GOKUL SINGH Vs. SAHEB SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit to redeem a mortgage said to have been made so far back as the year 1849. A mortgage of this date would, of course, have been barred long before. the institution of the present suit, which was in the year 1914. The original amount said to have been secured by the mortgage was Rs. 100. The plaintiffs now claim not only that they are entitled to get possession of the property, but they claim a large sum as surplus mesne-profits. The case is a somewhat peculiar one, because no doubt a number of entries are in favour of the plaintiffs contention that there was a mortgage. As far back as the year 1896 steps were actually taken to redeem the property and Rs. 100 was paid into Court. It is said that Bhoom Singh, who paid the money into Court, died and that the defendants refused to take it, and that the money has remained in Court, until (accordingly to the rules) it lapsed to Government. It is strange on the one side how these entries continued and it is strange on the other hand how it was that the plaintiffs never sought prior to the year 1896 to assert their rights at all, and since the year 1896 have slept on them again. The mortgaged property was undoubtedly producing considerably over Rs. 100 each year for a great many years.

(2.) IN the end the case has to be decided on a very narrow point. The suit is clearly barred by limitation unless there was an acknowledgment in writing, signed by the defendants, of by some person from whom they derived title, or signed by an agent duly authorised in that behalf. The plaintiffs adduced in evidence to show such an acknowledgment the Settlement Officer s report in the year 1871. This document is of considerable length and contains the usual matters which are set forth in a document of the kind. Amongst other things is an entry to the effect that there was a mortgage of the property in dispute, made sometime about the year 1849 for the sum of Rs. 100, that the document was lost in the Mutiny, that Baldeo was the mortgagee and Bhoom Singh the mortgagor. There is no signature of any person directly attached to this particular entry but at the end of the whole document there appear a number of signatures. Amongst other names is that of Baldeo Singh "by the pen of Mannu Lal Patwari." Bhoom Singh s name is also there. Now, there was no necessity for either Bhoom Singh or Baldeo Singh to "execute" or "attest" this document, but their signatures might very well have been taken by way of verification of the document. It is usual to verify as far as possible in this way the co-sharer s assent to what the Settlement Officer has recorded. The Settlement Officer in this report states that Bhoom Singh "appeared before him." He does not say that Baldeo Singh appeared. The Court of first instance found that there had been no acknowledgment and that, therefore, the suit was barred by limitation. Some witnesses were produced who stated that Baldeo Singh was present and put his hand to the pen when Mannu Lal signed his name. The Court disbelieved this evidence and of course no one would be likely to give credence to persons who came forward to depose in the year 1914 to a matter of this kind said to have happened in the year 1871. The lower Appellate Court has not apparently disagreed with any finding of fact arrived at by the Court of first instance. But the learned Judge held that a presumption arose by reason of the provisions of Section 90 of the Evidence Act that Mannu Lal signed for Baldeo with his permission. Section 90 of the Evidence Act is as follows:--"Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular ease considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested." This section would appear in the main to apply to deeds and Wills. Assuming, however, that the "Settlement Report" is a document within the meaning of the section, coming from proper custody, all that the section says may be presumed is that the signature and other parts of the document are in the handwriting of the person in whose handwriting they purport to be. Therefore, according to the section itself the only presumption was that the name "Baldeo" was in the handwriting of Mannu Lal. This is a very different thing to presuming either that the signature was the signature of Baldeo himself or that he authorized Mannu Lal to put his name to the document as agreeing to the accuracy of every single statement contained in the report, We do not think that the latter part of the section can possibly apply, because neither Bhoom Singh nor Baldeo Singh was either "executing" or "attesting" the Settlement Officer s report. Under these circumstances we think that no acknowledgment within the meaning of Section 19 of the Limitation Act was proved in the present case, and that accordingly the suit was barred by limitation. We allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with costs including in this Court fees on the higher scale.