GOVINDA PILLAI Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) This second appeal by the plaintiff arising out of a suit for the redemption of a mortgage of the year 1047, the only question which arises for decision is whether the suit is barred by limitation or not. The property was mortgaged by the tarwad to which it belonged and which consisted of three branches, the plaintiff and the defendants being members of one of them. Kali Parvarthy a member of the defendant's sub-branch, took Ext. P. 6, a release of the mortgage on Thulam 17, 1065, and was in possession and after her the defendants are in possession. Taking two sale deeds Exts. P. 4 and P. 5 for the equity of redemption from the other two branches the plaintiff instituted the suit. As held by the two courts, Ext. P. 6 does constitute an acknowledgment but this is not sufficient to save the suit and so the plaintiff had to rely on Ext. P. 1, a partition deed of the year 1102 as containing a further acknowledgment. It is a partition deed in the branch of the plaintiff and defendants, in clause 6 of which, the properties are described as for which a release had been taken in the name of Kali Parvathy. The two courts have held these words to be descriptive. I agree with their view. In these words are set out, the history of the properties as of the tarwad and as comprised in the release deed taken by Kali Parvathy ; the release deed referred to can be only Ext. P. 6, but this is immaterial so long as the words do not by themselves import a subsisting liability. As explained by a Division Bench of this Court in Krishna Pillai Vs. Bharathi Amma (1957 K. L. T. 732) the release deed constitutes an acknowledgment, because the party taking the release deed derives title under the mortgagee, who thereby admits a subsisting mortgage right. But in the present context, the release of a mortgage would spell the extinction, rather than the subsistence of the mortgage. In the words of the Supreme Court in Khan Bahadur Shapoor Fredoom Mazda Vs. Durga Prosad Chamaria and Others, AIR 1961 SC 1236 : (1962) 1 SCR 140: