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2006 (3) TMI 793
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..... 2.2) The mortgagee (Krishna Pillai) assigned the said mortgage in favour of one Soundararaja Iyenger (also known as Soundararaja Achariar) under registered deed dated 12.2.1954 (Ex.A-3) by receiving Rs. 300/- from the assignee and delivered possession of the suit property to the assignee. The said assignee, Soundararaja Iyenger died leaving him surviving his widow Jayalakshmi Ammal and son Krishnaswamy Iyenger (defendants 1 and 2 in the suit). 2.3) The mortgagor Manickam Pillai died some years after executing the mortgage deed, survived by his widow and four daughters. His widow and first daughter Kuppammal died subsequently. The second daughter also died leaving behind her son Thukkaram. His third daughter Yasodai Ammal and Thukkaram settled their share/interest in the right of redemption in favour of the fourth daughter of Manickam Pillai, namely, Sakkubai Ammal (first plaintiff) under registered deed dated 24.8.1981. Before such gift/settlement, Thukkaram, Yasodai Ammal and Sakkubai Ammal issued a notice on 21.8.1977 for redemption of the mortgage. Defendants 1 and 2 sent a reply dated 26.8.1977 refusing to comply on the ground that they were not in possessio....
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.... he (Soundararaja Iyenger) would discharge the usufructuary mortgage in favour of Krishna Pillai and simple mortgage in favour of Raju Pillai and obtain assignments of the mortgages, and thereafter receive the amount from the third defendant as and when he was able to pay the amount; that in pursuance of such arrangement, Soundararaja Iyenger paid the mortgage amount to Krishna Pillai and Raju Pillai and obtained assignments dated 12.2.1954 in his favour; that subsequently in the year 1960, the third defendant paid the amount to Soundararaja Iyenger; and that he obtained possession of the suit property in the year 1954. He contended that he perfected his title by adverse possession. He also contended that the mortgage dated 7.9.1935 was no longer subsisting and the plaintiffs had no right of redemption. 5. During the pendency of the suit, the first plaintiff Sakkubai Ammal died. Her legal heirs, that is, husband Vijayarangam Pillai, sons Prabhakaran and Venkatesan, and daughter Vatchala were impleaded as plaintiff Nos. 3, 2, 5 and 4 respectively. After evidence, the trial court dismissed the suit by judgment and decree dated 30.10.1987 holding that the mortgage deed dated 7.9.19....
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....d dated 12.2.1954 did not amount to acknowledgement for extending limitation for filing a suit for redemption. (iii) The mortgage was executed on 7.9.1935. The period of limitation for a suit for redemption was 30 years under Article 61(a) of the Limitation Act, 1963, while the period of limitation was 60 years under the corresponding Article 148 of the Limitation Act, 1908. Where the period of limitation under the new Act was shorter, having regard to Section 30 of the new Act, the suit ought to have been filed within 7 years from the date of commencement of the said Act. The new Act came into force on 1.1.1964. Therefore, the last date for filing the suit for redemption was 1.1.1971 and the suit filed on 16.11.1981 was barred by limitation. (iv) The plaintiffs were not entitled to any relief under the provisions of the Tamil Nadu Debt Relief Act, 1979, as the mortgage was not subsisting on 15.7.1978, when the said Act came into force. (v) The plaintiffs could not alternatively claim relief under the Tamil Nadu Agriculturist Relief Act, 1938 (Act 4 of 1938) as amended by Act 24 of 1950, as such a case was not pleaded. 9. In this appeal filed by the pl....
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....ive up possession of the property when the suit for redemption is filed unless he is able to show that the right of redemption has come to an end or that the suit is liable to be dismissed on some other valid ground. This flows from the legal principle which is applicable to all mortgages, namely, "Once a mortgage, always a mortgage". 11. Article 148 of the Limitation Act, 1908 (referred to as 'old Act') provided a limitation of 60 years for a suit against a mortgagee, to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 ('new Act' or 'Limitation Act' for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortga....
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....e with a consciousness and an intention of admitting such a right or liability. The controversy has now been set at rest by the decisions of this Court. 14. In Shapur Fredoom Mazda v. Durga Prosad Chamaria [1962]1SCR140 , this Court explained the essentials of an acknowledgement by considering the scope of Section 19 of the old Act: ...acknowledgement as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgement of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgement is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgement must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed i....
