MIHI LAL Vs. SONI RAM

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought by him for redemption of a mortgage alleged to have been executed some time before the year 1258 Fasli, corresponding to 1850 A.D. The plaintiff is the representative-in-interest of the alleged mortgagor and the defendants are those of the mortgagee, one Mt. Jal Kunwar, wife of Umrao. The mortgaged property consists of four bighas nine biswas land situate in village Parsoli, District Muttra. The principal sum secured by the mortgage is said to be Rs. 16 only.

(2.) The defendants denied the plaintiff's right to redeem. Bath the Courts below have found that the fact of mortgage and all the terms thereof as alleged by the plaintiff-appellant have been established by evidence. That finding has not been and cannot be questioned on second appeal before me. The only question, on which the plaintiff's right to redeem depends, is one of limitation. The Court of first instance held that the suit is within time having regard to two acknowledgments made by the predecessor-in-interest of the defendants, one in the year 1258 Fasli and the other in 1285 Fasli. The lower appellate Court so far agreed with the Court of first instance that if the mortgage was effected within sixty years before the first acknowledgment of 1258 Fasli, the suit is within time. It also agreed with the Court of first instance that certain attestations of entries in the khewat made by the mortgagee in the year 1258 Fasli and 1285 Fasli constitute valid acknowledgments. But it held differing from the Court of first instance that the plaintiff failed to establish that the mortgage was effected at any time within sixty years before the first acknowledgment, It, therefore, dismissed the suit. The plaintiff has preferred the present second appeal. It has been contended by the learned Counsel for the appellant on the authority of Kamla Devi V/s. Gur Dayal [1919] 17 A.L.J. 330 that the burden of proving the exact date of mortgage, being peculiarly within his knowledge lies on the mortgagee, who has failed to establish it by evidence and that the suit should have been deemed to be within time. I am unable to accept this contention. The case quoted by him proceeds on the ground that the mortgagee in that case was in possession of the land in dispute under a written mortgage-deed, which was presumably in his possession, and that by the production of the mortgage-deed he could set the controversy at rest. In the case before me the transaction of mortgage in question appears to have been entered into orally. Therefore, the ratio decidendi of that case cannot be applicable to this case.

(3.) Another argument advanced by the learned Counsel for the appellant has in my opinion considerable force. He contends that the entries of the khewats, which the mortgagee attested in the years 1258 Fasli and 1285 Fasli, not only save limitation as acknowledgments but amount also to a clear admission by the mortgagee that the mortgage had been made within sixty years before 1258 Fasli. The entry made in 1258 Fasli runs as follows: Mt. Jal Kunwar, wife of Umrao, mortgagee of the property of Gobind, Lachmi, Khamani, Budha and Baldeo, sons of Girja in equal shares, which according to the attestation of the parties is mortgaged on an oral agreement for Rs. 16 and is redeemable at any time when the mortgage money is paid up.