Sreekumaran Nair v. Velayudhan Nair — 1994 DIGILAW 58 (KER)

Judgment :- Krishnamoorthy J. This Second Appeal was referred by one of us (Krishnamoorthy, J.) as an important question of limitation arises in this appeal. The question of limitation will depend upon the question as to whether one of the decree-holders in a redemption suit with executes a decree by virtue of the provisions contained in O.XXI R.15 of the Code of Civil Procedure can be equated to a redeeming co-mortgagor who redeems property de hors a decree. A learned Single Judge of this Court in S.A.No. 844 of 1979 has held that in such eases the position is the same. The matter was referred to a Bench as the learned Single Judge had his own reservations in the matter at that lime. 2. The 13th defendant in a suit for partition is the appellant. B. Schedule property forms part of A schedule. A schedule property belonged to the tarwad to plaintiffs 1 to 7 and defendants 1, 4 and 8 and others. It was outstanding on a mortgage from 1066 M.E., renewed in 1077 ME and again in 1092 ME. To redeem that mortgage the present 'plaintiffs 2 and 4 and defendants 1 and 4 and others filed O.S.No. 1274 of 1121 before ».! the Munsiff s Court, Trivandrum. A decree for redemption and recovery was passed 11 on payment of 700 fanams as mortgage amount and Rs. 538 and 7 anas as value of improvements on behalf of the tarwad. In the meanwhile, there was a suit for partition in the tarwad which was O.S.314 of 1124 before the Munsiffs Court, Trivandrum. The equity of redemption over the plaint schedule property was item No.3 in that suit. Defendants 13 and 15 in the suit were allotted specific plots. It is also alleged in the plaint that defendants 1 to 12 were allotted a plot of 311/2 cents. The present plaintiffs 1, 2 and 4 were defendants 4 to 7 in O.S.314 of 1124 and present defendants, 1, 4 and 8 being defendants 8,10 and 9 in that suit. The present defendants 14 and 16 are the children of the 12th defendant in that suit. Ext. Al is the decree in that case; the preliminary decree being on 24-10-1949 and the final decree being on 9-11-1953. The present 1st defendant, and her children filed O.S.No. 176 of 1963 before the Munsiff's Court, Padmanabhapuram for partition of their joint properties. The present defendants 14 and 16 are the children of the 12th defendant in that suit. Ext. Al is the decree in that case; the preliminary decree being on 24-10-1949 and the final decree being on 9-11-1953. The present 1st defendant, and her children filed O.S.No. 176 of 1963 before the Munsiff's Court, Padmanabhapuram for partition of their joint properties. The present plaint schedule property was C-schedule in that suit. By a decree dated 3-8-1967 it was held that the equity of redemption was divided in O.S.314 of 1124 and it was further held that 20 members of the sub-tarwad are each entitled to 11/240 shares in the equity of redemption. 11/240 shares of late P.K. Madhavan Nair devolved on defendants 17 to 20. In the meantime, in execution of the redemption decree in O.S.No. 1274 of 1121, the present 4th defendant (10th plaintiff in that suit) applied for execution on behalf of the decree-holders and got delivery of the plaint schedule properly on 13-9-1963. The 41h defendant transferred her right in the property to the 13th defendant under a sale deed Ext. A4 dated 16-11-1968. The present 4th defendant has to be deemed to be in possession on behalf of the sharers as also the 13th defendant who is an alienee of the 4th defendant. Plaintiff arc entitled to get partition of their share in the plaint B schedule property. Plaintiffs are also prepared to pay the proportionate amount payable to the 41h defendant or her assignee towards the redemption price deposited for getting-delivery in the redemption decree in O.S.No. 1274 of 1121. Tentatively the plaintiffs have fixed their share of the amount at Rs. 6,000/- which they are prepared to deposit. Plaintiffs are also entitled to settlement of accounts. It is further alleged in the plaint that there is no limitation for the suit as the delivery was taken on behalf of all the sharers. So also, 4th defendant has acknowledged the mortgage under Ext. A4 sale deed dated 16-11-1978 and the suit within 12 years of that dale is not barred by limitation. On these allegations the present suit is filed for partition and recovery of their share, on 17-11-1980, on their paying the proportionate redemption price deposited by the 4th defendant. 3. Defendants 4 to 7 claimed their share in the property and further offered that they are prepared to pay the proportionate mortgage amount. On these allegations the present suit is filed for partition and recovery of their share, on 17-11-1980, on their paying the proportionate redemption price deposited by the 4th defendant. 