limitation act

Anup Singh And Ors. vs Fateh Chand And Ors. on 14/5/1920 Allahabad High Court

JUDGMENT

   P.C. Banerji, J.

   1. This appeal arises out of a suit for redemption of a mortgage alleged to
have been made some time between 1833 and 1839 by Albela and Lachhman in favour
of Ganga Ram and Ram Dayal. It is stated that the property which is the subject
matter of the suit was the subject of a mortgage, that the amount of the
mortgage was Rs. 561-4 and that the mortgage was redeemable upon payment of the
mortgage money in the month of Jeth of any year. The plaintiff is the purchaser
of the equity of redemption from the successors-in-title of the original alleged
mortgagors. The principal defendants, who are the representatives of the
mortgagee?, deny the fact of the mortgage and deny that the claim is within
limitation. Undoubtedly it is for the plaintiff who comes into Court for
possession of property by redemption of mortgage to prove two things, first,
that a mortgage answering substantially to the description of the mortgage
alleged in the plaint was created, and, secondly, that the mortgage was a
subsisting mortgage when the suit was brought, i.e., that the plaintiff's claim
was not time barred. The fact of the mortgage as alleged by the plaintiff has
been found by the Court below, and there is ample evidence on the record to show
that a mortgage of the property now in suit was made by the two alleged
mortgagors in favour of Ganga Ram and Ram Dayal for a sum of Rs. 561 4

   0. In the Khatauni which is to be found in the settlement record of 1833 and
which is referred to by the Court below as the Khatauni of 1339, there is a
specification of this particular mortgage. It is. stated to be a mortgage made
by Albela and Lachhman in favour of Ganga Ram and Ram Dayal. The property is
mentioned, the amount of the mortgage is mentioned, and it is further mentioned
that the mortgage is redeemable upon payment of the mortgage money in the month
of Jeth of any year. A Settlement took place in 1863, and in that Settlement a
wazib-ul-arz was prepared in which all mortgages in the village were specified.
At the heading of the list of these mortgages it is stated in the wajib ul arz
that these mortgages could be redeemed upon payment of the principal amount in
the month of Jeth of any year. Among these mortgages is the mortgage now in
question. The property mortgaged is specified. The Dames of the mortgagors and
the mortgagees are also mentioned and the amount of the mortgage is mentioned
also. This wajib-ul-arz was signed by Ganga Ram and by the successors-in-title
of Ram Dayal, so that the entries in the Khatauni to be found in the Settlement
Record of 1833 and in the wajib-ul-arz of 1863 clearly prove the existence of a
mortgage of the disputed property with all the details alleged by the plaintiff
in this case. The only thing that is wanting in both these documents is the
initial date of the mortgage. In my opinion the fact of the plaintiff having
been unable to prove the date of the mortgage is not sufficient to justify our
holding that the mortgage has not been proved. The date of the mortgage was not
material, except for the purpose of the question of limitation to which I shall
have to refer later. In the Full Bench case of Parmanand Misir v. Sahib Ali 11
A. 438 : A.W.N. (1889) 155 : 6 Ind. Dec. (N.S.) 708 the learned Chief Justice at
the conclusion of his judgment stated that what was necessary to be shown was "a
definable or distinguishable mortgage," In the present case a definable or
distinguishable mortgage has been fully proved and the mere inability of the
plaintiff to prove the exact date of the mortgage is not a valid reason for
holding that the fact of the mortgage sought to be redeemed has not been
established. The learned Subordinate Judge has found that a mortgage of the
property in dispute was made by the alleged mortgagors in favour of the alleged
mortgagees for a sum of Rs. 561 4 0, and this finding, which is justified by the
evidence to which I have referred, is binding on us in this appeal.

   2. The next question is: "Has it been established that in 1863 when this
mortgage was acknowledged by the mortgagees it was a subsisting mortgage?". It
is true that in the acknowledgment itself there is no specific allegation that
the mortgage was a subsisting mortgage, but it must also be remembered that in
the wajib-ul-arz a specification was made of all the mortgages which existed in
the village and which must be taken to have been deemed to be mortgages which
were subsisting at the date of the preparation of the wajib-ul-arz. In that
document, as I have already stated, a specification is given of a number of
mortgages with the addition of a clause to the effect that the mortgages could
be redeemed by payment of the amount of the mortgages in the month of Jeth of
any year. Among these mortgages was the mortgage now in dispute, and this
mortgage was acknowledged by the mortgagees to be a mortgage which was in
existence. Of course it was for the plaintiff who came into Court to prove that
that acknowledgment was one which had been made before the expiry of the period
of limitation, otherwise the acknowledgment could not be availed of for the
purpose of saving the operation of limitation. In my opinion the question is one
of the amount of proof which has been given of the existence of a subsisting
mortgage in 1863. I do not think that any hard and fast rule can be laid down as
to what should be the quantity of evidence to be adduced in each case. But where
in respect of a mortgage, the creation of which was established, the mortgagees
acknowledged that the mortgage existed, that acknowledgment is, in my opinion,
prima facie, evidence that it was a mortgage which subsisted at the time when
the acknowledgment was made and was not a mortgage which had become extinct by
lapse of time. As observed by Mr. Justice Pearson in his judgment in the Full
Bench case of Daia Chand v. Sarfraz 1 A. 117 : 1 Ind. Dec. (N.S.) 79, "It is not
reasonable to suppose that any one would allow himself to be described as the
mortgagee of a property of which the mortgage had ceased to be redeemable at law
and the names of the owners thereof had been lost to knowledge by lapse of
time". In my opinion where a mortgagee has acknowledged a mortgage, that
acknowledgment is prima facie evidence that there is a subsisting mortgage which
he acknowledges. If the mortgage had become extinguished by reason of lapse of
time, there was no occasion for him to acknowledge such a mortgage; the mortgage
had to all intents and purposes, ceased to exist and there is nothing which had
to be acknowledged. This case is very similar to that of Kamla Devi v. Gur Dayal
51 Ind. Cas. 283 : 17 A.L.J.

