JUDGMENT-The petitioner in this revision application being tenant and original defendant contends that the trial Court as well as the appellate Court wrongly held that to the suit premises the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, did not apply. The petitioners case is that the findings made as above by the trial Court and the appellate Court are not well founded in law. On all other issues in both the Courts findings were made in favour of the petitioner. Mr. Vaidya for the petitioner, therefore, has again in this revision application urged that to the premises in suit the provisions of the above Act are applicable and that I should reverse the findings made by the Courts below. 2. In connection with this contention, the only relevant facts are as follows: By a lease dated May 20, 1949, the Government of Bombay granted what is described as a permanent lease of certain lands with building standing thereon to the opponents-landlord. The petitioner being Shri Swami Vivekanand Ashram has been continuously a tenant of the opponents of the above building since the date of the lease. Even prior to the date of the lease, the petitioner was a tenant of the building, which then belonged to the Maharaja of Kolhapur. By a notice dated December 20, 1955, the opponent terminated the tenancy of the petitioner. In the notice they mentioned that they required this suit premises for bona fide requirements and personal use. Thereafter, this ejectment suit was filed against the petitioner. Against the decree passed in the suit, the petitioner filed an appeal. Both the Courts have passed ejectment decrees against the petitioner. 3. On behalf of the opponents, reliance was placed in both the Courts on the provisions of section 4 of the Act. Relying on the provisions of sub-section (4) (a) of section 4, it was contended on behalf of the petitioner that the suit premises were not exempted from the provisions of the Act. Both the Courts held that by reason of sub-section (1) of section 4 the suit premises were exempted from the provisions of the Act. The relevant parts of sub-sections (1) and (4) (a) of section 4 of the Act run as follows:- "4. Both the Courts held that by reason of sub-section (1) of section 4 the suit premises were exempted from the provisions of the Act. The relevant parts of sub-sections (1) and (4) (a) of section 4 of the Act run as follows:- "4. (1) This Act shall not apply to 8.ny premises belonging to the Government or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease ..." "4. (4) (a) The expression premises belonging to the Government or a local authority in sub-section (1) shall, notwithstanding anything contained in the said sub-section or in any judgment, decree or order of a Court, not include a building erected on any land held by any person from the Government .... under an agreement, lease or other grant, although having regard to the provisions of such agreement, lease or grant the building .so erected may belong or continue to belong to the Government .. " 4. In connection with the suit premises (being the building occupied by the petitioner as tenant), it is admitted that the building was in existence prior to the grant of the lease dated May 20, 1949, in favour of the opponents by the Government of Bombay. Prima facie, having regard to that fact, apart from the provisions of sub-section (4) (a), by reason of the contents of sub-section (1) of section 4, a finding would have to be made that the Act did not apply to the suit premises, as they belonged to the Government. Having regard to the language of sub-section (1) of section 4, it must also be held that as between the Government and the opponents and for in connection with the tenancy granted by the Government of the building in suit to the opponents, the provisions of the Act can never apply. For developing the contention that by reason of the provisions of sub-section (4) (a) the building premises or the suit premises are excluded from the exemption mentioned in sub-section (1) of section 4, Mr. For developing the contention that by reason of the provisions of sub-section (4) (a) the building premises or the suit premises are excluded from the exemption mentioned in sub-section (1) of section 4, Mr. Vaidya has contended that the true effect of the provisions of sub-section (4) (a) is that the phrase "premises belonging to the Government or