3. Defendants 4 to 7 claimed their share in the property and further offered that they are prepared to pay the proportionate mortgage amount. The 13th defendant who is the appellant and the main contesting defendant filed a written statement contending that the redemption by the 41h defendant was in her individual capacity and that as a co-mortgagor obtained redemption by depositing the mortgage money and value of improvements. It was contended by the 13th defendant that at the time the 41h defendant recovered the property in execution of the decree, the Tarwad had attained the status of division in view of the partition decree in O.S.314 of 1124 and that the recovery of possession was not on behalf of the tarwad. The delivery was in her individual capacity and as a co-mortgagor. Delivery was on 18-9-1963 and the original mortgage was of the year 1092. The period of the original mortgage as also 12 years had lapsed from the date of delivery and accordingly the suit is barred by limitation. It was further contended that there is no acknowledgment in Ext. A4 which will extend the period of limitation under the limitation Act. 4. The trial court held that the present suit is barred by limitation as the period for redemption of the 1092 mortgage had already expired as also 12 years had expired from the date of delivery in favour of the 41h defendant. But in appeal the lower appellate court reversed the finding of the trial court and held that the execution of the redemption decree by the 41h defendant was for and on behalf of all the joint decree-holders and the possession thereby obtained is for and on behalf of the joint decree-holders and accordingly the suit is not barred by limitation. The lower appellate court did not express any opinion on the question as to whether there is any acknowledgment in Ext.A4 sale deed or not. The lower appellate court did not express any opinion on the question as to whether there is any acknowledgment in Ext.A4 sale deed or not. Consequently, the lower appellate court passed a preliminary decree for partition declaring that the plaintiffs arc entitled to get 157/480 shares over the plaint B schedule properties, and that the 13th defendant is entitled to get compensation for value of improvements effected in the property subsequent to the dale of redemption, the quantum of which will be assessed in the final decree proceedings. It is this decree that is being challenged in this appeal by the 13th defendant. 5. Counsel for the appellant 13th defendant contended that the suit is barred by limitation. The 13th defendant is the assignee from the 4th defendant. It is admitted in the plaint that the properly was redeemed in execution of the decree in O.S.No.1274 of 1121 by the 4th defendant using her own funds and that her possession is that of a redeeming co-mortgagor and the suit has to be filed either within the period for redemption of the original mortgage or within 12 years from the date she obtained possession of the properly from the mortgagee. On the other hand, counsel for the respondents-plaintiffs contended that by virtue of the provisions contained in O.XXI R.15 CPC the execution by-the 4th defendant, even though using her own funds for paying the redemption price, can only be for and on behalf and for the benefit of all the joint decree-holders and accordingly her possession has also to be treated as such. It was further contended that the redemption decree in O.S.1274 of 1121 was on behalf of the tarwad and not by the plaintiffs individually and the possession obtained by the 14th defendant has to be treated as possession of the tarwad and accordingly no question of limitation arises. He further contended that there is an acknowledgement of the liability to be redeemed in Ext. A4 assignment deed executed by the 4th defendant in favour of the 13th defendant on 16-11-1978 and the suit being within 12 years is not barred by limitation. He further contended that there is an acknowledgement of the liability to be redeemed in Ext. A4 assignment deed executed by the 4th defendant in favour of the 13th defendant on 16-11-1978 and the suit being within 12 years is not barred by limitation. Accordingly the questions that arise for consideration in this appeal are: 1) When a redemption decree is executed by one of the decree-holders depositing the mortgage money and value of improvements, can he be equated to the position of a redeeming co-mortgagor for the purpose of determining the period of limitation for the suit; 2) Whether the redemption by one of the junior members of the tarwad can be said to be on behalf of the Tarwad; and 3) whether there is any acknowledgement in Ext. A4 assignment deed executed by the 41h defendant in favour of the 13th defendant. 