N. C. SHARMA, J. - (1.) MOIETY of a shop situated near old Police Kotwali in Deogarh was owned by Shri Rikhab Dass and rest moiety was owned by Gubal Chand and his sons Tara Chand and Nemi Chand. Mohan Lal son of Harak Chand, deceased (and now represented by respondents Nos. 1/1 and 1/2) by way of Civil Suit No. 312 of 1965 instituted on July 5, 1965 against the appellant and respondents Nos. 2 to 12 in the court of Munsif, Bheem, which was later on transferred to the Court of Munsif, Rajsamand, prayed for a decree of redemption and delivery of possession of the moiety of the shop as successor in interest of Rikhab Das which was alleged to have been usufructuarily mortgaged by Rikhab Das and his sons with Gulabchand and his sons Tarachand and Nemichand on Moti Bhadva Badi 9 Samvat year 1948 corresponding to the year 1891 A. D. Mohan Lal and respondents Nos. 2 to 9 were surviving legal representatives of the mortgagors. The appellant Nathulal and respondents Nos. 10,11 and 12 are descendants of the mortgagees.
(2.) IN his suit Mohan Lal, one of the co-mortgagors, claimed extension in the period of limitation for redemption of the mortgage on the basis of acknowledgement alleged to have been made by Modilal deceased son of Gulabchand, who one was of the co-mortgagees, on October 3, 1985 and yet another acknowledgement of the mortgage alleged to have been made by Nathulal appellant who was real son of Motilal (one of the sons of Gulab Chand) and was alleged to have gone in adoption to Daulat Ram another son of Gulabchand. The first acknowledgement was made in these circumstances that the former Mewar State sought to auction the suit shop for realizing some penalty amount from plaintiff's father Harakchand. IN these proceedings, Modilal, son of Gulabchand co-mortgagee filed objections on 3rd October 1935 and on Miti Sawan Sudi 12 Samvat 1994 (1937 A. D.) produced the copy of the mortgage deed executed by mortgagors in favour of his father Gulab Chand and his brothers Tara Chand and Nemi Chand. The other occasion was that Nathulal appellant, who is grand son of Gulabchand, had filed objections in Customs and Excise Department on November 14, 1947 and therein he acknowledged that half share of the suit shop had been mortgaged with them for Rs. 501/ -. Mohan Lal, plaintiff filled before Munsif, Rajsamand on September 10, 1969 on the ground that he had failed to establish the identity of the shop mortgaged and that the documents Ex. 1 and 2 produced in the suit did not relate to the shop in suit and also on the ground that suit for possession by redemption was barred by limitation. However, on appeal, Mohan Lal plaintiff succeeded before the Additional Civil Judge, Udaipur on October 21, 1974 who held that the mortgage was proved on the basis of secondary evidence adduced by the plaintiff in the form of Ex. 1 and Ex. 2 coupled with oral evidence. The identity of the shop mortgaged was also held to be established. The suit was also held to be within limitation on the basis of extension in limitation gained by the mortgagers and their descendents on account of the acknowledgements of liability made on October 3,19 5 to the 14th November 1947. The suit of Mohan Lal was preliminarily decreed by the Addl. Civil Judge. Udaipur. Aggrieved by this preliminary decree, Nathulal who is one of the descendants of mortgagees has come in second appeal before this Court. Mr. L. R. Mehta appearing for Nathulal defendant Strenuously put forward two contentions before me. His contention was that the first appellate court, without taking notice of the law of limitation as was in force in the former Princely State of Mewar, erred in holding that suit filed by plaintiff Mohan Lal was within limitation. The mortgage in the instant case was alleged to have been effected on Miti Bhadve Badi 9, Samvat year 1948 corresponding to 1891 A. D. The year 1931 was year of legislation in the former State of Mewar. On Miti Mingsar Sudi7 Samvat 1988 corresponding to 16th December, 1931 Royal assent was given to Kanun Miyad Mewar which was enacted as Act No. 2 of Samvat 1988. That Act came into the force with effect from 1st July, 1932. Section 2 of the Act read with the list appended to the Act, by its Articles Nos. 1,2 and 7 prescribed the period of limitation relating to suits based on mortgages. A learned Single Judge of this Court in Bhera Vs. Rameshwar Lal (1) held