ARAVAPALLI SUBBI SETTI Vs. BURLE LAKSHMINARASAMMA

JUDGEMENT

(1.) The same question arises in both these second appeals, a question of limitation. Though I listened to an interesting and exhaustive argument from Mr. V. Suryanarayana for the appellants, the cases appear to be directly governed by the recent decision of the Judicial Committee in Bank of Upper India, Ltd. (in liquidation) V/s. Robert Hercules Skinner (1942) 2 M.LJ. 559 : I.L.R. (1942) Lah. 686. The facts necessary for the disposal of these appeals are as follows : The plaintiffs in the two suits sued for the recovery of the balance of money due to each of them under two mortgages dated 7 August, 1924, by sale of one item out of the properties secured by the deeds (Exs. P-1 and P-2) respectively. The contesting defendant claims title to this item under a deed of sale dated 28 April, 1926, from the mortgagor. The suits were brought in 1939 and would prima facie be barred by limitation. The plaintiffs, however, rely upon an acknowledgment made by the mortgagor in respect of their two mortgages in a deed of trust dated 26 September, 1927 (Ex. P-4). If the acknowledgment is valid and binding against the contesting defendant, first respondent, then the suit would be in time. It may be noticed that the acknowledgment was made by the mortgagor after he had conveyed his interest in the item now in suit to the first respondent in 1926.

(2.) The question for determination is whether an acknowledgment made by a mortgagor after transfer of his interest in a particular property forming part of the hypotheca will bind the transferee. The identical question was answered in the negative by the recent decision referred to in Bank of Upper India, Ltd. (in Liquidation) V/s. Robert Hercules Skinner (1942) 2 M.LJ. 559 : I.L.R. (1942) Lah. 686 It was there held that an acknowledgment made by the mortgagors after they had parted with their interest to the purchasers does not bind the purchasers.

(3.) During the course of his argument Mr. Suryanarayana tried to rely on certain features, which, according to him, distinguish this case from other cases, viz., that in this case the personal remedy against the mortgagor was alive on the date of acknowledgment and that the mortgagor had not parted with all the property hypothecated at the time when he made the acknowledgment. Unfortunately for him, however, it appears from the report in Bank of Upper India {in Liquidation) V/s. Robert Hercules Skinner (1942) 2 M.LJ. 559 : I.L.R. (1942) Lah. 686, that in the appeals which went up to the Judicial Committee from Allahabad, the mortgagor's interest in some only of the properties had been transferred and the judgment of the Judicial Committee proceeds on the assumption that the personal remedy had not become barred {vide page 689). The suits were therefore barred by limitation and the decision of the lower Court is correct. The appeals are dismissed with costs of the first respondent.