JUDGMENT
N.K. Agrawal, J.
1. This a second appeal by the plaintiffs. A civil suit was filed by three brothers namely, Tara Singh, Sital Singh and Sardara Singh before Sub Judge, Second Class, Kharar in the year 1975 for declaration to the effect that they were the owners in possession of 1/2 of the land situated in village Ghoga Kheri, Tehsil Sirhind, now Kharar. The declaration was sought on the ground that the suit land had been mortgaged by defendant No. 1. Pritam Singh, with the father of the plaintiffs for Rs. 1,600/- in the year 1948. Right to redeem the mortgage expired after 30 years and, therefore, declaration to that effect was sought in the said civil Suit. The land in question was mortgaged by Pritam Singh (defendant No. 1) with Mahan Singh (father of the plaintiffs) under a marriage deed on may 18, 1943. Mutation No. 366 was sanctioned on June 9, 1943. After the death of the original mortgagee, Mahan Singh, the plaintiffs being the sons of Mahan Singh, stepped into the shoes of their father and claimed in the civil suit that right to redeem the mortgage had extinguished after the expiry of 30 years and they had become the owners of the land.
2. Defendant No. 1 in his written statement before the trial Court, took the plea that 1/2 of the mortgaged land was released by the mortgagees in the year 1968 without receiving any money. The entire mortgage amount (Rs. 1,600/-) was made a charge oil the remaining 1/2 land. A report (No. 319) was recorded by Patwari in Roznamcha on May 11, 1968. Thus, the mortgagees admitted the existence of mortgage of the suit land in the year 1968, thereby extending the period of limitation.
3. The learned Sub Judge framed issues and, after trial, dismissed the plaintiffs’ plea that they had become the owners after the expiry of the period of limitation. The trial Court held that, by virtue of the acknowledgement made in the year 1968, there was an extension in the period of limitation and, therefore, the right of redemption did not extinguish as claimed by the plaintiffs.
4. The plaintiffs went in appeal before the Additional District Judge, Roop Nagar but failed. The learned appellate Court, by judgment dated January 5, 1980, up-held the view taken by the learned trial Court that the period of limitation stood extended on the ground of acknowledgment.
5. Mr. Mahavir Ahlawat, learned counsel for the appellants-plaintiff, has argued that the Roznamcha report recorded by the Patwari on May 11,1968 was not a valid acknowledgment inasmuch as it was neither recorded in the presence of the co-mortgagees (Tara Singh and Sital Singh) nor the signature of Tara Singh, who was said to be present before the Patwari, was obtained on the Roznamcha report. It is claimed that Sardara Singh alone had signed the report and it did not amount to an acknowledgment by all the mortgagees. Sardara Singh alone had no authority to make an acknowledgment of the mortgage. It is also explained that no entry was made in Khasra Girdawari in pursuance of the report.
6. Reliance has been placed on a full Bench decision of the Madras High Court in ‘Valliamma Champaka v. Sivathanu Pillai and Ors., A.I.R. 1964 Madras 269, in support of the proposition that a valid acknowledgment for the purposes of limitation should be in respect of a subsisting liability. Where the mortgagee executing the release deed referred only to his past and extinguished right as a mortgage, acknowledging the payment of the mortgage money, the very purpose of the release deed was to say the mortgage right had been extinguished by payment and that the mortgagee had no further rights. That cannot obviously constitute an acknowledgment of a subsisting liability. A mere recital of past liability accompanied by a statement as to its discharge cannot be construed as an acknowledgment of liability. Shri Ahlawat has argued on the strength of the said decision that a mere release deed was not sufficient to constitute a valid acknowledgment unless it fulfilled the requirements of Section 18 of Limitation Act, 1963.
7. Reliance has also been placed on certain decisions of this Court. in ‘Mawasi Raje Ram v. Mst. Manbhari, A.I.R. 1964 Punjab 226, a Division Bench of this Court examined a case where reliance was placed by the plaintiff on an acknowledgment continued in a document, Ex.P-3, made by one of the six mortgagees. It was noticed that integrity of the mortgage was not split up by any act of the mortgagees and the mortgage was still joint and indivisible. It was held that the acknowledgement made by one of the six mortgagees without the consent of the others was not binding on all and, therefore, the mortgageor could redeem the mortgage. The said decision, however, does not help the plaintiffs herein because the facts in the case in hand are entirely distinguishable.
8. The next case relied upon by learned counsel for the appellants-plaintiffs is reported in A.I..R. 1975 Punjab and Haryana 17, (Gurbax Singh and Anr. v. Smt. Chinti and Ors., ). It was noticed that property had been described in a gift deed executed by mortgagor, Inder Singh, who was one of the mortgagors. Apart from the area of the land and the name of the owner, no other particulars of the mortgage were Mentioned; It was held that it did not amount to acknowledgment within the meaning of Section 19 of the Indian limitation Act, 1908. The facts of this case are also distinguishable inasmuch as all the requirements regarding a valid acknowledgment were not fulfilled.
