Kesavan Namboodiri v. B.S. Radhakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** ## **TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940** ## **RSA.No. 17 of 2007** **AGAINST THE JUDGMENT AND DECREE DATED 14-3-2006 IN AS 41/1997 of SUB COURT,ATTINGAL** **AGAINST THE JUDGMENT AND DECREE DATED 31-03-1997 IN OS 122/1995 of MUNSIFF COURT,ATTINGAL** ## **- - APPELLANT IN R.S.A APPELLANT IN A.S. PLAINTIFF IN SUIT:** *** KESAVAN NAMBOODIRI S/O.VISHNU NAMBOODIRI, VELLIVILAKOM,, SANTHIMADOM, VAKKOM DESOM,, VAKOM VILLAGE FROM CHEPPAYIKODU ILLOM,, ATTINGAL DESOM, ATTINGAL VILLAGE.(DIED) ADDL.A2 DEVAKI ANTHARJANAM, W/O LATE KESAVAN NAMBOODIRI, AGED 57, RESIDING AT NARAYANAMANGALATH ILLOM, RAMACHAMVILA, ATTINGAL P.O, THIRUVANANTHAPURAM - 695 101 ALLD.A3 VISHNU NAMBOODIRI, S/O LATE KESAVAN NAMBOODIRI, AGED 35, RESIDING AT NARAYANAMANGALATH ILLOM, RAMACHAMVILA ATTINGAL P.O, THIRUVANANTHAPURAM - 695 101 ADDL.A4 KRISHNAN NAMBOODIRI, S/O LATE KESAVAN NAMBOODIRI, AGED 33, RESIDING AT NARAYANAMANGALATH ILLOM, RAMACHAMVILA, ATTINGAL P.O, THIRUVANANTHAPURAM-695 101 * ARE IMPLEADED AS LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DATED 23/8/2013 IN I.A.2208/13. BY ADVS. SRI.NEELAKANDAN P.M (ADDL.APPELLANTS) SRI.P.B.SUBRAMANIAN (ADDL.APPELLANTS) SRI.P.B.KRISHNAN** **RSA.No. 17 of 2007 2** **- - RESPONDENT IN R.S.A. RESPONDENT IN A.S. DEFENDANT IN SUIT:** **==> picture [98 x 137] intentionally omitted <==** **B.S.RADHAKRISHNAN, ASST.ENGINEER, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM FROM PUTHEN VEEDU, VENPAKAL, ATHIYANNOR, NEYYATTINKARA TALUK. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN SRI.GEORGE CHERIAN (SR.)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No. 17 of 2007 3** **C.R** ## **JUDGMENT** The plaintiffs came up with this appeal against the dismissal of the suit by the decree and judgment of both the Trial Court (Munsiff's Court, Attingal) in O.S.No.122/1995 and the First Appellate Court(Subordinate Court, Attingal) in A.S.No.41/1997. 2. The subject matter of the suit comes to 18 cents of property comprised in survey No.1189/A of Attingal Village. There is no dispute that the said property originally belonged to one Sankaran Nair, that during his life time he had executed Ext.A1 mortgage deed dated 21/11/1951 for an amount of Rs.500/- in favour of one Bhavani Amma, and that she had inturn assigned the mortgage on 12/10/1953 in favour of one Pankajakshi, who had inturn executed another assignment of mortgage under Ext.A3 on 20/05/1955 to one Bhaskaran. The legal heirs of Bhaskaran subsequently entered into Ext.B4 partition in the year 1991, by which C schedule in the partition was allotted to the share of defendants and thereby they became mortgagee in assignment over the **RSA.No. 17 of 2007 4** property. 3. While so, on 18/1/1954, the Janmam right holder over the property Sankaran Nair assigned the Janmam right under Ext.A2 document in favour of Vishnu Namboodhiri, Vasudevan Namboodhiri and Narayanan Namboodhiri. Narayanan Namboodhiri, the brother of Vishnu Namboodhiri and Vasudevan Namboodhiri, died intestate and issueless, and thereby Vishnu Namboodhiri obtained 8/11 right over the property and the remaining 3/11 right by Vasudevan Namboodhiri. The 8/11 fractional interest held by Vishnu Namboodhiri over the 18 cents of mortgaged property was subjected to a partition in the year 1976, by which C schedule property (8/11 fractional interest over the mortgage property having an extent of 18 cents) was allotted to the share of plaintiffs. The suit was filed for redemption of mortgage on 20/03/1995 by the plaintiff. 4. Admittedly, the mortgage was commenced under Ext.A1 mortgage deed as early as on 21/11/1951. But, the suit was filed only on 20/3/1995. The plaintiff relied on an application submitted before the Land Tribunal in O.A.No.203/1974 (wrongly stated in the plaint as O.A.No.29/1974) claiming the same to be an acknowledgment as envisaged under Section 18 of the **RSA.No. 17 of 2007 5** Limitation Act. Admittedly, the mortgage was executed for a period of one year. Hence, the time available for redemption would come to the period agreed plus 30 years which would come to 31 years, for which also there is no much dispute. The alleged acknowledgment is dated back 23/12/1974 within the period of 31 years and hence the same is within time. 5. Now the question essentially come up for consideration is:- _whether the entry made in the application in O.A.203/1974, filed for getting assignment of Jemmam right would constitute a valid acknowledgment of mortgage as envisaged under Section 18 of the Limitation Act and whether, the courts below are justified in rejecting the same?_ 6. Ext.A4, the application submitted for assignment of Jemmam right under Section 72 of the Kerala Land Reforms Act, claiming cultivating tenancy contains an entry admitting that the applicant came in possession as per Ext.A3 document dated 20/05/1955, in column No.2 in the following lines: “As per the mortgage assignment deed No.3144 of Sub Registry Office, Attingal dated 20th May 1955”. 7. In column 16 of the said application, there is a reference to Ext.A1 Assignment Deed of mortgage in the following lines: **RSA.No. 17 of 2007 6** “The property derived by the applicant in continuation of earlier mortgage No.5754 of 1951 from its original Jemmi." 