C AHAMAD HAJI Vs. MAYAN

JUDGEMENT

(1.) This is a suit for redemption of a kanom alleged to have been made in 1856. It is in its turn said to be a renewal of kanoms of still earlier dates. The plaintiffs claim redemption having obtained a melcharth or second mortgage from a Devaswom said to be the original owner of the pro-perties in question. Their case is that the Devaswom mortgaged those properties to a certain Naduvakat tarwad to secure 2,650 fanams and that the annual purapad is 15 paras of paddy. The defendants 1 to 5 and 19 are members of the aforesaid tarwad and represent the original mortgagee. The 6 defendant who is the appellant is in possession of some items and claims an interest by virtue of some deeds executed in his favour by certain members of, the same tarwad.

(2.) The plaintiffs seek to prove the mortgage by a copy (Ex. A) of the original kychit executed in their favour. Their case is, that the document was filed in a case and the records in that suit including the original kychit ware destroyed during the Moplah rebellion. The District Munsif came to the conclusion that the copy produced is a fabrication and on that ground dismissed the suit.

(3.) He has, however, held that it has been proved that the Devaswom is the owner of the properties and that they were demised on kanom to the predecessor in interest of defendants 1 to 5 and 19. In coming to this conclusion he acted upon two exhibits S and W of the years 1881 and 1893. In those deeds the executants, some members of the tarwad, admitted that the Devaswom was the owner and that the properties were demised to their family on kanom. The District Munsif was justified, on these admissions, in finding that the plaintiffs Devaswom was at one time the owner of the property. But he observes that these admissions by themselves cannot avail the plaintiffs, for it is their duty to show that a kanom answering to the mortgage alleged in the plaint was created, and, secondly, that it was subsisting on the date of the suit. Let us now take the second point first. Under Section 19 of the Limitation Act, an acknowledgment to be effective must be made before the period of limitation has expired. True, but it is necessarily implied in the admission we have referred to, that the mortgagee acknowledges that the mortgage was then subsisting; in other words, that it was liable to be redeemed. This is the plain effect of the admissions and we are supported in this view by Dip Singh V/s. Girand Singh (1903) I.L.R. 26 A. 313 at 316 On this point, therefore, we do not agree with the District Munsif, but this does not dispose of the case. It is not sufficient for the plaintiffs to show that there is a subsisting mortgage. It is their duty to prove further the terms of that mortgage and the case with which they came to Court having been disbelieved by the District Munsif, we must hold that they have failed to prove the terms.