9. In Smt. Bachint Kaur v. Smt. Gurnam Kaur and Ors., (1990-2)98 P.L.R. 658, a matter regarding acknowledgment was under consideration. It was held that a statement to fall within acknowledgment must show that it was made with the intention of admitting the jural relationship subsisting at the time when it was made.
10. In ‘Smt. Chahderpati alias Kasturi Mahajan v. Maman Chand and Ors., (1996-1)112 P.L.R. 472, a learned Single Judge of this Court had an occasion to examine a question relating to acknowledgment in a case of mortgage. The question which arose in that case was whether gift deed and an admission in the written statement constituted an acknowledgment. It was noticed that those documents merely contained a mention of the existence of a mortgage. It was held that such a mention could hardly be taken to be an acknowledgment in terms of Section 18 of the Limitation Act, thereby extending the period of Limitation.
11. In ‘Tilak Ram and Ors. v. Nathu and Ors., A.I.R. 1967 Supreme Court 935, it has been held that mere statement expressing jural relationship between the parties did not constitute acknowledgment. A statement must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It was noticed that a written statement contained an averment that one Parmeshwar Dass held the land as mortgagee thereof. Similar averments were found in a plaint, a sale deed and a deed of sub-mortgage. After examining Section 19(1) of the Indian Limitation Act, 1908, it was held that the said Section required –
(i) an admission or acknowledgment,
(ii) that such acknowledgment must be in respect of a liability, in respect of a property or right,
(iii) that it must be made before the expiry of the period of limitation, and
(iv) that it should be in writing and signed by the party against whom such property or right is claimed.
It was observed in para 10 as under :-
“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 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 a far-fetched process of reasoning.”
12. Averting to the facts in the case in hand, it may be noticed that the evidence of Patwari was recorded by the trial Court and it was held that the roznamcha report recorded by Patwari (Ex.D.1) was reliable. It transpired from the report that Sardara Singh was accompanied by his brother Tara Singh at the time of making the report before the Patwari Both the brothers, being the co-mortgagees, went to the Patwari and admitted the existence of the earlier mortgage of land. Thereafter, 1/2 of the land was released from the mortgagor. The 3rd brother Sital Singh was, not present as he was serving in the army. The report was signed by Sardara Singh alone. The genuineness of the report is not in doubt. It is, however, argued that no entry was made by the Patwari in the Khasra Girdawari and, therefore, roznamcha report dated May 11, 1968 had no sanctity inasmuch as consequential proceedings did not follow. Shri Ajay Mittal, learned counsel for the respondents, has controverted this plea with the contention that consolidation proceedings were in progress in the village and it was for that reason that no entry could be made by the Patwari in the Khasra Girdawari. Mutation No. 923 (Ex.D.2) was sanctioned in favour of Pritam Singh (mortgagor) as a result of release of 1/2 area of land. The mutation, however, remained incomplete as the matter was remanded by the Collector, Roop Nagar to the Assistant Collector, Kharar for a fresh decision after affording opportunity to all the concerned.
13. It has also to be seen that the present civil suit has been filed by the mortgagees in respect of 1/2 area of the land only. It itself constitutes a clear proof of the fact that 1/2 of the land has been admitted to have been released. There was no reason for the plaintiffs to seek declaration regarding 1/2 of the land only if they challenged the release of land in the year 1968. In this view of the matter also, release of 1/2 of the land made through Sardara Singh constitutes a valid acknowledgment of the mortgage thereby extending the period of limitation Under Section 18 of the Limitation Act, 1963. Section 18(1) reads as under :-
“EFFECT OF ACKNOWLEDGMENT IN WRITING:-
(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) xx xx xx xx xx
EXPLANATION- For the purposes of this section.-
(a) xx xx xx xx xx
(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf, and
(c) xx xx xx xx xx.”
14. It would, thus, appear that, by virtue of Section 18, the right to redeem the mortgage would start running afresh from the date of acknowledgement. A suit could be filed within a period of 30 years. In this view of the matter, the plaintiffs are not found to be entitled to seek a declaration from the civil Court claiming ownership and extinguishment of the right of redemption.
15. It has also been pointed out by Sh. Ajay Mittal, learned counsel for the respondents, that none of the other mortgagees, Tara Singh and Sital Singh, ever challenged the release of 1/2 of the land by Sardara Singh in the year 1968. The conduct of the two brothers dearly establishes that they had authorised their brother Sardara Singh to release 1/2 land in favour of the mortgagor. There is force in the plea and, on the basis of the roznamcha report records by Patwari, it can be concluded that Sardara Singh had the implied authority to release 1/2 land of the mortgaged land in favour of the mortgagor. There was neither any opposition nor any protest by the co-mortgage, who happen to be his brothers. The subsequent filing of the suit before Sub Judge, Kharar, finally conclude that both did agree to the release and sought a declaration from the Court in respect of 1/2 of the mortgaged land only. In this situation, the plaintiffs have, no case to disown the release made by their brother, Sardare Singh;
16. The appeal is found to have no force and is dismissed.