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Tilak Ram And Ors. Versus Nathu And Ors.

1966 (9) TMI 157 - SUPREME COURT OF INDIA

Dated:- 5-9-1966 - K S Rao And J Shelat, JJ. JUDGMENT J.M. Shelat, 1. The predecessors of one Teja Hazari were the owners of lands admeasuring 155 bighas situate in the village Naraina near Delhi. Between August 1801 and October 1869 they executed seven usufructuary mortgages in favour of one Dharamdas to secure repayment of an aggregate sum of ₹ 1,290 advanced by him. Dharamdas died leaving him surviving his son Parmeshwardas. The said Parmeshwardas sub-mortgaged the suit lands in favour .....

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e predecessors-in-title of the appellants. As a result of these transactions the position in 1903 was that the predecessors-in-title of the respondents stood in the position of mortgagors subject to the said sub-mortgage and the predecessors-in-title of the appellants stood in the position of mortgagors of the said lands to the extent of the 3/4th share therein and the rest of the Vdh share therein remained with the said Teja. On April 14, 1903 the said Hira Singh and Ganga Sahai, the predecesso .....

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eal, however, the appellate Court reversed the said judgment and decree and passed a decree for redemption and possession on payment of ₹ 8,839-13-0 in favour of the predecessors-in-title of the appellants and the said Teja and against the predecessors-in-title of the respondents. The appellants' predecessors-in-title, however, failed to redeem. Consequently the suit lands continued to remain in possession of the respondents' predecessors-in-title. The said Teja migrated to Pakista .....

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ir 3/4th share in the suit lands. In answer to that suit the respondents pleaded that as sixty years had already expired since the dates of the said mortgages the suit was barred by limitation and the appellants were not entitled to redeem the said lands. The appellants relied on four statements for the purpose of saving limitation which they alleged were acknowledgments within the meaning of Section 19 of the Limitation Act, IX of 1908. These statements were in the following documents:- 1. The .....

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rdas in 1902. 2. In the last document the statement relied on was with regard to only the first of the said seven mortgages, dated August 16, 1861. 3. The Trial Court passed a preliminary decree, dated March 29, 1957 for possession on condition that the appellants paid ₹ 8,839-13-0 within four months. Accordingly the appellants deposited the said amount-in Court. The respondents filed an appeal challenging the said judgment and decree. On January 8, 1958 the learned District Judge dismisse .....

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on the appellants filed a Letters Patent appeal which met the same fate. This appeal by certificate challenges the correctness of the said judgment and decree passed by the High Court. 4. The period of limitation for redemption of the said mortgages being sixty years the period in respect of the last of them expired as early as 1929 but the appellants relied on certain statements in the said four documents alleging that they constituted acknowledgments by the predecessors-in-title of the respond .....

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ere is a subsisting mortgage, that his interest in the property is as a mortgagee and he acknowledges by such a statement his liability to being redeemed by the mortgagor subject of course to the mortgagor paying the mortgage debt. This contention was seriously contested by Mr. Menon who argued that a statement as to jural relationship would at best be a mere description of the rights dealt with by such a party and that a statement to fall within Section 19 has to be a conscious and deliberate a .....

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ments did was only to mention without anything more the fact of jural relationship of mortgagor and mortgagee. But Mr. Mishra's contention was that a mere admission of such jural relationship was sufficient for the purposes of Section 19 and that the statement relied on need not in express words be an admission of the liability to be redeemed or of the right of redemption. Such a statement necessarily implies a subsisting mortgage and, therefore, of the right of redemption and the liability .....

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so signed." Explanation 1 to the section inter alia provides that "For the purposes of this section an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right or is addressed to a person other than the person entitled to the property or right." 7. The section requires (i) an admission or acknowledgment (ii) that such acknowledgment must be in respect of a liability in respect of a property or right, (iii) that it must be made before th .....

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ons were cited at the bar in support of the rival contentions. One line of these decision? lays down that an admission by a mortgagee in a pleading or a subsequent transaction that he holds the property as a mortgagee is a sufficient acknowledgment that the maker of the statement thinks and believes that he is liable to be redeemed at the date of the statement. On the basis of this principle an application by a judgment-debtor during execution proceedings under a mortgage-decree, claiming that a .....

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onsequently it was held that he was estopped from setting up a defence inconsistent with his rights as the mortgagee, [cf. Sidhasri Ram v. Gargi Din, AIR 1924 All 458, Chhedalal v. Gulam Abbas, AIR 1929 AH 242, Adya Prasad v. Lai Girjish Bahadur Pal, ILR 55 All 393: , Ralla Ram v. Bhana, AIR 1933 Lah 33, Arjan v. Gurdial, AIR 1951 Pepsu 52, Ram Jatan Singh v. Lagandeo Singh, and Padmanabha Pillai v. Lekshmi, AIR 1953 Trav-Co 244]. On the other hand there is another line of decisions where it was .....

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d the question as to his liability or whether he was thinking of and referring to some other matter. Nanak Prasad v. Suraj Baksh, AIR 1943 Oudh 425, Sham Devi v. Bhagwant, , Shvakashi Match Exporting Co. v. Ramanlal Mohanlal, ILR , Gur Saran v. Shib Singh, , Paras-ram v. Bindeshari Pande, '-' Ramdin v. Ramparichan, AIR 1942 Pat 170, Kandasami v. Suppammal, ILR 45 Mad 443: (AIR 1922 Mad 104) and Sambasiva Ayyar v. Subramania Pillai, (Supra) the High Court of Patna held that an admission o .....

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that the person making a statement has his mind directed to the question of the existence of the debt and he represents that the debt exists or represents facts consistent only with the inference that he admits the existence of the debt such a representation would be deemed to be a sufficient acknowledgment. The statement in question in that case was by a purchaser of equity of redemption in Court proceedings taken against the mortgagor, viz., that the purchaser had bought properties described .....

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ourts but also sometimes in the same High Court. 9. 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 Fredoom Mazda v. Durga Prosad, , has examined the contents and the scope of Section 19. After first stating the Ingredients of the section, this Court stated that an acknowledgment may be sufficient by reason of Explanation 1 even if it omits to specify the exact nature of the right. Nevertheless, the st .....

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admit the jural relationship may be implied from it. The admission in question need not be express but must be made circumstances and in words from which he Court can reasonably infer that the per- on making the admission intended to refer to a subsisting liability as at the date of the statement." The Court also observed that stated generally the Courts leaned in favour of a liberal construction of such statements though that would not mean that where no admission was made one should be i .....

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er person on whose behalf the letter was received but that it was not enough that he referred to a debt as being due from somebody. In order to take the case out of the statute there must, upon a fair construction of the letter read by the light of the surrounding circumstances, be an admission that the writer owed the debt. 10. 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 .....

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sting mortgages and the right to redeem or the liability of the maker thereof to be redeemed ? Exhibit E, dated April 8, 1902 is the mortgage-deed executed by Parmeshwardas in favour of Badam for ₹ 200. The document refers only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharamdas it does so for the purpose of describing the interest Parmeshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage th .....

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Singh and others on the other and was a sale of his mortgage rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession as Dharamdas's successor-in-title, the deed of mortgage, dated April 8, 1902 (Ex. E) and the fact that he was by this deed selling his mortgage rights for ₹ 1,290. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is .....

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