ARJAN SINGH Vs. S GURDIAL SINGH

JUDGEMENT

(1.) This appeal arises out of the conflicting decisions of the Courts below on the question of limitation involved in the dispute between the parties. One Rur Singh of village Sekha made an application to the Tehsildat, Barnala, on 3-5-1946 Bk., asking for permission to mortgage 71 bighas of land to Ganga Ram for Rs. 1552. This land was already held in mortgage for Rs. 1,452 and the object of the application submitted on 8-5-1916 Bk. was to create Anr. charge of Rs. 100 and to execute one consolidated mortgage for Rs. 1,553 Copy of Rur Singh's application is Ex. PD and the document showing charge of Rs. 1,452 on the land is Ex. PP. In support of the application Rur Singh gave his own statement and examined Hari Singh and Buland Singh Lambardars and also Narain Dass Patwari. In his own statement Rur Singh did not make clear as to since when the land stood mortgaged with Ganga Ram; but the copy EX-PI of the statements of Hari Singh and Buland Singh Lambardars recorded jointly and the copy of the statement of Narain Dass Patwari EX. PH shows that the original mortgage came into existence in the year 1930. The application of Rur Singh was accepted and a kabala (EX.DB) was granted on 10-5-1946. Shiv Ram, grandson and successor-in-interest of Ganga Ram, further mortgaged his mortgage rights in 40 bighas 18 biswas of land to S. Bachittar Singh for Rs. 1,564 by a registered deed dated 10-5-1968. Again he mortgaged his mortgagee rights in respect of 15 bigbas to Bauria Mal and Prabhu Mal for Rs. 2500 by a registered deed dated 3-8-1970. S. Bachhitar Singh acquired the mortgagee rights of Bauria Mal and Prabbu Mal vide mutation No. 1919 dated 6-6-1971. On 14-12-1997 Godha Singh successor-in-interest of the original owner Rur Singh sold 38 bighas 17 biswas out of the land that had been mortgaged by Shiv Ram with S. Bachhitar Singh to Arjan Singh, Bakhtawar Singh and Mohindar Singh sons of Santokh Singh and Kartar Singh son of Arjan Singh. On 5-9-1998 the transferees from Godha Singh made an application under the Redemption of Mortgages Act for redemption of the land in dispute to the Collector, Barnala. An order directing redemption on payment of Rs. 1,232 was made by the Collector on 25-6-2000 upon which S. Bachhittar Singh mortgagee brought the present suit for a declaration that as the mortgage was effected more than 60 years ago, the mortgagor had lost the remedy to redeem and that Arjan Singh, Bakhtawar Singh, Mohindar Singh and Kartar Singh alienees from the representative of Rur Singh, could not be granted the relief allowed to them by the Collector. The Defendants resisted the suit with various pleas but the point that requires to be determined in this appeal is as to whether the mortgage in dispute was subsisting and redeemable on 6-9-1998 when the Collector was moved for redemption S. Bachhitar Singh died daring the course of the suit and his sons were impleaded in his place. The trial Court dismissed the suit and allowed redemption on payment of Rs. 1232 for which the specific land stood mortgaged, and Rs. 250 more for improvements effected by the mortgagee in possession. Both parties appealed, the mortgagee for a decree that the land was not now redeemable on account of the efflux of more than 60 years since it was originally mortgaged and the Defendants for being absolved from the liability to pay for improvements. The learned District Judge has accepted both the appeals the necessary effect whereof is that the Defendants who have now come up to this Court in further appeals have been deprived of the right to have the land in dispute redeemed. The plaintiffs have not appealed and the question of Defendant's liability to pay for improvements is thus closed. Relying upon the statements of Hari Singh, Buland Singh and Narain Das Patwari recorded on 3-6-1946 in which they stated that 71 bighas of land belonging to Rur Singh had been in possession of Ganga Ram mortgagee for the last 10 years, the learned Counsel of the Respondent contends that the mortgage originally was effected in 1936 and that the application of Rur Singh dated 3-6-1946 for creating a further charge of Rs. 100 did not amount to a fresh contract of mortgage giving rise to a new cause of action. Continuing his argument he has stressed that the application for redemption made to the Collector Barnala on 5-9-1998 i.e., beyond 50 years from the original mortgage effected in 1986 was obviously statute barred. There is no material on the record to indicate that Narain Das, Hari Singh or Buland Singh are not alive or are not available and in the absence of such evidence the aid of Section 33, Evidence Act cannot be invoked to make the copies of their statements admissible. Mr. Atma Ram, counsel of the Respondents, contends that since these copies were received in evidence without any objection from the Defendants, the question of their admissibility cannot be agitated by them now. The copies, no doubt, bear certain exhibit marks, but it does not appear from the record that the trial judge had when permitting them to be placed on the file looked into their contents or applied his mind to the question whether they could be received in evidence or not. It is clear, however, that in his judgment the Sub-Judge has discarded these documents