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1923 DIGILAW 403 (ALL)

Raghunath Singh v. Jetto Singh

1923-05-21

body1923
JUDGMENT Kanhaiya Lal, J. - This appeal arises out of a suit for the redemption of a mortgage said to have been effected by Bodha Singh and Ganga Singh, the predecessors-in-title of the plaintiffs in favour of certain persons now represented by the defendants-appellants. The allegation of the plaintiffs was that a mortgage was effected in 1266 Fasli for Rs. 99. In 1894 an attempt was made to redeem that mortgage but the defendants denied the existence of that mortgage as they do now and that suit was dismissed on a preliminary ground which did not bar the institution of a fresh suit. In the present sail the defendants have reiterated what they said in the previous suit. In substance they asserted that there was no mortgage on the date mentioned by the plaintiffs and that the disputed property was held by them under another mortgage effected by Bodha Singh and Ganga Singh in favour of Daljit Singh, their predecessor, for Rs. 478 in July, 1861. They did not, however, produce the original mortgage deed. The Courts below relying on the oral and documentary evidence adduced in the case came to the conclusion that the mortgage set up by the plaintiffs was proved. The correctness of that finding cannot be challenged in second appeal. It is urged on behalf of the defendants-appellants that the denial of the existence of that mortgage made by the present defendants had the effect of curtailing the period of limitation, at all events, of rendering the institution of a suit for redemption within 12 years from the date of such denial, necessary. It is not open, however, to a mortgagee by denying the existence of a mortgage to curtail the period of limitation provided for a suit for redemption. Once a mortgage comes into existence it continues to subsist as a mortgage until the period for its redemption expires despite any attempt made by the mortgagee to deny the existence of that mortgage or to set up an adverse title in himself. Article 144 of the Limitation Act IX of 1908 is only a residuary article and does not apply so long as article 148 of that Act is applicable. The right of the plaintiffs to redeem the mortgage must, therefore, be deemed to have subsisted on the date of the suit. 3. The appeal, therefore, fails and is dismissed with costs.