KANDASWAMI REDDI Vs. SUPPAMMAL

JUDGEMENT

(1.) The sole question for our determination is one of limitation. Plaintiffs sue on a mortgage bond, Ex, A , dated 11 November 1907, and it is admitted that the suit is time barred unless a certain passage in a plaint, Ex. B, filed by the defendants (appellants before us) against plaintiffs (O.S. No. 1011 of 1912) can be relied on as an acknowledgment of liability under Section 19 of the Indian Limitation Act, 1908. The passage runs thus: "7. The 1 plaintiff and his brother the 2nd plaintiff, namely, Suppa Reddy, jointly executed to him (Ist defendant) on the said date an hypothecation deed for Rs. 200 after deducting the sums paid towards the said othi amount of Rs. 275. Along with the said deed, the deed of othi . executed in the year 1888 and the othi deed of 1907 were also given to the 1 defendant. "1 plaintiff and 2nd plaintiff referred to were respectively defendants 1 and 2 in the suit before us; and the 1st defendant was the present 2nd plaintiff.

(2.) It is admitted that the hypothecation deed referred to is Ex. A on which the present suit is based. The question is whether this passage should be construed as an implied acknowledgment of liability under Ex. A, i.e., an acknowledgment that, at the time the plaint, Ex. B, was presented, Ex. A was still undischarged. That this is the test to be applied is clear from the section itself. "Liability can only signify present liability at the time of acknowledgment; and this is clearly laid down in Venkata V/s. Parthasaradhy (1802) I.L.R. 16 Mad. 220. Mr. Vaz, who argued the case for respondents, suggested that the effect of the latter judgment had been largely affected, if not altogether destroyed, by the Privy Council judgment in Maniram V/s. Seth Rupchand (1906) L.R. 33 I.A. 165, and by the later cases based thereon. This does not seem to be so. It is not suggested that the acknowledgment need be express; and the cases relied on are useful as throwing light on the circumstances in which it should be inferred that the liability is subsisting. But that is all. The express admission in Ex. B is merely that the present defendants 1 and 2 executed the suit mortgage on 11 November 1907, and handed it over to 2nd plaintiff with the earlier possessory mortgages of which it was the subject. Are the circumstances such that we can infer that the defendants meant to imply that Ex. A was still outstanding ?

(3.) Mr. Vaz has argued that this inference is a necessary legal inference from the simple fact that in reciting the facts of execution, defendants do not say that the document had been discharged. This contention we cannot admit. There is certainly nothing in the Privy Council judgment in Maniram V/s. Seth Rupchand (1906) L.R. 33 I.A. 165, to support it. In that case, there was an admission dated 20 September 1899 by the defendant that at the time of the death of plaintiff's father (61h October 1898) there were open accounts between them. The exact passage ran : "The applicant Rupchand Nanabhai is a big Mahajan of Burhanpur paying Rs. 106 as income tax. For the last five years he had open and current accounts with the deceased. The alleged indebtedness does not affect his right to apply for, probate." Their Lordships say : "The first sentence shows that there were open accounts at the death of Motiram. If nothing further is alleged, the natural presumption is that they continued unsettled at the time the statement as made. "