   330. Before the enactment of Act XIV of 1859 there was no period of
limitation for a suit for redemption of a mortgage. By that enact ment a
limitation of 60 years was prescribed for a suit for redemption and a grace of
two years was given to all mortgagors who wished to redeem their mortgages after
the passing of the Ast. This period of grace expired in 1852, so that if a suit
had been brought to redeem a mortgage whether the mortgage had been made in 1833
or at a much earlier period, the suit would not have been time-barred. It was
after the passing of the Act that the Settlement of 1863 took place and it was
at this time that in the present case the mortgagees admitted the existence of
the mortgage. When they made that acknowledgment, they must have deemed the
mortgage to have been in existence as a subsisting mortgage which could be
redeemed by the mortgagor. Of course this acknowledgment cannot be more than
prima facie evidence of the existence of a subsisting mortgage and is not
conclusive. It may be rebutted by proving that the mortgage was made at a date
from which, if limitation were computed, 60 years had elapsed before the
acknowledgment was made. There is no such evidence in the present case; on the
contrary in every subsequent Settlement this property has been recorded as the
property of the mortgagor and as being in the possession of the mortgagees as
such. In the year 1321 Fasli a partition took place at the instance of Anup
Singh, defendant, and a separate Mahal was formed. This land was not included in
Anup Singh's Mahal and Anup Singh did not claim that it should be made a part of
his Mahal. It was included in the Mahal of the non applicants for partition,
among whom were the successors in-title of the original mortgagors. All these
circumstances raise a very strong presumption in favour of the existence of a
subsisting mortgage. Reference was made to the ruling of the Privy Council in
Fatimatulnism Begum v. Sundar Das 27 C. 1004 : 27 I.A. 103 : 4 C.W.N. 565 : 7
Sar.P.C.J. 718 : 14 Ind. Dec. (N.S.) 657. In that case the date of the mortgage
was known, It was also known that the acknowledgment which had been made was an
acknowledgment after the expiry of 60 years from the date of the mortgage, so
that that acknowledgment could not be relied upon as saving the operation of
limitation and was not in fact so relied upon before their Lordships. What was
contended before their Lordships was that by reason of the mortgagees having
granted a lease to the mortgagors and described themselves as mortgagees they
were estopped from denying the existence of the mortgage as a subsisting
mortgage, This contention was repelled by their Lordships, and they proceeded to
hold that the mere fact of the mortgagees regarding themselves as mortgagees,
although the period of limitation for redemption of the mortgage had expired,
could not affect their rights which had matured into (he rights of absolute
owners. Such is not the case here. In this case it is true we have no evidence
as to the exist date on which the mortgage was made. It is quite possible that,
in 1803, 60 years had not expired from the date of the original mortgage, and it
seems to me to be improbable that had the mortgage been made sometime prior to
1803 it would have been treated in 1863 as an existing mortgage. We have,
however, no evidence on the point. In that year, as I have said above, the
mortgagees acknowledged the existence of a mortgage, and, in my opinion, that
acknowledgment is prima facie evidence of the existence of a subsisting
mortgage. This is the view which the Court below took, and I think that Court
was fully justified in holding that view. I would dismiss the appeal with costs.

   Piggott, J.

   3. I have carefully considered the judgment which has just been delivered by
Mr. Justice Banerji, I am in agreement with so much of it that it is only after
considerable hesitation that I have arrived at the conclusion that I am bound to
dissent from the order which he proposes to pass on this appeal. I may say at
once that I agree with him that the plaintiff in this case had proved his
mortgage sufficiently to satisfy all reasonable requirements on that point.
There is, in any case, a finding of fact that the mortgage is proved and that
finding undoubtedly rests upon the evidence. The entry made in what has
sometimes been spoken of as the Settle ment Record of 1833 and sometimes as the
Settlement Record of 1839 (it must be remembered that in many of these old
Settlement papers an entry to the effect that the paper in question appertains
to " a settlement Record of 1833" means nothing more than that it was made in
the course of a Settlement prepared under the Regulations of 1833) was made at a
time when there was no period of limitation prescribed by law for the redemption
of a mortgage. It is, therefore, evidence that certain specified land was held
by certain named persons as the mortgagees of certain other named persons, and
that the latter were entitled to reedeem the mortgage at any time on payment of
a specified sum. Under these circumstances I do not think it was incumbent on
the plaintiffs, except for purposes of limitation, to prove that this mortgage
had been contracted in a particular year.

   4. We now some to the crucial question of the acknowledgment, to be found in
the Settlement Record of 1863. There was undoubtedly an acknowledgment
sufficient in law to save limitation, provided it was made at a time when the
liability acknowledged was still subsisting. The question is then whether it has
or has not been proved that the mortgage in suit, whatever its precise date, was
at any rate contracted within CO years of this acknowledgment of the year 1863.
Admittedly there is no direct evidence on the point. The question is ore of
inferring one fact as presumably true because of certain other established
facts. If the lower Appellate Court had looked at the matter, plainly and
unmistakably, from this point of view and had recorded a clear finding that from
such and such established facts it drew the inference that the mortgage must
have been contracted within 60 years of its acknowledgment in the Settlement
Record of 1863, I should have felt more difficulty about the case than I
actually do. A clear finding of fact by a Court of first appeal can only be
interfered with in second appeal on the ground that it proceeds upon some
erroneous view of law, or that it rests upon no legal evidence. I should have
felt considerable difficulty about holding that a clear finding of fact, such as
that above suggested, would in this case have rested upon no legal evidence;
obviously, in face of the judgment which has just been delivered, it would have
been exceedingly difficult to say this. However, I am satisfied that the learned
Subordinate Judge in this case has not looked at the matter from this point of
view. He has assumed that, for practical purposes it was sufficient for the
plaintiff to prove that there was in existence in the year 1839 a mortgage which
was at that date redeemable, and that an acknowledgment of liability has been
proved, which acknowledgment was made within 60 years of the year 1839. That
this is not a correct statement of the law is obvious enough from the mere terms
of the Indian Limitation Act of 1851. The Legislature in that year for the first
time, imposed a sixty years period of limitation for redemption suits I did not
proceed on the assumption that those sixty years would begin to run with the
passing of the Statute, as it would have done if it had considered it sufficient
to note that every mortgage then in existence was redeemable on the date on
which the Statute came into force. All it did was to allow mortgagors, whose
right of redemption would otherwise have been abruptly out off the moment the
Statute came into force, a short period of grace within which to make the
necessary arrangements and to bring a suit for redemption if they were able To
do so. The mere fact, therefore, that there was a redeemable mortgage in the
year 1839 does not suffice to make out the plaintiffs case unless the Court is
prepared to infer that the said mortgage must have been contracted some time
within 60 years of its acknowledgment in the Settlement Record of 1863. It is
here that, in my opinion, a question of principle is involved and I have felt
driven to dissent from the judgment which has been delivered because of the
importance I attach to this question of principle The inference that the
mortgage must have been contracted within 60 years of the preparation of the
Settlement Record of 1863 is sought to be based mainly on the terms of the
acknowledgment itself Something has been said about the subsequent conduct of
the mortgagees, and to this I must refer briefly later on. In the main, however,
the question is, and it has been very clearly stated by Mr. Justice Banerji in
his judgment, whether or not the Settlement Record of the years 1863, read in
connection with the fast that it was signed as a correct entry by the then
mortgagees, justifies an inference that the mortgage was not at the date of that
acknowledgment over 60 years old. We are really dealing with a question of
circumstantial evidence inferring one fact from another, applying the principles
laid down in Section 114 of the Indian Evidence Act. My main reason for being
unable to concur with the judgment delivered by the senior member of this Bench
is that I dissent quite definitely from the dictum which he has quoted from the
judgment of one of the members of the Full Bench which decided the case of Daia
Chand v. Sarfraz 1 A. 117 : 1 Ind. Dec. (N.S.) 79 and am unable to accept as of
general validity the proposition that it is not reasonable to suppose that a man
would describe himself as mortgagee of a property under a mortgage which had
ceased to be redeemable at law. I do not think that the proposition can be
founded upon any wide experience of the ordinary principles of human nature and
conduct as prevailing amongst the smaller landholders in this country. A glaring
instance to the contrary is on record for all time in the Privy Council case to
which reference has been made, that reported as Fatimatulnissa Begum v. Sundar
Das 27 C. 1004 : 27 I.A. 103 : 4 C.W.N. 565 : 7 Sar.P.C.J. 718 : 14 Ind. Dec.
(N.S.) 657. We there have a mortgagee continuing for years and years to describe
himself as mortgagee of certain property, and even describing himself as such in
a covenant of lease which he enters into with his mortgagor, many years after
the right of redemption had become Statute-barred. In one sense it is possibly
correct to say that a man does not ordinarily acknowledge a liability which he
knows to have become Statute-barred; but the possibility of such an
acknowledgment was clearly contemplated by the Legislature when drawing up the
relevant clause of the Indian Limitation Act. It required to be laid down that
in order to save limitation an acknowledgment must be made before the period of
limitation in respect of the liability so acknowledged had expired; and in so
doing the Legislature clearly contemplated the possibility of acknowledgments
being made of Statute-barred debts. If the Courts are in a general way to act
upon the sort of principle involved in the words which I have quoted from the
judgment of Mr. Justice Pearson, the result will be that an acknowledgment made
within 60 years of the limitation period prescribed for the institution of any
suit will have to be treated as ordinarily sufficient to save limitation, unless
and until the party bound by that acknowledgment is able to prove affirmatively
that it was made beyond limitation. I do not think this is a sound principle, or
was intended by the Legislature.

