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PETITIONER: REET MOHINDER SINGH SEKHON

       Vs.

RESPONDENT: MOHINDER PARKASH & ORS.

DATE OF JUDGMENT31/07/1989

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. MUKHARJI, SABYASACHI (J)

CITATION:  1989 AIR 1775            1989 SCR  (3) 610  1989 SCC  (4)  30        JT 1989 (3)   379  1989 SCALE  (2)268

ACT: Limitation Act 1908: Suit for redemption of mortgage-limita- tion period.     Limitation  Act, 1963: Sections 19 and 30--When  recital in  sale deed constitutes an acknowledgment for  computation of period of limitation.

HEADNOTE:     The appellant is the successor in interest of the  mort- gagor of the suit property. The suit property was  mortgaged on  22.5.1886. In the normal course the suit for  redemption should  have been filed on or before 22.5.1946, the  limita- tion  for  such a suit being 60 years under  the  Limitation Act,  1906. The appellant, however, filed the suit  for  re- demption  only  on 28.12.1968. The defence to  the  plea  of limitation urged was that the son of the original mortgagee, while  selling the property on 1.11. 1913, had  specifically acknowledged  the  right  of the  mortgagor  to  redeem  the property. It was claimed that this acknowledgment constitut- ed a fresh starting point for computing the period of  limi- tation. The Trial Court accepted the plea and granted decree for  redemption. The Additional District Judge  however  ac- cepted  the  appeal of the respondents. The High  Court,  in appeal, confirmed the order of the Additional District Judge and  held  that the sale deed had nowhere  acknowledged  the right of the mortgagor to redeem the land.     Before  this  Court, it was contended on behalf  of  the appellant  that  the recital in the sale deed  clearly  con- tained  a  specific  acknowledgment by the  mortgagee  of  a subsisting  right  of redemption in the  mortgagor.  On  the other  hand, it was contended that the said recital did  not serve  as  an acknowledgment. It was further  urged  by  the respondents  that even otherwise the suit should  have  been filed within 7 years of the coming into force of the Limita- tion Act, 1963, i.e., on or before 1.4.1971, and that it was actually instituted only on 18.4.1973.     Allowing  the  appeal, setting aside the orders  of  the Additional District Judge and the High Court, and  restoring the  decree for redemption passed by the Trial  Court,  this Court, 611

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   HELD: (1) The period of limitation cannot be extended by a mere passing recital regarding the factum of the  mortgage but the statement on which the plea of an acknowledgment  is based must relate to a subsisting liability. The words  used must indicate the jural relationship between the parties and it must appear that such a statement is made with the inten- tion of admitting such jural relationship. [613G-6 14A] Tilak Ram v. Nathu, AIR 1967 S.C. 935, referred to.     (2) In the instant case, it is not correct to treat  the recitals in the document as a mere narration of the previous mortgage  that had been created on the property.  The  words spell  out a clear intention that the moneys due  under  the mortgage  still remained unpaid and also that the  mortgagor had a subsisting right of redemption which he could  enforce against the mortgagee. [614E-F]     (3)  In  the  Trial Court  the  plaintiff-appellant  had adverted  to the provisions of the Limitation Act, 1963  and the  position that the suit should have been filed within  7 years of the application of the new Act, and had urged  that the  suit was within time. The Trial Court had accepted  the contention  of  the plaintiff-appellant on  this  point.  It could not have been so accepted if the suit had in fact been instituted  only in 1973. In the cause title of the suit  in the  Trial  Court  the date of institution  is  set  out  as 28.12.1968/18.4.1973. This position does not appear to  have been specifically challenged either in the Trial Court or in the  first Appellate Court. The High Court in  its  judgment has  pointed  out that the suit had been filed  on  28th  of December, 1968. In this state of the record, this Court  has to proceed on the basis that the suit had been filed on 28th of  December, 1968 and therefore to hold that the  suit  had been filed in time. [615B-C]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 108  of 1989.     From the Judgment and Order dated 27.1.86 of the  Punjab and Haryana High Court in R.S.A. No. 1510 of 1977.               Harbans  Lal  and  Ashok K.  Mahajan  for  the               Appellant.               Jitender Sharma for the Respondents.               The Judgment of the Court was delivered by RANGANATHAN, J. We grant leave in the Special Leave Peri- 612 tion  and  proceed to dispose of the appeal  on  the  merits after hearing both sides.     The appellant is the successor in interest of the  mort- gagor of the suit property. The suit property was  mortgaged on 22.5. 1886. In the normal course the suit for  redemption should have been filed on or before 22.5. 1946, the  limita- tion  for  such a suit being 60 years under  the  Limitation Act,  1908. The appellant, however, filed the suit  for  re- demption only on 28.12. 1968. He sought to meet the plea  of limitation by urging that the son of the original mortgagee, while  selling the property on 1.11.19 13, had  specifically acknowledged  the  right  of the  mortgagor  to  redeem  the property. It was claimed that this acknowledgment constitut- ed a fresh starting point for computing the period of  limi- tation.     If the plea of the mortgagor were right and the  Limita- tion Act, 1908, had continued to be operative, the suit  for redemption  could  have been filed on or before the  1st  of November, 1973. However, in the meantime the Limitation Act,