6. Point No. 1:-There is not much dispute on the facts' of this case. The property belonged to the Tarwad of the plaintiffs and defendants 1, 4, Sand 22. It was outstanding on a mortgage of 1092 ME. For redeeming that mortgage, the present plaintiffs 2 and 4 and defendants 1 and 4 and others filed O.S.No. 1124 of 1121 on the file of the Munsiffs Court, Trivandrum. In that suit a decree for redemption was passed on payment of 700 fanams as mortgage amount and Rs. 538 and 7 anas as value of improvements on behalf of the tarwad. The 41h defendant alone filed an execution petition by depositing the mortgage money and value of improvements and obtained delivery of the property on 13-9-1963. Thereafter, she assigned the properly in favour of the 13th defendant by Ext. A4 sale deed dated 16-11-1978. There cannot be any dispute that the mortgage money and value of improvements were deposited by the 41h defendant, as the plaintiffs themselves in para.16 of the plaint have offered to pay the proportionate mortgage amount payable to the 41h defendant or her assignee towards the redemption price deposited in O.S.1274 of 1121. In the meantime, there was a suit for partition of the tarwad and it became disrupted by the preliminary decree Ext. Al dated 24-10-1949 in O.S.314 of 1124. So also, there was a partition suit in the sakha of the 1st defendant, O.S.176 of 1963, and a decree for partition was passed in that suit as well on 3-8-1967. In the meantime, there was a suit for partition of the tarwad and it became disrupted by the preliminary decree Ext. Al dated 24-10-1949 in O.S.314 of 1124. So also, there was a partition suit in the sakha of the 1st defendant, O.S.176 of 1963, and a decree for partition was passed in that suit as well on 3-8-1967. This development will assume importance while we consider point No. 2. It is contended by appellant's counsel that the position of the defendant who redeemed the properly by executing the decree and obtained possession on 13-9-1963 has to be equated to that of a co-mortgagor redeeming the properly and that in the light of the decision of the Supreme Court in Valliamma v. Sivalhanu (AIR 1979 SC 1937) a suit by the non-redeeming co-mortgagor for recovering his share of the property has to be filed either within the period of limitation for redeeming the original mortgage or within 12 years from the date on which one of the co-mortgagors obtained possession of the property. He further contended that both periods having elapsed in this case the suit is barred by limitation. On the other hand, counsel for the respondents contended that there was a redemption decree and Thal the 41h defendant could have executed decree only on behalf of the decree holders by virtue of the provisions contained in O.XXI R.15 CPC and that the possession which she obtained must be treated as on behalf of all the joint decree-holders and accordingly unless the 41h defendant proves that (here is ouster of the other co-owners, there cannot be any limitation. 7. Now by the decision of the Supreme Court reported in AIR 1979 SC 1937 referred to above, it is settled that the period of limitation for a suit by a non-redeeming co-mortgagor to recover his share in the mortgaged property is either the original period fixed for filing a suit for redemption of the original mortgage or 12 years from the date on which the redeeming co-mortgagor obtained possession of the property. If that be the position, there cannot be any dispute that this suit is barred by limitation as the present suit is filed only on 17-11-1980 long after the period for redeeming the original mortgage expired as also more than 12 years after the date on which the 4th defendant obtained delivery of possession of the properly. 8. If that be the position, there cannot be any dispute that this suit is barred by limitation as the present suit is filed only on 17-11-1980 long after the period for redeeming the original mortgage expired as also more than 12 years after the date on which the 4th defendant obtained delivery of possession of the properly. 8. The only further question to be decided in as to whether the fact that the 4th defendant redeemed and obtained possession of the property in execution of a redemption decree jointly obtained by others will make any difference, in the light of the provisions contained in O.XXI R.15 CPC. Order XXI R.15 CPC reads as follows: "15. Application for execution by joint decree-holder.