   5. I now come to consider more definitely the particular acknowledgment in
question in this case which is to be found in the Settlement Record. An entry in
a Settlement Record is presumably in itself a correct statement of the facts
therein recited. We have that in the present case, and we also have the
acknowledgment of the correctness of the entry by the signatures of the then
mortgagees. So far the case looks well for the plaintiff; but I do not think it
is a strong case, when one comes to consider the terms of the entry in view of
the circumstances under which it was made. In the year 1863 the Limitation Act
of 1859 was a comparatively recent Statute. The special period of grace allowed
thereby had only lately expired. The Settlement Officer in these circumstances
set himself to enquire what lands in the village were in the possession of
mortgagees and on what terms. If he had intended to prepare only a list of
mortgages redeemable at the time when the list was drawn up, I think there would
have been some enquiry into the dates of the various mortgages and the
admissions of the parties on the point would have been recorded. I do not feel
myself able to infer form those documents that the question whether or not any
mortgage entered in this list was at that moment 60 years old was present at all
to the mind of the Settlement Officer. What he drew up was a list of lands which
had passed into the possession of the persons then holding them by way of a
contract of mortgage, and he recorded the essential terms of that contract,
i.e., the names of the mortgagors and the mortgagees, the amount of the
mortgage, the terms of the agreement between the contracting parties as to the
method of redemption. I do not believe that he intended to record an admission
that each and every one of these mortgages was necessarily redeemable, in view
of the recently passed Statute on the subject, on the date on which he drew up
that list. His silence on the point, and the absence of any enquiry as to the
date of any of the mortgages, seem to me almost conclusive. I am of opinion,
therefore, that the admission of the mortgagees in this particular instance is
no more than an admission that their possession in the year 1863 had its origin
in a contract of mortgage, to which certain persons had been parties and of
which the covenanted mortgage debt was a certain specified sum.

   6. For these reasons I do not feel able to draw from the entry in question
the inference which has commended itself to Mr. Justice Banerji.

   7. As regards the subsequent conduct of the mortgagee it leaves me cold.
Entries of this sort are ordinarily continued from Settlement to Settlement. The
Settlement Officer sets himself to enquire who are the present holders of the
mortgagee rights and on whom the proprietary rights, i. e., the equity of
redemption, have since devolved. He would in all probability consider it
entirely outside his function to enter upon an enquiry as to whether or not any
one of these mortgages had become Statute-barred. The case already referred to
as Fatimatulnissa Begum v. Sundar Das 27 C. 1004 : 27 I.A. 103 : 4 C.W.N. 565 :
7 Sar.P.C.J. 718 : 14 Ind. Dec. (N.S.) 657 may be mentioned once more as an
instance in which such entries were continued for many years after the right of
redemption had in fast become barred. So far as my experience goes, I know
literally of no case in which a mortgagee has raised, either before the
Settlement Officer at Settlement or before the Revenue Authorities by way of
application for correction of records, the point that his -mortgagee possession
has now ripened into full proprietary possession for want of redemption within
the prescribed period of 60 years. So far as the ordinary Revenue Courts are
concerned, I am confident that they would refuse to entertain such an
application or to make any kind of enquiry into it. They would refer the person
making it to the Civil Court; and I cannot say that in my experience I have even
some across a case in which a mortgagee, under the circumstances suggested, has
taken the initiative and find a suit for a declaration to the effect that he has
acquired full proprietary rights. In the partition to which reference has been
made, the co-sharer who was also the principal mortgagee, or perhaps the sole
mortgagee, of the lands in question in this case was seeking to have his
rateable share in the proprietary rights of the Mahal separated from the rest
and made, into a separate Mahal. The mortgage which we are considering was not a
mortgage of a fractional share in the Mahal. It was a mortgage of specified
plots. I find it very difficult to conceive of an application for partition so
drawn up as to ask the Partition Court to form into a separate Mahal lands
representing the applicant's fractional share in the proprietary rights of the
Mahal as a whole and at she same time to take out of the Mahal of the non-
applicants for partition certain specified plots and add them to the Mahal of
the applicant, on the ground (1) that they were in possession of the applicant,
and (2) that he had become by virtue of prescription the owner of those
specified plots, over and above his rateable share in the proprietary rights of
the Mahal as a whole. I am not prepared to say that such an application would be
impossible under the Local Revenue Act, although I conceive it would raise
serious difficulties regarding the apportion-ment of revenue between the two
Mahals, but it is sufficient for my present purpose to say that I think it very
unlikely that the applicant for partition would have thought of coming before
the Partition Court with such a claim and that his failure to do be does not
seem to me a piece of conduct on his part which in any way suggests an admission
that the mortgage in question was still redeemable.

