KUTTAN SREEDHARAN AND ORS. Vs. BHAGYODAYAM CO. LTD.

JUDGEMENT

(1.) PLAINTIFF 's in a redemption suit are the Appellants in this Second Appeal. The plaint schedule properties belonged originally to one Kalarlkkal Thommen. After his demise his heirs executed mortgage and puravaipa deeds An favour of one Avara Vareed, the last of them being dated 3 -1 -1036. The rights of the mortgagors passed to the Plaintiffs and the rights of the mortgagee passed to his children after his demise. When the present suit for redemption was brought contentions were raised by the heirs of Avara Vareed that the suit was barred by limitation. The Plaintiffs met this contention by saying that there were acknowledgments keeping alive the right of redemption and relied upon acknowledgments in written statements and depositions in prior suits for. redemption, namely, Opts. No. 301 of 1095 where the plaint was returned and O. S. No. 721 of 1096 where, a decree was obtained but not executed. The trial Court held that the acknowledgments saved limitation only as against Maneek Vareed, one of the sons of Avara Vareed whose interests are now represented by Defendant 1's company and hence allowed redemption of items 1 and 2. In the appeal preferred by Defendant 1 the lower appellate Court held that though the statements relied upon satisfied the requirements of acknowledgment as contemplated under Section 19, Limitation Act as, the same was only by one of the heirs of the mortgagee it had not the effect of saving limitation as regards the right of redemption and hence refused the limited relief allowed by the trial Court and dismissed the suit. Hence the Plaintiffs have come here on appeal.

(2.) AS both the lower Courts have held that there was effective acknowledgment by Maneek Vareed the only question to be considered is whether such an acknowledgment is of no avail in the present case as Maneek Vareed did not represent the entire interests of the mortgagee. What is urged on behalf of the Plaintiffs is that the acknowledgment is any way effective as regards the share of Maneek Vareed, the parties being Christians and as even before tyblate of acknowledgment in question his father of the mortgagee, had passed away and successful had opened. With regard to the effect of acknowledgment by a co -mortgagor the lower appellate Court has relied upon 'Rama Varma Thaflipuran v. Kunjupennamma',, 1951 Ker LT 683:, 1952 Ker 310) (A), in support of the posi -5h that an acknowledgment as the one in question ioV> not save limitation as regards the right of redemption. Counsel for the Plaintiffs urged that the sad decision is not applicable to the facts of this case as the main question in issue there was about the effect of an acknowledgment by a co -mortgagee in keeping alive a decree. A perusal of that decision shows that the point at issue here also came up for consideration there and the entire case law on the point has been dealt with and the principles applicable in case like this clearly laid down. The following observations there at page 623 (of Ker L T : (at p. 314 of A I R) may be pointed out: