SANKARA PANICKER Vs. NANGELI AMMA

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption. The plaint properties originally belonged to the Changankulangara Devaswom in Karunagappally Taluk. One Velayudha Kurup Ummini Kurup of Nelackal house obtained these properties under a "Pathivu Chittu" from the Devaswom. While he was thus in possession and enjoyment of the properties, he mortgaged them in favour of one Kochukunju Pillai of Kurungattu house under Ext. A dated 4.5.1057. This Kochukunju Pillai submortgaged the properties under Ext. B dated 13.7.1063 in favour of one Krishnan Nair who was the ancestor of the present plaintiffs and defendants 3 to 20. After the death of Kochukunju Pillai the present 1st defendant as the heir of Kochukunju Pillai instituted the suit O.S. No. 280/1113 on the file of the Mavelikkara Munsiff's Court for redemption of the properties covered by Ext. B and for recovery of possession of the properties from the sub mortgagees. That suit was transferred to the Krishnapuram Munsiff's Court and renumbered as O.S. No. 358 of 1115 and it was ultimately decreed. The present plaintiffs who were bound to surrender possession of the properties by virtue of the decree in that case, took two sale deeds Exts. D and E dated 7.3.1119 and 13.3.1119 respectively from the heirs of Ummini Kurup of Nelackal house on the basis that the equity of redemption of those properties was still vested in them. On the strength of these sale deeds, the plaintiffs have instituted the present suit for redemption of the mortgage evidenced by Ext. A. They also claimed an adjustment of the claims under the decree in O.S. 358/1115 for redemption of the sub mortgage rights that were subsisting in their favour, and pending such adjustment execution of the decree in that case was sought to be restrained by an order of temporary injunction. Since the suit for redemption of Ext. A was apparently beyond the time allowed by law, the plaintiffs relied on two acknowledgements one contained in Ext. B sub mortgage itself and the other contained in Ext. G which is copy of the plaint in O.S. 358/1115, as saving the suit from the bar of limitation. The 1st defendant resisted the suit mainly on the ground of limitation and maintained that Exts. B and G are of no help in saving the bar of limitation. The other matters on which the parties had joined issue in the case are not material for the purpose of this second appeal. The 1st defendant's plea of limitation was upheld by the Trial Court and the plaintiffs were accordingly non suited. The lower appellate court, however, came to a different conclusion and held that the suit was within time with the result that the decree of the Trial Court was reversed and the plaintiffs were given a decree as prayed for. The 1st defendant has come up in second appeal challenging the view taken by the lower appellate court as erroneous.

(2.) The only point for decision in this second appeal is whether Exts. B and G contain valid acknowledgements of a subsisting liability of the rights under the mortgage Ext. A so as to enable the present plaintiffs to maintain the suit for redemption of that mortgage. This question has to be decided in the light of the provisions in the Travancore Limitation Act which was in force at the time of the institution of the present suit. Under Art.136 of that Act the period governing a suit for redemption of a mortgage like Ext. A was only 50 years. The present suit was instituted long after the expiry of the said period of 50 years from the date of Ext. A. In Ext. B sub mortgage of the year 1063 there is a specific reference to Ext. A and it is stated that the possession which the executant of Ext. B was surrendering in favour of the sub mortgagee was the possession which he had under the mortgage Ext. A. These statements in Ext. B undoubtedly imported the idea of a subsisting liability in the part of the executant of Ext. B to be redeemed by the original mortgagor who could therefore get a further period of 50 years from the date of Ext. B to enforce his claim to redeem Ext. A. But the present suit was instituted only after the expiry of 50 years from the date of Ext. B also. Hence Ext. B could be of no avail to the plaintiff to escape the bar of limitation.