-(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree impose any condition to the contrary, apply for the execution of the whole decree for the benefit of them all or where any of them had died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application." The effect of obtaining possession of the properly mortgaged by executing a decree for redemption by applying O.XXI R.15 CPC in relation to the substantive rights under S.92 of the Transfer of Properly Act was considered by a learned Single Judge of this Court (Varghese Kalliath, J.) in an unreported decision in S.A.No. 844 of 1979. After discussing the various view points, the learned judge held in that decision as follows: "19. The decree in a suit for redemption only enables the decree holders to obtain possession of the property by depositing in court the decree amount, namely the mortgage price. The assignment of the decree in effect gives the assignee an entitlement to deposit the mortgage amount in execution and redeem the property and thereby obtain possession of the property. The decree in a suit for redemption only enables the decree holders to obtain possession of the property by depositing in court the decree amount, namely the mortgage price. The assignment of the decree in effect gives the assignee an entitlement to deposit the mortgage amount in execution and redeem the property and thereby obtain possession of the property. This right under the decree is nothing but the pre-existing right of the mortgagor to redeem the property which has been crystallised by the decree and so the purchaser of a redemption decree is in the same position as that of a purchaser of an equity of redemption. If the purchase is in respect of the right in the decree of one of the joint decree holders, the assignee decree holder is in the same position as that of a purchaser of a part of the equity of redemption. So by the purchase of the rights of one of the decree holders (a co-mortgagor), the assignee decree holder becomes a co-mortgage or who is entitled to redeem the whole mortgage and thereby entitled to be in possession of the property as a redeeming co-mortgagor. The procedure prescribed in O. 21, R.15 and 16 will not militate against the substantive right under S.92 of the Transfer of Property Act". We are in complete agreement with the view expressed by the learned Single Judge, quoted above. Order XXI Rule 15 only provides that one of the decree-holders can apply for execution of the whole decree for benefit of all the other decree-holders. We were not shown any decided case where one of the decree-holders had to pay certain amounts for obtaining possession of the property as in this case. Though no doubt, one of the decree-holders executes the decree for the benefit of all the other decree-holders, if the recovery of possession of the property in execution is by payment of any money payable by all the decree holders as in this case in equity the co-decree holder who obtains possession will be entitled to retain possession of the same until the other co-decree holders pay their share of the debt to the decree-holder who executes the decree. Every suit must have a period of limitation. Every suit must have a period of limitation. If one of the decree-holders pays the redemption price and recovers possession of the property, he is entitled to retain possession until he is paid the proportionate amount due from the other co-decree holders; till then he is entitled to retain possession of the property as security for the amount due to him. If possession has to be obtained by the other decree-holders by filing a suit, certainly there must be a period of limitation for that suit unless it comes within the ambit of S.10 of the Limitation Act. S.10 of the Limitation Act can have no application, for one of the co-decree holders who executes a decree is not in the position of a trustee. See Anmuchala Cheliiar v. Virappa Cheliiar (AIR 1928 Mad. 800). The rights of parties are not determined by O.XXI R.15. But it is only an enabling provision which allows execution of the decree by one of the joint decree-holders. That provision is intended more for the benefit of the judgment-debtor, for he should not be troubled with many execution petitions by each of the joint decree holders. The substantive rights of the parties will be determined by the law applicable in each case and order XXI R.15 does not intend to vary the rights of parties under the general law. In the case of a decree for redemption, the mortgage is not extinguished by the passing of the decree. In spite of a decree, the mortgage subsists. Only by payment of the mortgage money, a mortgage comes to an end. Admittedly, in this case, the mortgage money was deposited by the 41h defendant in execution of the redemption decree. Though the 4th defendant executed the decree in the capacity of a joint decree-holder, in effect she was only exercising the right to redeem the property as a co-mortgagor which was a pre-existing right vested in her. If that be so, the 4th defendant will be subrogated to the position of a mortgagee