NARAYAN BALAJI BANDIVDEKAR Vs. GOVIND SAKHARAM NIMKAR

JUDGEMENT

(1.) The plaintiff in this action sued to redeem a mortgage of the year 1807. The first Court held that the suit was within time. The suit was filed on June 18, 1920, that is to say, 113 years after the date of the mortgage. Bat the trial Court held that, by reason of a certain acknowledgment of June 27 1860, the suit, being within sixty years from the date of that acknowledgment, was not time-barred, The lower appellate Court took a different view, and held that the acknowledgment in question was ineffectual to give a fresh starting point of limitation inasmuch as it was not signed by a person who could give an effectual acknowledgment having regard to Section 15 of Act XIV of 1859, which was in force at that date.

(2.) The question which we have to determine is which of these two views is correct. The mortgagee under the mortgage of 1807 was one Bachaji, and though the facts are not very clearly ascertained, it appears that in 1860 the family consisted of Sakharam, the son of Bachaji, and possibly his eldest son the 1st defendant, and also Moreshwar, the son of Bachaji's brother. The acknow- ledgment on which reliance is placed is signed by Sakharam. It is contained in a sub-mortgage to a third party, and in the course of the document the following passage occurs : "We mortgage to you the same fourth takshim of the whole village of, Mouje Karade which we hold under mortgage." It has been found from other documents that the mortgage alluded to in these words is the mortgage of 1807. Therefore we must consider the effect of this acknowledgment by Sakharam in the year 1860. It appears to have been found that Sakharam was the manager of the joint family, and though it is rather difficult to feel entirely satisfied with the finding upon that point which rests on grounds which are somewhat conjectural, still we take that to be so for the purposes of the present appeal.

(3.) Turning then to the Act of 1859, which was in force at this date, there will be found in Section 15 a reference to acknowledgments in the following words "if in the meantime an acknowledgment of the title of the...mortgagor, or of his right of redemption, shall have been given in writing signed by the...mortgagee or some person claiming under him, (a period of 60 years) from the date of such acknowledgment in writing." Therefore we have to decide whether Sakharam was such a person as would come within these words. Now that very point came before this Court in Bhogilal V/s. Amritlal (1892) I.L.R. 17 Bom. 173, with reference to Art. 148 of the Indian Limitation Act of 1871, where practically the same form of words are used. The facts there were that one Jagjivandas was the manager of a joint Hindu firm, and also the manager of the joint family estate, and the question before the High Court was whether an acknowledgment by Jagjivandas satisfied the requirements of Clause 15 of Section 1 of Act XIV of 1859, or Article 148 of Act IX of 1871. It was held that it did not. The decision was based upon the view that Jagjivandas in that case might have been regarded as an agent, but that an acknowledgment by an agent was not sufficient for the purposes of the law in force at that date.