8. The question remains for consideration is whether the above said two references made in Ext.A4 application in connection with the earlier mortgage would constitute an acknowledgment of mortgage and the liability thereof and whether it could be treated as a valid acknowledgment, as envisaged under Section 18 of the Limitation Act. 9. Ext.A4 application was submitted not for the purpose of making any acknowledgment or admission of existing mortgagee-mortgagor relationship over the property but it is an application for getting assignment of jemmam right over the property, claiming that by virtue of the provisions contained in Kerala Land Reforms Act, 1963 the Jemmam right stood vested with the government. There is only a reference in the said application how and under what manner the applicant claims tenancy right over the property. The purpose for which an admission has been made, according to the appellant is totally irrelevant so as to test whether a particular statement would constitute an acknowledgment as envisaged under Section 18 of the Limitation Act and **RSA.No. 17 of 2007 7** took reliance from the decision of the High Court of Madras in _**Mahamed v. Jamaluddin mahomed**_ _**(1908(10)BOMLR385),**_ and a Full Bench decision of the Madras High court in _**Thadi Murali Mohana Reddi v.**_ ## _**Medapati Gangaraju and others ((28)AIR 1941 Madras 772).**_ There may not be any quarrel to the legal proposition that the purpose for which an admission was made is immaterial when the admission itself constitutes the mandate under Section 18 of the Limitation Act. 10. The Apex Court in _**Shapoor Freedoom Mazda v.**_ _**Durga Prosad Chamaria (AIR 1961 SC 1236: (1961) 1 Ker LR**_ _**550)**_ explained the scope of Section 19 of the Old Act and the essentials which constitute a valid acknowledgment in Paragraph 16 of the judgment in the following lines: _"Acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment 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 acknowledgment 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 acknowledgment 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_ **RSA.No. 17 of 2007 8** _relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear, then the intention to admit jural relationship may be implied from it. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. The effect of the words used in a particular document must inevitably depend upon the context in which the words are used and would always be conditioned by the tenor of the said document. Stated generally, courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning."_ ## 11. The Apex Court then again considered the said question in _**Tilak Ram v.Nathu (AIR 1967 SC 935)**_ and laid down the proposition in paragraph 17 as follows: _"The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on as expressing jural relationship it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or farfetched process of reasoning."_ ## 12. The Apex Court in _**Prabhakaran and others v.**_ **RSA.No. 17 of 2007 9** _**M.Azhagiri Pillai and others ((2006) 4 SCC 484)**_ had laid down the requirements which would satisfy the mandate under Section 18 of the Limitation Act, after referring various pronouncements on the point including the earlier decision rendered in _**Shapoor Freedoom Mazda**_ case _(supra)_ and _**Thilak Ram's**_ case _(supra)_ in the following lines: " _(i) The acknowledgment of liability must relate to a subsisting mortgage._ _(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 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"."_ 13. In the instant case going by Ext.A4, it is **RSA.No. 17 of 2007 10** clear that reference to Exts.A1 and A3 mortgages were made simply to state his status and how he had obtained possession of the property and not for making any admission regarding the existence of liability under the mortgage or to admit mortgagor-mortgagee relationship over the property. There is nothing in the said endorsement showing admission of any liability or the existing mortgagor-mortgagee relationship over the property. **A mere statement of jural relationship between the parties itself will not constitute an acknowledgment unless the same was made by the mortgagee with the intention of admitting the jural relationship with the mortgagor either in express terms or impliedly with respect to a subsisting mortgage.** 14. Further, the said references were made under a statutory compulsion to fill up all columns in a format for applying a right under the Kerala Land Reforms Act. **When there is a reference to the existing mortgage or even an admission regarding mortgagormortgagee relationship by way of a statutory compulsion, it cannot be brought under the purview of Section 18 of the Limitation Act. A mere reference to an existing mortgage or a liability thereunder which would otherwise come under the purview of an acknowledgment as mandated** **RSA.No. 17 of 2007 11** **under Section 18 of Limitation Act would fall outside the mandate when the said reference was made under a statutory compulsion. An information stated in an application for getting assignment of Jemmam right or any other right under the the Kerala Land Reforms Act, 1963 as an inevitable information to be supplied by virtue of the mandate to be complied within submitting an application would fall under the category of information supplied under 'statutory compulsion'.** Hence, cannot be brought under the purview of Section 18 of the Limitation Act. 15. Thus, the concurrent findings rendered by both the Trial Court and the First Appellate Court, deserves no interference by this court. Appeal hence fails. Appeal dismissed. No order as to costs. **Sd/P.SOMARAJAN JUDGE** MSP **//TRUE COPY// P.A. TO JUDGE**