in regard to the share of the other decree-holders who did not contribute towards the money payable under the decree. If that be so, the 4th defendant will be subrogated to the position of a mortgagee in regard to the share of the other decree-holders who did not contribute towards the money payable under the decree. Under S.95 of the Transfer of Property Act when one of the mortgagors redeems the mortgaged property, he will be entitled to add to the mortgage money such proportion of the expenses properly incurred in such redemption as is attributable to their share in the properly. In other words, he will be entitled to retain possession of the property until he is paid the share of the mortgage money as also other expenses incurred by him in obtaining possession of the property. The fact that he redeemed and recovered possession of the property in execution of a joint decree will not make any difference, for the mortgage is redeemed by the 41h defendant paying the mortgage money and value of improvements and she will be in the position of a co-mortgagor redeeming the property. The decisions relied on by counsel for the respondents, namely Kamal Kisliorcv. HariHarPrasad (AIR 1951 Patna 645 ) PannaLal v. Kanluiiya Lai (AIR 1974 Pat. 284), Bans Raj Singh v. Krishna Chandra (AIR 1981 All. 280) and ShriDevi v. Kashiram (AIR 1984 Raj. 94), relate to cases where the scope of Order XXI R.15 CPC was considered and those cases were not cases of this type where one of the joint decree-holders had to pay certain amount before getting possession of the properly in execution of the decree and the corresponding right of such a decree holder who recovers possession on behalf of the other decree holders. We are clearly of the view that the provisions contained in O.XXI R.15 CPC will not make any difference and the position of the 41h defendant will be the saraeas that of a co-mortgagor redeeming a mortgage and recovering possession of the property. If that be the position; that suit is clearly barred by limitation a sit is neither filed within 30 years of the original mortgage nor within 12 years from the date of recovery of possession by the 4th defendant. 9. Point No.2:- The redemption suit O.S. No. 314 of 1124 in execution of which the 4th defendant obtained possession of the properly was filed on behalf f of the tarwad. 9. Point No.2:- The redemption suit O.S. No. 314 of 1124 in execution of which the 4th defendant obtained possession of the properly was filed on behalf f of the tarwad. H is clear from the plaint in that suit that it was filed on behalf of the tarwad. But it is to be noted that the tarwad itself got disrupted by the partition decree Ext. Al dated 24-10-1949 in O.S.No. 314 of 1124, and by the final decree on 9-11-1953 separate allotment of properties was made to different groups. Thereafter, there was a suit for partition in the branch to which the plaint property was allotted as O.S.176 of 1963 before the Munsiff's Court, Padmanabhapuram and by decree dated 3-8-1967 that sub-tarwad also became divided. The question has to be decided keeping in mind the above developments in the tarwad. Counsel for the respondents laid great stress on a Division Bench decision of this Court in Krishna Pillai v. Bliarathi Amnia (1957 KLT 732) to contend for the position that if a junior member redeems a property mortgaged, there can be no question of adverse possession or limitation. It was observed in that decision as follows; "'There is again the case in Potman Erayimman v. Kauliambi Kumaran, 6 TLJ 89 where the junior members who had redeemed a mortgage from the taravad and were in possess ion were allowed successfully to question a mclotti given by the Karnavan on foot of which they were sought to be redeemed in turn. What is of present interest to us in this case, is the observations of Raman Menon, C.J. at page 95: "It seems to me to be anomalous to regard Anandravcrs who find themselves in the situation of defendants 6 and 7, as the representative of their tarwad, which is their mortgagor." These observations seem to imply that junior members who have redeemed tarwad mortgages from strangers could still not be taken to be representative of the tarwad in the matter. Our view is that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until his accounts are settled, and paid off. No question of limitation or adverse possession as against the tarwad could arise in this case. No question of limitation or adverse possession as against the tarwad could arise in this case. But it is unnecessary however to decide this question finally in this case." The Division Bench has held that a junior member redeeming a tarwad property cannot be equaled to the position of an assignee of the mortgage but will be the holder of a special