a local authority" as contained in sub-section (1) of section 4 does not include a building held by any person under an agreement, lease or other grant from the Government. In my view, this cannot be the true construction of the provisions of sub-section (4) (a) of section 4. The construction as submitted by Mr. Vaidya altogether fails to take into account the phrase "on any land" along with the verb "held" as contained in sub-section (4) (a). The true construction of the provisions of sub-section (4) (a) can only be arrived at by giving correct effect to these two phrases "on any land" and "held" in the position in which they stand in the sub-section. What must be held under an agreement, lease or other grant given by the Government is "any land". The word "held" has no direct application to the phrase "building erected" as contained in sub-section (4) (a). If the above construction is borne in mind, the whole sub-section becomes entirely clear and free from any doubt in its meaning. In other words, the sub-section does not provide that the expression "premises belonging to the Government or a local authority" in sub-section (1) shall not include a building held under an agreement, lease or other grant. The building as mentioned in this sub-section is not the one, which is erected by the Government. The agreement, lease or other grant referred to in this sub-section do not relate to grant or transfer in respect of an erected building or building belonging to the Government. On the contrary, the wordings of this sub-section indicate that they relate to lands held under an agreement, lease or other grant from the Government on which a building is erected. The above being the true construction of the provisions of sub-section (4) (a), the only contention raised in this revision application must fail. 5. The revision application is dismissed with costs. 6. At this stage, the parties have consented that the decree for ejectment shall not be executed for six months from today. The above being the true construction of the provisions of sub-section (4) (a), the only contention raised in this revision application must fail. 5. The revision application is dismissed with costs. 6. At this stage, the parties have consented that the decree for ejectment shall not be executed for six months from today. Application dismissed. 19f13 iIh.L.J. ] I , APPELLATE CIVIL ( J. R. Mudhollcar Acting O. J. and Shah J. ) , COOVERJI JETHABHAI SHAH v. AMIR ABDUL ALl KACHW ALA ;,-- :};f A ppeilant.: !l~8Pondent::" ! , . Iii:" (.) Civil Procedure Code, O. 34, R. 1 and Mahomedan L.w....;lnkeritan~ •••. Suit to enforce mortgage executed in favour of decea8ed Mahomedan ", in8titute~ ibt G co.heir i8 maintainable if other co-heir8 are made defendant8 .. , ~;;.; ;;:1: . On the death of a Mahomedan female and her son in whose favour, a" IUOrt~age was executed by the debtor, her another son obtained a succession certificate, in respect, of the mortgage, and sued to enforce the mortgage security and also the persona.1 COV~n8rit:;Fils two sisters who were also heirs of the deceased were not originally made parties to the"1iffit. The plaintiff joined them as defendants more than six years after the accrual of the eemMj IOf action for enforcing personal covllnant. It was contended by thedefendt.t1tthattltd luit was bad in its entirety as it was not properly oonstituted, there beingl1nity Qf t~t~ .anli interest in the property of deceased in the enti,re body of the heirs of a deceas~d l\f.al)o~lldan and only one or some of the heirs oould not sue to recover a debt due to th8 decea~l;l, and that the two sisters ought to have been joined as plaintiffs and not. msrely all prb Jdrhaa c1efendants unless it was proved that they ~d refused to be joined as plai~iffs, ~nd that they would not be entitled to any relief. Held, that the heirs having been joinec1 in the suit, it could not be said..thai; if.,. not properly oonstituted; as to personal decree the claim would be maint~iriaple in viet,of thesucoession certificate (if filed within limitation). (1939) 41 Bom. L. R. 1127 (P. C.), 2~ All. 226, ReI. (Para. Held, that the heirs having been joinec1 in the suit, it could not be said..thai; if.,. not properly oonstituted; as to personal decree the claim would be maint~iriaple in viet,of thesucoession certificate (if filed within limitation). (1939) 41 Bom. L. R. 1127 (P. C.), 2~ All. 226, ReI. (Para. 12.) " f;f \ -" " (b) Limit.tion Ad, S. 19-5tatement by a debtor that hi8liabili~lIpn p,~ i8 di8charged doe8 not constitute an acknowledgment within mea1li*,1oJ 8&:Cion191, Where a person makes a statement to the effect that his liability 1i~on ~\!bl)tL~ been discharged, that statement cannot be regarded as acknowle4gmen~rof a debt for the purpose ofseotion 190ethe Limitation Act. A.I.R. 1956 Nag. 267, A. I. R. 1935 Mac1. 