MAWASI RAJE RAM Vs. MST. MANBHARI

JUDGEMENT

(1.) THIS is an appeal under Clause 10 of the Letters Patent against a judgment of a learned Single Judge decreeing a suit for possession by redemption in respect of the property held by Defendant Mawasi on payment of a sum of Rs. 360/ -.

(2.) THE facts leading up to the litigation may be shortly stated on 30th March 1890 the predecessor -in -interest of the Plaintiff. Mst. Manbhari mortgaged the suit land for Rs. 360/ - to six persons, namely, Bhuiu, Blmp Singh, Aji Ram, Bahi Ram, Kanwa Singh (sic) (sic) Singh The mortgage was with possession. The Plaintiff as the legal representative of the original mortgagor instituted a suit for possession by redemption on payment of Rs. 360/ - to the Defendant, Mowasi, who alone at present was the legal representative of all the original mortgagees. The suit was contested and the only question -which had to be determined was one of limitation The suit was apparently barred by time but it was claimed by the Plaintiff that there had been an acknowledgment by the mortgagees of the mortgage in question within the period of limitation and therefore, the suit was within time. The trial Court decreed the suit but the lower appellate Court dismissed it on the ground that the acknowledgment dated 12th January 1897 on which reliance was placed by the/Plaintiff which was contained in the document, Exhibit P. 3, made by Aji Ram mortgagee was not a legal and good acknowledgment under Section 19 of the Indian Limitation Act as it had not been made and signed by all the six joint mortgagees and their rights were indivisible. The suit was consequently dismissed as barred by time.

(3.) MR . M.S. Wasu, who appears for the Defendant -Appellant, has relied on Nadar Shah v. Ishar Das, AIR 1920 Lah 516 and Ahmad Shah v. Kartar Singh, AIR 3934 Lah 293(1) in which it was held that an acknowledgment of the right of redemption in order to save limitation should be made by all the -mortgagees and if it was not signed by all, it did not hold good even with regard to the shares of those who had signed it, the mortgage being indivisible. A Division Bench of the erstwhile Pepsu High Court in Bagga Singh v. Lal Chand, AIR 1952 P&H 6 discussed the Lahore cases as also the Bombay case and came to the conclusion that where there was one single mortgage and even though each branch of the family of the mortgagees was recorded as having a definite share, it would not entitle the Plaintiffs to sue each branch or each mortgagee separately for redemption. The integrity of the mortgage was not split up by any act of the mortgagees and the mortgage was still joint and indivisible. The Bombay case was distinguished on the ground that there a partition in the family of the mortgagees had taken place and certain area of land had been allotted to the branch of the family of one Defendant and the remainder to the other branch of the family. The Full Bench had arrived at the conclusion that although the acknowledgment was not in respect of the entire property yet because there -had been separation of the mortgagee's family and Defendant's property , that was sufficient to save the bar of limitation in respect of the share of Defendant No. 1 who had acknowledged the existence of the original mortgage.