   8. For these reasons I must record my opinion that this appeal ought to be
allowed, the order of remand set aside and the decree of the first Court
dismissing the plaintiff's suit restored with costs throughout,

   Walsh, J.

   9. In my judgment this is a plain case. The question of law arises in an
appeal from a remand order. The plaintiffs sued for redemption of a mortgage the
date of which neither they nor anybody else knows. They alleged that it was made
between the years 1833 and 1839. It was, therefore, prima facie Statute-barred.
In order to overcome this difficulty they further alleged that the mortgagees
had given an acknowledgment within Section 19 of the Limitation Act which took
the case out of the mischief of the Statute both in 1839 and in 1863. The case
on the acknowledgment of 1839 broke down. An acknowledgment was given by the
mortgagees in 18 33. The question is whether there is any evidence that that
acknowledgment was given within sixty years of the date of the mortgage or
whether it was otherwise sufficient in law. The Munsif held that the plaintiffs
had failed to prove the mortgage relied upon and had failed to prove a valid
acknowledgment. The lower Appellate Court disagreed with him and remanded the
case for other issues to be determined. The question is whether that order is
right. The lower Court decided, to quote its own language, that "There is no
oral or documentary evidence worth the name to prove the exact or approximate
date of the mortgage. There is no doubt the mortgage was in existence in 1839,
but there is no evidence that it was executed between the years 1833 and 1839.
It has not found as a fact that the mortgage was executed within 60 years of
1863." It could hardly with propriety have done so, having held that there was
no evidence to support such a finding. It merely held that the acknowledgment
was given within 60 years of 1839 when the mortgage was subsisting and that such
an acknowledgment was sufficient. This is a conclusion of law and, in my
opinion, is untenable, and, therefore, the appeal ought to be allowed. All the
evidence in the case is equally consistent with a mortgage which was 60 years
old and also with a mortgage which was not 63 years old in 1863. The principle
involved was settled in 1889 in Parmanand Misr v. Sahib Ali 11 A. 438 : A.W.N.
(1889) 155 : 6 Ind. Dec. (N.S.) 708, when a Full Bench decided that in a case
for redemption which pre-supposes the lawful possession of the defendant, the
plaintiff must show in his plaint and prove at the trial that he had a
subsisting title at the date of the suit. In that case the plaintiffs alleged a
mortgage-deed which they did not produce and of which they were unable to give
the date. It was held that there was no prima facie evidence that the mortgage
had been made in 1826, which date alone would have brought it within 60 years of
the suit. Similarly in this case there is no prima facie evidence that the
mortgage alleged by the plaintiffs was made between 1833 and 1839 or within
sixty years of the acknowledgment relied upon. That Full Bench case has been
followed in several others, and, in my opinion, is binding upon this Court. It
is at any rate too late to depart from it even if one were disposed to do so,
which I am not. The same principle was applied to a case of an acknowledgment in
Khiali Ram v. Taik Ram 36 Ind. Cas. 452 : 38 A. 540 : 14 A.L.J. 834 by my
brother Piggott and Mr. Justice Lindsay. I can find nothing in the oases cited
to us on behalf of the respondents which is inconsistent with the principle thus
affirmed.

   10. If it is said that the Full Bench case reported as Paramanand Misr v.
Sahib Ali 11 A. 438 : A.W.N. (1889) 155 : 6 Ind. Dec. (N.S.) 708 did not deal
with the question of acknowledgment, The answer seems to me to be this. When the
plaintiff sues for redemption, it does not matter for the purpose of limitation
whether he relies upon the original- mortgage contract or upon an acknowledgment
which has given him a fresh lease of life. In either case he has to show that
his claim is not barred by efluxion of time. The dicta in Dip Singh v. Girand
Singh, 26 A. 3l3 : 1 A.L.J. 1 : A.W.N. (1904) 38 also relied upon by the
respondents merely stated on whom, in the special circumstances of that
particular case, the burden of proof lay. The more recent case relied upon of
Kamla Devi v. Gur Dayal 51 Ind. Cas. 283 : 17 A.L.J. 330, reported not in the
authorised reports but in 17 Allahabad law Journal, page 330, is in my opinion a
finding of fact which lays down no principle. The lower Courts had held that the
acknowledgments were not shown to have been made within 60 years of the date of
the mortgage. The High Court by a two-Judges Bench consisting of the Hon'ble the
Chief Justice and my brother Banerji overruled the Courts below and said, to
quote the exact terms of the judgment, "Under the circumstances...we ought to
hold that the acknowledgments were given before the expiration of sixty years
from the date of the mortgage". 1 agree with my brother Piggott that the express
language of Section 19 of the Limitation Act contemplates the possibility of an
acknowledgment of liability given after the expiration of the statutory period
and shows by its terms that a plaintiff, before he can succeed upon an
acknowledgment at all, must establish that it was made before the expiration of
the statutory period. In this case it is not suggested that he has established
that fact by any direct evidence. In my opinion no inference can be drawn from
the acknowledgment, however fully it may have admitted liability, so far as the
actual date of the original mortgage is concerned, It ought not to be presumed
that people of the agricultural class in 1863 could not have done otherwise than
know the terms of the resent Statute of Limitation of 1859. As is pointed by
their Lordships of the Privy Council in a somewhat similar case to this,
reported as Fatimatulnissa Begum v. Sundar Das 27 C. 1004 : 27 I.A. 103 : 4
C.W.N. 565 : 7 Sar.P.C.J. 718 : 14 Ind. Dec. (N.S.) 657, people may admit
liability even though a Statute has actually barred it, but such an admission is
ineffectual in law by the express terms of the Statute which we have to apply.
The only inference which I feel at liberty to draw from the argument of the case
before us, and I have no hesitation myself in drawing it, is that so far from
this mortgage having been made, as the plaintiff consistently alleged, between
1833 and 1339, it was almost certainly made, as appears from the Settlement
Records, anterior to 1833. I cannot resist the feeling that to upheld the
decision of the Court below would be to introduce uncertainty and vacillation as
to the evidence requisite for making an accurate guess of a date which is not
proved in evidence and would leave the decision of these oases largely a matter
of chance. I would further observe that inferences as to the probable conduct of
people in matters of business in the year 1863 are not particularly easy to draw
by those who are living under the conditions of 1920, and there is always a
danger of inferring that the only probable and reasonable conduct of an
individual is the course which you yourself would have taken. It is for this
reason that I think my brother Piggott, certainly I, concurred in referring the
discussion of this case to a larger Bench. In my judgment the appeal ought to be
allowed and the suit dismissed with costs.

   11. In accordance with the 63 decision of the majority of the Bench the order
of the Court is that this appeal be allowed, the order of the Court below be set
aside and the decree of the Court of first instance be restored with costs in
all Courts.