311, (1882) 19 Ch. D. 539 and A. I. It. 1924 Pat. 806, ReI. 10 Bom. L. R.385,Dist.: (Parah!5.)( h,.1i A mortgagee filed a suit more than six years aft~r accrual of cause of. action., F,~r . enforcing personal liability of the mortgagor, he relied on an endorsement by the mq~~or on a draft agreement which provided for execution of a fresh mortgage deed by the, mortgagor and a release by the mortgagee. The mortgagor had merely endorsed tJi6 itrJft• agreement which was to be executed by the mortgagee. ; , j Held, that the endorsement did not constitute an acknowledgment withib. tb~ "uitiail- ing of section 19. (Para. 15.) :>"101<11 I .••. For appellant-M. B. Ohitre and Mahendra H. $hoh. For respondent-B. G. Vahantlati and J. O. Dias. Ii I" I: JUDGMENT ,f ,~,,;j 1 MUDHOLKAR Actg. C. J. -- This is an appeal bylliefendanllNo.l ,to::a suit for the enforcement of a mortgage and of the petsoD;aF covenoot coRtain8d in it. O. C. J. Appl. No. 38 of 1959 (Suit No. 358 of 1967) deoi~edou20•9•160" ;) COOVERJI JETHABHAl v. AMra ABDUL ALl 2. Briefly stated the facts ~~ these: bef~ndant No. 1 mortgaged a house belonging to him, and situ\l.te at Mahabal~shWjlir wi~ho~e Safiabai and her son S~iraz onMay 4, 1950, by depositing the title deed of the said house. The considti~a.iiobfor the mortgage was Rs. 40,0001 and interest :was :ligteel:P to be paid tbereon ,at the rate of six per cent. per ,annum .. The due date for the redemption or the mortgage was May 4, 19tJt. ~afiabai died on: Aprl11" 1951, and.8hirat died t~ ~.er,;V;/J.e~.~8:Y: rT~preae~t,Plajp.W!~:dA~~~:~,Ab?~ali, is ~~tberson of. SafIabal, and defendants Nos. 2 and ~are the aaugi{te!s 8f Safiabai. 40,0001 and interest :was :ligteel:P to be paid tbereon ,at the rate of six per cent. per ,annum .. The due date for the redemption or the mortgage was May 4, 19tJt. ~afiabai died on: Aprl11" 1951, and.8hirat died t~ ~.er,;V;/J.e~.~8:Y: rT~preae~t,Plajp.W!~:dA~~~:~,Ab?~ali, is ~~tberson of. SafIabal, and defendants Nos. 2 and ~are the aaugi{te!s 8f Safiabai. It is admitted that these three persons constitute the only heirs of Safiabai and Shiraz. , ~; The plltil1tiff alone obtained a succession certificate on March 18,1952, ~tiillng him. ~o recover all the deBts and assets due to the estate of Shiraz and tWs sUQcession certificate was extended on October 29,1952, to the mortgage in q1Ul$,tion .. As nothing was paidon tbe mortgag~, the plaintiff instituted .~, EI1-\t on Obtober 21, 1959, against defendant No.1. In that suit h~ asked for p, tteClee for sale and in addition also asked for a personal decree against the defendant in case the amount realised by the sale of themortgaged-propertjr was insufficient to discharge the claim under the mortgage. 4. The aefendant took various contentions in his written st8ltement: but we would confine ourselves to only three of them because those were the ones Whfel1""~e pressed before us. The first contentit>n was that the suit, M mstitut,~~ was not properly constitute~ and, therefore, the Court ought not to have passed any decree whatsoever in favour of the plaintiff. The second defetl.oe was that the plaintiff was not entitled to a personal decree against defendant \iIfu. l;be~tl!ie theSuit -tvas instituted more than~ix yeArS aft8litrie a.llttual of tll~ t;1_ Of&lltioill• The third point urged W&H that too relief. sought by the ,Blaintiftin the plaint could not properly be granted. :!, , , $. It was hohtended o~. behalf of the defendant that though the plaintiff ~~4i a, s\lccessionceitificate in his favour, he wa~not entitled to sue upon the mortgage by himself since the other heirs of Safiabai and Shiraz were not j~in~d U pttttee. Thereupon the plairitiff made an application for amendment of the J.lii~t. In ~~at application he not Only asked for joinder of two: sisters &tide.fqp.a~n~Nos: ~aD;d3 ,~~t.;also~6~ being p~rt,hitt~d to. raise an additional plea to the effect that a certain docuIll-ent whi~~, llt¥lis, the signature of the defeildltnt o.,peJ.at~ ~ .