## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941**
## **SA.No. 788 of 2002**
**AGAINST THE JUDGMENT AND DECREE DATED 29-10-2001 IN AS 10/2000 OF SUB COURT, NEDUMANGAD**
**AGAINST THE JUDGMENT AND DECREE DATED 31-01-2000 IN OS 27/1994 OF PRINCIPAL MUNSIFF COURT,NEDUMANGAD**
## **APPELLANT/APPELLANT/PLAINTIFF:**
## **ARAVINDAKSHAN, S/O BHASKARAN,**
**ARAVINDA BHAVAN, THENGUVILA, KUZHIYIL, KAIPALLIKONAM, ANACHAL KEEZHAHERI MURI,, VAMANAPURAM VILLAGE.**
**BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.**
## **RESPONDENTS/RESPONDENTS/DEFENDANTS:**
- **1 BHASKARAN, S/O KUNJUKRISHNAN, KAYIPALLIKONAM PUTHEN VEEDU,, ANACHAL KEEZHCHERI MURI, VAMANAPURAM VILLAGE.(DELETED)**
**(THE NAME OF THE 1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 28.11.2017 IN IA.3085/2017).**
- **2 K.VASANTHA KUMARI LINI HOUSE KAYIPPALLIKONAM OF DO. DO.**
- **3 PADMALAYAM, S/O.BHASKARAN, ANEESH BHAVAN, OF DO. DO.**
- **4 K.SUJATHA, P.S.MANDIRAM KAYIPALLIKONAM OF DO. DO.**
- **5 SURESH BABU, S/O.BHASKARAN, S.S.NIVAS, POIKAMUKKU,, KEEZHCHERI MURI, MUDAKKAL VILLAGE.**
**SA.No. 788 of 2002 2**
**6 SATHEESH KUMAR SO.BHASKARAN FROM KOYIPALLIKONATHU PUTHEN VEEDU,, ANACHAL, KEEZHCHERI MURI,, VAMANAPURAM VILLAGE.**
**R2,R4,R5 & R6 BY ADVS. SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR SRI.VINOD RAVINDRANATH**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**SA.No. 788 of 2002 3**
## **JUDGMENT**
A suit for declaration of title and possession of B schedule property in the alternative for redemption of A schedule property either in part or in whole ended in dismissal in both the Trial Court and the First Appellate Court. The A schedule is large extent of 1.02 acres of property. The B schedule is having an extent of 47 cents forms part of A schedule large extent. The plaintiff is the son of first defendant. The defendants 2 to 6 are the siblings. Originally the plaint A schedule property owned and possessed by the first defendant father along with his two brothers Ramakrishnan and Peethambaran and their mother Kaliamma by virtue of
sale deed of the year 1121 of Malayalam Era. During the life time of Ramakrishnan, he had released his 1/4[th] right over the property in favour of the remaining persons, the first defendant his brother Peethambaran and mother Kaliamma. Subsequently Kaliamma passed away, thereby first defendant and his brother Peethambaran became the
## **SA.No. 788 of 2002 4**
co-owners of the property. They together executed a mortgage deed under Ext.A1 in 1124 ME in favour of Sukumaran and one Natarajan by securing an amount of Rs.350/- for a period of 3 years. Sukumaran and Natarajan in turn assigned the mortgage infavour of Peethambaran and Pankajakshy under Ext.A2. The mortgage right over the property stands in the favour of Pankajakshy was conveyed under Ext.A3 in favour of Kousalya, the mother of plaintiff. The remaining 1/2 right was also obtained by the plaintiff from Peethambaran under Ext.A4. Subsequently under Ext.A7 gift deed dated 24/4/1984, 40 cents of property gifted to the 4[th] defendant by first defendant along with Kousalya and the plaintiff. The balance extent comes to 62
cents which was partitioned under Ext.A6, by which
31 cents given to the first defendant and balance 31 cents taken over by the plaintiff. Out of the 31 cents given to the first defendant, the plaintiff purchased 16 cents under Ext.A5. So, together with the 31 cents taken under Ext.A6 partition and the 16 cents purchased under Ext.A5,
## **SA.No. 788 of 2002 5**
the total extent belong to the plaintiff comes to 47 cents, according to the plaintiff. This 47 cents scheduled in the plaint as B schedule and the prayer is for redemption of the existing mortgage. The claim of the plaintiff was rejected
concurrently by both the Trial Court and the First Appellate Court, on the ground of limitation which was assailed under this appeal.