 
  

Anup Singh And Ors. vs Fateh Chand And Ors. on 14/5/1920

JUDGMENT

   P.C. Banerji, J.

   1. This appeal arises out of a suit for redemption of a mortgage alleged to
have been made some time between 1833 and 1839 by Albela and Lachhman in favour
of Ganga Ram and Ram Dayal. It is stated that the property which is the subject
matter of the suit was the subject of a mortgage, that the amount of the
mortgage was Rs. 561-4 and that the mortgage was redeemable upon payment of the
mortgage money in the month of Jeth of any year. The plaintiff is the purchaser
of the equity of redemption from the successors-in-title of the original alleged
mortgagors. The principal defendants, who are the representatives of the
mortgagee?, deny the fact of the mortgage and deny that the claim is within
limitation. Undoubtedly it is for the plaintiff who comes into Court for
possession of property by redemption of mortgage to prove two things, first,
that a mortgage answering substantially to the description of the mortgage
alleged in the plaint was created, and, secondly, that the mortgage was a
subsisting mortgage when the suit was brought, i.e., that the plaintiff's claim
was not time barred. The fact of the mortgage as alleged by the plaintiff has
been found by the Court below, and there is ample evidence on the record to show
that a mortgage of the property now in suit was made by the two alleged
mortgagors in favour of Ganga Ram and Ram Dayal for a sum of Rs. 561 4

   0. In the Khatauni which is to be found in the settlement record of 1833 and
which is referred to by the Court below as the Khatauni of 1339, there is a
specification of this particular mortgage. It is. stated to be a mortgage made
by Albela and Lachhman in favour of Ganga Ram and Ram Dayal. The property is
mentioned, the amount of the mortgage is mentioned, and it is further mentioned
that the mortgage is redeemable upon payment of the mortgage money in the month
of Jeth of any year. A Settlement took place in 1863, and in that Settlement a
wazib-ul-arz was prepared in which all mortgages in the village were specified.
At the heading of the list of these mortgages it is stated in the wajib ul arz
that these mortgages could be redeemed upon payment of the principal amount in
the month of Jeth of any year. Among these mortgages is the mortgage now in
question. The property mortgaged is specified. The Dames of the mortgagors and
the mortgagees are also mentioned and the amount of the mortgage is mentioned
also. This wajib-ul-arz was signed by Ganga Ram and by the successors-in-title
of Ram Dayal, so that the entries in the Khatauni to be found in the Settlement
Record of 1833 and in the wajib-ul-arz of 1863 clearly prove the existence of a
mortgage of the disputed property with all the details alleged by the plaintiff
in this case. The only thing that is wanting in both these documents is the
initial date of the mortgage. In my opinion the fact of the plaintiff having
been unable to prove the date of the mortgage is not sufficient to justify our
holding that the mortgage has not been proved. The date of the mortgage was not
material, except for the purpose of the question of limitation to which I shall
have to refer later. In the Full Bench case of Parmanand Misir v. Sahib Ali 11
A. 438 : A.W.N. (1889) 155 : 6 Ind. Dec. (N.S.) 708 the learned Chief Justice at
the conclusion of his judgment stated that what was necessary to be shown was "a
definable or distinguishable mortgage," In the present case a definable or
distinguishable mortgage has been fully proved and the mere inability of the
plaintiff to prove the exact date of the mortgage is not a valid reason for
holding that the fact of the mortgage sought to be redeemed has not been
established. The learned Subordinate Judge has found that a mortgage of the
property in dispute was made by the alleged mortgagors in favour of the alleged
mortgagees for a sum of Rs. 561 4 0, and this finding, which is justified by the
evidence to which I have referred, is binding on us in this appeal.

   2. The next question is: "Has it been established that in 1863 when this
mortgage was acknowledged by the mortgagees it was a subsisting mortgage?". It
is true that in the acknowledgment itself there is no specific allegation that
the mortgage was a subsisting mortgage, but it must also be remembered that in
the wajib-ul-arz a specification was made of all the mortgages which existed in
the village and which must be taken to have been deemed to be mortgages which
were subsisting at the date of the preparation of the wajib-ul-arz. In that
document, as I have already stated, a specification is given of a number of
mortgages with the addition of a clause to the effect that the mortgages could
be redeemed by payment of the amount of the mortgages in the month of Jeth of
any year. Among these mortgages was the mortgage now in dispute, and this
mortgage was acknowledged by the mortgagees to be a mortgage which was in
existence. Of course it was for the plaintiff who came into Court to prove that
that acknowledgment was one which had been made before the expiry of the period
of limitation, otherwise the acknowledgment could not be availed of for the
purpose of saving the operation of limitation. In my opinion the question is one
of the amount of proof which has been given of the existence of a subsisting
mortgage in 1863. I do not think that any hard and fast rule can be laid down as
to what should be the quantity of evidence to be adduced in each case. But where
in respect of a mortgage, the creation of which was established, the mortgagees
acknowledged that the mortgage existed, that acknowledgment is, in my opinion,
prima facie, evidence that it was a mortgage which subsisted at the time when
the acknowledgment was made and was not a mortgage which had become extinct by
lapse of time. As observed by Mr. Justice Pearson in his judgment in the Full
Bench case of Daia Chand v. Sarfraz 1 A. 117 : 1 Ind. Dec. (N.S.) 79, "It is not
reasonable to suppose that any one would allow himself to be described as the
mortgagee of a property of which the mortgage had ceased to be redeemable at law
and the names of the owners thereof had been lost to knowledge by lapse of
time". In my opinion where a mortgagee has acknowledged a mortgage, that
acknowledgment is prima facie evidence that there is a subsisting mortgage which
he acknowledges. If the mortgage had become extinguished by reason of lapse of
time, there was no occasion for him to acknowledge such a mortgage; the mortgage
had to all intents and purposes, ceased to exist and there is nothing which had
to be acknowledged. This case is very similar to that of Kamla Devi v. Gur Dayal
51 Ind. Cas. 283 : 17 A.L.J.