• ~ a~k~nowl?4~II;l~~~Jof lia,~~~itya?~ ~rings the. claim with r~spect to the personal habIhty WIthm tIme. raise an additional plea to the effect that a certain docuIll-ent whi~~, llt¥lis, the signature of the defeildltnt o.,peJ.at~ ~ .• ~ a~k~nowl?4~II;l~~~Jof lia,~~~itya?~ ~rings the. claim with r~spect to the personal habIhty WIthm tIme. The applicatIOn was allowed by thelearned single Judge on April 15, 1958, without prejudice to the rights of defend.ant No.1 to raise the question Of IinUtation"thittthe claim of the plaintiffr was barred by limitation. It may be mentionedJihat in his application for a»lend. ment the plaintiff pleaded tha.t.4e,fen,ilants Nos. 2 and 3 were being joined merely as pro forma defendants and thereafter the defendant filed a supple~d,l ~itteh statement and in that written statement, amongst ~ther things, he raised a. contention that the claim in so far as defendants Nos. 2 and 3. are concerned was barredby limitation despite the allegations made in theappHha.tion for amendment and further that the document upon which reliance: ~ I"~liced by tfle plaintiffdmls not amount to an acknowledgment within the meaning of section 19 of the Limitation Act. The defendant also pointed out ~4at even after the addition of defendants Nos. 2 a.nd 3 as pro forma, defendantSto ,th6-II~t.. the plaoinWf8;~}lit w~nQt ,properly t co~\i~u~~., ,Tlte!UV9n, ,~t, ~ hearir;lgihQ plaintiff madeafurther,.l!PPlfc/lotion for awendm~nt, of the -ll~t seeking thereby to obtain a d~ree in respect of, tl¥ w.qrt,p.ge aJ.soin f&y.p~",~f ,defendaontsNos. 2 and 3. The,Court allowe4. *.~ i\loml1~d~~q,~. lI~~h6JMo~fIl tried the suit and eventuaolly deoided it on the ~"is of ~J~ ~l1e ~a1ie~~ ~~ "befote it. ; ":f, , ; "fl,<, , 6. The ,Court below negatived ,the defendants plea o.(flim~t,.tiQl,l. {ti_ negati:ved.1rlie defenda.nts contention that the suit !" badly ~~~~, ." , " 7. ~8tegatds the reliefs it came to the conclusion tha.t the plaintiff at his, tw6 sisters were entitled to the relief of enforcement of the mortgage byttte .s~l~ .of the, mortgaged property but so far as the relief under thep~l ,coven.iint fa concerned the plaintiff alone is entitled and p&8S~ 1I,t"~ ! acqordingly. " , ; , ~ f; •.. _ 8.l4r. Chitre confined hhnself~ainly to two poWts. The ~~t )}~I~~t ,the.s-uit, alleonstituted, was bad and the second, was, that. no, de?;re~ wh\~~tf IrPuid be passed against the defendant on t~e t.>eMpnal ~c>;veR-a¥~. " \I" , , • n. i ,;, ;9. acqordingly. " , ; , ~ f; •.. _ 8.l4r. Chitre confined hhnself~ainly to two poWts. The ~~t )}~I~~t ,the.s-uit, alleonstituted, was bad and the second, was, that. no, de?;re~ wh\~~tf IrPuid be passed against the defendant on t~e t.>eMpnal ~c>;veR-a¥~. " \I" , , • n. i ,;, ;9. It seems to us that the defendants colitention that:the,pWntUE •• wu badinlits entirety as it has not beel1 properijrconstit1atAld.,istmhiaaWt4.I~ is no doubt true as contended by Mr. Chitre, that under the MahomedanrilMv there being a unity of title and interest to the property of the deceased in the entire body of the heirs ofa deceased Mahomedan, iHe not penniMible for only one or SOlDe of such heirs to repreSent the entire body of heil8 .nll •• , therefore, a. suit by some only of the heirs to recover a debt due to the ,~ would be defective on the ground of lack of title orintetest Jin the heirs W tie suit. It would, therefore, folloW that the suit instituted by the plaiMifF ~e for the enforcement ofthe mortgage Wa.ll not properly constituted.. Bdt Mte plailltiff ~pplied for the joinder ofhis: two sisters, who are the o1\ly oth~1181ts of thedecealied, Sil.fl~bai;and Sliiill.j and his application was allowed. It~, therefore; follow! that after tihese two p~r80ns Were brought on recoN t~), M could not be said to be bb:dly constituted. "I t ", 10. Mr.Ohitre; hQ~ever, says that these t;wo persoqa shoul~ ha,v,~ b~ Join~d as plaintiffs and. ~~t ~erely as prohrma defendants. .iiie~li.r:jle ~tjll. ,m~~,"t ;~ppea~s t,o, h, a ve been ,ad vanoe, d before ,th, ~,CO?, "rt, b~l V, , ~~d:, r~~le, :4~~~:7., ,;wlt~,~h~~ ar~uID~?t, .the learne~. Ju~~e has ,referred ,~ 11:, 4?~18~Qll #lt~~1 Mu ~U,1;1Cil m ,J!onghfba. v. Ooover)" P). In that c~s~th~1;1 ~~~~~p.~,,~~r,e;?