2. The learned counsel for the appellant took reliance on the proviso attached to Section 30, clause (a) of the Limitation Act, 1963, so as to save the period of the limitation and also relied on the Apex Court decision in _**Prabhakaran and**_
_**Others v. M.Azhagiri Pillai and Others ( 2006 (4)**_
_**SCC 484**_ . Section 30 of the Limitation Act,1963
extracted below for reference with the proviso to Clause (a):
_**“30. Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908.** -Notwithstanding anything contained in this Act,-_
_(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be instituted within a period of [seven years]_
**SA.No. 788 of 2002 6**
_next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 (9 of 1908), whichever period expires earlier: [Provided that if in respect of any such suit, the said period of seven years expires earlier than period of limitation prescribed therefore under the Indian Limitation Act, 1908 (9 of 1908) and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908 (9 of 1908), as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act;]_
_(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.”_
(Emphasis Supplied)
3. The proviso says that in so far as a suit in which the period of 7 years available under clause (a) to Section 30 expires earlier than the period of limitation prescribed under the old Act (Indian Limitation Act,1908, the Act 9 of 1908), then the 7 year period together with the period
## **SA.No. 788 of 2002 7**
already expired before the commencement of this Act, if found to be shorter than the period prescribed under the new Act, the party will get the period of limitation as prescribed under this Act, and the suit may be instituted within that period. Even going by the proviso to Clause (a) to Section 30, it is clear that the 7 year period available under clause (a) would expire before the period of limitation available under the old Act that is the Act 9 of 1908. The period of limitation available under clause (a) to Section 30 together with the period already expired would comes to 7+15=22 years which is shorter than the period prescribed for such suit under the new Act, as such 30 year period would be available to the party from the date of commencement of this Act, which may comes to 1963+30 years =1993. But, the suit was filed only in the year 1994. So, the plaintiff cannot claim any benefit under the proviso to clause A of Section 30 of the new Act, the Act 36 of 1963.
4. Yet another argument was advanced that there
## **SA.No. 788 of 2002 8**
is an acknowledgment which is well pleaded in the plaint in paragraph 6 of the plaint based on the recital contained in 1961 and 1984 documents. Both
the documents would not satisfy the requirement for
a valid acknowledgment under Section 18 of the
Limitation Act. Ext.A7 brought to the notice of this Court wherein the word 'Otti' which stands for
(mortgage) mentioned, based on which it was argued
that it amounts to admission of jural relationship between the mortgagor and mortgagee relied on paragraph 20,21 and 23 of the decision drawn in
_**Prabhakaran's**_ case ( _supra_ ). The legal position was very much settled by the Apex Court that mere incorporation of word 'Otti' (mortgage) for the
purpose of showing what actually assigned would not amounts to admission of jural relationship between the mortgagor and mortgagee. The requirement inorder to satisfy an acknowledgment as envisaged under Section 18 of the Limitation Act, enumerated in paragraph 20 of the said judgment which is extracted below for reference:
_“(i) The acknowledgment of liability must relate to a subsisting mortgage._
**SA.No. 788 of 2002 9**
_(ii) The acknowledgment 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 acknowledgment 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 need not be in express terms, but can be inferred or implied from the nature of admission and the words used, though oral evidence as to the meaning and intent of such words is excluded.)_
_(iv) Where the statement by the mortgagee in the subsequent document (say, deed of assignment) merely refers to the mortgage in his favour which is being assigned, without the intention of admitting the jural relationship with the mortgagor, it will not be considered to be an “acknowledgment”._
5. There is subsequent discussion in paragraph
21 and 23 of the said judgment what actually
amounts to admission of jural relationship between mortgagee and mortgagor. To bring the admission within the purview of an acknowledgment under Section 18 of the Limitation Act, it must show that the party has intended to admit the jural relationship with the mortgagor and in the absence of such intention there cannot be an acknowledgment as envisaged under Section 18 of the Limitation
## **SA.No. 788 of 2002 10**
Act. In otherwise, a mere incorporation of the word 'mortgage' for the purpose of showing what actually conveyed under a document of transfer without admitting the jural relationship cannot be brought under the purview of Section 18 of the Limitation Act, as such there is failure on the part of the plaintiff to show a valid acknowledgment. No substantial question of law much less any question of law brought to the notice of this court. Hence, the appeal fails. The appeal is dismissed but without cost.
## **Sd/-**
## **P.SOMARAJAN**
## **JUDGE**
msp
//TRUE COPY// P.A. TO JUDGE