   330. Before the enactment of Act XIV of 1859 there was no period of
limitation for a suit for redemption of a mortgage. By that enact ment a
limitation of 60 years was prescribed for a suit for redemption and a grace of
two years was given to all mortgagors who wished to redeem their mortgages after
the passing of the Ast. This period of grace expired in 1852, so that if a suit
had been brought to redeem a mortgage whether the mortgage had been made in 1833
or at a much earlier period, the suit would not have been time-barred. It was
after the passing of the Act that the Settlement of 1863 took place and it was
at this time that in the present case the mortgagees admitted the existence of
the mortgage. When they made that acknowledgment, they must have deemed the
mortgage to have been in existence as a subsisting mortgage which could be
redeemed by the mortgagor. Of course this acknowledgment cannot be more than
prima facie evidence of the existence of a subsisting mortgage and is not
conclusive. It may be rebutted by proving that the mortgage was made at a date
from which, if limitation were computed, 60 years had elapsed before the
acknowledgment was made. There is no such evidence in the present case; on the
contrary in every subsequent Settlement this property has been recorded as the
property of the mortgagor and as being in the possession of the mortgagees as
such. In the year 1321 Fasli a partition took place at the instance of Anup
Singh, defendant, and a separate Mahal was formed. This land was not included in
Anup Singh's Mahal and Anup Singh did not claim that it should be made a part of
his Mahal. It was included in the Mahal of the non applicants for partition,
among whom were the successors in-title of the original mortgagors. All these
circumstances raise a very strong presumption in favour of the existence of a
subsisting mortgage. Reference was made to the ruling of the Privy Council in
Fatimatulnism Begum v. Sundar Das 27 C. 1004 : 27 I.A. 103 : 4 C.W.N. 565 : 7
Sar.P.C.J. 718 : 14 Ind. Dec. (N.S.) 657. In that case the date of the mortgage
was known, It was also known that the acknowledgment which had been made was an
acknowledgment after the expiry of 60 years from the date of the mortgage, so
that that acknowledgment could not be relied upon as saving the operation of
limitation and was not in fact so relied upon before their Lordships. What was
contended before their Lordships was that by reason of the mortgagees having
granted a lease to the mortgagors and described themselves as mortgagees they
were estopped from denying the existence of the mortgage as a subsisting
mortgage, This contention was repelled by their Lordships, and they proceeded to
hold that the mere fact of the mortgagees regarding themselves as mortgagees,
although the period of limitation for redemption of the mortgage had expired,
could not affect their rights which had matured into (he rights of absolute
owners. Such is not the case here. In this case it is true we have no evidence
as to the exist date on which the mortgage was made. It is quite possible that,
in 1803, 60 years had not expired from the date of the original mortgage, and it
seems to me to be improbable that had the mortgage been made sometime prior to
1803 it would have been treated in 1863 as an existing mortgage. We have,
however, no evidence on the point. In that year, as I have said above, the
mortgagees acknowledged the existence of a mortgage, and, in my opinion, that
acknowledgment is prima facie evidence of the existence of a subsisting
mortgage. This is the view which the Court below took, and I think that Court
was fully justified in holding that view. I would dismiss the appeal with costs.

   Piggott, J.

   3. I have carefully considered the judgment which has just been delivered by
Mr. Justice Banerji, I am in agreement with so much of it that it is only after
considerable hesitation that I have arrived at the conclusion that I am bound to
dissent from the order which he proposes to pass on this appeal. I may say at
once that I agree with him that the plaintiff in this case had proved his
mortgage sufficiently to satisfy all reasonable requirements on that point.
There is, in any case, a finding of fact that the mortgage is proved and that
finding undoubtedly rests upon the evidence. The entry made in what has
sometimes been spoken of as the Settle ment Record of 1833 and sometimes as the
Settlement Record of 1839 (it must be remembered that in many of these old
Settlement papers an entry to the effect that the paper in question appertains
to " a settlement Record of 1833" means nothing more than that it was made in
the course of a Settlement prepared under the Regulations of 1833) was made at a
time when there was no period of limitation prescribed by law for the redemption
of a mortgage. It is, therefore, evidence that certain specified land was held
by certain named persons as the mortgagees of certain other named persons, and
that the latter were entitled to reedeem the mortgage at any time on payment of
a specified sum. Under these circumstances I do not think it was incumbent on
the plaintiffs, except for purposes of limitation, to prove that this mortgage
had been contracted in a particular year.

   4. We now some to the crucial question of the acknowledgment, to be found in
the Settlement Record of 1863. There was undoubtedly an acknowledgment
sufficient in law to save limitation, provided it was made at a time when the
liability acknowledged was still subsisting. The question is then whether it has
or has not been proved that the mortgage in suit, whatever its precise date, was
at any rate contracted within CO years of this acknowledgment of the year 1863.
Admittedly there is no direct evidence on the point. The question is ore of
inferring one fact as presumably true because of certain other established
facts. If the lower Appellate Court had looked at the matter, plainly and
unmistakably, from this point of view and had recorded a clear finding that from
such and such established facts it drew the inference that the mortgage must
have been contracted within 60 years of its acknowledgment in the Settlement
Record of 1863, I should have felt more difficulty about the case than I
actually do. A clear finding of fact by a Court of first appeal can only be
interfered with in second appeal on the ground that it proceeds upon some
erroneous view of law, or that it rests upon no legal evidence. I should have
felt considerable difficulty about holding that a clear finding of fact, such as
that above suggested, would in this case have rested upon no legal evidence;
obviously, in face of the judgment which has just been delivered, it would have
been exceedingly difficult to say this. However, I am satisfied that the learned
Subordinate Judge in this case has not looked at the matter from this point of
view. He has assumed that, for practical purposes it was sufficient for the
plaintiff to prove that there was in existence in the year 1839 a mortgage which
was at that date redeemable, and that an acknowledgment of liability has been
proved, which acknowledgment was made within 60 years of the year 1839. That
this is not a correct statement of the law is obvious enough from the mere terms
of the Indian Limitation Act of 1851. The Legislature in that year for the first
time, imposed a sixty years period of limitation for redemption suits I did not
proceed on the assumption that those sixty years would begin to run with the
passing of the Statute, as it would have done if it had considered it sufficient
to note that every mortgage then in existence was redeemable on the date on
which the Statute came into force. All it did was to allow mortgagors, whose
right of redemption would otherwise have been abruptly out off the moment the
Statute came into force, a short period of grace within which to make the
necessary arrangements and to bring a suit for redemption if they were able To
do so. The mere fact, therefore, that there was a redeemable mortgage in the
year 1839 does not suffice to make out the plaintiffs case unless the Court is
prepared to infer that the said mortgage must have been contracted some time
within 60 years of its acknowledgment in the Settlement Record of 1863. It is
here that, in my opinion, a question of principle is involved and I have felt
driven to dissent from the judgment which has been delivered because of the
importance I attach to this question of principle The inference that the
mortgage must have been contracted within 60 years of the preparation of the
Settlement Record of 1863 is sought to be based mainly on the terms of the
acknowledgment itself Something has been said about the subsequent conduct of
the mortgagees, and to this I must refer briefly later on. In the main, however,
the question is, and it has been very clearly stated by Mr. Justice Banerji in
his judgment, whether or not the Settlement Record of the years 1863, read in
connection with the fast that it was signed as a correct entry by the then
mortgagees, justifies an inference that the mortgage was not at the date of that
acknowledgment over 60 years old. We are really dealing with a question of
circumstantial evidence inferring one fact from another, applying the principles
laid down in Section 114 of the Indian Evidence Act. My main reason for being
unable to concur with the judgment delivered by the senior member of this Bench
is that I dissent quite definitely from the dictum which he has quoted from the
judgment of one of the members of the Full Bench which decided the case of Daia
Chand v. Sarfraz 1 A. 117 : 1 Ind. Dec. (N.S.) 79 and am unable to accept as of
general validity the proposition that it is not reasonable to suppose that a man
would describe himself as mortgagee of a property under a mortgage which had
ceased to be redeemable at law. I do not think that the proposition can be
founded upon any wide experience of the ordinary principles of human nature and
conduct as prevailing amongst the smaller landholders in this country. A glaring
instance to the contrary is on record for all time in the Privy Council case to
which reference has been made, that reported as Fatimatulnissa Begum v. Sundar
Das 27 C. 1004 : 27 I.A. 103 : 4 C.W.N. 565 : 7 Sar.P.C.J. 718 : 14 Ind. Dec.
(N.S.) 657. We there have a mortgagee continuing for years and years to describe
himself as mortgagee of certain property, and even describing himself as such in
a covenant of lease which he enters into with his mortgagor, many years after
the right of redemption had become Statute-barred. In one sense it is possibly
correct to say that a man does not ordinarily acknowledge a liability which he
knows to have become Statute-barred; but the possibility of such an
acknowledgment was clearly contemplated by the Legislature when drawing up the
relevant clause of the Indian Limitation Act. It required to be laid down that
in order to save limitation an acknowledgment must be made before the period of
limitation in respect of the liability so acknowledged had expired; and in so
doing the Legislature clearly contemplated the possibility of acknowledgments
being made of Statute-barred debts. If the Courts are in a general way to act
upon the sort of principle involved in the words which I have quoted from the
judgment of Mr. Justice Pearson, the result will be that an acknowledgment made
within 60 years of the limitation period prescribed for the institution of any
suit will have to be treated as ordinarily sufficient to save limitation, unless
and until the party bound by that acknowledgment is able to prove affirmatively
that it was made beyond limitation. I do not think this is a sound principle, or
was intended by the Legislature.

