KARAMADAI NAICKEN Vs. R. RAJU PILLAI AND ANR.

JUDGEMENT

(1.) THE second defendant is the appellant. The suit was instituted for recovery of a sum of Rs. 900 due under a mortgage, dated 9th March, 1922. The mortgage was executed by the first defendant in favour of one Mariyayi. Mariyayi died sometime in 1923 leaving behind her Chockalinga, her husband, and Kanakammal, a daughter and Ayyaswami Pillai, a son. Chockalinga died some time before 1931. The exact date of death is not known. The mortgagor intended to discharge the mortgage in 1931, and on the assumption that Ayyaswami, the son of the mortgagee, was entitled to the amount due under the mortgage, executed a deed of assignment of a usufructuary mortgage executed in his favour by a third party, in favour of Ayyaswami, This deed of assignment is Ex. P -2, dated 9th September, 1931. The mortgage debt due by that date was ascertained and was found to be Rs. 609. He executed a promissory note for a sum of Rs. 200 on that date. The consideration for the assignment by the usufructuary mortgage was taken to be Rs. 300 and a cash of Rs. 109 was paid to make up the total of Rs. 609 due under the mortgage in favour of Mariyayi. Thus the entire mortgage debt was discharged by this arrangement with the son of the mortgagee. The first defendant sold the property comprised in the mortgage to one Palanisami in July 1937 and from Palanisami the second defendant purchased the property on the nth June, 1942. After all this, Kanakammal, the daughter of Mariyayi, executed in favour of the plaintiff a deed of assignment in respect of the mortgage debt due under the mortgage executed by the first defendant on the 9th March, 1922. On the basis of this assignment the assignee instituted the present suit to enforce the debt under the mortgage deed. The assignment by Kanakammal was on the footing that the mortgage debt was the stridhana property of Mariyayi, and that after her death it had devolved upon her as her heir.

(2.) IN the suit the first defendant was ex parte as he had no interest in the property, and the second defendant was the main contesting defendant. The chief among the pleas raised by the defendant were that the mortgage debt was really the property of the family of Chockalinga and Ayyaswami, that Mariyayi was merely a name -lender, and that therefore the discharge of that debt by the arrangement evidenced by Ex. P -2 was valid; and secondly that as the mortgage was dated 9th March, 1922, and the present suit was instituted only on the 6th September, 1943, the suit was barred by limitation. The plaintiff anticipated the plea of limitation and relied upon Ex. P -2 as containing an acknowledgment of the liability by the first defendant.

(3.) THE only question that was argued in second appeal was the question of limitation. Unless Ex. P -2 contains a valid acknowledgment within the meaning of Section 19 of the Limitation Act, the plaintiff's suit would be barred by limitation. Under Ex. P -2 the first defendant admitted that the mortgage debt amounted to Rs. 609 but stated that it was discharged by the execution of the promissory note, by the assignment of the usufructuary mortgage and by payment of cash. The question therefore that arises for consideration is whether the statement of the first defendant in Ex. P -2 that there was a liability under a mortgage but that it was discharged amounts to an acknowledgment. In other words, is it an admission of a subsisting liability in respect of the mortgage debt and does it contain an acknowledgment of a subsisting jural relationship of debtor and creditor between the mortgagor and the mortgagee? When the statement of liability is coupled with a statement that it is discharged it is difficult to see how a subsisting, liability on that date could be inferred. The learned District Munsiff held that there was no subsisting liability in view of the clear language of the document. The learned Subordinate Judge however dissects the statement into two parts, the first part containing an admission of liability and the second part the mode in which it was discharged. Ignoring the second part he fastens himself to the first and concludes that there is a subsisting liability. In my opinion, this kind of dissection of the statement of the first defendant in Ex. P -2 is not permissible. The statement must be taken as a whole and the intention of the first defendant must be gathered by reading the document as a whole and not by confining attention to a particular portion of it. In my opinion, therefore, the process of interpreting the document adopted by the learned Subordinate Judge is wrong.