CHELLAPPAN ASARI Vs. TRAVANCORE DEVASWOM BOARD

JUDGEMENT

(1.) This appeal by defendants 1 and 4 against a decree for the redemption of a mortgage Ext. A of the year 1073 and for other reliefs, was contested only on the point of limitation as to the plaintiff's right to redeem. The question is whether Ext. B, a partition deed of the year 1098 in the mortgagees' family contains an acknowledgment of the right within the meaning of S.19 of the Indian Limitation Act. In the schedule in Ext. B, the suit properties were described as Kavalayoor Devaswom Vaka Otti, and in the body of the document is a provision, that with respect to the mortgaged properties of the family the mortgagees may deal with the mortgagors directly. Ext. A mortgage was by the Kavalayoor Devaswom. According to defendants 1 and 4, the words "Kavalayoor Devaswom Vaka Otti" are only words of description and the provision enabling the mortgagees to deal with the mortgagors does not import an admission of a subsisting liability. I think that this is the proper view to take. The partition deed comprised several items of properties, some of which were described as with mortgaged properties. The provision enabled the members of the family to deal the jenmies, in any manner they choose with respect to the mortgaged properties. The words "Kavalayoor Devaswom Vaka Otti", as the words Kavalayoor Devaswom Vaka Pattam in Ext. IV chitta, are generally speaking, words describing the tenure of the properties and do not by themselves and in all circumstances, import an admission of a liability to be redeemed. The test is thus formulated by the Supreme Court in Shapoor Freedom Mazda v. Durga Prosad Chamaria (AIR 1961 S. C. 1236):

(2.) A similar view as to such words of description has been held by the former Travancore High Court in Parameswaran Govindan Nambiathi v. Sri Devi Parvathi Antharjanam (8 TLJ 204) and Giriyam Pasupathy v. Velayudhan Pillai Kali Pillai (23 TLJ 128). In Umamaheswara Iyer Subramania Iyer v. Meeravu Ummini (35 T. L. R. 208) the words "as having been mortgaged" were construed to be words of description and not words of importing a subsisting liability. The learned counsel for the plaintiff respondent relied on Uthup Joseph v. Ealya ( 1958 KLT 307 ) where a mortgage deed relied on as containing an acknowledgment of a debt under a security bond was expressly taken subject to that liability; this is a different case. K. T. Abraham v. State ( 1953 KLT 702 ) was a case of assignment of a mortgage and Easwara Pillai Krishna Pillai v. Raman Pillai Velayudhan Pillai ( 1956 KLT 790 ) also relied on, was a case where on the terms of a document the contents of an enforceable decree were made out although the liability under it was disputed. In Jainarain v. The Governor General of India ( AIR 1951 Cal. 462 ) the admission of liability was said to be contained in a letter written by the railway authorities to the petitioner who sought to enforce it for the non delivery of goods entrusted for transport. On a construction of the letter the court was able to read an admission into it, by the railway, that it was bound to make delivery of the consignment. These cases are distinguishable.

(3.) I therefore come to the conclusion, that there is no sufficient acknowledgment in Ext. B of the liability to be redeemed. The decree for redemption is hereby vacated, but the decree is confirmed in other respects. 1 do not order costs in this appeal. The appeal is allowed to the above extent.