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Rajasthan High Court
Modi, J.
Mst. Chandan Bai - Appellant
Versus
Jagjiwanlal - Respondents
S.B. Civil Regular Second Appeal No. 51 of 1953
Decided On : November 08, 1957
The contention is that the copy of the copy of the mortgage-deed is not legal Secondary evidence within the meaning of sec. 63 of the Evidence Act, because that was never compared with the original. Under sec. 63 (3), the copy of the mortgage deed which was produced before the Mun-sarim by R, constitutes good secondary evidence of the original deed of mortgage. Ms. K. had been called upon by the Mun-sarim to produce the original deed of mortgage. Mst. K. gave this over to her relation K. and gave him a letter of authority and so he produced a copy of the Heed before the said officer. It is impossible to think that in the ordinary course of official business this copy was not compared with the original which R, certainly had in his possession at that very time This copy was sent for at the trial and it was before the court, but a copy thereof appears to have been taken by the respondent and placed on this record and exhibited If the very copy which was on the record of the Court of Wards should have been transferred to the record of the trial court, it would have been perfectly unexceptionable secondary evidence of the original mortgage deed. The question in these circumstances which arises is—whether this copy of the copy of the mortgage-deed should he excluded from evidence as in admissible. The objection raised is, an objection nearly to the mode of proof of a document which was doubtless relevant. Such an objection to be valid should be raised at the very time a document is sought to be tendered in evidence and proved, and if not so raised, it should be deemed to have been waived, because if it had been raised, it would have been perfectly possible for the respondent to have prayed for the very copy of the document which was on the record of the Munsarims office to be taken on this record. In this state of the law the objection that the copy of the copy of the deed is not legally admissible secondary evidence is of no avail. (Para 9)
The authority of the agent making an acknowledgment need not always be express and it may be implied and where it is implied, it is capable of being presumed from the attendant circumstances of a case. (Para 73)
The language of sec. 14 of the Mewar Limitation Act of 1988, which was in force at the time is simple, and all it says is that if a party has made an acknowledgment admitting his liability before the expiry of limitation, then limitation shall be computed from the date of such acknowledgment. The language of the section is quite plain, and all it requires is that the acknowledgment should have been made "before the expiry of limitation." There is no scope for interpreting the words Miyad Gujarne Ke Pahle in the light of the controversy which has arisen in the Indian courts on account of the expression before the expiration of the period, prescribed for a suit or application, in sec. 19 of the Indian Limitation Act. Sec. 22 of the Mewar Limitation Act as much lays down the period of limitation for a suit as the Schedule, and it will be going too far to hold that an acknowledgment made within the period of grace under sec. 22 of Mewar 1 imitation Act should be held as falling outside the expression before the expiry of period of limita-tion as used in sec. 14 of that Act. (Para 15)
The period prescribed in sec. 19 of the Indian Limitation Act or sec. 14 of the Mewar Act not only means the period prescribed by the schedule thereof but also the period laid down or fixed by the various sections of the Act. (para 16)
2. The plaintiff respondent Jagjiwanlal is a minor and brought this suit through his next friend Mst. Kankubai, his mother, in his capacity as the legal representative of his ancestor jawanji who is alleged to have made the mortgage of the suit shop-cum-house, situate in village Dhulev, and the boundaries whereof are mentioned in para(l) of the plaint, in favour of Sankad Chand an ancestor of the defendant appellant by a mortgage deed dated Kali Vadi 11, Svt. 1926 for Rs. 861/-. The Mortgage was with possession. It was further alleged in the plaint that the mortgagee had spent a sum of Rs. 111/5/- by way of improvements to the suit property in Svt. 1930 and this was acknowledged on behalf of the plaintiffs ancestors on the deed itself, and later in Svt. 1952 a further sum of Rs. 39/- was spent on repairs thereof, and the same was also acknowledged to have been spent on behalf of the plaintiffs ancestors and thus a sum of Rs. 1011/5/-became payable with respect to the mortgage upto the Svt. year 1952. The case disclosed in the plaint further was that in Svt. year 1986, the plaintiffs estate was taken under the management of the Court of Wards of the former State of Udaipur, and some proceeding was apparently commenced in connection with the redemption of the mortgage, and during that proceeding, the mother-in-law of the defendant appellant Mst. Kesharbai widow of Hiralal made an application through her son-in-law Ratanlal on Kati Vadi 7th Svt. 1987 in which the mortgage in question was admitted, (See Ex. 1), and Ratanlal further gave a statement (Ex. 2) in which he admitted the mortgage and he also produced a copy of the mortgage (Ex. 3) before the Munsarim of the Court of Wards. Although it was not mentioned in so many words, the plaintiff obviously relied on those documents as containing the admission of Mst. Kesharbai and Ratanlal with respect to the mortgage, and these admissions were intended to be utilised as acknowledgments so as to bring the plaintiffs salt within limitation. The plaintiff further alleged that he had asked for redemption of the suit property a number of times from the defendant appellant, and had also given a notice in writing for the same purpose, but the defendant appellant declined to give redemption. Consequently, the plaintiff instituted the present suit for redemption on the 8th April, 1943, in the court of the Munsiff, Dungarpur.
3. The defendant appellant resisted the suit on a number of grounds though she admitted that she was the descendant of Sankadchand and was his sole legal representative. The appellant denied the plaintiffs title to the suit property as also the alleged mortgage of Svt. 1926, for Rs. 861/- and the alleged endorsements as to repayments in Svt. years 1933 and 1952. The defendant further denied that the estate of the plaintiff respondent was ever placed under the management of the court of wards and contended that, in any case, the entire proceedings which had taken place there were inadmissible in evidence. In particular she denied that her mother-in-law, Mst. Kesharbai, or the latters son in-law Ratanlal had made any application or produced a copy of the deed of mortgage or made any acknowledgment with respect to the mortgage before the Munsarim, and alternatively that if the persons above-named had done any such thing, then the defendant appellant was not bound thereby inasmuch as neither the defendants mother-in-law nor Ratanlal had any right whatever to conduct any proceedings in connection with the mortgage or to make any acknowledgments in respect thereof, and, therefore, the appellant being the sole owner of her husbands estate after the latters death was not bound by any acknowledgments alleged to have been made by Mst. Kesharbai, her mother-in-law or Ratanlal. It was further contended that the pla
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