TMI Blog1961 (3) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... n seven different occasions to the mortgagor between August 2, 1926, and November 27, 1931. According to the terms of the transaction no specific time for payment of the mortgage dues had been fixed, and it was agreed that the monies advanced would become due and be repaid on demand being actually made by the mortgagee. With this plea we are not concerned in the present appeal. It was further pleaded by the mortgagee that the mortgagor had acknowledged his liability of the mortgagee's claim by letters of March 5, 1932, and February 17, 1943, which were signed by him. It is on the strength of these acknowledgments that the mortgagee purported to bring his claim within time the suit having been filed on May 18, 1944. 2. Pending the suit the appellant was added as a party defendant on August 23, 1944. By his application made by respondent 1 in that behalf it was alleged that the appellant had become the auction purchaser of premises 167/1 at a sale held by the Sheriff of Calcutta on May 3, 1944, in execution of a decree passed in Suit No. 2356 of 1931 by the Calcutta High Court with notice of mortgage in favour of respondent 1. Since the said sale had been confirmed on July 6, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of acknowledgment in writing. 5. Section 19(1) says, inter alia, that where before the expiration of the period prescribed for a suit in respect of any right, an acknowledgment of liability in respect of such right has been made in writing signed by the party against whom such right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. It would be noticed that some of the relevant essential requirements of a valid acknowledgment are that it must be made before the relevant period of limitation has expired, it must be in regard to the liability in respect of the right in question and it must be made in writing and must be signed by the party against whom such right is claimed. Section 19(2) provides that where the writing containing the acknowledgment is undated oral evidence may be given about the time when it was signed but it prescribes that subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received; in other words, though oral evidence may be given about the date oral evidence about the contents of the document is excluded. Explanation 1 is also relevant. It provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any particular writing amounts to an acknowledgment as in construing wills, for instance, it is not very useful to refer to judicial decisions on the point. The effect of the words used in a particular document must inevitably depend upon the context in which the words are used and would always be conditioned by the tenor of the said document, and so unless words used in a given document are identical with words used in a document judicially considered it would not serve any useful purpose to refer to judicial precedents in the matter. However, since decisions have been cited before us both by the learned Attorney-General and Mr. Viswanatha Sastri we propose to refer to them very briefly before turning to the document in question. 8. The question as to what is an acknowledgment has been answered by Fry, L.J., as early as 1884 A. D. in Green v. Humphreys (1884) 26 Ch. D. 474. This answer is often quoted with approval. What is an acknowledgment , asked Fry, L.J., and he proceeded, in my view an acknowledgment is an admission by the writer that there is a debt owing by him, either to the receiver of the letter or to some other person on whose behalf the letter is received but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledgment can be cured by ascertaining what the probable intention of the acknowledger was. Similarly in Swaminatha Odayar v. Subbarama Ayyar I.L.R(1927) . 50 Mad. 548 the Madras High Court has held that an acknowledgment for liability under s. 19 need not be express but may be implied from facts and circumstances under which a statement in a deposition was made but it cannot be implied as a matter of law. 11. On the other hand, the learned Attorney-General has strongly relied on an earlier decision of the Bombay High Court in Dharma Vithal v. Govind Sadvalkar I.L.R(1881) . 8 Bom. 99. In that case certain statements made in the receipt given for the delivery of the land to the officer of the Court were relied upon as amounting to an acknowledgment. The said receipt referred to the suit and decree and the decree to which reference was thus made had set forth in ordinary course the then plaintiff's claim as resting on a mortgage. The contention was that the reference to the decree made the decree a part of the receipt and since the decree referred to the plaintiff's claim as resting on a mortgage the receipt itself served as an acknowledgment of mortgage subsisting in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sacrificed. It appears that the said property was subject to the first prior mortgage and respondent 2 appealed to respondent 1 to save the said threatened sale at the instance of the prior mortgagee. It is common ground that respondent 1 paid to respondent 2 ₹ 2,500 on November 27, 1931, and the threatened sale was avoided. This fact is relevant in construing the subsequent letter. 13. The said property was again advertised for sale on March 11, 1932, and it was about this sale that the letter in question came to be written by respondent 2 to respondent 1 March 5, 1932. This is how the letter reads : My dear Durgaprosad, Chandni Bazar is again advertised for sale on Friday the 11th instant. I am afraid it will go very cheap. I had a private offer of ₹ 2,75,000 a few days ago but as soon as they heard it was advertised by the Registrar they withdrew. As you are interested why do not you take up the whole. There is only about 70,000 due to the mortgagee - a payment of 10,000 will stop the sale. Yours sincerely, Sd. J.C. Galstaun. 14. Does this letter amount to an acknowledgment of respondent 1's right as a mortgagee ? That is the question which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the letter is the interest of respondent 1 as a puisne mortgagee and when the said letter appeals to him to take up the whole it can mean nothing other than the whole of the mortgagee's interest including the interest of the prior mortgagee. An appeal to respondent 1 to stop the sale on payment of ₹ 10,000, as he in fact had stopped a similar sale in November, 1931, is an appeal to ensure his own interest in the security which should be kept intact and that can be achieved only if the threatened sale is averted. We have carefully considered the arguments urged before us by the learned Attorney-General but we see no reason to differ from the conclusion reached by the Court of Appeal below that this letter amounts to an acknowledgment. The tenor of the letter shows that it is addressed by respondent 2 as mortgagor to respondent 1 as puisne mortgagee, it reminds him of his interest as such mortgagee in the property which would be put up for sale by the first mortgagee, and appeals to him to assist the avoidance of sale, and thus acquire the whole of the mortgagee's interest. It is common ground that no other relationship existed between the parties at the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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