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Ram Dass Vs. Birjnundun Das Alias Laloo Baboo and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal617
AppellantRam Dass
RespondentBirjnundun Das Alias Laloo Baboo and anr.
Cases ReferredDaia Chand v. Sarfraz
Excerpt:
limitation act (ix of 1871), schedule ii, article 148 - suit for redemption of mortgage--acknowledgment of title of mortgagor or of his right to redeem. - .....at page 122 in the judgment of justices turner and oldfield it is said: 'the terms of the law, an acknowledgment of the mortgagor's title, or an acknowledgment of his right to redeem, were not, it may be presumed, intended to be mere tautology. an acknowledgment that a certain person, or his representative, is the proprietor of the estate is an acknowledgment of his title. an acknowledgment that the mortgage is a subsisting mortgage would be an acknowledgment of his right to redeem if he established his title.' those judges, therefore, regard the acknowledgment required as an acknowledgment of an existing right to redeem, or of an existing title in the mortgagor. neither of these are to be found in the present case.3. we, therefore, agree with the court below that this suit is.....
Judgment:

Wilson, J.

1. We entertain no doubt about this case, and we agree with the view taken by the Court below. The suit is a suit to redeem a mortgage, and the question is whether the suit is barred by limitation. There is no. question that this depends upon the terms of the Limitation Act of 1871. Now, under Article 148 of the second schedule to that Act, a suit must be brought within 'sixty years from the date of the mortgage, unless where an acknowledgment of the title of the mortgagor or of his right of redemption has, before the expiration of the prescribed period, been made in writing, signed by the mortgagee, or some person claiming under him, and in such case, the date of the acknowledgment.' In this case, the sixty years elapsed while the Act of 1871 was the governing Act, and the suit is therefore barred unless there is a sufficient acknowledgment to save it from the operation of limitation. The acknowledgment relied upon is contained in the written statement filed by the present defendants in August 1872, within sixty years from the making of the mortgage in the suit by the present plaintiff or those under whom he claims, and the acknowledgment runs in these words: 'The land in dispute, according to the deed of zuripeshgi, dated 15th July 1815, for Rs. 425, executed by Ramrutton Das, devolved into the possession of Baboo Gokool Chund. Baboo Gokool Chund all along used to pay Rs. 2 as the right of the lessor. After the death of Ramrutton Das Gosain, Gopal Das, the guddi nishin, in consideration of Rs. 665 (including both) former and present (debts), executed a zuripeshgi deed, dated 21st October 1824, respecting the land under claim, as well as the garden named Khatri containing two beeghas of land, in favour of Baboo Gokool Chund, an ancestor of the defendants. Subsequently he executed an ekrarnama, dated 11th August 1831, in lieu of the sum of Rs. 901 (by virtue of) which Baboo Gokool Chund till his lifetime was, and after his demise the defendants are, all along in possession of the same.' Now that is an acknowledgment of the original making of the mortgage-deed and of possession being taken under it, but the statement goes on to allege the execution subsequently of two other deeds, practically superseding the mortgage and altering the relation of the parties. Under the terms of Article 148 we do not think that this is a sufficient acknowledgment to save the case from limitation. We think that 'acknowledgment' in that Article means acknowledgment of a present existing title in the mortgagor.

2. We were referred to the decision in the case of Daia Chand v. Sarfraz .L.J. 1 All. 117 as an authority against this view of the case. The question there was, whether a certain record of right signed by the parties in question did or did not amount to an acknowledgment. The document was no doubt very scanty in its terms, and the case was relied on as showing that we ought to interpret the Act very liberally in deciding what constitutes an acknowledgment; but the difference between the two cases is clear. In that case, there was an acknowledgment of a title existing at the time of the acknowledgment, which is not the case in the appeal now under consideration. At page 122 in the Judgment of Justices Turner and Oldfield it is said: 'The terms of the law, an acknowledgment of the mortgagor's title, or an acknowledgment of his right to redeem, were not, it may be presumed, intended to be mere tautology. An acknowledgment that a certain person, or his representative, is the proprietor of the estate is an acknowledgment of his title. An acknowledgment that the mortgage is a subsisting mortgage would be an acknowledgment of his right to redeem if he established his title.' Those Judges, therefore, regard the acknowledgment required as an acknowledgment of an existing right to redeem, or of an existing title in the mortgagor. Neither of these are to be found in the present case.

3. We, therefore, agree with the Court below that this suit is barred, and dismiss the appeal with costs.


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