(3.) Then there is Ext. G which is copy of the plaint in O.S. 358/1115 instituted by the present 1st defendant for redemption of Ext. B. The question is whether Ext. G contains any statements which can be properly and legitimately construed as amounting to an admission of any subsisting liability under Ext. A. There is no reference at all in Ext. G to the mortgage deed Ext. A or to any rights or liabilities flowing from such a document. On the other hand Ext. G simply stated that the properties scheduled to that plaint belonged to the deceased Kochukunju Pillai of Kurungattu House, that he had executed a mortgage in favour of Sankaran Krishnan on 13.7.1063 and put him in possession of the properties on the strength of that mortgage. It was further stated that on the death of Kochukunju Pillai the equity of redemption of the properties vested in the Tarwad of the 1st plaintiff in that suit who is the present 1st defendant. The attempt of the present plaintiffs has been to adduce extraneous evidence to show that the right asserted was only the right of a mortgagee under Ext. A. Such extraneous evidence was sought to be adduced by the production of Ext. H which is copy of the replication filed by the plaintiff in Ext. G case. No doubt such extraneous evidence is admissible for the purpose of clarifying any ambiguity that may be contained in the primary document which is alleged to contain a valid acknowledgment sufficient under law to give a fresh starting point of limitation for enforcing the right put in action in the suit. Similarly, if the primary document is not clear in itself as to the parties, documents, rights and liabilities referred to in it, these material facts may also be proved by adducing extraneous evidence. But the construction of the document must essentially depend on the statements contained in it and extrinsic evidence cannot be read as supplementing or qualifying those statements. Only if those statements by themselves either expressed or by necessary implication import an admission of subsisting liability in respect of the property or right in question, S. 19 will be attracted. Where the statements are merely descriptive of the property or right claimed by the defendant, it cannot be said that such statements amount to an admission of subsisting liability on his part in respect of prior obligations incidentally made mention of in the course of such description. It is equally clear that a mere reference to a past liability cannot be taken as an admission of a present liability. In Muthukumara Mudaliar v. Chockalingam Mudaliar ( AIR 1923 Mad. 634 ) it was held that a statement by a person that he had executed a mortgage bond on a prior date cannot amount to an acknowledgement, express or implied, of an existing liability on the bond on the date of the statement. In Atchuthan v. Abdu ( AIR 1925 Mad. 675 ) the document relied on as containing an acknowledgment of liability under a decree was the plaint which had made reference to that decree. It was held that there was only an incidental reference to the fact that there was such a decree and that fact happened to be made merely to explain the nature and extent of the right that had been put forward in the plaint and that such a statement did not amount to an acknowledgement of existing liability under that decree. The extent to which extraneous evidence is admissible for the purpose of determining the nature of an alleged acknowledgement has been explained in Amritsar Municipality v. Malia Ram (AIR 1936 Lahore 629). There it was pointed out that particular as to the identity of the creditor and of the debt referred to in the document could be allowed to be proved by extraneous evidence, but that it is not permissible to go outside the document and to read into the document words importing a subsisting liability where the document itself does not contain words to that effect. To the same effect is the ruling in Ishri Prasad v. Chandrabhan (AIR 1938 Allahabad 177). There it was pointed out that "The question whether any particular endorsement amounts to an acknowledgement or not within the meaning of S. 19 of the Act must depend on the actual words used. The endorsement itself must contain the acknowledgment; and pleadings or any extrinsic circumstances cannot be looked at in order to explain the endorsement and to ascertain whether the debtor can be held to have acknowledged anything more than the endorsement itself purported to acknowledge. The determination of the question depends on the inference to be drawn from the endorsement itself". The decision in Chaithappa v. Mohammed Dasseen ((1925) 15 Travancore Law Journal 361) and in Parvathi v. Parameswaran ((1933) 23 Travancore Law Journal 446) are also to the same effect. In Parasram v. Bindeshari ((1953) 8 Dominion Law Reporter, Allahabad 51) the document alleged to contain an acknowledgement of liability for redemption of a mortgage was a deed of compromise filed in a suit for partition in respect of those properties as well as other properties. In dealing with the reference to the mortgage in question in the deed of compromise, it was held that such reference was made only for the purpose of properly and adequately describing the properties dealt with under the compromise and not with any idea of acknowledging the liability of redemption and as such the reference to the mortgage as contained in that document did not amount to an acknowledgement within the meaning of S. 19 of the Limitation Act.