Indian Kanoon - Search engine for Indian Law

10. The only question now before us, therefore, is whether the plaint in Original Suit No. 1161 of 1106 M.E. is a sufficient acknowledgment of the liability of the mortgage to be redeemed.

11. It must now be noticed that at the time when the plaint was filed, Sivasankaran Thampi was only in the position of a co-mortgagor and had not acquired the rights of the mortgagee by subrogation. Wherever there exists a right of redemption in the mortgagor, there will be corresponding to that right, a liability in the mortgagee to be redeemed. Article 136 of the Travancore Limitation Regulation prescribes, as we stated earlier, a period of fifty years for the exercise of that right by the mortgagor. If, however, there has been an acknowledgment of liability by the mortgagee within that time, the period of fifty years prescribed by Article 136 will have to be reckoned from the date of such acknowledgment. Section 19(1) of the Travancore Regulation VI states:

14. Section 19 postulates a number of conditions to constitute a valid acknowledgment of liability. An acknowledgment to come within that section must be in regard to a liability corresponding to the right in question. It should have been made before the period of limitation expired, and should be evidenced in writing signed by the party against whom the right is claimed. There are in essence two essential requirements of the section : (1) there should be an acknowledgment of liability in respect of the property or the right in question and (2) it should be by the party against whom such property or right is claimed. Both in Jugal Kishore v. Fakru-ud-Din (1906) I.L.R. 29 All. 90 and Krishnayya v. Venkatappayya A.I.R. 1925 Mad. 134 the determination of the question whether a statement would amount to an acknowledgment under Section 19 of the Limitation Act, appears to have been rested only on the second among the two requisites set out above. This will be particularly clear from the observations of Jackson, J., in the latter case which we have extracted above. The learned Judges in the two cases did not consider the precise import of the term acknowledgment of a liability and see whether the particular statement before them did amount to such an acknowledgment. An acknowledgment is in respect of a liability ; it implies that the person who acknowledges, admits or owns the liability. If a person who is a stranger to the liability makes a statement as to the subsistence of the liability, it cannot amount to an acknowledgment in law because he cannot own or admit the liability.

15. In Pavayi v. Palanivela (1940) 1 M.L.J. 766 : I.L.R. 1940 Mad. 872 (F.B.) a Full Bench of this Court held that a mortgagor who had lost all interest in the mortgaged property and who had ceased to be personally liable for the mortgage debt could not validly, by any acknowledgment within the meaning of Section 19, bind the person on whom his interest had devolved. That was no doubt a case where even at the time of the suit the mortgagor was not liable, but that, however, cannot make any real distinction. An acknowledgment of liability, we have indicated above, pre-supposes that the person acknowledging possesses some interest which can be bound by his statement. If he has no such interest, it will be a misnomer to call his statement, an acknowledgment of liability. No debtor, for example, can be held to be bound by a mere acknowledgment by a stranger. Again, it is a well-settled rule that an acknowledgment of liability must involve an admission of a subsisting jural relationship between the parties and a consciousness and an intention of continuing such a relationship until it is lawfully terminated. In Venkata v. Parthasaradhi (1892) I.L.R. 16 Mad. 220, 223: 3 M.L.J. 35. Muttuswami Iyer, J., in considering what an acknowledgment under Section 19 should be, said:

The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature of the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of a jural relation-ship. Such intention can be inferred by implication from the nature of the admission and need not be expressed in words.

Where the person making an admission of liability is not a debtor, there can easily be no jural relationship between him and the person to whom he is making the admission. If, therefore, in the present case at the time when Sivasankaran Thampi made the statement as to the subsistence of the mortgage in his plaint, as he was not a mortgagee, there could be no jural relationship between him and the other party so as to constitute his statement as an acknowledgment of liability on the part of the mortgagee as to the subsistance of the mortgage. Secondly the kind of jural relationship that should exist is that the person making the acknowledgment should be under an existing liability to the other party.