   5. I now come to consider more definitely the particular acknowledgment in
question in this case which is to be found in the Settlement Record. An entry in
a Settlement Record is presumably in itself a correct statement of the facts
therein recited. We have that in the present case, and we also have the
acknowledgment of the correctness of the entry by the signatures of the then
mortgagees. So far the case looks well for the plaintiff; but I do not think it
is a strong case, when one comes to consider the terms of the entry in view of
the circumstances under which it was made. In the year 1863 the Limitation Act
of 1859 was a comparatively recent Statute. The special period of grace allowed
thereby had only lately expired. The Settlement Officer in these circumstances
set himself to enquire what lands in the village were in the possession of
mortgagees and on what terms. If he had intended to prepare only a list of
mortgages redeemable at the time when the list was drawn up, I think there would
have been some enquiry into the dates of the various mortgages and the
admissions of the parties on the point would have been recorded. I do not feel
myself able to infer form those documents that the question whether or not any
mortgage entered in this list was at that moment 60 years old was present at all
to the mind of the Settlement Officer. What he drew up was a list of lands which
had passed into the possession of the persons then holding them by way of a
contract of mortgage, and he recorded the essential terms of that contract,
i.e., the names of the mortgagors and the mortgagees, the amount of the
mortgage, the terms of the agreement between the contracting parties as to the
method of redemption. I do not believe that he intended to record an admission
that each and every one of these mortgages was necessarily redeemable, in view
of the recently passed Statute on the subject, on the date on which he drew up
that list. His silence on the point, and the absence of any enquiry as to the
date of any of the mortgages, seem to me almost conclusive. I am of opinion,
therefore, that the admission of the mortgagees in this particular instance is
no more than an admission that their possession in the year 1863 had its origin
in a contract of mortgage, to which certain persons had been parties and of
which the covenanted mortgage debt was a certain specified sum.

   6. For these reasons I do not feel able to draw from the entry in question
the inference which has commended itself to Mr. Justice Banerji.

   7. As regards the subsequent conduct of the mortgagee it leaves me cold.
Entries of this sort are ordinarily continued from Settlement to Settlement. The
Settlement Officer sets himself to enquire who are the present holders of the
mortgagee rights and on whom the proprietary rights, i. e., the equity of
redemption, have since devolved. He would in all probability consider it
entirely outside his function to enter upon an enquiry as to whether or not any
one of these mortgages had become Statute-barred. The case already referred to
as Fatimatulnissa Begum v. Sundar Das 27 C. 1004 : 27 I.A. 103 : 4 C.W.N. 565 :
7 Sar.P.C.J. 718 : 14 Ind. Dec. (N.S.) 657 may be mentioned once more as an
instance in which such entries were continued for many years after the right of
redemption had in fast become barred. So far as my experience goes, I know
literally of no case in which a mortgagee has raised, either before the
Settlement Officer at Settlement or before the Revenue Authorities by way of
application for correction of records, the point that his -mortgagee possession
has now ripened into full proprietary possession for want of redemption within
the prescribed period of 60 years. So far as the ordinary Revenue Courts are
concerned, I am confident that they would refuse to entertain such an
application or to make any kind of enquiry into it. They would refer the person
making it to the Civil Court; and I cannot say that in my experience I have even
some across a case in which a mortgagee, under the circumstances suggested, has
taken the initiative and find a suit for a declaration to the effect that he has
acquired full proprietary rights. In the partition to which reference has been
made, the co-sharer who was also the principal mortgagee, or perhaps the sole
mortgagee, of the lands in question in this case was seeking to have his
rateable share in the proprietary rights of the Mahal separated from the rest
and made, into a separate Mahal. The mortgage which we are considering was not a
mortgage of a fractional share in the Mahal. It was a mortgage of specified
plots. I find it very difficult to conceive of an application for partition so
drawn up as to ask the Partition Court to form into a separate Mahal lands
representing the applicant's fractional share in the proprietary rights of the
Mahal as a whole and at she same time to take out of the Mahal of the non-
applicants for partition certain specified plots and add them to the Mahal of
the applicant, on the ground (1) that they were in possession of the applicant,
and (2) that he had become by virtue of prescription the owner of those
specified plots, over and above his rateable share in the proprietary rights of
the Mahal as a whole. I am not prepared to say that such an application would be
impossible under the Local Revenue Act, although I conceive it would raise
serious difficulties regarding the apportion-ment of revenue between the two
Mahals, but it is sufficient for my present purpose to say that I think it very
unlikely that the applicant for partition would have thought of coming before
the Partition Court with such a claim and that his failure to do be does not
seem to me a piece of conduct on his part which in any way suggests an admission
that the mortgage in question was still redeemable.

