An assignment of mortgagee's rights does not amount to an acknowledgment of liability unless there is an intention to admit the jural relationship of debtor and creditor.

JUDGMENT :- The plaintiff is the appellant. The suit was filed for redemption of a mortgage dated 12-3-1079 M. E. executed by one Subramania Nambiar, son of Pichan Nambiar, in favour of one Velayudham Pillai, for a sum of 5,000 Fs. The plaintiff claims to be a successor-in-interest of the equity of redemption. In execution of a decree against the mortgagee Velayudham Pillai, his rights as a mortgagee in the suit property were brought to sale and purchased by the decree-holder in 1926 in Court auction. The decree-holder auction purchaser sold his rights under Ex. A-1, on 8-2-1102 M. E. in favour of one Sakkiamma Pillai, the maternal grandmother of the defendant.

2. The only point that survives for consideration in this second appeal is one of limitation. The defendant contended that the mortgage executed on 12-3-1079 M. E. (year 1963) is barred by limitation. The plaintiff contended that Ex. A-1 dated 8-2-1102 M. E. executed by the Court auction purchaser in favour of Sakkiamma Pillai amounts to an acknowledgment and, therefore, the suit is in time. There is no dispute that if Ex. A-1 amounts to an acknowledgment, the suit would be in time. But the question for consideration is whether Ex. A-1 amounts to an acknowledgment of liability to be redeemed. The deed is styled as a deed of sale of othi rights executed by the Court auction purchaser in favour of Sakkiamma Pillai, to whom the defendant claims to be the legal heir. The document is in Malavalam, and translation of the same reads as follows :

"The patta for the schedule property is in the name of Pichan Subramania Nambiar. The pattadar's family has got karanmai rights over the schedule property. The property including the melwaram right of 5/8 kottas 6 nazhis of paddy was othied to Velayudham Pillai, son of Sivasankara Pillai, by Subramaniam Nambiar under document No. 612 of the Nagarcoil Registrar Office and dated 10th Alpasi 1079. The right as per the said othi document was devolved on me, who is the plaintiff in O. S. 155 of 1913 as per Court sale on, O. S. 155 of 1915 on the file of the Principal District Munsif Court, Nagarcoil. The sale was made absolute on 14th Kanni 1094. I got the sale certificate and I obtained delivery on 21st Thulam 1094 and accordingly I am in enjoyment and I am paying tax. As such I assign by way of sale, of my othi right of 5,000 Fs. which I have over this property as described above, without recourse for a sum of 9,000 Fs received as under - 1. 1284/4 Fs. reserved to be paid to Subramania Pillai to whom I have given the property on lease. 4. 387-1/4 Fs received as ready cash.

Therefore the said person shall enjoy the property from this date as a sale of othi right. She shall directly receive the pattom from Subramania Pillai. She shall pay the arrears of tax from 1102. The othi deed in respect of this property, the sale certificate and the delivery list are handed over. Five sheets of certified copy of execution proceedings in O. S. 155 of 1913, three sheets of the said othi document No. 512 of 1079, 3 receipts for the tax paid by me for the period of 1094 to 1101 tax receipt book I are handed over.

I have not created any encumbrance over the said othi right."

Section 18 of the Limitation Act is to the effect -

"(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title, or liability a fresh period of limitation shall be computed from the time when the acknowledgment was so signed."

3. It is not in dispute in this case that Ex. A-1 was executed within the period prescribed in the suit for redemption. It is also not in dispute that if that document amounted to an acknowledgment of liability, the acknowledgment was by a person competent to make that acknowledgment. The only disput

Click Here to Read the rest of this document