as inadmissible which shows that the parties discussed the point of admissibility only at the time of arguments. If these copies of statements of Hari Singh, Buland Singh and Narain Das are excluded from consideration, there is no material to warrant the suggestion that the mortgage was effected in 1936 and not within 60 years of the suit. Even if these statements are held to be admissible and to provide evidence of the mortgage having been executed in the year 1936 for the first time, the claim of the Defendants for redemption must be held to have been made within 60 years, as the documents dated 10-5-1968 and 3-8-1970 furnish indisputable proof of the acknowledgment by Shiv Ram mortgagee regarding the existence of a subsisting mortgage on the dates that those two documents were executed and of the right of the mortgagor to redeem. In the mortgage deeds dated 10-6-1969 and 3-8-1970 executed by Shiv Ram in favour of S. Bachittar Singh and Bauria Mal and Prabhu Mal respectively, it was unambiguously stated by him that he was holding the land in mortgage from Rur Singh. In the mutation concerning the sale of the mortgagee rights of Bauria Mal and Prabhu Mal, it was again expressly stated that the land belonged to Rur Singh and was in their possession on sub-mortgagees from Shiv Ram. These admissions by Shiv Ram and Bauria Mal and Prabu Mal are undoubted acknowledgments that they were holding the land in mortgage and further that the mortgagors had a subsisting right of redemption. In Babu Ram and Janki Das V/s. Partap Singh C.A. 137 of 2005, it has been held by a Division Bench of this Court that where in a sub-mortgage the mortgagor makes mention of the fact that he himself is a mortgagee of the land from the original owner, his admission amount to a valid acknowledgment of the right of the mortgagor to redeem and extends time under Section 19, Limitation Act. Genda Mal V/s. Illahi Bux, 0 1 IndCas 510(All) was also a case of redemption in respect of two usufructuary mortgages executed in September 1839 and reliance was placed upon an acknowledgment contained in a sub mortgage executed in 1890. In the sub-mortgage the mortgagees had stated that they held the property under the two mortgagee of 4-9-1889 and 21-9-1839. It was held by Richards J. that the statement contained in the sub-mortgage constituted an acknowledgment under Section 19, Limitation Act. In Sidhari Ram V/s. Dr. Gargi Din, 1924 AIR(All) 458 the facts were almost similar. In 1908, G, the mortgagee, his brother and his son executed a sale deed in favour of the Defendant of mortgagee rights in a grove. In the sale deed they stated that they were the mortgagees of the grove of 'K' and they purported to sell their rights as mortgagees to the Defendant. It was held by the High Court that the very fact of G's selling his mortgagee rights was an express acknowledgment of the existence of a - subsisting mortgage and of the subsisting right which he was competent to sell and the very fact of the Defendant purchasing those rights was an acceptance on his behalf of an existing mortgage - a mortgage which was in force as a subsisting mortgage on the date of tale to him. In Ralla Ram V/s. Bhana Mal, 1933 AIR(Lah) 33 , in the subsequent mortgage deed the mortgagee had mentioned that the property had been mortgaged in his favour and that he was re-mortgaging it. It was held that the admission amounted to an acknowledgment of the existence of the mortgage at the time. In Ganda Mal V/s. Taj Din, 1933 AIR(Lah) 99, the mortgagees had admitted that they were in possession of the area and it belonged to specified persons as mortgagors, it was held by that High Court that there was a necessary implication in that admission that the mortgage was subsisting and that the mortgagees were in possession as such and their admission amounted to a valid acknowledgment within the meaning of Section 19, Limitation Act. Time for redemption on the dates the two mortgages in favour of S. Bachittar Singh and Bauria Mal were effected had not run out and the mortgagees at the time of executing those documents must have been conscious that they were acknowledging a subsisting and enforceable liability against themselves and the liability of the mortgages to be redeemed. The admissions of the mortgagee Shiv Ram in the years 1908 and 1970 unequivocally mean that the laud in question belonged to Rur Singh and that it was being held by him in mortgage and that he was further mortgaging his mortgagee rights on practically the same conditions on which the mortgage was executed in his favour. Such an admission can by no stretch of imagination be said to have been unconsciously made and has been in the cases cited above regarded to be an acknowledgment as contemplated by Section 19, Limitation Act, extending the period of limitation for redemption. The claim of the Defendants for redemption in view of what has been stated above, must be held to have been preferred within the statutory period of 60 years and they are entitled to have the mortgages redeemed. The appeal is accepted and the judgment of the lower appellate Court is set aside and the decree of the trial Court restored with the modification that the Defendants shall not be liable to pay Anything to the plaintiffs on account of the alleged improvements. No costs.