Decided on December 12,1967



- (1.) IN this appeal by the 2nd defendant in a suit for redemption of a mortgage, Ext. D-2 dated 17-10-1056, the only question falling for decision is whether the suit has been instituted in time. This point was decided by the trial court against the plaintiff and the suit was therefore dismissed. IN appeal the learned Subordinate Judge took a different view and decreed the suit.
(2.) THE suit was instituted on 2-12-1952 and it is admitted that in the absence of an acknowledgment, the suit will be out of time. And reliance has been placed on a partition deed entered into among Parvathi amma, the mortgagee, her children who are named 2nd, 3rd and 4th persons in the partition deed and her grand child who is the 5th named person in the partition deed, and it is urged that the statement contained in that document would amount to an acknowledgment under S. 19 of the Limitation Act. THE document has been marked as Ext. P-4 and it is dated 28-11-1099. If the statement in that document amounts to an acknowledgment the suit is admittedly within time and will have to be decreed and the decision of the lower appellate court must stand. If on the other hand the statement does not amount to an acknowledgment the suit will have to be dismissed. The statement relied on is in these terms and is contained in that portion of the document wherein the value of the properties in the 4 schedules in the partition are mentioned. There are four schedules in the partition deed. The plaint properties are allotte d to those who took the 2nd, 3rd and 4th schedules.
(3.) IT appears to me unnecessary to discuss elaborately the question as to whether the statement extracted from the document Ext. P-4 would amount to an acknowledgment for, the matter seems to me to be concluded by the decision of the Supreme Court in Tilak Ram and others v. Nathu and others reported in AIR. 1967 SC. 935. The two lines of decisions of the various High Courts in India have been referred to by the supreme Court in this case and they made the following observations: "it is not. however, necessary to go into the details of these decisions or to decide which Of the two views is correct as this Court in Shapur Freedom Mastda v. Durga Prasad, (1962) 1 SCR. 140 (AIR. 1961 SC. 1236), has examined the contents and the scope of S. 19. After first stating the ingredients of the section, this Court stated that an acknowledgment may be sufficient by reason of Explanation.) even if it omits to specify the exact nature of the right. Nevertheless, the statement on which a plea of acknowledgment is based must relate to a subsisting liability. The words used in the acknowledgment must indicate the jural relationship between the parties and it must appear that such a statement is made with the intention of admitting that jural, relationship. Such an intention, no doubt, can be inferred by implication from the nature of the admission and need not be in express words. " Thereafter their Lordships referred to the decision in shapur Freedom Mazda v. Durga Prasad reported in (1962) 1 SCR. 140 which is the same as AIR. 1961 SC. 1236 and extracted a passage from that decision: "if the statement is fairly clear then the intention to admit the jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the Court can reasonably infer that the person mailing the admission intended to refer to a subsisting liability as at the date of the statement". I may extract one other passage from the judgment in tilak Ram and others v. Nathu and others which I consider relevant: "the right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on as expressing jural relationship it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. IT follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or a farfetched process of reasoning. ' On the basis of the above principles it was held that the statements contained in a written statement, in a plaint, in a sale deed, and in a deed of special mortgage which are referred to in Para. 2 of the judgment of the Supreme Court do not amount to an acknowledgment sufficient to provide a fresh starting point of limitation.;

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