GAYADIN SINGH Vs. KALKA SINGH

JUDGEMENT

(1.) This matter in dispute here is whether a certain alleged statement in Court, which statement has been weeded out, may be taken as an acknowledgment of liability as mortgagee by the person who made the statement. The acknowledgment is sought to be proved under Section 19, Lim. Act, in order to extend the period of limitation which had expired at the date of the institution of the suit for redemption from the date of the mortgage, 13 June 1856. Both the subordinate Courts have held that statement was in writing and signed by Sheo Nandan Singh. Those findings are binding here. Both the subordinate Courts have held the statement to be a sufficient acknowledgment of Sheo Nandan's liability to be redeemed at the time in 1884.

(2.) The question is of considerable difficulty because the statement is not before the Court, and the circumstances under which the statement was made and the exact words cannot be gathered from the oral testimony and from the judgment of the settlement Court which is still in existence. It appears, however, that Sheo Nandan Singh's contention at the time was that he was a tenant of the fixed-rate holding, and that the applicant (one Jaglal) had no right to be recorded as a mortgagor. In the result the applicant Jaglal was not recorded as a mortgagor. Reference should be made to the pedigree given at the commencement of the judgment of the lower appellate Court. Ram Sahai was the mortgagor, and he had mortgaged the holding usufructuarily to certain money-lenders whose names it is not necessary to record. After the death of Ram Sahai his cousin, Durga redeemed the mortgage in the lifetime of Ram Sahai's widow, Mt. Lachminia and took possession. Durga appears to have acted on behalf of himself and his brother. Sheo Nandan was the brother's son of Durga. In 1884 Jaglal, who was in the same degree of relationship through males with Ram Sahai as Durga was, applied to the settlement Court to be recorded as a mortgagor and Sheo Nandan, and Lachhman, the son of Durga, to be recorded as mortgagees. Sheo Nandan put in and appearance and contested that he was the principal tenant and that the applicant had no right. This defence of Sheo Nandan is recorded in the judgment in the following words: Ram Sahai Singh, the original tenant, was related to me as uncle. He twice mortgaged the cultivated holdings to Balak Sahai and Sheo Ratan Sahai. But after his death my uncle Durga Singh paid the mortgage money to the mahajans and entered in possession thereof. All the cultivated holdings in dispute have ever since been in our possession. They may be recorded as holdings in our cultivation" (Hamari kashtkari likhi jawe).

(3.) The question in issue was what record was to be made in the papers at the time of settlement as regards this fixed-rate tenancy holding and the defence of Sheo Nandan was an assertion of full tenancy rights in denial of the mortgage alleged by the applicant Jaglal. So far there was no admission of liability of any mortgage but rather a denial thereof on the part of Sheo Nandan. Then follow these words in the judgment: In his examination he admitted that he did not get the mutation of names effected because he held possession as mortgages.