   8. For these reasons I must record my opinion that this appeal ought to be
allowed, the order of remand set aside and the decree of the first Court
dismissing the plaintiff's suit restored with costs throughout,

   Walsh, J.

   9. In my judgment this is a plain case. The question of law arises in an
appeal from a remand order. The plaintiffs sued for redemption of a mortgage the
date of which neither they nor anybody else knows. They alleged that it was made
between the years 1833 and 1839. It was, therefore, prima facie Statute-barred.
In order to overcome this difficulty they further alleged that the mortgagees
had given an acknowledgment within Section 19 of the Limitation Act which took
the case out of the mischief of the Statute both in 1839 and in 1863. The case
on the acknowledgment of 1839 broke down. An acknowledgment was given by the
mortgagees in 18 33. The question is whether there is any evidence that that
acknowledgment was given within sixty years of the date of the mortgage or
whether it was otherwise sufficient in law. The Munsif held that the plaintiffs
had failed to prove the mortgage relied upon and had failed to prove a valid
acknowledgment. The lower Appellate Court disagreed with him and remanded the
case for other issues to be determined. The question is whether that order is
right. The lower Court decided, to quote its own language, that "There is no
oral or documentary evidence worth the name to prove the exact or approximate
date of the mortgage. There is no doubt the mortgage was in existence in 1839,
but there is no evidence that it was executed between the years 1833 and 1839.
It has not found as a fact that the mortgage was executed within 60 years of
1863." It could hardly with propriety have done so, having held that there was
no evidence to support such a finding. It merely held that the acknowledgment
was given within 60 years of 1839 when the mortgage was subsisting and that such
an acknowledgment was sufficient. This is a conclusion of law and, in my
opinion, is untenable, and, therefore, the appeal ought to be allowed. All the
evidence in the case is equally consistent with a mortgage which was 60 years
old and also with a mortgage which was not 63 years old in 1863. The principle
involved was settled in 1889 in Parmanand Misr v. Sahib Ali 11 A. 438 : A.W.N.
(1889) 155 : 6 Ind. Dec. (N.S.) 708, when a Full Bench decided that in a case
for redemption which pre-supposes the lawful possession of the defendant, the
plaintiff must show in his plaint and prove at the trial that he had a
subsisting title at the date of the suit. In that case the plaintiffs alleged a
mortgage-deed which they did not produce and of which they were unable to give
the date. It was held that there was no prima facie evidence that the mortgage
had been made in 1826, which date alone would have brought it within 60 years of
the suit. Similarly in this case there is no prima facie evidence that the
mortgage alleged by the plaintiffs was made between 1833 and 1839 or within
sixty years of the acknowledgment relied upon. That Full Bench case has been
followed in several others, and, in my opinion, is binding upon this Court. It
is at any rate too late to depart from it even if one were disposed to do so,
which I am not. The same principle was applied to a case of an acknowledgment in
Khiali Ram v. Taik Ram 36 Ind. Cas. 452 : 38 A. 540 : 14 A.L.J. 834 by my
brother Piggott and Mr. Justice Lindsay. I can find nothing in the oases cited
to us on behalf of the respondents which is inconsistent with the principle thus
affirmed.

   10. If it is said that the Full Bench case reported as Paramanand Misr v.
Sahib Ali 11 A. 438 : A.W.N. (1889) 155 : 6 Ind. Dec. (N.S.) 708 did not deal
with the question of acknowledgment, The answer seems to me to be this. When the
plaintiff sues for redemption, it does not matter for the purpose of limitation
whether he relies upon the original- mortgage contract or upon an acknowledgment
which has given him a fresh lease of life. In either case he has to show that
his claim is not barred by efluxion of time. The dicta in Dip Singh v. Girand
Singh, 26 A. 3l3 : 1 A.L.J. 1 : A.W.N. (1904) 38 also relied upon by the
respondents merely stated on whom, in the special circumstances of that
particular case, the burden of proof lay. The more recent case relied upon of
Kamla Devi v. Gur Dayal 51 Ind. Cas. 283 : 17 A.L.J. 330, reported not in the
authorised reports but in 17 Allahabad law Journal, page 330, is in my opinion a
finding of fact which lays down no principle. The lower Courts had held that the
acknowledgments were not shown to have been made within 60 years of the date of
the mortgage. The High Court by a two-Judges Bench consisting of the Hon'ble the
Chief Justice and my brother Banerji overruled the Courts below and said, to
quote the exact terms of the judgment, "Under the circumstances...we ought to
hold that the acknowledgments were given before the expiration of sixty years
from the date of the mortgage". 1 agree with my brother Piggott that the express
language of Section 19 of the Limitation Act contemplates the possibility of an
acknowledgment of liability given after the expiration of the statutory period
and shows by its terms that a plaintiff, before he can succeed upon an
acknowledgment at all, must establish that it was made before the expiration of
the statutory period. In this case it is not suggested that he has established
that fact by any direct evidence. In my opinion no inference can be drawn from
the acknowledgment, however fully it may have admitted liability, so far as the
actual date of the original mortgage is concerned, It ought not to be presumed
that people of the agricultural class in 1863 could not have done otherwise than
know the terms of the resent Statute of Limitation of 1859. As is pointed by
their Lordships of the Privy Council in a somewhat similar case to this,
reported as Fatimatulnissa Begum v. Sundar Das 27 C. 1004 : 27 I.A. 103 : 4
C.W.N. 565 : 7 Sar.P.C.J. 718 : 14 Ind. Dec. (N.S.) 657, people may admit
liability even though a Statute has actually barred it, but such an admission is
ineffectual in law by the express terms of the Statute which we have to apply.
The only inference which I feel at liberty to draw from the argument of the case
before us, and I have no hesitation myself in drawing it, is that so far from
this mortgage having been made, as the plaintiff consistently alleged, between
1833 and 1339, it was almost certainly made, as appears from the Settlement
Records, anterior to 1833. I cannot resist the feeling that to upheld the
decision of the Court below would be to introduce uncertainty and vacillation as
to the evidence requisite for making an accurate guess of a date which is not
proved in evidence and would leave the decision of these oases largely a matter
of chance. I would further observe that inferences as to the probable conduct of
people in matters of business in the year 1863 are not particularly easy to draw
by those who are living under the conditions of 1920, and there is always a
danger of inferring that the only probable and reasonable conduct of an
individual is the course which you yourself would have taken. It is for this
reason that I think my brother Piggott, certainly I, concurred in referring the
discussion of this case to a larger Bench. In my judgment the appeal ought to be
allowed and the suit dismissed with costs.

   11. In accordance with the 63 decision of the majority of the Bench the order
of the Court is that this appeal be allowed, the order of the Court below be set
aside and the decree of the Court of first instance be restored with costs in
all Courts.