~l• t ,(~ge 1134):- . ... , ,," ., "" ":1 II) "UO , " ~~I.t has long~ bee.n rec?!lnised, t~at one ~~,ZP?r~, of; serer.f!o,\ ~r~?ll8Jo~II! ,, . can.brmganactlonmrespecto£ Jomt property, and,lt,thelr ngnt..to BuelB 0 , " ,:: , can amend by joining thdrr co-contraCtors all plMntitls if tht,:r~"~ :/ di£endanWif they will not .. , .Ob.ce all thsplJl!ies M-e"beio~6 coww,..,. ••••••. . !,,,.lae.1belapprapriaworder, and• should ,g\"\lI& j.\ld8wllfilm ~ •• "11 I j If; I: ~1Jl:~wb,e~~~IlYl>ejoinedMjl14w.9-ffB,Rr.de~~•r:"" i"d;rl,.C; oj l .O~ • .tll" ,;11• U,Now,.llere,l&8 in~he~ibefo •• ,t_I~9"J1IMiIJ,• "~,~.~ before,tl1e {iJol1n Mld, thQlefore, !It WaM,open ~tII8u""Ao"" ~ R ••• ,their favour •. , .Ob.ce all thsplJl!ies M-e"beio~6 coww,..,. ••••••. . !,,,.lae.1belapprapriaworder, and• should ,g\"\lI& j.\ld8wllfilm ~ •• "11 I j If; I: ~1Jl:~wb,e~~~IlYl>ejoinedMjl14w.9-ffB,Rr.de~~•r:"" i"d;rl,.C; oj l .O~ • .tll" ,;11• U,Now,.llere,l&8 in~he~ibefo •• ,t_I~9"J1IMiIJ,• "~,~.~ before,tl1e {iJol1n Mld, thQlefore, !It WaM,open ~tII8u""Ao"" ~ R ••• ,their favour •. ,;" : i ," " "- ,;I, ,:IT" III!J! HI; Hlj ]0 t:I1;~"<, ii •• niJttlJ .1" : i r~.""Mt;l~liftretheii~l!ii~liatli ~tsoffWtiot~"VIMI_~ co-plaintiff would not be entitled to be given reliefafter1MSipl liia4ea Jfr "(1) (i939) 41~o~: t ~ 1127 (~,.+,,~~~~P},-~,~~. -;~? fI~,~(~~ ~~:t!11 (~, r ".. " I - . : :. - ," I :COO\1ERJr JETHAB1rAl v. Ama ABDUL ALl [ 1963 m.u. .t.~ l!-;Sllit tittlessit is shown that that person was unwilling to be joined as 00• plaidtiff. In other words, according to him, where a person, who ought to have b~~n joiIiedas a plaintiff to the suit, was not joined as a co-plaintiff beO&U8e li~~ has refused to be so joined then only he would be entitled to be granted a Ir~1iJfiatterbeing made defendant to the suit but not otherwise. Mr. Chitre points out that in this case there is no evidence to show that defendants Nos. 2 , and 3 had originally refused to be joined as plaintiff to the suit, and therefore, they would not be entitled to any relief whatsoever. The result of this, accord• ,ip.g tc:)him, would be that these persons can be regarded as pro forma defend. ~tsonly. who would not be entitled to any relief. Since the plaintiff alone iWoukl not, according to Mr. Chitre, be entitled to claim relief in respect of the ,UI,Qr,~age,his suit must be regarded as bad. We think that a suit should not be dismissed upon the sole ground that the plaintiff has not averred or proved .t~tsome persons who ought to have been made co-plaintiffs and were subseqUently ,made defendants to the suit had refused to be joined as co-plaintiffs. lIIi thi~ connection we may refer to the decision in Pyari MohlJ,It. B08ev. Kedarna:th Roy (1) and Biri Singh v. Nawal Singh (2). In both these cases the learned Judges of the two High Courts took the view that it would not be :proper in the circumstances like those present before us to dismiss the plaintiffs ,sUit. 13. Mr. Chitre then contended that in so far as the personal relief is con• . Kedarna:th Roy (1) and Biri Singh v. Nawal Singh (2). In both these cases the learned Judges of the two High Courts took the view that it would not be :proper in the circumstances like those present before us to dismiss the plaintiffs ,sUit. 13. Mr. Chitre then contended that in so far as the personal relief is con• . QetD.ed the plaintiff alone would not be entitled to institute a suit without ,having joined. defendants Nos. 2 and 3 as parties to the suit. He joined them 018 Parties to the suit beyond the period of limitation and, therefore, in so far as l~t relief is concerned, the suit will have to be regarded as having been insti• ,,1iluted by one only of the several heirs of a deceased Mahomedan. Such a suit, he i pontends, would be incompetent and in support of this he relied upon a }~cision of a Division Bench of this Court in Virbhadrappa Skilvam v. ,Bh£kahai (3) .. This argument proceeded upon the basis that even in so far as the enforcement of the mortgage is concerned, the suit cannot be regarded ,as one. for th.e recovery of a debt. We cannot accept this argument in view of what has been held by this Court in Virbhadrappa Skilvant v. Skekabai (3). If we analyse the present suit, it will be clear that what the plaintiff haa sought aI:e,~wo distinct reliefs: One i8 the enforcement of the mortgage 8ecurity and the other is the enforcement of the personal covenant. So far 808 the fOrIner relief is concerned, it can no doubt be said that the plaintiff is only enfo~cjng one of the terms of the mortgage deed and not