Research › Browse › Judgment

Allahabad High Court · body

1956 DIGILAW 44 (ALL)

Kashi Ram v. Kamal Singh

1956-01-24

R.DAYAL

body1956
JUDGMENT R. Dayal, J. - One Gyasia executed a usufructuary mortgage deed for Rs. 200 in favour of Nenhe and Darua on the 9th of August, 1878, with respect to certain plots of land. 2. Darua's mortgagee rights were auctioned in execution of a decree and were purchased by Sethia whose successors sold those rights to Parmal, one of the sons of Kashi Ram, son of Darua, on the 24th of June, 1941. 3. Nenhe executed a sub-mortgage of his half share in the mortgagee rights in favour of certain persons on the 30th of November, 1911. His successors redeemed this submortgage in 1944. 4. The successors of Gyasia, the original mortgagor, sold their rights to Sardar, brother of Kashi Ram. On Sardar's death, Kashi Ram succeeded to those rights to the mortgagor. 5. Kashi Ram filed this application u/s 12 of the U.P. Agriculturists' Relief Act for redeeming the mortgage of the 9th of Aug. 1878. The heirs of Nenhe, Defendants Nos. 3 to 7, contested the suit on the ground of limitation, alleging that the suit had been instituted beyond the period of limitation. The other two Defendants, Defendants Nos. 1 and 2, are the sons of Kashi Ram Plaintiff and grandsons of Darua, a brother and co-mortgagee of Nenhe. These two Defendants, Nos. 1 and 2, admitted the Plaintiff's case and did not contest it. 6. The trial court decreed the suit, holding it to be within limitation on the ground of the acknowledgment by Nenhe in the sub-mortgage deed he had executed and in view of the suit being contested by Defendants Nos. 1 and 2. On appeal, the learned District Judge dismissed the suit holding that the mortgage was one indivisible and that the acknowledgment by Nenhe alone in 1911, in the absence of proof that there had been a partition between the co-mortgagees was not an acknowledgment within the terms of Section 19 of the Indian Limitation Act and that, therefore, the suit for redemption was time-barred. He, therefore, allowed the appeal and dismissed the suit. 7. It is against this order that Kashi Ram, the Plaintiff filed this second appeal. At the very commencement of the hearing the learned Counsel for Kashi Ram prayed that this appeal be treated as a revision as no second appeal lay in view of the provisions of Section 23 of the U.P. Agriculturists' Relief Act. 7. It is against this order that Kashi Ram, the Plaintiff filed this second appeal. At the very commencement of the hearing the learned Counsel for Kashi Ram prayed that this appeal be treated as a revision as no second appeal lay in view of the provisions of Section 23 of the U.P. Agriculturists' Relief Act. Sub-section (2) of Section 23 is: No appeal shall lie from an appellate order passed under this section. 8. Learned Counsel for the other party had no objection and I ordered it to be treated as a revision. 9. It is not disputed that ordinarily, if there are several mortgagees under a mortgage, any acknowledgment which would help the mortgagors in computing the period of limitation for a suit for redemption from the date of acknowledgment should be an acknowledgment by all the mortgagees and that an acknowledgement by one of the mortgagees alone will not help the mortgagors in extending the period of imitation where the mortgage was a joint mortgage and incapable of being redeemed piecemeal. Such was held in Dharma and Ors. v. Bal Mukund and Ors. ILR 18 All. 458 and Jwala Prasad v. Achchey Lal ILR 34 All. 371. It is, however contended for the applicant that the co-mortgagees had obtained separate possession over certain plots, that they had been dealing with such plots in their respective possession separately, that Nenhe did sub-mortgage such plots and his heirs redeemed them, that therefore such separate possession coupled with the redemption of the sub-mortgage, amount to the breaking of the integrity of the mortgage, that therefore the acknowledgment of anyone of the mortgagees is good acknowledgment against him self with respect to the property in his possession and that therefore this suit for redemption of the property, which was in the possession of Nenhe's heirs, is within time. It may again be repeated that the heirs of Darua, that is, Defendants Nos. 1 and 2, do not contest the suit. It is submitted that as they do not contest the suit, the suit is to be decreed against them. I am not inclined to agree with these contentions. 10. The court is not to proceed with any suit or application which is not instituted within the period of limitation prescribed for it irrespective of the fact whether any objection is taken on the ground of limitation or not. I am not inclined to agree with these contentions. 10. The court is not to proceed with any suit or application which is not instituted within the period of limitation prescribed for it irrespective of the fact whether any objection is taken on the ground of limitation or not. The fact that Defendants Nos. 1 and 2 have not objected to the Plaintiff's suit on the ground of limitation, therefore, does not affect the question whether the suit has been instituted within time or not. 11. There is nothing in Section 60 of the Transfer of Property Act to support the contention that merely because co-mortgagees get separate possession over certain portions of the mortgaged property, that would amount to the breaking up of the integrity of the mortgage, giving a right to the mortgagor to redeem any portion of the mortgaged property in the possession of any of the co-mortgagees. The redemption of a sub-mortgage, executed by one of the co-mortgagees, does not affect the question because such a redemption merely brings back the co-mortgagees to their original position. 12. It is also contended that, if the co-mortgagees bring about a partition among themselves, that will break the integrity of the mortgage and would entitle the mortgagor to proceed for the redemption of the property allotted to any of the co-mortgagees. There is nothing in Section 60 to justify this but reliance is placed on the case reported in Motilal Jadav Vs. Samal Bechar, AIR 1930 Bom 466 . The facts found in that case appear to be that the co-mortgagees had partitioned the property between themselves, that one or the co-mortgagees had attested the transfer of the mortgaged property falling in the lot of the other co-mortgagee and that the conduct of the mortgagor had been such as led to the conclusion that he had acquiesced in the mutual partition between the co-mortgagees. The mortgagor sued for the redemption of the mortgaged property with one mortgagee on payment of the entire mortgage money. It was in this setting that it was held that the mortgagor could redeem the property of one of the mortgagees who alone had acknowledged the mortgage deed, but on payment of the entire mortgage money. The mortgagor sued for the redemption of the mortgaged property with one mortgagee on payment of the entire mortgage money. It was in this setting that it was held that the mortgagor could redeem the property of one of the mortgagees who alone had acknowledged the mortgage deed, but on payment of the entire mortgage money. With respect, I fail to understand why the payment of the enure mortgage money was considered essential if the partition between the mortgagees had broken the integrity of the mortgage and thus created a right in the mortgagor to redeem part of the mortgaged property. If such a right had accrued in favour of the mortgagor he should have been able to redeem part of the mortgaged property on payment of the proportionate amount of the mortgage money. Chief Justice Marten actually left the very question, which is before us, upon whom he said at page 474: If there had been no partition here between the heirs of the mortgagee inter se, then it may well be that an acknowledgment by one of those heirs would not be binding upon the others. Whether the joint mortgagee who did in fact sign the acknowledgment would himself be liable or liable qua his share is not, I think a point that arises for express decision in the present case. We have a case as I have already emphasized, where has been a partition existing for over fifty years between the branches of the mortgagee. 13. I am, therefore, of opinion that any partition which might have taken place between the co-mortgagees is not of much importance to consider the validity of an acknowledgment by one of the co-mortgagees for the purpose of Section 19 of the Indian Limitation Act. 14. Sub-section (1) of Section 19 of the Indian Limitation Act is: Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. 15. 15. The expression "prescribed for a suit or application in respect of any property or right" must mean prescribed for a suit in respect of the mortgaged property or of the right to sue for redemption when an acknowledgment is to be used in connection with a suit for redemption and should not mean prescribed for a suit or application in respect of a part of the mortgaged property. Similarly the acknowledgment in respect of such property or right must mean an acknowledgment in respect of the mortgaged property or the right of the mortgagor to redeem. And lastly the expression "by the party against whom such property or right is claimed" must mean the persons against whom the right of redemption is claimed and therefore must mean all the mortgagees in case there be more than one mortgagee because the right of redemption is claimed against all of them. In fact the Plaintiff claimed redemption against all the mortgagees. It follows, therefore, that an acknowledgment u/s 19 which would help the mortgagor in connection with a suit for redemption must be by all the mortgagees against whom that right of redemption is claimed and that the acknowledgment should be with respect to such a right of redemption. It is Section 60 of the Transfer of property Act which indicates the content of the right of redemption. Paragraph 3 of Section 60 of the Transfer of property Act is: The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. 16. Now the right given by that Section is the right of the mortgagor to require the mortgagee to deliver to the mortgagor the mortgage deed and other documents relating to the mortgaged property, to deliver possession of the mortgaged property to the mortgagor if the mortgagee be in possession and to retransfer the property to the mortgagor on the mortgagor's making payment or tender of the principal money after it has become due to the mortgagee. This right, therefore, according to the language of Section 60, is a right to get back the entire mortgaged property from all the mortgagees on payment or tender of the mortgage money to them after it had become due. This right, therefore, according to the language of Section 60, is a right to get back the entire mortgaged property from all the mortgagees on payment or tender of the mortgage money to them after it had become due. The right does not consist in paying the entire mortgage money to anyone of the mortgagees and get back such property which be in the possession of that individual mortgagee. Any acknowledgment of such right of redemption must, therefore, be by all the mortgagees against whom such a right is to be claimed. Acknowledgment by one of the co-mortgagees, therefore, will not help unless the integrity of the mortgage has been broken, which really means that the mortgage has been split up and the mortgagor can treat any of the co-mortgagees to be just a mortgagee with respect to the property in his own possession. In such a contingency no question of there being co-mortgagees really arises. I am, therefore, of opinion that the court below was right. in holding that the acknowledgment by Nenhe in the usufructuary sub-mortgage deed of 1911 is not an acknowledgment within the meaning of Section 19 of the Limitation Act and does not help the mortgagor to compute the period of limitation from the date of such acknowledgment. 17. Lastly, learned Counsel for the applicant submitted that the court below should have given an opportunity to the applicant to lead evidence, if available, to establish that there had, in fact, been a partition between the co-mortgagees prior to 1911 and that the case should be sent back to the court below for giving such opportunity to the applicant. It has been said at the Bar that there had been a regular partition. between the co-mortgagees in 1909. We are not concerned with what the actual fact is. Suffice it to say that no such request was made to the court below when it was contended for the opposite party that the acknowledgment of Nenhe in the sub-mortgage deed was of no avail. That was the occasion when the applicant should have made an attempt to establish certain facts on which he wished to rely to meet that contention. He missed the opportunity. That was the occasion when the applicant should have made an attempt to establish certain facts on which he wished to rely to meet that contention. He missed the opportunity. At the revision stage it is not possible to allow a revision for the purpose of affording an opportunity to a party to lead further evidence which he himself neglected to lead at proper time. I, therefore, do not agree with this suggestion. 18. In view of the above I am of opinion that the order of the court below that the suit was instituted beyond limitation is not erroneous and that no case for interference in revision is made out. I, therefore, reject this revision application with costs.