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Allahabad High Court
Phul Singh vs Bhojraj And Ors. on 29 March, 1927
Equivalent citations: AIR 1927 All 488 a
Author: Kendall


Kendall, J.

1. This second appeal arises from a suit which was based on a simple mortgage-deed executed by one Sadho Singh in 1902. The plaintiffs are the descendants of the original mortgagee, and according to them the property mortgaged was joint family property and the mortgage was executed by the manager of the family for legal necessity. The following genealogical table will show how the various members of the family are affected:

| | |
Bachan Singh Burdat Singh Daulat Singh
_____|_______ = ______|______
| | | Deo Kuar | |
Mahabal Madho Sadho _________________|______________________ Udhan Bhure
= | | | | | | |
Phul Koer Kamal D.6 D.12 D.8 D.9 D.10 D.11
D 1 | (Phul Singh)
_______|_______ D.7
| | | | (Jang Bahadur.)
D.2 D.3 D.4 D.5

2. In 1910 there was a dispute in the family about the liability of the various members for this and other debts, and the question was referred to arbitration, apparently on the 1st of March 1910; and the arbitrators gave an award on 3rd December 1910, apportioning the liability. Phul Singh and Jang Bahadur Singh alone failed to pay the amounts for which the arbitrators had found them to be liable. The plaintiffs, therefore, filed this suit on 1st March 1922. against Phul Singh and Jang Bahadur Singh, but they also impleaded the other members of the family and the subsequent mortgagees, as a decree was desired for sale of the entire property mortgaged. Phul Singh alone contested the suit, and it is he who has filed the present appeal. The mortgage-deed of 1902 was found by both the Courts below to be genuine and for consideration, and it appears that in the arbitration proceedings of 1910 it was found to have been executed for legal necessity. These points have not been argued before us. The trial Court gave the plaintiffs a decree for sale of one-third of the property mortgaged on the ground that one third of the joint family property was the share of Gurdat Singh, the father of the two defaulters. This decree was upheld in the Court of first appeal.

3. The only ground of appeal that has been seriously argued before us is the one of limitation. The mortgage-deed having been executed in 1902; and the suit having been filed in 1922, it would clearly be barred unless there were some special circumstance to save it. It has been held by the Courts below that the agreement to refer this dispute with others to arbitration in March 1910, together with the award, amounted to an “acknowledgment” which would start a fresh period of limitation under Section 19 of the Limitation Act. This finding is disputed. The deed of reference to arbitration is not in evidence, having been lost; but the Courts below have admitted secondary evidence which proves that the appellant and the other members of his family had executed the agreement of reference and had asked the arbitrators to determine whether they were liable for the debt in suit and for other debts. The original award of the arbitrators, which is registered, had also been lost; but a copy of this was admitted in evidence, and shows that the appellant, as well as the others, were liable, and apportioned the amount among them.

4. It has been argued, in the first place, that this was not an acknowledgment, because it was not made to the mortgagee or anyone representing him, but was merely a mutual arrangement among the representatives of the mortgagor. The final sentence of Expl. I to Section 19 of the Limitation Act, however, is sufficient to dispose of this objection. If has further been argued that the words which have been proved to constitute the material part of the agreement do not in themselves amount to an acknowledgment. It is urged that an acknowledgment to save limitation must be unconditional and that it must amount to an admission of an existing liability and not merely a contingent liability. We have to consider the circumstances in which the agreement was made. There was a mortgage of what is now said to be joint family-property, and the members of the joint family were disputing among themselves as to the liability. All of them were ready to undertake to discharge the liability, if it were found by the arbitrators to be existing. The case is not entirely similar to the one decided by their Lordships of the Privy Council in Mani Ram Seth v. Seth Rup Chand [1906] 33 Cal. 1047, but we think that the authority contained therein is sufficient to cover the facts:

The question is whether a given state of circumstances falls within the natural meaning of a word which is not a word of art, but an ordinary word of the English language…. In a case of very great weight the authority of which has never been called in question, Lord Justice Minish laid it down that an acknowledgment to take the case out of the Statute of Limitations must be either one from which an absolute promise to pay can be inferred, or, secondly, an unconditional promise to pay the specific debt or thirdly there must be a conditional promise to pay the debt and evidence that the condition has been performed; In re Rivers Steam Co. v. Mitchell’s Claim [1871] 6 Ch. A. 822.

5. We think that, in the present case, there was a conditional promise to pay the debt, and that there was in the award evidence that the condition had been performed. We think, therefore, that the lower Courts were justified in concluding that there had been an acknowledgment by which the mortgage-deed of 1902 was kept alive.

6. It has also been argued that the decision to give a decree for sale of one-third of the mortgaged property was wrong, inasmuch as the share of the two defaulters in the joint family property, as the genealogical table above will show must be 2/12 and not 1/3. There does not appear to us to be any force in this argument either. The whole of the mortgaged property was liable under the mortgage-deed, including the one-third which is said to have been the share of Gurdat Singh. The contesting defendants were found to be the descendants of Gurdat Singh and are presumably still in possession of that share, The evidence is not sufficient to show whether the defaulter’s shares have been separated, or what their separated shares would amount to. The result is that the appeal is dismissed with posts.

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