proceeding to realise a debt; but "so•far as the second relief is concerned the plaint~ can be said to be doing nclthing but seeking to realise the decretal amount or deficiency under the per. 80nal covenant. Now, here, as already stated, the plaintiff obtained a succes. sion certifioate entitling him to recover among others the debt due from defend. ant No.1 to Safiabai and Shiraz. The succession certificate thus entitles him to do that which his personal law could not enable him to do. Therefore, the ,merefact that defenda.nts Nos. 80nal covenant. Now, here, as already stated, the plaintiff obtained a succes. sion certifioate entitling him to recover among others the debt due from defend. ant No.1 to Safiabai and Shiraz. The succession certificate thus entitles him to do that which his personal law could not enable him to do. Therefore, the ,merefact that defenda.nts Nos. 2 a.nd 3 were not joined as parties to the suit within six years of the accrual of the oause of action for the enforcement of the , ~~oIl!lcovenant would not render the plaintUIs suit for its enforcement bad. il;;.!til," (1899) I L R 26 Cal. 409. (2) (1898) I L R 24 All. 226. (1938) 41 Bom. L R 249=A I R 1939 Bom. 188. " 1 r I COOVREJI JmlIlABIlAI v. AMtBABDUL ALl 14. The question then is whether the plaintiff is entitled to 8. c;leoree against defendant No. 1 upon the personal covena~t. As already stated the plaintiff had not pleaded in the plaint that the suit was within limitation be. cause of any acknowledgement made by the defendant before the expiry of the period of limitation." The due date for the redemption of the mortgage, as already stated, was May 4, 1951. The suit was, however, instituted on Novem. ber 15, 1957, that is, more than six years after the creation of the equitable mortgage. No doubt the memorandum of the mortgage was duly registered. Even so, the mortgagee had to bring a suit within six years of the accrual of the cause of action for the enforcement of the personal covenant. The plaintiff has not given any satisfactory reasons in his application for amendment for not referring to the acknowledgement in the plaint. All that he has said is that the documents upon which the plea is based were in the possession of some solicitors and he came upon the documents only recently and nothing more. The statement is much too vague. Even so, the statement having been oate• gorically denied by defendant No.1, it was necessary for the plaintiff at least to Pu.t in an a.ffiuavit of the solicitors. lIe fa.iled to do so a.nd, therefore, in our opinion, the amendment of the plaint permitting the pla.intiff to refer to the alleged acknowledgment ought not to have been granted. Even so, the statement having been oate• gorically denied by defendant No.1, it was necessary for the plaintiff at least to Pu.t in an a.ffiuavit of the solicitors. lIe fa.iled to do so a.nd, therefore, in our opinion, the amendment of the plaint permitting the pla.intiff to refer to the alleged acknowledgment ought not to have been granted. Apart from that, having read the document, which is supposed to operate as an aoknowledgme~ we have no doubt whatsoever that it does not amount to an acknowledgement of liability by defendant No.1. 15. Aocording to the plaintiff, after the death of Safiabai and Shiraz, he repeatedly demanded the repayment from the defendant but the latter put him off on one pretext or another. In March 1952 in order to deal with the matters relating to theestate of the deceased he obtained a succession certificate. The plaintiff says that he gave further timeto the defendant for redemption of the mortgage deed and that it was arranged between him and the defendant that the latter should execute a fresh equitable mortgage in his favour while the plaintiff himself in his turn should execute a release of the previous equitable mortgage in favour of the defendant. Pursuant to the said arrangement instructions were, according to the plaintiff, given to Mr. Bhedwar, a solicitor of M fs. Mulla & Mulla. Mr. Bhedwar prepared a draft of the release deed and a draft mortgage-deed. It is common ground that the defendant endorsed his, approval on these drafts and also signed beneath the endorsements made by him on them. The draft deed of release contained, amongst other terms, the following: " ••• AND WHEREAS the said principal sum of Rs. 30,000 (Thirty thousand) and the sum of Re. 1384 for interest making together the sum of Rs. 31,384 are due and owing to the Mortgagee under the said Equitable Mortgage and WHEREAS the Mortgagor is desirous of paying to the Mortgagee the said sum of Rs. 31,384 and having a Release from the Mortgagee as is hereinafter expressed .