BAI SAKINABAI TAHERALI MOHAMADALI Vs. GULAM RASUL UMARBHAI SHAIKH

JUDGEMENT

(1.) This second appeal under sec. 100 of the Code of Civil Procedure involve a short question of law as to whether documents Exs. 38 and 40 relied upon by the present appellants original defendants amount to acknowledgment of subsisting mortgagee rights on the part of the respondent and his father within the meaning of sec. 18 of the Indian Limitation Act 1963 (sec. 1) of the Indian Limitation Act 1908 If these documents are held to amount to valid acknowledgments with a the meaning of aforesaid section of the Limitation Act the appellants are entitled to succeed but not otherwise.

(2.) In order to appreciate the aforesaid controversy between the parties it is necessary to have a glance at certain material facts as are brought out on the record of the case.

(3.) In Dohad town in Panchmahals district is situated an immovable property bearing city survey No. 2810 which was originally an open piece of land over which a hut was constructed later on. The said property was belonging to one Marabkhar Singalkhan. He had mortgaged the said property with possession for Rs. 80.00in 1896 AD to one Khatijabu widow of Chand Ramzan and since that time the suit property that is open land with a hut over it came in possession of Khatijabu. Thus the said Khatijabu became mortgagee in possession of the suit property. The said Khatijabu bequeathed her mortgagee rights over the suit property by her will dated 28/09/1915 in favour of Umar Mastu Belim who was the predecessor-in-title of the present respondent. Thus Umar Mastu Belim as a legatee under the Will of said Bai Khatijabu became a mortgagee in possession of the suit property after the death of Bai Khatijabu in 1920 when the aforesaid Will of Bai Khatijabu took effect. The aforesaid Umar Mastu died in J951 leaving behind him the present-respondent-original plaintiff and one daughter named Babubibi as his sole heirs and legal representatives. According to the plaintiff respondent he and his sister on the death of the original mortgagee in possession Umar Mastu derived the mortgagee rights in the suit property after their fathers death in 1951. The respondent plaintiffs further case is that as the original mortgagor had not redeemed the suit property within 60 years from 1896 the heirs of original mortgagee in possession Umar Mastu became full owners 43f the suit property on the expiry of 60 years from the year 1896 i. e. from 1956 they have become the full owners of the suit property. Thus the case of the plaintiff is that from 1956 onwards he and his sister had become the co-owner of the suit property to the exclusion of the original mortgagor and his successors in interest. This contention of the plaintiff was based on the ground that the equity of redemption had already got extinguished with the expiry of the time for redemption available from the date of the original mortgage of 1895. The plaintiffs further case is that his sister Babubibi gave up her right title and interest in the suit property in favour of respondent-plaintiff by a registered release deed which came to be registered on 29/12/1967 The respondent-plaintiff therefore contends that from 1956 onwards he and his sister were co-owners of the suit property and from the end of 1967 he is the sole owner of the suit property and the equity of redemption that inhered in the legal representative of original mortgagor had stood extinguished by law of Limitation which operated on the original mortgage transaction as the heirs and legal representatives of the original mortgagor took no steps for redeeming the usufructory mortgage an the suit property within the full span of 60 years from 1896 as per the Old Limitation Act 19