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....23 . 16. This Court had occasion to consider the question again in Reet Mohinder Singh Sekhon v. Mohinder Parkash [1989]3SCR610 . In that case, the suit property was mortgaged on 22.5.1886 and the mortgagee sold his mortgage rights under a Sale Deed dated 1.11.1913 which 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 mortgage deed has accrued and is payable to the instant vendor.... The rights and interest regarding recovery of original mortgage money and interest according to mortgage deeds executed by Jangi Khan original mortgagor deceased and redemption of the mortgaged land which hence to for vested in the instant vendor stand vested in the purchaser.... The successors-in-interest of the mortgagor filed a suit for redemption on 28.12.1968 contending that the aforesaid recitals amounted to an acknowledgement of the right of the mortgagor to redeem the property. The suit was resisted on the ground that the recitals in the sale deed dated 1.11.1913 did not serve as an acknowledgement. Negativing the said obje....
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....s view of the matter the contention on behalf of the appellant that the recitals in the document of November 1, 1913 constituted an acknowledgement of liability for redemption within the meaning of Section 19 of the Limitation Act deserves to be accepted. 17. The said principles relating to Section 19 of the old Act fully apply to 'acknowledgements' under Section 18 of the new Act. To summarise, a statement (in writing and signed) by a mortgagee can be construed as an 'acknowledgement' under Section 18 of the Limitation Act, if it fulfils the following requirements: (i) The acknowledgement of liability must relate to a subsisting mortgage. (ii) The acknowledgement need not be in a document addressed to the mortgagor (person entitled to the property or right). But it should be made by the mortgagee (the person under liability). (iii) The words used in the acknowledgement must indicate the existence of jural relationship between the parties and it must appear that the statement is made by the mortgagee with the intention of admitting the jural relationship with the mortgagor. (Such intention of admitting the jural relationship ne....
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....he statement by the mortgagee in the deed of assignment, that the assignee will be entitled to receive the amount under the original mortgage, is only an assurance made by a creditor to his assignee about the assignee's rights in respect of the mortgage assigned to him, and such a statement cannot be said to be an admission of jural relationship with the mortgagor. It is pointed out that the earlier view, that when a mortgagee sells or assigns his mortgage rights, the very fact that he was selling or assigning his rights was a clear acknowledgement of a subsisting mortgage and of his subsisting rights as a mortgagee, is no longer valid. It also pointed out that in TILAK RAM (supra), this Court clarified that the act of assignment/transfer/sale of the mortgage rights, by the mortgagee, by itself will not amount to an acknowledgement, if the document merely described the status of the mortgagee or described the right that was being transferred, without indicating any intention to admit his jural relationship with the mortgagor. It is, therefore, contended that the assignment deed in this case cannot be considered to be an 'acknowledgement'. 20. The contention ignores t....
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....s entitled to all benefits under the said mortgage", or "The assignee is entitled to receive the amount advanced under the said mortgage", or "The assignee is entitled to all rights and liable for all obligations under the said mortgage", or "The assignee is entitled to continue in possession until the mortgage is redeemed". The use of any such words (which are illustrative and not exhaustive) would show an intention to admit the jural relationship, and therefore, amount to acknowledgement, though they may not refer to the mortgagor's right of redemption. Ultimately, it is not the form of the words, but the intention to admit the jural relationship with the mortgagor, that will determine whether a statement is an acknowledgement. 22. In this case, the operative portion of the deed of assignment dated 12.2.1954 (Ex.A-3) states that in consideration of having received Rs. 300/-, the mortgagee (Krishna Pillai) was assigning the mortgage under deed dated 7.9.1935 executed in his favour by Manickam Pillai and delivered possession of the mortgaged property to Soundararaja Iyenger. The deed further states that the assignee (Soundararaaja Iyenger) was entitled to receive all the amo....
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.... debt got discharged under Section 9 of the Debt Relief Act with effect from 14.7.1978, and the suit for redemption for redemption was not barred. The High Court in second appeal held that the deed of assignment dated 12.2.1954 did not amount to an acknowledgement and consequently, the limitation for a suit for redemption of the mortgage expired on 1.1.1971 having regard to the provisions of Section 30 read with Article 61(a) of the Limitation Act. It also held that as the mortgage was not subsisting when the Debt Relief Act came into force on 15.12.1978, the question of mortgage getting discharged under Section 9 of the Debt Relief Act did not arise. 27. While dealing with the first question, we have held that the period of limitation for the suit for redemption had to be reckoned from 12.2.1954 and not from 7.9.1935. Therefore, when the Debt Relief Act, came into force on 15.7.1978, the mortgage was very much subsisting. Section 9 of the Debt Relief Act contains special provisions in respect of mortgages. Sub-section (1) of Section 9 provides that the provisions of the said section applies to all mortgages executed at any time before 14.7.1978 and by virtue of which the mortga....