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Madras High Court
Ittappan Kuthiravattath Nair vs Nanu Sastri And Ors. on 13 February, 1902
Equivalent citations: (1902) 12 MLJ 101


1. In a suit for redemption the onus is on the plaintiff not only to prove that the defendant’s ancestor obtained the lands on mortgage from the plaintiff’s ancestor but also that ho has a subsisting title. In Exhibit A, the counter-part executed by the 1st and 2nd defendants’ ancestor the year alone appears but the portion in which presumably the month and date were inserted has been destroyed by age, and no secondary evidence has been adduced to prove that the date of the document was some day in Malayalam year 1001 (which alone is now visible) prior to 28th July in which case alone the suit would be within time irrespective of the acknowledgment relied upon in Exhibit Cr. There is no proof that the mortgage deed was executed and delivered by plaintiff’s ancestor to 1st and 2nd defendants’ ancestor and that the defendants being in possession thereof, withhold its production. Even if it were proved it cannot be presumed simply from that circumstance that its date was some day prior to 28th July in 1001, especially, in a ease like the present in which the defendant does not admit the mortgage sued upon but pleads that he was never a mortgage but had all along been the proprietor. If, as contended on behalf of the appellant, there is in Exhibit G dated 15th January 1859, under which the 1st and 2nd defendants’ ancestor obtained a grant from the Zamorin of a moiety of the lands described in the schedule to the plaint, an acknowledgment of liability within the meaning of Section 19 of the Indian Limitation Act in respect of the other moiety which is the subject of this suit, the suit will be saved from the operation of the law of limitation. Even assuming that the Courts below rightly construed Exhibit G in holding that them n the 1st and 2nd defendants’ ancestor referred to the plaintiffs ancestor as the owner of the date of the document of the moiety of the lands now in question, it is impossible to hold, ill the absence of any statement in Exhibit G, its executant was then in possession of such moiety, that there is in Exhibit G any acknowledgment of liability in respect of plaintiff’s ancestor to such moiety.

2. Though under Section 19 the exact nature of the right or liability need not be disclosed by the acknowledgment Quincey v. Sharpe, Exch. Div., p. 72 and its exact nature may be established by evidence dehors the written acknowledgment yet the acknowledgment is itself should import that the person making tint acknowledgment is then under an existing1 liability (vide judgment in Appeal No. 106 of 1899) and such liability cannot be road into it by proof aliunde or by the plaintiff’s present admission that as a matter of fact, the executant was then in possession of the moiety in question which in Exhibit G is referred to as belonging to plaintiff’s ancestor.

3. The second appeal therefore fails and is dismissed with costs.

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