FATEH CHAND Vs. ANUP SINGH AND JAI DAYAL

JUDGEMENT

(1.) This appeal arises out of a suit for redemption of a mortgage alleged to have been made some time between 1833 and 1839 by Albela and Lachman in favour of Ganga Ram and Ram Dayal. It is stated that the property which is the subject matter of the suit was the subject of the mortgage, that the amount of the mortgage was Rs. 561-4-0 and that the mortgage was redeemable upon payment of the mortgage money in the month of Jeth of any year. The plaintiff is the purchaser of the equity of redemption from the successors in title of the original alleged mortgagors. The principal defendants,, who are the representatives of the mortgagees, deny the fact of the mortgage and deny that the claim is within limitation. Undoubtedly it is for the plaintiff who comes into court for possession of property by redemption of a mortgage to prove two things: first, that a mortgage answering substantially to the description of the mortgage alleged in the plaint was created, and, secondly, that the mortgage was a subsisting mortgage when the suit was brought, i.e., that the plaintiff s claim was not time-barred. The fact of the mortgage as alleged by the plaintiff has been found by the court below and there is ample evidence on the record to show that a mortgage of the property now in suit was made by the two alleged mortgagors in favour of Ganga Earn and Ram Dayal for a sum of Rs. 561-4-0. In the khatauni which is to be found on the settlement record of 1833 and which is referred to by the court below as the khatauni of 1839, there is a specification of this particular mortgage. It is stated to be a mortgage made by Albela and Lachman in favour of Ganga Ram and Ram Dayitl. The property is mentioned, the amount of the mortgage is mentioned, and it is further mentioned that the mortgage is redeemable upon payment of the mortgage money in the month of Jeth of any year. A settlement took place in 1863, and in that settlement a wajib-ul-arz was prepared in which all mortgages in the village were specified. At the heading of the list of these mortgages it is stated in the wajib ul-arz that these mortgages could be redeemed upon payment of the principal amount in the month of Jeth of any year, Among these mortgages is the mortgage now in question. The property mortgaged is specified. The names of the mortgagors and the mortgagees are also mentioned and the amount of the mortgage is mentioned also. This wajib-ul-arz was signed by Ganga Ram and by the successors in title of Ram Dayal, so that the entries in the khatauni to be found in the settlement record of 1833 and in the wajib-ul-arz of 1863 clearly prove the existence of a mortgage of the disputed property wish all the details alleged by the plaintiff in this case. The only thing that is wanting in both these documents is the initial date of the mortgage. In my opinion the fact of the plaintiff having been unable to prove the date of the mortgage is not sufficient to justify our holding that the mortgage has not been proved. The date of the mortgage was not material except for the purposes of the question of limitation, to which I shall have to refer later. In the Full Bench case of Parmanand Misr v. Sahib Ali (1889) I.L.R. 11 All. 438 the learned Chief Justice at the conclusion of his judgment stated that what was necessary to be shown was " a definable or distinguishable mortgage." In the present case a definable or distinguishable mortgage has been fully proved, and the more inability of the plaintiff to prove the exact date of the mortgage is not a valid reason for holding that the fact of the mortgage sought to be redeemed has not been established. The learned Subordinate Judge has found that a mortgage of the property in dispute was made by the alleged mortgagors in favour of the alleged mortgagees for a sum of Rs. 561-4, and this finding, which is justified by the evidence to which I have referred, is binding on us in this appeal.