that on balance of all considerations, it would be proper and fair to give effect to the plain language of Art. 2 and not to misread the words "suits arising out of registered documents" in this Article and he held that Article 2 of the list provided for all suits of redemption arising out of all kinds of documents registered or unregistered and so far as Article 7 was concerned, it was general and residuary article in the sense that it provided for suits between mortgagees and mortgagors excluding suits relating to redemption which were held to fall within Article 2 of the list which prescribed a limitation period of 69 years from the date of cause of action. It may, however, be mentioned that against the above-quoted decision of the learned Single Judge of this Court, a Special Appeal by leave, was preferred by the defendant and that special appeal was decided by a Bench of this Court by its decision reported in 1971 W. L. N. 684. The Division Bench held that Article 2 in the list appended to the Kanoon Miyad Mewar No. 2 Samvat 1988 applied to suits for redemption based on registered mortgages. It was Article 7 which provided a limitation of 15 years, that applied when suits for redemption was based on an unregistered mortgage. In that case, the plaintiff ultimately prayed for an opportunity to move an application for amendment of the plaint so as to plead the acknowledgement extending limitation which he had not pleaded in view of the fact that in two previous decisions of this Court, Article 2 was applied to suits for redemption of unregistered mortgages and, therefore, the Division Bench allowed two months' time to the plaintiff to move application for amendment of the plaint. Faced by the Bench decision of the Court, Mr. M. C. Bhandari, learned counsel appearing for mortgagors, in order to steer out of the Division Bench decision in Bhera's case (supra) which over ruled the earlier single bench decision of this Court, placed reliance on the decision in case of Khubilal vs. Maloom Singh (2) Facts in Khubilal's case (supra) in brief were that the properties belonged to Shitalnathji Maharaj. The properties were mortgaged usufructuarily in favour of Daulji Motichandji on Asoj Sudi 9 Samvat 1896. Another property was mortgaged in favour of Lalji Kalyanji for Rs. 901/- and later Lalji Kalyanji made a submortgage thereof in favour of Daulji Motichandji. Then about a hundred years later in Samvat 1997 one Ranglal on behalf of Shitalnathji Maharaj made a second mortgage of the properties in question in favour of the plaintiffs by a registered deed of mortgage of Miti Jeth Badi 13 Samvat 1997. The plaintiffs impleaded the heirs of Daulji Moti Chandji but did not implead the original mortgage party to their suit and defendants as representatives thereof were subsequently implgorasaded as defendants in May, 1942. When the case went back to the Civil Judge, on the judgement and decree of the Distt. Judge dismissing the suit as barred by time, having been set aside the plaintiffs filed an application to amend the plaint whereby he sought to add a paragraph in the plaint that the suit was within time by virtue of Section 22 of the Mewar Limitation Act read with Notification dated 14th May 1940, published in the Mewar Gazette dated the 3rd June, 1940. The question of limitation came for consideration before the Division Bench of this Court in Khubilal's case (supra) and it was held that by item No. 2 of the Schedule' 2 to the Mewar Act 2 of Samvat 1988, the period of limitation prescribed for suits relating to redemption of mortgage was 60 years and it was not disputed that no period of limitation was in force in the former State of Mewar with respect to such suits prior to the coming into force of Kanoon Miyad Mewar on 1st July, 1932. Section 22 of the Mewar Limitation Act provided that all suits for which no period of limitation had been prescribed before that Act came into force, could be brought upto a period of 8 years from the commencement of the Act, but that if a longer period than 8 years was available to a suitor in accordance with the Act, then he will be entitled to such a longer period. The period of 8 years was available to a suitor in accordance with the Act, then he will be entitled to such a longer period. The period of 8 years had expired on 30th June, 1940. It may be mentioned that by Notification dated 14th