VELLAYAN NADAR Vs. VARGHESE NADAR

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption of a mortgage Ext. A dated 17.4.1055. The suit was filed on 17.7.1119. The plaintiff relied on an alleged acknowledgment contained in the original of Ext. D, which is copy of a statement said to have given by the mortgagee before the Settlement Officer on 3.11.1069. The suit was resisted on the ground of limitation. The Trial Court dismissed the suit holding that Ext. D could not operate as a valid acknowledgment. This decision was reversed by the District Judge who held that Ext. D could be acted upon as acknowledgment. The 3rd defendant has preferred this second appeal.

(2.) The only question arising for decision is whether Ext. D can be treated as a valid acknowledgment made by the mortgagee. It was contended by the learned counsel for the appellant that no presumption could be drawn that the original of Ext. D was given by the 1st defendant mortgagee or that the original was signed by him. S.19 of the Limitation Act requires that the acknowledgment of liability must have been made in writing signed by the party. No independent evidence was given in this case that the 1st defendant made the statement or that he signed it. The plaintiff did not care to get the original produced in the case, although it must have been available since the copy of Ext. D was issued as late as 1119. The nature and effect of statements given by parties in settlement proceedings have come up for consideration in several decisions of the Travancore High Court. In Neelakantaru Krishnaru v. Kanakku Kesavan Padmanabhan and 10 others (11 TLJ 409) it was held that statements purporting to have been made by a certain person before a Settlement Officer could not be presumed to be genuine. The decision in Raman Pillai Raghavan Pillai v. Parvathi Amma Kochupennamma (30 TLJ 749) is also to the same effect. Bhagavathi Pillai v. Janaki Pillai (31 TLJ 1212) was a case in which the facts were similar to those in this case. The plaintiff who sought redemption of a mortgage relied on a statement given by the mortgagee before the Settlement Officer to escape the bar of limitation for the suit. The original statement itself was filed in that case. It was held that the statement could not be acted upon as an acknowledgment. It was further held that the presumptions raised under S.90 would not by themselves amount to proof that the statements were really made by the alleged deponents. The decision in 11 TLJ 409 was followed. It was held in Narayana Panicker v. Mathai Thomman (33 TLJ 397) that a Taluk register containing an abstract on an application filed by the original mortgagee and referring to the original mortgage which was sought to be redeemed would not amount to an acknowledgment of the mortgage. In Ouseph Varkey v. Karthiayani Amma Thankamma (34 TLJ 235) it was held that the production of a copy would not per se justify the court in drawing a presumption about the genuineness of the original. Their Lordships followed the decision in Basant Singh v. Brij Raj Saran Singh (57 All. 494 P.C.) In that case Lord Thankerton expressed the views of the Board in the following terms:-