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1963  replaced  the Limitation Act of 1908.  The  period  of limitation  for a suit for redemption was reduced under  the new Act to 30 years. Section 30 of the Act, however, provid- ed as follows:               S.  30. Provision for suits, etc.,  for  which               the  prescribed  period is  shorter  than  the               period  prescribed  by the  Indian  Limitation               Act, 1908.               Notwithstanding  anything  contained  in  this               Act--               (a)  any suit for which the period of  limita-               tion is shorter than the period of  limitation               prescribed by the Indian Limitation Act, 1908,               may  be  instituted within a period  of  seven               years next after the commencement of this  Act               or within the period prescribed for such  suit               by the Indian Limitation Act, 1908,  whichever               period expires earlier: By  virtue of this provision, the suit for redemption  could have been filed, if the appellant’s plea that the sale  deed dated  1.11.1913  constituted  a fresh  starting  point  for computation  of the period of limitation is accepted, on  or before  the 1st of January, 1971, having regard to the  fact that the Limitation Act. 1963 came into force on 1.1.1964. 613     The  first question for consideration in this appeal  is whether  the sale deed of 1.11.19 13 contained  an  acknowl- edgement by the original mortgagee of a subsisting right  of redemption  on the part of the mortgagor as on the  date  of the  sale deed viz. 1.11.19 13. The sale deed contained  the following recitals:               "Now  I  of  my own accord have  sold  all  my               mortgagee  rights  along  with  the   original               mortgage  consideration  and  interest   which               according to the terms of the aforesaid  mort-               gage  deed has accrued and is payable  to  the               instant  vendor  ..........   The  rights  and               interest regarding recovery of original  mort-               gage money and interest according to  mortgage               deeds executed by Jangi Khan original  mortga-               gor  deceased and redemption of the  mortgaged               land which hence to fore vested in the instant               vendor stand vested in the purchaser  .....               (underlining by us)     On  behalf  of the appellants it is submitted  that  the words extracted above clearly contained a specific  acknowl- edgement  by the mortgagee of a subsisting right of  redemp- tion  in the mortgagor. On the other hand. for the  respond- ents,  it is contended--and this contention was accepted  by the  High  Court--that the recitals mentioned above  do  not serve as an acknowledgment. The High Court observed:               "The  mortgagee Mool Raj gave the  description               of  the mortgage only with a view  to  showing               his status but nowhere did he acknowledge  his               liability  for  redemption  of  the  mortgage.               According to the recital in the deed, whatever               rights as a mortgagee he had in the suit  land               were  transferred  to the  vendee.  There  was               nothing  more  than  this. The  right  of  the               mortgagor to redeem the land, and his liabili-               ty  to redeem the same, was  nowhere  acknowl-               edged." The respondents strongly rely on this finding and also  rely on  the  decision of this court in Tilak Ram v.  Nathu,  AIR 1967 S.C. 935.

