HIRALAL ICCHALAL MAJMUNDAR Vs. NARSILAL CHATURBHUJDAS DESAI

JUDGEMENT

(1.) This was a suit for the redemption of a mortgage of the Christian year 1794. Originally there had been several mortgages, executed in different years, but all these were consolidated into the mortgage now in dispute. The first question raised in this appeal is whether the right to redeem has long since been barred under the provisions of Section 13 of Bombay Regulation I of 1800. That section was the first law of limitation passed for this Presidency and was extended to Broach by Bombay Regulation II of 1805. It is contended for the respondent- mortgagee that the words in this section are wide enough to embrace suits for redemption. But whatever the conclusion we might have arrived at had the question been res Integra the section formed the subject of judicial interpretation in the Sudder Dewanee Adawlut of Bombay. In Fatima Beebee V/s. Moolla Abdool Futteh (1811) 1 Bom. 124 and Parvuttee V/s. Sooraj (1823) 2 Bom. 563 that Court held that the section did not apply to redemption or other mortgage suits and that these suits were not subject to any law of limitation. It must also be borne in mind in this connection that the provisions of Section 13 of Bombay Regulation I of 1800 correspond to those of Section 14 of Bengal Regulation 111 of 1793; and the construction put upon the latter section by the Calcutta Sudder Adalut is the same as that put upon the former by the Bombay Sudder Adalut; vide Murhonnisa Khartum V/s. Musummat Budamoon (1807) 1 S.D.A. (Bens.) 185; Choteelal v. Pirbhoonarain (1809) 1 S.D.A. (Beng.) 292; Queiros V/s. Khudija Sultan (1807) 1 S.D.A (Beng.) 199; Bulraj Rai V/s. Pertaub Rai (1812) 2 S.D.A. (Beng.) 4. Rai; Hurnarain V/s. Adub Singh (1835) 6 S.D.A. (Beng.) 24. And this interpretation is in accordance with the dictum of the Judicial Committee of the Privy Council in Fatimalulnissa Begum V/s. Sundar Das 37 C. 1004, at p. 1010 : 27 I.A. 103 that the earliest law which placed a limit of time upon suits by mortgagors to recover the mortgaged property is Act XIV of 1859."

(2.) The right to redeem the mortgage now in dispute did not, then, become barred until the year 1854; and as for time since then, the plaintiffs relied upon a series of acknowledgments, the earliest of which is of the year 1825. The learned District Judge, who tried the suit, has dealt with them at length and found in favour of the plaintiff. But it is urged for the respondent mortgagee that they are not acknowledgments within the meaning of Section 19 of the Limitation Act (XV of 1877) because (1) their language is equivocal, (2) they are not addressed to the mortgagor, (3) they do not touch the entirety of the property, (4) such admissions as they contain were not made by the mortgagee with any consciousness that he was acknowledging the right of the mortgagor. The first two of these objections were but faintly urged and have no substance. The last words of the last explanation to Section 19 are clear. The other objections to the acknowledgments centre round the following facts. The original mortgagee was Lallubhai Bhukandas. He died leaving a daughter by name Lalita and a nephew (brother's son) named Nandkishore, each claiming as his heir. These two referred their dispute to arbitration, which in 1819 resulted in an award, by which the property, held by Lallubhai Bhukandas undar the mortgage, froming the subject- matter of the present litigation, was divided into two shares, one being allotted to the daughter and the other to the nephew. They applied to the Collector to have the share of each entered in his and her name respectively in his books. (Vide Exhibit 238). It was not the villages of which the property consisted that were divided but what formed the subject of partition were the dasturi and the pasaita of the village. The Collector having granted the application and entered the names accordingly, each sharer thenceforth affixed his or her signature to the description in the Collector's books as mortgagee in respect of his or her share. That was a distinct admission by each that he Laid his share as mortgagee. It is contended that the acknowledgment in each case so made does not refer to the whole of the mortgaged property, because each sharer made the acknowledgment in respect of his or her share only: and in support of the contention the ruling in Bhogilal V/s. Amritlal 17 B. 173 at p. 175 and Dharma V/s. Balmakund 18 A. 458 are relied upon. The facts in those cases were different. There the acknowledgment was by one only of two co-mortgagees and it was held that one co-mortgagee cannot bind the other by his acknowledgment unless he was specially authorised for that purpose. But here the mortgaged property having been split up into two each sharer represented his own share and made an acknowledgment in respect of it and the two acknowledgments put together comprised the whole property. The argument that these are not acknowledgments within the meaning of Section 19 of the Limitation Act because they are no more then signatures to the description by Government of the status of the signatories as mortgagees ignores the presumption which we ought to make in such cases that the persons who affixed their signatures must have known to what and why they were affixing their signatures.

(3.) I do not think that the mortgagee is entitled to credit for payments made by him in consequence of the application of the summary settlement to the mortgaged villages. The settlement was avowedly in lieu of service which, under the terms of the mortgage, he (the mortgagee) would have had to render to Government. Assuming that it was for the ultimate benefit of the mortgagor, it was also for the benefit of the mortgagee. The effect of it undoubtedly was to free the mortgagee from his liability to render service to Government and to substitute therefor a liability to pay to them a certain amount out of the income of the property. It was, there-fore, for his benefit and it was, moreover, the result of his own agreement with Government he cannot now turn round and say that the mortgagor ought to pay or that the property should be held liable for all the sums he had to pay to Government in accordance with the terms of the settlement.