•.. " According to the plaintiff the aforesaid recital in the draft deed of release, which contains an endorsement of approval under the signature of the defendant con. stitutes an acknowledgment of liability within the meaning of section 19 of the Limitation Act. In our opinion, there is no substance in the contention. " According to the plaintiff the aforesaid recital in the draft deed of release, which contains an endorsement of approval under the signature of the defendant con. stitutes an acknowledgment of liability within the meaning of section 19 of the Limitation Act. In our opinion, there is no substance in the contention. For one thing, the document was to be executed not by defendant No.1 but by the plaintiff and his two sisters. Therefore, whatever was said or was intended to be said in those documents was intended to be so said not by defendant No. 1 bot by the plaintiff and his two siste18. The mere endoraement by the defend. ant on the draft of the do~ument showed that he perhaps did agree that s.u.oh " deed ma.y be executed but it cannot by any stretch of imagination a.motmt ~ making a.nacknowledgment of existing liability to the plaintiff. Apart from that, the document, as a deed of release, has to be read as a whole. When it is read as a whole we find that it contains a statement to the effect tha.t th,e entire debt due on the mortgage dated May 4, 1950, has been fully satis~. Therefore, if at all there is an acknowledgment, it is not an acknowledgment qf a subsisting liability. In that document the liability is said to have been cOJ:P.pletely discharged. Where a person makes a statement to the effect that . ~ liability upon a debt ha.s been discharged, that statement cannot be regarded lIoIl a.oacknowledgment of debt which could be availed of for extending time un..wr section 19 of the Limitation Act. In this connection we may refer to the judgment of.Mr. Justice Kotval in Nar8ingdas v. Ohhaikodilal (1) and to the ~cislons in . N. A. M. Appasami v. Morangam (2) and Harlock v. A8hberry (3)011 which reliance was placed by the learned Judge. We may also ref~r totb.e decision in Ohhaterdhari Mahto v. Nasi,b Singh (4). In that c&Se it wa.s 4~ld that where there was an acknowledgment that there was a mortgage- blJ.t .tber~ was no express statement that it was discharged, but there was Q.stat.ement that in order to pay it off a sale was effected and since the date ofthe~~.ijle vendees had been in possession of the property that writing would not-Q€.W&titute an acknowledgment of liability under section 19. 16. Mr. 16. Mr. Vahanvati, who appears for the plaintiff, has referred UB to the decisio~ of this Court in Sheikh Mahomed v. Jamaluddin (5), in support of hill contention that a mere reference to liability in a document. by a debtor is BUm. eient to constitute an acknowledgment. In that case the plaintiff ha.d institut,ed a suit for redemption. On the face of it the claim was batted by time but in order to bring it in time they relied upon a certain document as amounting to acknowledgment within the meaning of section 19 of the Limitation AQ1l. The nature and the purport of the document is described thus by Chanday~rj{a.r,.:r. in his judgment at page 386:- "It is neoessary to state shortly the nature and purport of that-Exhibit, 80 f81"8S they are material for the purposes of that question. In 1882 the Settlement Officer had to determine under the Khoti Act the tenure on which the lands in dispute were.hel~l,y their occupants, who were also mortgagors underthe mortga.ses now concerned. Those occupants asserted their title to the lands as dhurekuria and alleged that the evidence of that title was contained in certain books relating to the payment of assessment which they further stated, were in the possession of two of the Khots. who _re expressly named by them and described also as mortgagees. These statements. of the occupants, which included the description of the two Khots as mortgagees were recorded by the Settlement Officer in a big book, of which Exhibit 88 is an extract. At the end of that book, several Khots admitted in