interest in the tarwad property with right to continue in possession until his accounts are settled and paid off. His right to continue in possession until he is paid off the amount due to him is expected. But the Division Bench has further stated that no question of limitation or adverse possession as against the tarwad could arise in that case. We find it difficult to agree with this statement of law by the Division Bench. If the junior member is entitled to continue in possession until his accounts are settled, for getting possession of the property by the other members through court, there must be a period of limitation for the suit. The wide statement of law by the Division Bench cannot apply in all circumstances. But it is to be noted that the Division Bench has not finally decided that question in that case as it was unnecessary. This decision was considered by in a later decision in Krishna Filial v. Sankara Pillai (1958 KLT 97) and it was held: "The junior member who redeems a mortgage of Tarwad properties does so only on behalf of the Tarwad and is in the position of one discharging a debt of the Tarwad. Such a junior member is given the benefit of the security which the creditor had." If that be the position, even if the person who redeems a property mortgaged is a junior member, he will be subrogated to the position of a mortgagee in regard to the share of the other non-redeeming co-mortgagors, especially when the tarwad had become divided by the lime of redemption. In Ayyappan Filial v. Krislman, (ILR 1977 (1) Ker. 464) another Division Bench of this Court, considering the decision in 1957 KLT 732, observed as follows: "Indeed we are bound by the said ruling. In Ayyappan Filial v. Krislman, (ILR 1977 (1) Ker. 464) another Division Bench of this Court, considering the decision in 1957 KLT 732, observed as follows: "Indeed we are bound by the said ruling. But we cannot accept the decision as laying down that, irrespective of the facts and circumstances disclosed, a junior member of the tarwad, should, in all circumstances and conditions, be understood as getting only the rights of a creditor and nothing else". All these decisions were considered by a later Division Bench in the decision reported in Raghavan Nair v. Anandavally Amrna (1986 KLT 623). In that case the question considered was as to whether a junior member who redeems the property belonging to the tarwad can be treated as a mortgagee in order to claim protection under S.4A of the Kerala Land Reforms Act. The decision discussed the right of a junior member vis-a-vis the tarwad and observed as follows: "That the junior member of a Marumakkathayam tarwad has proprietory right in the tarwad property cannot admit of any doubt. Ordinarily he is entitled to food and shelter and is entitled to a share of the tarwad property on partition. lie can alienate the tarwad property for urgent necessity. lie can file a suit to save the property from danger and can take steps therefor, if the karnavan is negligent. We are of the view that the fact that the proprietary right of the junior member of the tarwad is subject to some trammels, does not in any way lead to the conclusion that he, has no right or interest at all in the property of the tarwad. Reference may be made to Marumakkathayam Law by M.P. Joseph Chapter VI, pages 134,143,174,175, 180 and 203 in this connection regarding the rights of a junior member of a tarwad. On this basis, if the junior member of the tarwad is a co-proprietor or co-owner of the tarwad property, the only question is this:-When a co-owner redeems a mortgagor, is he entitled to be subrogated to the position of a mortgagee? If so, to what extent?" After posing the question and discussing various aspects of the mailer the Division Bench approved the statement by the lower appellate court in para.11 of the judgment to the following effect: "The members of the tarwad are the owners of the property belonging to the tarwad. If so, to what extent?" After posing the question and discussing various aspects of the mailer the Division Bench approved the statement by the lower appellate court in para.11 of the judgment to the following effect: "The members of the tarwad are the owners of the property belonging to the tarwad. The rights of the tarwad inhere in every member of the tarwad in part: as a part owner he is entitled to exercise the rights of the tarwad in relation to properties demised to strangers, when the karnavan is not a competitor with him in the field. (Vide 1962 KLJ 688). Such being the position, he is a person entitled to sue for redemption under S.91 of the T.P.Act as a person who has an interest in or charge upon the property mortgaged. If such a person is taking an assignment of the mortgage, it will amount to a