PARASRAM SHUKUL Vs. BINDESHARI PANDEY

JUDGEMENT

(1.) THIS is a mortgagor's petition in revision from the judgment, dated 15th May 1948, passed by the learned District Judge of Gorakhpur upholding the judgment dated 15th April 1946, given by the learned Sub-divisional Officer of Deoria. It arises out of proceedings under Section 12, U. P. Agriculturists' Relief Act. The relevant facts are as follows : on Jeth Sudi 15, 1881 A. D. a usufructuary mortgage in respect of an agricultural plot was made by the applicant's ancestors to the opposite parties' predecessors. On 1st March 1944, that is to say, more than sixty years after the date of the mortgage, the application for redemption was filed. The applicant contended that in the year 1911, there was an acknowledgment of the mortgage and so the case was saved from the operation of the bar of limitation. It was further contended that according to the provisions of Section 9, U. P. Debt Redemption Act, 1940, there was a fresh start of limitation when that Act came into force, viz. , on 1st January 1941. The trial court held that the case was barred by limitation and learned District Judge upheld that order. The mortgagor, therefore, comes in revision.

(2.) THE first question is whether there was an acknowledgment within the meaning of Section 19, limitation Act. It appears that in 1911 there was a partition suit among the members of the mortgagee family, being Suit No. 403 of 1911 in the Court of the Munsif of Deoria. In the course of that partition suit a compromise was arrived at and inter alia there was the following condition in it:

(3.) EXPLANATION I provides, inter alia, that it is not necessary that the acknowledgment should be addressed to the person who seeks to take benefit of it under Section 19. Nevertheless, an acknowledgment of liability necessarily implies a conscious acknowledgment of liability. Hence in considering whether certain words amount to an acknowledgment of liability it must be seen whether at the time of writing them the writer had in his mind the question as to his liability or whether he was thinking of and referring to some other matter. If the mention of the mortgaged property in the deed of compromise was only for the purpose of description of the property, as we think it was, and not with the idea of acknowledging the liability of redemption, then in our view it would not amount to an acknowledgment within the meaning of that word as used in section 19, Limitation Act.