writing signed by them the correctness of the state. m~nts made by the occupants to the above mentioned effect and recorded by the Settle. ment Officer." The learned Judge held that (page 387): " ... Where a mortgagor describes his mortgagee as such and the latter admits in writ. ing over his signature the correctness of that desoription, the meaning of the admiuion is as plain as langu≥ oan make it. Thereby the mortgagee unmil!t~k&bly,~ ~~t heis what he is described to be-a mortgagee." (1) . A I R 1956 Nag. 267. () A I lit 1924 Pat. 806. (2) A I R 1935 Mad. 371. (3) (1882) 19 Ch.D.,63Q. (5) (1908) 10 Bow. L.R 385. Further, according to the learned. Judge, it is aneceBsaryimplication from the .flinisSion that he ac~nowle~ges al,lth.e legal conse9-u~nces. A I R 1956 Nag. 267. () A I lit 1924 Pat. 806. (2) A I R 1935 Mad. 371. (3) (1882) 19 Ch.D.,63Q. (5) (1908) 10 Bow. L.R 385. Further, according to the learned. Judge, it is aneceBsaryimplication from the .flinisSion that he ac~nowle~ges al,lth.e legal conse9-u~nces. or his p,9sitioua,B ~ ~.rtgagee,oneof which is his,liapility to be redeem~ " .. ", 17 .. In our opinion, the recitaHri the dooument, vvitioli .a~.before <the IeatnedJudgein that case was quite different from. that in the case.hefote1is. ~P&l1i from that, as we .ha.ve already pointed out, defendant No.1 at no p~1i of timejn~ended to make any acknowledgment whatsoever and had in fact; ~ made an aoknowledgment. IS. l:Jpon this vitlw we hold that the plaintiffs claim, for pe1sonal relief against defendant No. 1 was barred by time at the date of the suit and. ~ .lOfcN1edaCiknowledgment does not bring it within limitation. " 1~. in the result the appe~l is partly allowed and the decree of the Co~t below is modified by deleting the direction ... ,. , "In the event of the net sale proceeds proving insufficient to satisfy in full tile , amount payable hereunder the plaintiff will he at liberty to apply for a personal decree against the first defendant for the balance: 20. As regards the costs we direct taat the plaintiff-respondent will get oQly two.thirds of his costs in this Court. He will also get two.thirds of lii$, costs in the lower Court after January 28, 1959. As regards the oosts prior to that date we oonfirm the order of the Court below. 21. The respondents are at liberty to withdraw the deposit towards the two•thirdll of the costs or the appeal. SPECIAL CIVIL APPLICATION (H. K. Ohainani O. J. and K. K. Desai J.) SULEMAN FAKRtTDDIN ANSARI Petitiotle,.. v. S. B. KULKARNI and another Opponents. (d BOIIb.yPrOYiDci.1 Municipal Cerporations Act (LiX of 1949), Scheelale. Ch.pter I, Election Ralest R. 9 (Z), Cl. (c)-Oandidate omitting to sign taOmiM- ion rrr in tok~l\ ~r ~{{t\il\" ~ ~\ l\~\11\t\\\.r.~~ ,\\It\\\\\\u _ fJaptr. The requirement of clause (c) in sub-rule (2) of rule 9 of the Election BuIes that the nOhliBation paper must bear the signature of the person nominated in token of hiswillingnelB to be so nominated is not a technical or unsubstantial requirement but is an essential require. The requirement of clause (c) in sub-rule (2) of rule 9 of the Election BuIes that the nOhliBation paper must bear the signature of the person nominated in token of hiswillingnelB to be so nominated is not a technical or unsubstantial requirement but is an essential require. ment.The assent of the candidate to his nomination must be indicated by his signature on the nomination paper. If, therefore, a candidate fails to sign his nomination paper, the nomination cannot be said to have been made in accordance with the provisions of rule 9. An essential requirement of rule 9 not having been fulfilled, the defect will be of a substaMial character and the nomination paper will be invalid and the defect cannot be cured by eatil. fying the Returning Officer in some other way that the candidate was willing to stllnd for the election. (1960) 3 S. C. R. 650, FoIl. (1955) 1 S. C. R. 481; (1955) 1 S. C. R. 267; (1055) 2 S. C. R. 1029, A.I.R. 1959 Pat. 419, Expl; (1958) A.I.R. Kerall54, Dist. (Paras. 9-10.) (b) Constitution of IDdia. Arts. 226 and 221-Petition Jor setting aside order oj Returning Officer holding nomination valid-Error apparent on Jace oj reC01d-Petition well in advance oj date oj poliing-RelieJ should, not be reJused on 1M ground that remedy by election petition is available. Spi. C. Appln. No. 1374 of 1962 decided on 20•9-1962. GR.