(1.) This second appeal raises a question of the sufficiency of an acknowledgment under S.19 of the Limitation Act.
(2.) The suit was based on Ext. B chitty hypothecation bond dated 4-2-1098 securing the due payment of future subscriptions in respect of a prized ticket and charging the property scheduled to the plaint. The bond had been executed by Parangodan, the 1st defendants father (who was the subscriber in the chitty) and others in favour of the chitty foremen and had passed on to the plaintiff under an execution sale. The defendants 2 and 3 had been impleaded in the suit as subsequent purchasers. Their father Kunhuvareed had obtained a second mortgage over the property and in enforcement thereof had filed suit on 29-5-1114 and obtained decree in O. S. 483 of 1114. Subsequently the 2nd defendant, took steps as the executor under his fathers will, to execute the decree and in due course of execution, purchased the property himself in full satisfaction. Now the cause of action under Ext. B bond arose on 30-2-1109 when the default occurred in the payment of the chitty subscriptions but the suit herein was filed only on 7-12-1950 corresponding to 22-4-1126 long after the expiry of 12 years, which was the prescribed period of limitation. So the plaintiff relied upon certain admissions of Kunhuvareed contained in his plaint Ext E-l in the suit O. S. 483 of 1114 aforementioned, as constituting sufficient acknowledgment, under S.19 of the Limitation Act. How far the plaintiff could do so is the only question in this appeal. The courts below differed in their opinion upon this matter, for while the learned Munsiff found in favour of the plaintiff and allowed the suit, the learned District Judge held otherwise and dismissed the suit. Hence this second appeal by the plaintiff.
(3.) Before the Trial Court, the defendants 2 and 3 questioned the sufficiency of the acknowledgment, on the ground that they had not come upon the property as the heirs of Kunhuvareed but in their own independent right as auction purchasers. But this was obviously untenable, because the defendants 2 and 3 could not ignore the will of their father under which alone they got the right to the property and the father was therefore a person from or through whom they derived their liability to be sued, and as such, could be considered to be the defendant in the case, under the definition of that word in S.2(4) of the Limitation Act and his acknowledgment would then be enough Before the learned District Judge the question was raised by the defendants 2 and 3 in two aspects, firstly that Ext E-l did not contain any conscious admission by Kunhuvareed of a subsisting liability and secondly that Kunhuvareed, at the time he filed Ext E-l plaint was neither personally liable for the debt concerned nor owned any interest in the property, which is sought to be made liable and therefore could not make any acknowledgment in law. Both those aspects were found in their favour. The argument before me has also taken this form.