MOHAMMAD RAFI Vs. KRIPA RAMJI

JUDGEMENT

(1.) THIS is a plaintiffs appeal arising out. of a suit for redemption of a mortgage, dated 12 July 1840. The plaintiffs are representatives of the original mortgagors and the defendants are the representatives of the original mortgagees. The existence of the mortgage is now in dispute, but the main plea, for consideration is whether the claim is barred by time. Obviously the suit was brought more than 60 years after the date of the mortgage and was prima facie barred by time. In the plaint the plaintiffs however relied on two acknowledgments, one contained in a dakhalnama, dated 21 November 1887, and the other contained in a scheme for partition dated 27 June 1888. The Court of first instance held that there was no valid acknowledgment under either of these two documents and accordingly dismissed the suit on the ground of limitation. The lower appellate Court came to the conclusion that there was a valid acknowledgment under the dakhalnama of 1887 which extended the period of limitation and it accordingly decreed the claim. On appeal the learned Judge of this Court came to the conclusion that the dakhalnama was not a valid acknowledgment, because it was not an acknowledgment ol a liability but was contained in a mere description of a certain property and he held that it was not established that the person who had signed the dakhalnama had authority to acknowledge the liability on behalf of the mortgagees. The question of the authority, in our opinion, does not arise, because the dakhalnama purports to have been executed by the mortgagees themselves, namely, Sadhu Ram and Jai Ram, who are described therein as the executants and whose names appear under the heading "Signed." But it does not appear that the document was executed on their behalf by Ghiau, who alleged himself to be the mukhtaram of the purchasers. The dakhalnama being more than thirty years old, there is a presumption that it was a genunine document and had been executed by the persons who appeared on the face of it to have executed it: see Haji Sheikh Bodha V/s. Sukhram Singh It must therefore be presumed that the document was validly executed by Sadho Ram and Jai Ram which necessarily implies that the persons, who put down their signatures on their behalf, had authority to do so.

(2.) THE next question is whether there was a valid acknowledgment within the meaning of Section 19. No doubt this acknowledgment was not addressed to the mortgagors directly, but it was contained in a dakhalnama which was filed in Court in an execution proceeding against them. After describing what property the auction-purchasers had purchased, they expressly stated that that property did not include an 8 bighas odd area which was in their possession as mortgagees and which belonged to the mortgagors representatives. THE exact date of the mortgage was mentioned in the order for attachment and the proclamation of sale and the identity of the mortgage to which there was reference is not in dispute. It is contended on behalf of the defendants that an acknowledgment must be made as such and must in express language contain an admission of an existing liability of the mortgage and that such an inference cannot be drawn when it is contained in a description of some other property given in the deed. We are not able to accept this contention. So long as there is a clear indication of an intention to admit the existence of the mortgage, it amounts to a valid acknowledgment. In the present case the mortgagees clearly admitted that they were in possession of the area belonging to specific persons as mortgagees, and there is therefore the necessary implication that the mortgage was subsisting and that they were in possession as mortgagees. In our opinion this was a valid acknowledgment within the meaning of Section 19, Lim. Act. We do not think that the case of Khiali Ram V/s. Taik Ram [1916] 38 All 540 or the Bombay case on which it is based has any direct application to the present case. THE appeal is accordingly allowed, the decree of this Court is set aside and the decree of the lower appellate Court is restored with costs.