ZAIB-UN-NISSA BIBI Vs. MAHARAJA OF BENARES

JUDGEMENT

(1.) This appeal arises out of a suit for redemption of a mortgage, dated the 21st of November, 1823. The courts below have dismissed the suit on the ground that the claim is time-barred. No doubt having regard to the date of the mortgage the claim would be time-barred unless the plaintiff could invoke in aid, as he seeks to do, an acknowledgment said to have been made on the 4th of March, 1868, whereby the mortgage in question was acknowledged by an agent of the predecessor in title of the defendant. This acknowledgment was made when Act No. XIV of 1859 was in force, and under that Act an acknowledgment by an agent was not sufficient to save the operation of limitation. This was held by their Lordships of the Privy Council, whose decision was followed by this and other courts.

(2.) It is, however, contended on behalf of the appellant that as the mortgage was made in 1823 and the right to bring a suit had not become extinct when Act No. IX of 1871 and Act No. XV of 1877 came into operation, the acknowledgment would, under the provisions of those Acts; give a new start for the computation of limitation if made by an agent duly authorized in that behalf In our opinion this contention is well founded. No doubt if the plaintiff had to rely on the acknowledgment in a suit, which was governed by Act XIV of 1859, an acknowledgment by an agent would not be sufficient, but at the time whenthe suit of the plaintiff was instituted, the present law of limitation was in force, an therefore the suit would be governed by that law. The provisions of the present Act, namely, Act No. IX of 1908, are similar to those of Act No. IX of 1871 and Act No. XV of 1877 in this respect. If Act No. XIV of 1859 had never been enacted, the plaintiff could, under the provisions of the later Act mentioned above take advantage of the acknowledgment made in 1868, if it was an acknowledgment by an agent duly authorized to make it. The mere fact that the Act of 1859 was for some time in force would not deprive the plaintiff of the benefit of the provisions of the later Acts. This was held by the High Court of Calcutta in Mohesh Lal v. Busunt Kumaree (1880) I.L.R. 6 Calc 340 in which the case law on the subject is set forth, including the case of Valia Tamburatti v. Vira Mayan (1876) I.L.R. 1 Mad 228.

(3.) The learned vakil for the respondent has relied on the case of Rahmani Bibi v. Hulas Kuar (1878) I.L.R. 1 All. 642. In that case the point now raised was neither discussed nor decided. The case of Hanuman Prasad v. Baghunandan Singh (1904) 1 A.L.J. 355. is distinguishable, as in that case the claim on the mortgage had become time-barred before the Limitation Acts of 1871 and 1877 came into operation.