(2.) The next question is--" Has it been established that in 1863 when this mortgage was acknowledged by the mortgagees it was a, subsisting mortgage. It is true that in the acknowledgment itself there is no specific allegation that the mortgage was a subsisbing mortgage, but it may be remembered that in the wajib-ul-arz a specification was made of all the mortgages which existed in the village, and which must be. taken to have been deemed to be mortgages which were subsisting at the date of the preparation of the wajib-ul-arz. In that document, as I have already stated, a specification is given of a number of mortgages with the addition of a clause to the effect that the mortgages could be redeemed on payment of the amount of the mortgages in the month of Jeth of any year. Among these mortgages was the mortgage now in dispute, and this mortgage was acknowledged by the mortgagees to be a mortgage which was in existence. Of course it was for the plaintiff who came into court to prove that that acknowledgment was one which had been made before the expiry of the period of limitation, otherwise the acknowledgment could not be availed of for the purpose of saving the operation of limitation. In my opinion the question is one of the amount of proof which has been given of the existence of a subsisting mortgage in 1863. I do not think that any hard and fast rule can be laid down as to what should be the quantity of evidence to be adduced in each case. But where in respect of a mortgage, the creation of which was established, the mortgagees acknowledged that the mortgage existed, that acknowledgment is in my opinion prima facie evidence that it was a mortgage which subsisted at the time when the acknowledgment was made and was not a mortgage which had become extinct by lapse of time. As observed by Mr. Justice Pearson in his judgment in the Full Bench case of Daia Chand v. Sarfraz (1875) I.L.R. 1 All. 117: "It is not reasonable to suppose that anyone would allow himself to be described as the mortgagee of a property of which the mortgage had ceased to be redeemable at law and the names of the owners thereof had been lost to knowledge by lapse of time." In my opinion, where a mortgagee has acknowledged a mortgage, that acknowledgment is prima facie evidence that there is a subsisting mortgage which he acknowledges. If the mortgage had become extinguished by reason of lapse of time there was no occasion for him to acknowledge such a mortgage; the mortgage had, to all intents and purposes, ceased to exist and there was nothing which had to be acknowledged. This case is very similar to that of Kamla Devi v. Gur Dayal (1919) 17 A.L.R. 830. Before the enactment of Act XIV of 1859 there was no period of limitation for a suit for redemption of a mortgage. By that enactment a limitation of sixty years was prescribed for a suit for redemption and a grace of two years was given to all mortgagors who wished to redeem their mortgages after the passing of the Act. This period of grace expired in 1862, so that) if a suit had been brought to redeem a mortgage, whether the mortgage had been made in 1833 or at a much earlier period, the suit would not have been time-barred. It was after the passing of the Act that the settlement of 1863 took place and it was at this time that in the present case the mortgagees admitted the existence of the mortgage. When they made that acknowledgment they must have deemed the mortgage to have been in existence as a subsisting mortgage which could be redeemed by the mortgagor, Of course this acknowledgment cannot be more than prima facie evidence of the existence of a subsisting mortgage and is not conclusive. It may be rebutted by proving that the mortgage was made at a date from which, if limitation were computed, sixty years had elapsed before the acknowledgment was made. There is no such evidence in the present case; on the contrary, in every subsequent settlement this property has been recorded as the property of the mortgagor and as being in the possession of the mortgagees as such. In the year 1321 Fasli a partition took place at the instance of Anup Singh, defendant, and a separate mahal was formed. This land was not included in Anup Singh s mahal and Anup Singh did not claim that it should be made a part of his mahal. It was included in the mahal of the non-applicants for partition, among whom were the successors in title of the original mortgagors. All these circumstances raise a very strong presumption in favour of the existence of a subsisting mortgage. Reference was made to the ruling of the Privy Council in Fatimat-ul-nissa Begum v. Sundar Das (1900) I.L.R. 27 Calc. 1004. In that case the date of the mortgage was known. It was also known that the acknowledgment which had been made was an acknowledgment after the expiry of sixty years from the date of the mortgage, so that that acknowledgment could not be relied upon as saving the operation of limitation and was not in fact so relied upon before their Lordships. What was contended before their Lordships was that by reason of the mortgagees having granted a lease to the mortgagors and described themselves as mortgagees, they were estopped from denying the existence of the mortgage as a subsisting mortgage. This contention was repelled by their Lordships and they proceeded to hold that the mere fact of the mortgagees regarding themselves as mortgagees, although the period of limitation for redemption of the mortgage had expired, could not affect their rights which had matured into the rights of absolute owners. Such is not the case here. In this case, it is true, we have no evidence as to the exact date on which the mortgage was made. It is quite possible that in 1863 sixty years had not expired from the date of the original mortgage, and it seems to me to be improbable that had the mortgage been made some time prior to 1803, it would have been treated in 1863 as an existing mortgage. We have, however, no evidence on the point. In that year, as I have said above, the mortgagees acknowledged the existence of a mortgage, and in my opinion that acknowledgment is prima facie evidence of the existence of a subsisting mortgage. This is the view which the court below took, and I think that court was fully justified in holding that view. I would dismiss the appeal with costs. Piggott, J.

(3.) I have carefully considered the judgment which has just been delivered by Mr. Justice Banerji. I am in agreement with so much of it that it is only after considerable hesitation that I have arrived at the conclusion that I am bound to dissent from the order which he proposes to pass on this appeal. I may say at once that I agree with him that the plaintiff in this case has proved his mortgage sufficiently to satisfy all reasonable requirements on that point. There is in any case a finding of fact that the mortgage is. proved and that finding undoubtedly rests upon evidence. The entry made in what has sometimes been spoken of as the settlement record of 18S9 (it must be remembered that in many of these old settlement papers an entry to the effect that the paper in question appertains to a " settlement record of 1833 " means nothing more than that it was made in the course of a settlement prepared under the Regulations of 1833), was made at a time when there was no period of limitation prescribed by law for the redemption of a mortgage. It is, therefore, evidence that certain specified land was held by certain named persons as the mortgagees of certain other named persons, and that the latter were entitled to redeem the mortgage at any time on payment of a specified sum. Under these circumstances I do not think it was incumbent on the plaintiff, except for purposes of limitation, to prove that this mortgage had been contracted in a particular year.