redemption by a co-mortgagor." There after, it was further observed: "In this case, it is not disputed, the position is that of a co-mortgagor having redeemed the property. The provisions of Ss.91 and 92 of the Transfer of Property Act are relevant. So Thevi's case ILR 1980 (2) Ker. 669, cannot advance the case of the revision petitioners." It is clear from the above decision that even if a junior member redeems the tarwad property outstanding on a mortgage, his position will be that of a co-mortgagor redeeming the properly. Following that principle we hold That even assuming that the 4th defendant redeemed the properly as a member of the tarwad, she having paid the entire mortgage money due to the mortgagee, she will be in the position of a co-mortgagor redeeming the property. The decisions reported in AIR 1951 Pat. 645, AIR 1974 Pat. 284, AIR 1981 All. 280 and AIR 1984 Raj. 94, referred to earlier, did not deal with the question of limitation nor were they cases where the question as to the right of a member of a joint family redeeming a family property outstanding on a mortgage arose for consideration. 645, AIR 1974 Pat. 284, AIR 1981 All. 280 and AIR 1984 Raj. 94, referred to earlier, did not deal with the question of limitation nor were they cases where the question as to the right of a member of a joint family redeeming a family property outstanding on a mortgage arose for consideration. A junior member of a joint family or a tarwad redeeming a family property by utilising his own funds for paying off the mortgage money stands on a different footing and his position will be that of a redeeming co-mortgage or and the period of limitation for a suit by the non-redeeming co-mortgagors will be that of an ordinary non-redeeming co-mortgagor's suit for recovery of his share. Even on first principles we do not find any justification in making any distinction between a junior member of a tarwad redeeming a mortgage and a co-mortgagor redeeming the property mortgaged. No distinction can be made by the mere fact that one of the ccvmortgagors was a member of the tarwad to whom the mortgaged property belongs. If that be so, a suit for recovery of their share in the properly by the other co-owners or co-mortgagors will have to be filed within 30 years of the date of the original mortgage or within 12 years when one of the co-mortgagors redeemed and recovered possession of the property. Admittedly, the suit in this case is filed beyond both the above periods and it is clearly barred by limitation. 10. Point No. 3: Counsel for the respondents contended that in Ext. A4 assignment by the 41h defendant in favour of the 13th defendant, there is an acknowledgment of the liability to be redeemed and the suit having been filed within 12 years from that date is not barred by limitation. On going Through Ext. A4 we do not find any acknowledgment of the liability to be redeemed made by the 4th defendant. There is only a narration of the previous title of the 4th defendant in respect of the property in which reference is made to recovery of possession in the redemption suit. In Tilak Ram v. Naihu (AIR 1967 SC 935) the question as to what is an acknowledgment under S.19 of the Limitation Act was considered and it was observed as follows: 10. In Tilak Ram v. Naihu (AIR 1967 SC 935) the question as to what is an acknowledgment under S.19 of the Limitation Act was considered and it was observed as follows: 10. The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right' claimed. Where the statement is relied on as expressing jural relationship it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or a far-fetched process of reasoning." Again it was observed in para.II: "Though it refers to the mortgage in favour of Dharamdas it does so for the purpose of describing the interest Parameshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200 rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot be said to be one made with the intention of admitting the jural relationship between him as the successor-in-title of Dharamdas and the successor -in-title of the said Teja." The statements made in Ext. A4 do not show that the 4th defendant referred to the mortgage or the redemption by her with the intention of admitting her jural relationship with the mortgagors and therefore of her subsisting liability as the mortgagee thereunder of being redeemed. In that view of the matter, we are clearly of the opinion that Ext. A4 cannot operate as an acknowledgment to extend the period of limitation under the Limitation Act. In view of what is staled above, we set aside the judgment and decree of the lower appellate court and restore the decree of the trial court. The suit will stand dismissed. The parties will bear their costs in this appeal.