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2014 Supreme(Ker) 34

High Court of Kerala
THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN, JJ.
P.J. Francis & Another
Versus
P.J. Antony & Others
AS. No. 513 of 1994
Decided on: 17-01-2014

Advocates Appeared:
For the Appellants:S.V. Balakrishna Iyer, K. Jayakumar, Sr. Advocates, M.M. Teena, P.B. Krishnan, Advocates.

Headnote:Limitation Act, 1963, Section 18 - Transfer of Property Act, 1882, Section 58 - Acknowledgement of mortgage liability - an acknowledgment of liability by the mortgagor after assignment of his right and ceasing to have interest in the mortgaged property will not constitute an acknowledgment under Section 18 of the Limitation Act.

       FACTS OF THE CASE

       short question arising for consideration in the appeal is whether an acknowledgment of liability by the mortgagor after assignment of his right and ceasing to have interest in the mortgaged property will constitute an acknowledgment under Section 18 of the Limitation Act extending the period of

       Limitation.

       FINDINGS

       Appeal allowed.

       

Judgment :

1. The short question arising for consideration in the appeal is whether an acknowledgment of liability by the mortgagor after assignment of his right and ceasing to have interest in the mortgaged property will constitute an acknowledgment under Section 18 of the Limitation Act extending the period of limitation.

2. Suit was for money by sale of the mortgaged property. Suit was decreed by the Additional Sub Judge, Kochi and the appeal is by defendants 3 and 6 in the suit.

3. The 1st respondent in the appeal was the plaintiff and he had passed away pending the appeal and his legal representatives have been impleaded as additional respondents 6 to 15. 2nd respondent/1st defendant in the suit had also passed away pending the appeal and 2nd appellant was recorded as her legal representative.

4. The case of the plaintiff was that father of defendants 1 to 5, namely, P.R.Joseph had obtained a loan of Rs.27,000/- from him executing Ext.A1 promissory note on 10.12.1979. Towards security for the loan with intention to create a mortgage of the suit property (31/2 cents), he deposited his title deed over that property with the plaintiff. P.R.Joseph died on 02.03.1980 and defendants 1 to 5 are his children. Plaintiff issued advocate notice demanding the loan amount due from their father secured by the mortgage over plaint property. Except 5th defendant, the other legal heirs acknowledged the receipt of notice. The 3rd defendant, in his reply, repudiated the claim canvassed and contended that the property involved had been sold by all the legal heirs in favour of his wife - 6th defendant. 4th defendant in the reply notice claiming ignorance over the loan but disowning the liability also stated that the property had been assigned in favour of 6th defendant. The 2nd defendant admitting the liability sent a reply through advocate requesting for relieving him from liability upon payment of his 1/5 th share of the liability under the loan. Replies given by the 2nd and 4th defendants, separately, constituted valid acknowledgment extending the liability under the loan transaction secured by the mortgage was the case of plaintiff to seek a decree for money by sale of the mortgaged property impleading the 6th defendant - wife of 3rd defendant - also as a party in the suit. Defendants 1, 2, 4 and 5 filed a joint written statement, in which they admitted knowledge of the loan transaction but pleaded ignorance whether any portion thereof was repaid and also was it closed. After the death of father, 3rd defendant continued in possession of the plaint property, and, therefore, he is liable to discharge the loan, if any, outstanding, was their case. Defendants 3 and 6 filed a joint written statement contending that the promissory note and also the memmorandum on which deposit of title deed by their father for the alleged loan transaction are fraudulently created. Signature of P.R.Joseph had been forged in such documents, according to them. Disputing the loan transaction and also mortgage of deposit of the title deed by P.R.Joseph, these defendants contended that the title deed of the plaint property had been deposited by Joseph in a kuri company as security for a kuri auctioned by his wife and such security continued to remain in force from 14.10.1978 to 15.05.1984. After the death of Joseph, all his legal heirs together assigned the plaint property in favour of 6th defendant - wife of 3rd defendant. After receiving consideration for such assignment and executing the assignment deed in favour of 6th defendant, defendants 2 and 4 colluded with the plaintiff in creating false documents, and on the basis of such documents, the suit has been filed imputing a false case of a loan transaction by the father from the plaintiff on executing of a promissory note and depositing of title deed over the plaint property, according to these defendants. Any admission of liability of the father towards the plaintiff by any other defendants would not be binding on t












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