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   We  are  of  the opinion that the High  Court  erred  in accepting  the above contention. It is true, as pointed  out in Tilak Ram v. Nathu, that the period of limitation  cannot be  extended by a mere passing recital regarding the  factum of the mortgage but that the statement on which the plea  of an  acknowledgement  is based must relate  to  a  subsisting liability. The words used must indicate the jural  relation- ship between 614     the parties and it must appear that such a statement  is made  with the intention of admitting such  jural  relation- ship. But, in our opinion, the recitals in the sale deed  on 1.11.1913 fulfil_ the above requirements. The fact of  Nanak Chand having obtained a mortgage with possession had already been recited in an earlier part of the sale deed. The  pass- sages  in  the sale deed, which have been  extracted  by  us above, contain two specific recitals. The first is that "the original  consideration and interest under had  accrued  and Was payable to the instant vendor." These words  acknowledge that  the mortgage had not been redeemed and that the  mort- gage  moneys remained outstanding to the mortgagee From  the mortgagor  as  on  the’ date of the sale  deed.  The  second recital  is  even more specific. It says  that  what  stands transferred  to the purchaser is not only the fight  of  the mortgagee for recovering the principal amounts and  interest according  to the mortgage deed (which, as  earlier  stated, still remained outstanding) but also "the rights and  inter- est"  regarding the redemption of the mortgaged land.  These words  are,  of course, a little inappropriate  because  the right  of  redemption  is in the mortgagor and  not  in  the mortgagee. But, read as a whole, the second sentence we have quoted here from the sale deed  clearly manifests an  inten- tion  on the part of the mortgagee to acknowledge  that  his right to recover the moneys under the mortgage deed as  well as his liability to have the property redeemed by the  mort- gagor  in the event of his paying off the moneys  due  under the instrument both stand vested in the purchaser. We are of the opinion that it is not correct to treat the recitals  in the  document as a mere narration of the  previous  mortgage that had been created on the property. The words spell out a clear intention that the moneys due under the mortgage still remained unpaid and also that the mortgagor had a subsisting right  of  redemption  which he could  enforce  against  the mortgagee.  In  this view of the matter  the  contention  on behalf of the appellant that the recitals in the document of 1.11.1913  constituted an  acknowledgement of liability  for redemption  within the meaning of section 19 of the  Limita- tion Act deserves to be accepted.     On behalf of the respondents it is submitted that,  even if the above position is accepted, the suit should have been filed on or before 1.4.1971 but that it was actually  insti- tuted  only  on 18.4.1973. Our  attention is  drawn  to  the cause title of the suit in the trial court where the suit is described as Case Civil Suit No. 204 of 1973 and the date of institution  is set out as 28.12.1968/18.4.1973. It is  sub- mitted  that perhaps the suit had been flied  on  28.12.1968 with defects and that the defects had been rectified  subse- quently  so that the suit can be properly said to have  been instituted only on 18.4.1973. It has been numbered 615 only as a suit of 1973. It is, therefore, contended that  in any  event  the suit was barred by limitation  being  beyond 1.4.1971. This contention is without force. This point  does not  appear  to have been specifically taken either  in  the trial  court or in the first appellate court. On  the  other

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hand  in the trial court the plaintiff had adverted  to  the provisions  of the Limitation Act and the position that  the suit  should have been filed within 7 years of the  applica- tion of the new Act and urged that the suit was within time. This  contention was accepted by the trial court.  It  could not  have  been  so accepted if the suit had  in  fact  been instituted Only in 1973 as at present submitted. That  apart the High Court in the course of its judgment has pointed out that  the present suit had been filed on 28th  of  December, 1968. In this state of the record we have to proceed on  the basis  that  the suit had been filed on  28th  of  December, 1968,  and, therefore hold, for the reasons stated  earlier, it had been filed in time.     For the reasons above mentioned, we set aside the  order of  the  High Court confirming the order of  the  Additional District Judge and restore the decree for redemption  passed by the trial court. We would only like to clarify that there were  two  mortgage deeds the redemption of which  had  been sought  by  the plaintiff in the suit. We are  concerned  in this appeal only with the property mortgaged under the  deed of mortgage dated 22.5.1986 by Jangi Khan in favour of Nanak Chand and sold on 1.11.1913 by Mool Raj, son of Nanak Chand, to  the predecessor-in-interest of the  present  respondent. The  concurrent findings of the three courts in  respect  of the  other  mortgage are not, in any way, disturbed  by  our judgment.     The appeal, therefore, stands allowed and the  appellant will be entitled to his costs. R.S.S.                                                Appeal allowed. 616