May, 1940 the period of 8 years was extended by one year more and this was done because the period of 8 years was going to expire by end of June, 1940. The plaintiffs had instituted the suit within the extended period of one year i. e. before 30th June, 1941. His Lordship Modi, J. construed the Notification and held that it covered a suit of redemption and the suit was held to be within limitation by taking aid of the Notification dated 14th May, 1940 which had extended the period of 8 years provided by Section 22 of the Mewar Act by one more year. As a matter of fact, the decision of the court in Khubi Lal Vs. Maloom Singh relied upon by Mr. M. C. Bhandari, learned counsel for the mortgagors-respondents, instead of in any way assisting the mortgagors, renders the civil suit No. 312 filed by Mohan Lal deceased plaintiff, out of which this second appeal arises, as clearly barred by limitation. As already observed above, it was conceded in Khubi Lal's case (Supra) that there was no period of limitation prescribed in the former princely State of Mewar with respect to suits for redemption of mortgages prior to the coming into force of the Kanoon Miyad Mewar with effect from 1st July, 1932. Consequently, Section 22 of Kanoon Miyad Mewar, Samvat 1988 was immediately attracted and suit for redemption of mortgage could be filed by plaintiff Mohan Lal within eight years of the commencement of Mewar Act No. 2 of Samvat, 1988 i. e. upto 30th June, 1940 which period, according to the construction placed on the Notification dated 14th May, 1940 in Khubilal's case, was extended by one more year and thus limitation period of redemption of the mortgage was upto 30th June, 1941. In the instant case, the mortgage had been made 40 years before the coming into force of the Kanoon Miyad Mewar of Samvat 1988 with effect from 1st July, 1932 and nothing was shown on behalf of the mortgagors that there was any period of limitation prescribed informer State of Mewar for redemption of mortgages prior to the coming into force of Kanoon Miyad Mewar on 1st July, 1932 and that conceding made on the point in Khubilal's case (supra) was wrong. Thus there being no period of limitation prescribed in the former State of Mewar for a suit for redemption of mortgage prior to the coming into force of the Mewar Act No. 2 of the Samvat 1988, plaintiff could file the suit for redemption of the alleged mortgage upto 30th June 1941 by virtue of Section 22 of the Kanoon Miyad Mewar read with Notification dated 14th May, 1940 referred to in Khubi Lal's case. The plaintiff has placed reliance upon two acknowledgements of mortgage alleged to have been made by Modi Lal on October 3, 1935 by Ex. 5 and by Nathu Lal appellant on November 14, 1947 by Ex. 2. True Ex. 5 dated October 3, 1935 and Ex. 2 dated November 14, 1947 contained acknowledgements of mortgage by co-mortgagees Modilal and the appellant respectively and the plaintiffs were entitled to avail of the benefit of Section 14 of the Kanoon Miyad Mewar of Samvat 1988, which is more or less analogous to the provisions contained in Sec. 19 of the old Indian Limitation Act of 1908 and section 18 of the Limitation Act of 1963, for the reason that Section 22 of Kanoon Miyad Mewar also prescribes a period of limitation for filing suits of every nature in respect of which no period of limitation was prescribed before the commencement of the said Mewar Act. The acknowledgement dated October 3, 1935 would have the effect of extending the limitation for the plaintiff's suit upto October 2, 1943. The second acknowledgement dated November 14, 1947 was made by the appellant after the period of limitation of eight years, prescribed by Section 22 of Kanoon Miyad Mewar, Samvat 1988 and as extended by the acknowledgement dated October 3, 1935 (by Ex. 5) upto October 2, 1943, had expired. Thus unfortunately for the plaintiffs, this second acknowledgement dated November 14, 1947 was made by the appellant after the extended period of limitation upto October 2, 1943 had already passed away more than four years before. Time barred second acknowledgement dated November 14, 1947 could not further extend the period of limitation under Section 14 of the Kanoon Miyad Mewar of Samvat 1988. As a matter of fact, the present suit was not filed by plaintiff Mohan Lal even within 8 years of the date of second acknowledgement dated November 14,1947 as