaravela Achari mortgaged the property in the suit to one Manicka Chetty on 9th August, 1921, to secure a sum of Rs. 5,000. On 6th January, 1923, he executed a second mortgage of the property in favour of Manicka Chetty to secure a further advance of Rs. 1,000. On 4th July, 1924, Sundaravela Achari executed a usufructuary mortgage of the property in favour of one Rajagopala Chetty for the sum of Rs. 1,000. The first two mortgages fell to the share of one Kuppuswami on a partition. Kuppuswami is now an insolvent and is represented by the appellant, the Official Assignee. The creditors will be entitled to the benefit of the first two mortgages if they are still enforceable. The suit out of which this appeal arises was not, however, filed until 13th July, 1936, more than twelve years after the second of the two mortgages was executed, but the appellant says that the following passage in the usufructuary mortgage deed of 4th July, 1924, saves the earlier mortgages from being time-barred:

If we commit default in respect of any condition, you shall bring the said property to a public or private sale, take the principal and interest and also the auction expenses as per account, pay Kilanur Manicka Chetty if any debts incurred for the benefit of our family has to be paid to him in respect of the said property, and pay the balance, if any, to us.

2. Mr. Justice Somayya, who decided the case, held that this passage could not be read as an acknowledgment within the meaning of Section 19 of the Limitation Act. The learned Judge considered that the words might be read as indicating that some money was due on previous mortgages but it had not been shown that there were no other debts secured on the property and therefore the passage did not necessarily apply to the mortgages of the 9th August, 1921 and on the 6th January, 1923.

3. We are not disposed to agree with the learned Judge that the passage .relied on to save limitation, ought to be read as indicating that the property was subject to earlier mortgages. The clause provides that in default of the condition of the mortgage, the usufructuary mortgagee is to sell the property, and out of the proceeds first pay himself and then pay Manicka Chetty, handing the balance to the mortgagor. Manicka Chetty's mortgages were earlier and therefore ought to come first, but Manicka Chetty comes second. Read alone the clause might be taken to refer to the possibility of subsequent advances by Manicka Chetty. We are, however, in agreement with the learned Judge that there is no evidence on record which identifies the word 'debts' used in this passage to the mortgage deeds of 9th August, 1921, and 6th January, 1923 and that in the words used there is no acknowledgment of these debts.

4. Section 19 will save limitation where before the expiration of the prescribed period, an acknowledgment of liability has been made in writing. Therefore, before that section can apply, the words used must be words which clearly indicate an acknowledgment of liability of the particular debt. The Legislature has decided that time shall be a bar to a mortgage claim and has fixed the period. It may seem hard that a person shall be deprived of his money because he has not filed a suit within a certain time, but that is the law and it is not for the Court to help him out of his difficulty by overstraining the meaning of the words used. And that is what we have been asked to do in this case. Mr. Rajah Aiyar, in support of this appeal, has gone so far as to say that unless the words used amount to a total repudiation of liability they should be read as an acknowledgment of liability. This is an astonishing proposition and we are certainly not prepared to accept it.

5. The appeal will be dismissed with costs, one set.


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