C. VEERABAHU PATTAR Vs. P. ESWARA PILLAI

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit was filed for redemption of a mortgage dated 12 -3 -1079 M. E. executed by one Subramania Nambiar, son of Pichan Nambiar, in favour of one Velayudham Pillai, for a sum of 5,000 Fs. The plaintiff claims to be a successor -in -interest of the equity of redemption. In execution of a decree against the mortgagee Velayudham Pillai, his rights as a mortgagee in the suit property were brought to sale and purchased by the decree -holder in 1926 in Court auction. The decree -holder auction purchaser sold his rights under Ex. A -1, on 8 -2 -1102 M. E. in favour of one Sakkiamma Pillai, the maternal grandmother of the defendant.

(2.) THE only point that survives for consideration in this second appeal is one of limitation. The defendant contended that the mortgage executed on 12 -3 -1079 M. E. (year 1963) is barred by limitation. The plaintiff contended that Ex. A -1 dated 8 -2 -1102 M. E. executed by the Court auction purchaser in favour of Sakkiamma Pillai amounts to an acknowledgment and, therefore, the suit is in time. There is no dispute that if Ex. A -1 amounts to an acknowledgment, the suit would be in time. But the question for consideration is whether Ex. A -1 amounts to an acknowledgment of liability to be redeemed. The deed is styled as a deed of sale of othi rights executed by the Court auction purchaser in favour of Sakkiamma Pillai, to whom the defendant claims to be the legal heir. The document is in Malavalam, and translation of the same reads as follows :

(3.) IN Sidhari Ram v. Gargi Din AIR 1924 All 458 also the question for consideration was whether the assignment of the mortgagee's rights amount to an acknowledgment of the liability of the original mortgage. In that case, under a document, the mortgagee purported to sell his rights as mortgagee to the defendants in that suit and that sale deed was relied on as an acknowledgment in the suit filed for redemption. A Division Bench of the Allahabad High Court held that the very fact of the mortgagee's selling his mortgage rights was an express acknowledgment of the existence of a subsisting mortgage and of subsisting rights which he was competent to sell, and the fact that the purchaser also purchased only that mortgagee's right was an acceptance on his behalf of an existing mortgage, and it would amount to an acknowledgment, which would save the suit from the bar of limitation.