it is clear that he had filed the suit as late as on July 5, 1965. It would be entirely erroneous to contend and much more to hold that even under Article 7 of the List appended to the Mewar Act, the starting point of limitation could be the date of commencement of the Mewar Act of Samvat 1988 (i. e. 1st July, 1932) because the Article itself prescribes the starting point of limitation from the date of accrual of cause of action. In view of the conclusion arrived at that it was the period of limitation provided in Section 22 of Kanoon Miyad Mewar of Samvat 1988 of eight years from the commencement of the said Act would apply and in view of the finding that the second acknowledgement dated November 14, 1947 was a time barred acknowledgement and further that the present suit, out of which this appeal arises, was not even instituted within eight years of the date of second acknowledgement, the suit filed by Mohan Lal plaintiff was clearly barred by limitation. The Additional Civil Judge, Udaipur was thus wrong in holding that the suit was within limitation. The second contention of Mr. L. R. Mehta, Learned counsel for the appellant was that the alleged mortgage deed of Miti Bhadva Badi 9, Samvat 1948 corresponding to the year 1891 A. D. was registered and unstamped document and secondary evidence to prove that document was inadmissible. Reliance was placed upon the decision of this court in Sawa Vs. Kuka (3 ). With regard to Sawa's case, it may be mentioned that it was found as a fact that the deed of mortgage was executed some time in 1936 or 1937 and on that: date the Mewar Registration Act No. 2 of Samvat 1988 had already come into force. In that context, it was held that under the law of former Mewar State i. e. the Registration Act of Mewar (Act. No. 2 of Samvat 1988) registration of a deed of mortgage was compulsory. In the instant case the mortgage was executed 40 year before the Registration Act of Mewar of Samvat 1988 came into force in as much as the mortgage was of Samvat 1948. No law was cited or placed before me by either side to show that in former Mewar State even prior to Samvat 1988 i. e. in Samvat 1948 a mortgage deed of immovable property required registration in former princely State of Mewar. As regards the liability of the mortgage deed to stamp duty, it may be stated that Stamp Law in former Mewar State also came into force with effect from 1st July, 193 and it was Mewar Act No. 5 of Samvat 1988. The learned counsel for appellant contended that although, Stamp Act of Mewar came into force on 1st July, 1932 in the form of Act No. 5 of Samvat 1988, but its preamble goes to show that it was a consolidating and amending law. The preamble mentioned that whereas, it was expedient that the Stamp Law which was in force before this Act and all Hidayats which were issued subsequently should be consolidated and amended, the Mewar Act No. 5 of Samvat 1988 was enacted. Mr. L. R. Mehta argued that although he is not in position to place before this Court the law relating to Stamps which was in force in former State of Mewar before Mewar Act No. 5 of Samvat 1988, but he had got with him a typed copy of a Circular of Mahakma-khas, Mewar Govt. which goes to show that stamp duty was payable on mortgages in Mewar State even before Samvat 1988 (1931 AD ). No Gazette Notification in that respect was placed before me. it is very unsafe for me to rely on a typed copy of some circular alleged to be in possession of Mr. L. R. Mehta. In the absence of any stamp law of former Mewar State having been placed by either side before me, it cannot be held that the mortgage deed of Samvat 1948 corresponding to 1891 A. D. required stamp duty informer Stare of Mewar. Consequently secondary evidence was admissible to prove the mortgage deed and the same has amply been proved not only by secondary evidence adduced by the plaintiff but also from the two acknowledgements referred to above. Unfortunately, however, the suit of the plaintiffs mortgagors has to fail because it is barred by limitation to discussed and held above.
(3.) I, therefore, allow this second appeal, set aside the decree of the Additional Civil Judge, Udaipur dated October 21,1974 and restore the decree of Munsif, Rajsamand dated September 10, 1969. In the circumstances of the case, the parties are left to bear their own costs throughout. Decree be prepared accordingly. .;