RAGHOBA SANTANNA NAIK Vs. SHABA NALO NAIK AND

JUDGEMENT

(1.) The true scope of S. 19 of the Limitation Act arises for consideration in this case.

(2.) The facts relevant for the purpose of deciding the question of law that has been argued before me are; the first defendant executed a simple mortgage in favour of the plaintiff on 28-7-1925 as per Ex. 1 for a sum of Rs. 700/-. in that mortgage deed, he included ten items of properties; a period of 2 years was fixed for the payment of the principal amount; in other words the principal amount was due on 28-7-1927; on 3-3-1938, the mortgagor (defendant 1) sold items Nos. 4, 5, 6, 8 and 9 to the second defendant; after selling those properties to the second defendant, the first defendant renewed the mortgage under Ex. 1 as per Ex. 34 on 24-7-1939; in the renewal also he included all the ten items of property which was originally included in Ex. 1. The present suit is brought on the basis of Ex. 34 and the same was instituted on 16-10-1946. It is clear that the claim arising under Ex. 1 was barred by limitation by the time the present suit was instituted. The only question for consideration is whether because of the acknowledgment made in Ex. 34, the plaintiff can bring a suit against all the ten items of property which had been included in the mortgage deed. The defendants contention is that the suit in question is not sustainable as against the items of properties sold to him. Both the courts below upheld the contention of the defendants and dismissed the plaintiff's suit as against properties sold in favour of the second defendant.

(3.) As regards the true effect of S. 19 of the Limitation Act, there was divergence of judicial opinion till the decisions of the Privy Council in Bank of Upper India, Ltd. v. Skinner, AIR 1942 PC 67. In that decision Their Lordships laid down that an acknowledgment by a transferor given after the transfer of title does not bind the transferee; Section 19 only applies where the acknowledgment has been made before the transferee has derived his title from the acknowledge, and therefore acknowledgments made by the mortgagors after they had parted with all their interest to the purchaser do not bind the purchaser. In the course of their decision Their Lordships observed as follows: