INDURAI BHAURAI DESAI Vs. SHIVLAL NABHUBHAI

JUDGEMENT

(1.) This action was instituted by the plaintiff to redeem and recover possession of property said to have been mortgaged by a mortgage-deed of June 8, 1761. The lower Courts have held the mortgage proved, though there may be considerable doubts whether the original document, of which Ex. 84 purported to be a copy, was really a mortgage within the terms of Section 58 of the Transfer of Property Act. However, we may assume, for the purposes of this appeal, that the property was mortgaged in 1761.

(2.) The next question is whether the suit is within time. The plaintiff relied upon an acknowledgment said to have been made by the descendants of the mortgagee in 1858. Assuming again that there was such an acknowledgment, which I am not prepared to accept without doubts, would that be an acknowledgment sufficient to save the time bar? It is conceded that the Indian Limitation Act IX of 1871 applied to this mortgage, and consequently a suit to redeem would have to be brought within two years of the Indian Limitation Act coming into force as the mortgage had been executed more than sixty years before that date, and if a suit was brought thereafter the plaintiff would have to rely on an acknowledgment of his title to, redeem, given in writing and signed by the mortgagee or some one claiming under him within sixty years of suit. But the acknowledgment, assuming. there was one in 1858, having been given more than sixty years after the date of the mortgage, will not avail the plaintiff, as it seems, in spite of the ingenious argument of the appellant's Counsel, that it comes within the decision of the Privy Council in Fatimatulnissa Begum V/s. Sunder Das 27 C. 1004 : 27 I.A. 103 :4 C.W.N. 565 : 7 Sar. P.C.J. 718 : 14 Ind. Dec. (N.S.) 657 (P.C.). In that case the mortgage was dated October 17,1788. The suit would have been barred in the absence of any acknowledgment made within sixty years from the date of the mortgage on October 17, 1848, by the effect of Act XIV of 1859, Section 1, Clause (15) which barred the suit after January 1, 1862. Act IX of 1871, by Section 29, provided that at the expiration of the period granted to any person for instituting a suit for the possession of land his right to such land should be extinguished. Their Lordships dealing with the contention that there had been a written acknowledgment prior to October 17, 18-18, held that it had not been proved, with the result, that as from October 17, 1848, the right of the mortgagors to sue was barred by force of the Act of 1859 and their right to the land was extinguished by force of the Act of 1871.

(3.) In this case, therefore, not only was the right to sue barred by the force of the Act of 1871, the first Act of Limitation applicable to the case, but the mortgagor's right to the land was also extinguished, for it is impossible to distinguish the case I have cited on the question of principle from the case before us. There are many other grounds on which the plaintiff's suit could be dismissed, but it is sufficient for our purpose to hold that the suit for redemption is barred.