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1982 DIGILAW 156 (GUJ)

VORA GAFURBHAI AJAMBHAI v. VORA KADARBHAI USMANBHAI

1982-09-16

N.H.BHATT

body1982
N. H. BHATT, J. ( 1 ) [his Lordship after discussing the evidence further observed :] ( 2 ) THIS brings me to the second contention vigorously put forward by Mr. Zaveri to save the plaintiff suit. It was firstly contended that the mortgage deed Ex. 50 itself saved the period of limitation because there is an acknowledgment of the previous mortgage. It is to be noted with pertinance that Ex. 50 is executed one-sidedly by the mortgagor No. 2 of the deed Ex. 49. It is no doubt addressed to the mortgagee but the acknowledgment in writing is only of the mortgagor No. 2 who is the sole mortgagor of the deed Ex. 50. The document in its material part does not bear any signature of the mortgagee. Mr. Zaveri. however urged that this deed Ex. 50 was presented to the Registrar by the mortgagee and therefore under sec. 32 of the Indian Registration Act he can be said to be a person claiming interest under the deed. This cannot be gainsaid. However only inference that can be drawn from this signature about presentation is that he was claiming a mortgagees right under that deed and no further. It is no doubt true that the Supreme Court in the case of M/s. LAKSHMIRATAN COTTON MILLS CO. LTD. V. M/s. BEHARI LAL RAM CHARAN A. I. R. 1971 S. C. 1482 has observed that the statement on which the plea of acknowledgment is founded need not amount to promise and need not indicate the exact nature or the specific character of the liability. However what Mr. Zaveri wants me to infer is that from the endorsement of presentation made by the mortgagee whatever is stated in the document must be treated to have been acknowledged and that too in writing by the mortgagee is difficult to be accepted. ( 3 ) MR. Zaveri has cited various other rulings also but in each of those cases there was a direct acknowledgment in substance. As for example in the case of LALA SONI RAM V. KANHAIYA LAL 15 G. L. R. 489 receipts of the money received by the mortgagee were be evidence that they had taken money from the public authorities as mortgagees and the register of the public authorities did mention the description of the recipient of that amount as being of mortgagees. So that authority would not help the plaintiffs. It is no doubt true that as held by the Bombay High Court in the case of HIRALAL ICCHALAL MAJMUDAR V. NARSILAL CHATURBHUJDAS DESAI 11 B. L. R. 318 (324)a man who puts his signature must know what he is doing and a presumption may be drawn that a man who signs a particular documents must be presumed to have known what he signed. In the case on hand the mortgagee took the deed Ex. 50. At the most he can be said to have known that he was given a charge on the very property which was mortgaged with him but that does not mean that there was any express or implied intention on his part to make any acknowledgment. ( 4 ) IN above view of the matter it is difficult to say that Ex. 50 contains an acknowledgment and that too in writing by the mortgagor acknowledging his liability as a mortgagee evidenced by the earlier document Ex. 49. It is perhaps because of this unsurmountable difficulty that this point was not canvassed before the learned appellate Judge in the manner in which it was done by Mr. Zaveri before me. ( 5 ) IT was then alleged that in the year 1920 there was City survey enquiry and in the course of the inquiry certain statements were taken and on the basis of those statements an order Ex. 66 had come to be made. That order mentions that the mortgagee s statement was taken and he admitted that his possession was as a mortgagee The original statements ate not forthcoming. Mr. Zaveri has not been able to show to me that those original statements are not tracable. The Supreme Court in the case of SHIVLAL AND OTHERS V. CHETRAM AND OTHERS A. I. R. 1971 S. C. 2342 has clearly laid down that such incidental reference to statements cannot attract the provisions of sec. 18 of the Limitation Act. Mr. Zaveri has not been able to show to me that those original statements are not tracable. The Supreme Court in the case of SHIVLAL AND OTHERS V. CHETRAM AND OTHERS A. I. R. 1971 S. C. 2342 has clearly laid down that such incidental reference to statements cannot attract the provisions of sec. 18 of the Limitation Act. In that case the plaintiff had purchased the rights of the mortgagors and had filed a suit for redemption of the mortgage alleged to have been brought about in the year 1895 and for the purpose of acknowledgments he relied upon a certified copy of the statement made in the mutation proceedings but neither its original was produced nor any witness was examined to prove that the person who had signed the original document had in fact signed it or not. The Supreme Court in that case ruled that the certified copy could not serve as an acknowledgment the mortgagee. In the case on hand even a certified copy of the statement is not there. So the order Ex. 66 can serve no purpose. The statement Ex. 77 is proved to have been made by the mortgagees one of the heirs but that bears the date 23-8-1950. In order to be effective acknowledgment that acknowledgment must be within the period of limitation. For redemption of the mortgage Ex. 49 the period had already expired on 29-6-1949 and therefore the learned trial Judge rightly observed that this Ex. 77 which is the statement made by Kadarbhai Usmanbhai the heir of the mortgagee that is the defendant No. 1/1 in this case could not lend any help to the plaintiffs. ( 6 ) THERE is one more difficulty also in the way of plaintiffs. It is the settled legal position that one co-mortgagee cannot give an acknowledgment of mortgage for end on behalf of other co-mortgagees unless the former is authorised by the others to do so. We have to recall here that the mortgage Ex. 49 is taken by Abdulkarim Ajambhai not in his individual capacity but as the manager of some business run under the name of his father. The plaintiffs in their plaint have impleaded as the respondents the heirs not only of Abdulkarim Ajambhai but also the heirs of Abdulkarims another brother Mohmadbhai and they are the defendant Nos. 1/4 1 1 and 1/7. The plaintiffs in their plaint have impleaded as the respondents the heirs not only of Abdulkarim Ajambhai but also the heirs of Abdulkarims another brother Mohmadbhai and they are the defendant Nos. 1/4 1 1 and 1/7. This means that though the mortgage Ex. 49 was taken by Abdulkarim it was also for and on behalf of his brother Mohmadbhai. Otherwise the plaintiffs would not have made Mohmadbhais heirs as the co-mortgagees. Only branch of Abdulkarim would have been impleaded as the respondents. Usmanbhais alleged acknowledgment in Ex. 50 therefore cannot serve any purpose. .