Limitation and co-mortgagor redemption: a deed reciting discharge is not an acknowledgment of liability.

A release deed that merely records discharge of a past mortgage debt is not an acknowledgement of a subsisting liability under the Limitation Act and does not create a fresh starting point of limitation. The note also explains that, where one co-mortgagor redeems the whole mortgage, the non-redeeming co-mortgagor retains an equitable right to redeem his share and recover possession on payment of his proportionate liability. That right continues only so long as the redeeming co-mortgagor's right to contribution survives, and a suit brought long after redemption may be barred by limitation.

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Issues: (i) Whether the release deeds executed on redemption amounted to an acknowledgement of a subsisting liability so as to give a fresh starting point of limitation. (ii) What was the governing rule of limitation for a suit by a non-redeeming co-mortgagor to recover possession of his share after redemption of the whole mortgage by the other co-mortgagor.

Issue (i): Whether the release deeds executed on redemption amounted to an acknowledgement of a subsisting liability so as to give a fresh starting point of limitation.

Analysis: For an acknowledgement under Section 18 of the Limitation Act, the writing must admit an existing and subsisting liability. A mere recital that a past liability has been discharged does not amount to such an acknowledgement. The release deeds in question stated that the mortgages had been extinguished by payment and did not recognise any continuing liability.

Conclusion: The release deeds did not operate as acknowledgements and did not extend limitation.

Issue (ii): What was the governing rule of limitation for a suit by a non-redeeming co-mortgagor to recover possession of his share after redemption of the whole mortgage by the other co-mortgagor.

Analysis: Where the Transfer of Property Act was not in force, a co-mortgagor who redeems the entire mortgage is, in equity, subrogated to the mortgagee's rights to the extent necessary for reimbursement. Correspondingly, the non-redeeming co-mortgagor acquires an equitable right to redeem his share and recover possession on payment of his proportionate liability. That right subsists while the redeeming co-mortgagor's right to contribution survives. On the facts, the suit was filed long after the redemption dates in 1913 to 1918 and beyond the period of fifty years from the original mortgages as well as beyond twelve years from redemption.

Conclusion: The suit for items 31 to 40, 42 and 44 was barred by limitation.

Final Conclusion: The plaintiff's claim in respect of the disputed mortgage items was time-barred, and the appeal failed.

Ratio Decidendi: A redemption deed that merely records discharge of a past mortgage debt is not an acknowledgement of subsisting liability, and a non-redeeming co-mortgagor's equitable right to redeem his share is subject to limitation running, at the latest, from the date of redemption by the co-mortgagor who paid off the common mortgage debt.

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