HAKIM SAIYID FIDA ALI Vs. RANI BHUNESHWARI KUAR

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the decision of the Subordinate Judge of Gaya, dated 26 February 1937, dismissing the plaintiffs suit with costs to defendant 1. The suit was dismissed on the ground of limitation. When the appeal first came up for hearing before us, we remanded the case by an order dated 16 August 1939 The findings have now arrived, and the appeal has been heard in the light of those findings also.

(2.) Defendants 11 (Syed Muhammad Waizul Haq) and 12 (Mt. Bibi Sogra), third party defendants, executed a mortgage bond on 27 May 1916, for a sum of RS, 2500 in favour of Hakim Syed Mohammad Taki alias Manjhley Saheb, father of the plaintiffs and son of defendant 13, fourth party. The rate of interest mentioned therein was Re. 1-8-0 per cent, per mensem simple. The suit was filed on 18th November 1935, and the amount claimed was Rs. 2500 plus Rs. 8756-4-0 the total coming to Rs. 11,256-4-0. On 20 January 1929, Hakim Syed Mohammad Taki, the mortgagee, died leaving the plaintiffs as his children, Mt. Shahzadi Begum as his widow and defendant 13 as his mother. By virtue of a registered deed of a family arrangement, dated 12 August 1929, executed by all the heirs of the mortgagee, the mortgage bond in suit was allotted to the share of the plain, tiffs who are her sons and daughters. By virtue of a sale deed dated 30th November 1917, the mortgagors, defendants third party, sold the mortgaged property subject to the mortgage debt in question to Sheikh Sujait Ali the ancestor of the defendants second party and their predecessor in interest and the defendants second party sold their equity of redemption in the mortgaged property to -defendant 1 in the farzi name of defendant 2 by several sale deeds. Six annas of the mortgaged property was sold to defendant 1 by Mt. Bibi Zohra, defendant 3 on 21 October 1925, by a sale deed (EX. 4), another four annas was sold to him by Muhammad Yahia, defendant 8, on 24 February 1926, by a document (Ex. 5) and another four annas was also sold to him by Sheikh Muhammad Yusuf, defendant 9 on 15 July 1926, by a sale deed (EX. 6). In these sale deeds the mortgage debt covered by the bond in question was acknowledged. The result of these transactions was that defendant 1 acquired the equity of redemption of the mortgage to the extent of 14 annas share. Mt. Bibi Fatma, defendant 10, who had a two annas share in the property did not part with her equity of redemption. Defendant 1 contested the suit and urged ?hat the suit was barred by limitation, that the plaintiffs had acquired no interest in the mortgaged property and that by the acknowledgment in the sale deeds the plaintiffs claim was not saved from being barred by limitation. Defendants 3 to 14 did not appear in the suit though properly served with summonses and defendant 2 entered appearance in the suit but did not appear to contest the suit.

(3.) So far as the facts of the case are concerned, there is not much controversy before us. The only questions are, first, whether the lower Court was right in holding that though defendant 1 was bound by the acknowledgment of liability made by the defendants who are vendors in the sale deeds, (EXS. 4 to 6) there was no valid acknowledgment of the mortgage debt as the entire body of the mortgagors had not made the acknowledgment to keep the mortgage debt alive and so the plaintiffs claim was barred by limitation and, secondly, the question of interest. The lower Court has rightly held as follows: It is not necessary that the acknowledgment should be made in a document to which the plaintiff need be a party, and an acknowledgment made in a document to which the plaintiff is not a party even is a valid acknowledgment. An admission of liability contained in a deed executed by the debtor in favour of a third person is a valid acknowledgment under Section 19, Limitation Act, and it is not necessary for its validity that it should be addressed or communicated to the creditor.... I therefore hold that defendant 1 is bound by the acknowledgment made in the sale deeds (Exs. 4 to 6). It is conceded on behalf of the plaintiffs that there is no acknowledgment of liability by Mt. Fatma, one of the daughters of Sheikh Sujaet Ali, as she did not convey her interest in the equity of redemption and which is 2 annas share only, to defendant 1. Therefore the acknowledgment made by the 14 annas cosharers of the equity of redemption is only binding on defendant 1.