KOCHAPPU Vs. AMMU AMMA

JUDGEMENT

(1.) This second appeal is directed against a decree passed by the Subordinate Judge in appeal allowing redemption of a mortgage, in reversal of the decree passed by the Additional Munsiff dismissing the suit. The plaintiff alleged, that the property in suit was given on mortgage to one Koyammad in the year 1052 M.E. for 720 puthens and 195 1/2 parahs of paddy, the right under which became vested in the defendants. The first defendant contended, that the mortgage to Koyammed was long before the year 1052, that the mortgagee subsequently became full owner or the property by lapse of time, that from the mortgagee, he and his father purchased the property and that the plaintiff has no right to redeem. The Munsiff dismissed the suit finding the mortgage to be not proved, and the Judge gave the decree holding that the plaintiff has adduced prima facie proof of the mortgage the defendants not having produced the mortgage deed, and that the mortgage has been acknowledged.

(2.) Except stating that the mortgage was of the year 1052, the plaintiff has not alleged a specific mortgage. Whatever might have been the view taken in some of the earlier cases, it has been held by a division bench of this Court in Ramakrishna Pillai v. Thankamma 1959 KLT 475 , confirming on appeal the decision of the single Judge in Thankamma v. Ramakrishna Pillai 1956 KLT 383 , that if in a redemption suit the plaintiff is unable to give the date of the mortgage, he must give prima facie evidence that the mortgage was subsisting on the date of the suit, or admitted to have been subsisting within the period of limitation. The plaintiff could not testify to the execution of the mortgage, as he was only 28 years old at the time he was examined in the case as Pw. 1. But there is a recital in a partition deed Ext. D of the year 1079 in the family of the mortgagee, in which this property, which was also partitioned, was described as the right to 720 puthens and 159 1/2 parahs of paddy under a usufructuary mortgage in favour of Koyammad from the mortgagors family, the deed for which had been filed in O. S. 215 of 1078 of the Ernakulam Munsiffs Court and penalty levied thereon. There is a reference to the mortgage in another partition deed also, Ext. E of the year 1093. In my opinion, these words are not merely descriptive of the property, but are also definitive as to the quantum and the nature of the right of the family in the property. I find no difficulty in reading into these words, an admission of a subsisting mortgage right, by the mortgagee at the time. This affords prima facie evidence of the mortgage.

(3.) It was next contended that Exts. D and E operate as acknowledgments under S.19 of the Indian Limitation Act. As remarked, in Ext. D there is an admission of a subsisting mortgage right, but it was argued for the defendants, that to operate as an acknowledgment to save limitation, it must further be proved, that the admission was made before the expiry of the period of limitation for redemption of the mortgage. In reply it was contended, that the very fact, that the mortgage was admitted to be subsisting implied that redemption of the mortgage had not become barred by limitation on the date of the admission, and that in any view, the admission is prima facie proof that it was not barred and reliance was placed on Kunchi Amma v. Pappi Amma 21 Cochin 320 which has followed Ahammad Haji v. Mayan 57 MLJ 789. It was held in these cases, that the admission that the mortgage was subsisting itself implied, that the admission was made before the expiry of the period of limitation. On the contrary, it has been held by a division bench of the Lahore High Court in Sher Mohammad v. Karam Chand 155 Indian Cases, 576, that for S.19 to apply, it is not enough if the acknowledgment is of a subsisting liability, as all acknowledgments must be, but that it must further be proved, that the acknowledgment was made within time, that is, before the expiry of the period of limitation prescribed. Theoretically speaking, it is possible that the person making the acknowledgment was not aware at the time of making it, that the mortgage was not subsisting; it may even be, that for reasons best known to him, a party might acknowledge a liability as subsisting though in fact it is not so. Having regard to the words where before the expiration of the period with which S.19 opens, there is considerable force in the contention, that the acknowledgment must be proved to have been made within time. It cannot be, as observed by the single Judge in Gian Chand v. Sher Mohammad 154 Indian Oases 773 that in every case where an acknowledgment imports a subsisting liability, the onus is to be cast on the person who made the acknowledgment to prove that it was not made before the expiry of the period of limitation. It appears to me that an acknowledgment under S.19, besides importing a subsisting liability must also be proved to have been made before the expiry of the period of limitation. In this view, speaking with respect, I prefer to adopt the Lahore view.