1. It is first urged that the third mortgage (Ex H) Contains a clear acknowledgment of liability under the first mortgage of 1873. The words in reference to the property are, “I have hypothecated to you as third mortgage my one-third share which was already hypothecated in 1873 to B. Venkata Narasuppa garu for Rs. 4000 as first mortgage, and in 1885 to Hanumantha Rao garu as second mortgage for Rs. 5,000.” We think the fact that the mortgagor speaks of the document he is executing as a ” third mortgage” is clear indication that the first and second mortgages exist, and that the words amount to an acknowledgment of liability under those mortgages.
2. The next question is whether the acknowledgment in Ex. H on April 23rd 1887 was made before or after a suit upon the first mortgage would have been barred, for if the latter, the acknowledgment will not save the limitation. Under the terms of Ex. A Krishnasami Naidu bound himself in case of failure to pay three consecutive instalments” to pay without objection either immedi-. ately after or whenever it pleases you, the whole of the principal amount of this bond and the interest due thereon, without waiting for the limit of three years mentioned above.” It is admitted that no instalments have ever been paid–the bond therefore became exigible on 6th December 1874, and the acknowledgment in Ex. H was not made in time. We do not think any demand was necessary to give a starting point for limitation. The words are “whenever it pleases you” not “if so required” as in Hanmantram Sadhurani Pity v. Arthur Bowles (1884) I. L. R., 8 B. 561.
3. Against this it is urged that there has been a waiver of the condition. It is settled law that mere abstinence from suit does not prove a waiver, Sethu v. Nayana (1884) I. L. R., 711. 577, 583. Nobodip Chunder Shaha v. Bam Krishna Roy Chowdhry (1887) I. L. R., 14 0. 397. Nor do we think that the will can be relied upon as evidence of waiver. A will being ex necessitate reiarevocable instrument, the option is not exercised so as to determine thecreditor’s locuspenetpntioe which is the true test. See the decision of Muthusami Aiyar J. & Best J. in Appeal 88 of 1891. And the provision in the will inserted at the request of the debtor is a bare promise without consideration and cannot form a fresh contract. We must therefore hold that no waiver has been proved.
4. Though we arrive at our conclusion on different grounds, we agree with the District Judge that the suit is barred and dismiss the appeal with costs.