IMAM ALI Vs. BAIJ NATH RAM SAHU

JUDGEMENT

(1.) The facts which have given rise to the litigation, out of which this appeal arises, so far as it is necessary to state them for the disposal of the questions of law raised before us, lie in a narrow compass and are practically undisputed. The plaintiffs seek to enforce a mortgage security executed in favour of the first plaintiff and his father by the first defendant, on the 5th September 1882. The date fixed for repayment in the bond was the 5 March 1883. Various payments appear to have been made from time to time and it is proved that the last of these payments was made on the 16 January 1891. The present suit was commenced on the 17th December 1902, and the mortgagees joined as defendants not only the mortgagor, but also eight other persons, who had subsequent to the date of the mortgage acquired an interest in the equity of redemption, either as purchasers or as puisne mortgagees. It is necessary to state that the mortgage comprised eight properties, out of which property No. 2 had passed into the hands of one Imam Ali, Nos. 1, 8, 4 and 5 into the hands of the 8 defendant, Tilukdhari, and property No. 8, into the hands of the 5 defendant, Abdul Rahim. Imam Ali was not one of the original defendants to the suit, by reason of which an objection was taken by one of the other defendants that all the necessary parties were not before the Court as required by Section 85 of the Transfer of Property Act. The plaintiffs thereupon applied to the Court and on the 8 May 1903, Imam Ali was ordered to he added as a defendant. The claim was resisted on various grounds, out of which it is sufficient to specify three, namely, first, that the suit was barred by limitation as against the added defendant Imam Ali.; secondly, that as the mortgage debt was indivisible, the suit was barred in its entirety; and, thirdly, that if the claim was not barred either in whole or in part, the mortgagees were incompetent to proceed against the properties purchased by Tilukdhari, as they had been validly released from the claim under the mortgage. The Courts below have concurrently held that the suit is not barred by limitation. But while the learned Subordinate Judge held that the properties in the hands of Tilukdhari had not been validly released, the learned District Judge held that those properties were not liable to satisfy any portion of the mortgage debt. The defendants have appealed to this Court and on their behalf, the decision of the Court below has been challenged on three grounds, namely, first, that the suit is barred by limitation as against Imam Ali; secondly, that if the suit is dismissed as against Imam Ali, as barred by limitation, it is not maintainable as against the other defendants, and thirdly, that the properties in the hands of Tilukdhari are still liable for the mortgage debt.

(2.) In support of the first point taken on behalf of the appellants, it is argued that under Section 22 of the Indian Limitation Act, the suit as regards Imam Ali, must be deemed to have been instituted on the 8 May 1903, when he was made a party, and as this was more than 12 years after the date of the last payment ( Section 20 and Art. 132 of the Limitation Act), the suit is clearly barred by limitation. In answer to this contention, it is argued on behalf of the plaintiffs respondent s---first, that as there was a valid acknowledgment of the debt by the mortgagor on the 21 October 1891, the suit is within time under Section 19 of the Limitation Act, and secondly, that inasmuch as the added defendant was made a party by the Court, no question of limitation arises. As regards the first branch of this contention, it appears, that in the conveyance, which the mortgagor executed to Tilukdhari on the 21 October 1891, in respect of five out of the eight properties comprised in the mortgage security, the following statement is to be found: It is necessary for and incumbent upon me, the declarant, to pay the money due to Baij Nath Kara and Jagan Nath Ram under the bond dated the 5 September 1882, and whereas, without making a sale of the property, I have no other means of paying the said amount, I have absolutely sold (here is given a description of the property) to Tilukdhari Lall for Rs. 1,400, and having received the aforesaid consideration money from the vendee paid off the dues of the mahajans and got such of the properties as were mortgaged in their bond released by them from the liabilities of the said bond.

(3.) The question therefore arises, whether there is an acknowledgment by the mortgagor as required by Section 19 of the Limitation Act, so as to give the mortgagees a new period of limitation computed from the time when the acknowledgment was signed. It is argued on behalf of the appellants that there was no valid acknowledgment, because there was no admission of liability to the mortgagees, nor was it communicated or addressed to them. In our opinion this contention is well founded and is supported by the decision of the Judicial Committee in Mylapore V/s. Yeo Kay (1887) L.R. 14 I.A. 168 : I.L.R. 14 Calc. 801. In this case Sir Barnes Peacock in delivering the judgment of their Lordships, observed as follows with regard to an admission contained in a conveyance, which was relied upon as an acknowledgment within the meaning of Section 19 of the Limitation Act: It is contended that in that conveyance Mr. B admitted that he was liable in respect of the property. The only admission is that he was acting as agent for one of the executors in selling the estate. He was selling the estate for the purpose of getting paid out of the proceeds of the sale. He does not admit that he was liable to be turned out of possession, or that anyone had a right of possession as against him, nor does he make any admission at all to the plaintiff or to anyone through whom he claims. Under those circumstances the clause does not apply.