1. Defendant is the appellant. On obtaining a loan of Rs. 500/- he had executed the mortgage deed Ext. A dated 25-12-1092 in favour of the plaintiff authorising him to retain possession of the plaint property and to utilise the income therefrom for payment of the pattom of Rs. 20/- due to the original jenmi of the said property and for appropriating for himself the balance towards interest on the mortgage amount of Rs. 500/-. The mortgagor further undertook to pay up the mortgage amount on demand and also to be personally liable for the same. Ex. A was followed by another document Ext. B of the same date executed by the defendant mortgagor in favour of the plaintiff. As per Ext. B the defendant took back the properties on lease from the plaintiff. The stipulation in the lease-deed was to the effect that out of the agreed annual pattom of Rs. 80/- a sum of Rs. 20/- would be paid by the defendant himself to the Chittoor Devaswom, the jenmi of the property and the balance of Rs. 60/- would be paid to the plaintiff in half-yearly instalments of Rs. 30/- each.

2. Since the pattom thus payable to the plaintiff was left in arrears by the defendant, the present suit was instituted by the plaintiff for recovery of possession of the property together with arrears of pattom from the year 1109 onwards as scaled down under the provisions of the Cochin Agriculturists' Relief Act 18 of 1114 and also with future pattom at the rate specified in Ext. B from the date of suit to the date of recovery of property. A decree for recovery of the mortgage amount was also claimed in the suit and under Order II rule 4 of the Cochin CPC necessary sanction for including in this suit such a claim also was obtained from the Court by the plaintiff. The defendant resisted the suit on several grounds, the most important of them being that the mortgage deed Ext. A was supported by consideration only to the extent of Rs. 250/-, that the two documents Exts. A & B were together intended to evidence only a simple hypothecation transaction that the entire amount due to the plaintiff has been paid off, that the defendant is in possession of the property not as a lessee but as owner, that the plaint claim is barred by limitation and the plaintiff is not entitled to get recovery of possession of the property of any other relief. These contentions were repelled by the trial Court and the plaintiff was given a decree limiting the arrears of pattom for the period from 1110 onwards only. On appeal by defendant the lower appellate court modified the trial Court's decree by disallowing plaintiff's claim for recovery of the mortgage amount by holding that such claim had become, barred by limitation. On other points the decree of the trial court was confirmed. Those points are again urged by the defendant in this second appeal. In the objection memorandum filed by the plaintiff respondent he has objected to the lower appellate Court's decree disallowing the claim for the mortgage money and directing the parties to recover proportionate costs.

3. The first point urged on behalf of the defendant appellant is that the transaction evidenced by Exts. A and B was intended and treated as a simple hypothecation. This point was concurrently found against the defendant by the lower Courts. The evidence on record is decidedly in favour of the correctness of that finding. A reading of Exts. A and B makes it clear that the parties definitely intended the transaction under Ext. A to be usufructuary mortgage and that under Ext. B to be a separate and independent lease. Ext. A is styled as a usufructuary mortgage and it states that possession of the property was given over to the mortgagee with authority to appropriate the income therefrom towards the interest due on the mortgage amount. Under Ext. B the defendant lessee has undertaken to surrender possession of the property to the lessor at any time on demand irrespective of the question of the termination of the mortgage. The arrears of pattom that may be found due under Ext. B is expressly made a charge on the defendant's right over the properties subject to the prior charges for the mortgage amount. This is a sure indication of the fact that the parties intended the rights and liabilities arising out of Exts. A and B to be separate and distinct in themselves. The lower Court's finding to that effect does not therefore call for any interference.

4. On the strength of the provisions contained in the Cochin Agriculturists' Relief Act (Act 18 of 1114) it is argued on behalf of the appellant that the rent or pattom payable under Ext B has to be treated merely as interest on the mortgage amount covered by Ext. A and that nothing by way of pattom can be decreed for the period subsequent to 1-1-1115 also. It is also argued that consistent with the finding of the lower appellate Court that the claim for the recovery of the mortgage amount had become barred by limitation the claim for interest on such principal sum should also have been disallowed. Both these arguments are based on the assumption that the pattom claimed under Ext. B represents only the interest on the mortgage amount. In view of the finding already recorded that Ext. B is an independent and separate transaction by itself there can be no force in the contention that the pattom payable under Ext. B represents the interest on the mortgage amount.

5. The provisions contained in Sections 8 and 9 of the Agriculturists' Relief Act do not in any way stand against the plaintiff's claim for recovery of the pattom due under Ext. B. These sections relate only to the scaling down of the interest which had accrued due on all loans outstanding on the date of the Act. By Cl. (1) of Section 8 arrears of interest up to 1-1-1107 were completely wiped off. By S. 9 the interest due for the period from 1-1-1107 up to 1-1-1115 the date of the commencement of the Act was limited to 6 per cent per annum. The Explanation to S. 9 of the Act stated that the interest referred to in Ss. 8 and 9 includes pattom payable by the mortgagor to mortgagee on a lease back of the mortgaged property. It is thus clear that the pattom due under a lease: deed like Ext. B has to be treated as interest only for the limited purpose of scaling down as provided for in Sections 8 and 9 of the Agriculturists' Relief Act. There is no warrant for justification for holding that such pattom has to be treated as interest for all other purposes as well. Consistent with the provisions of Sections 8 and 9 of the Agriculturists' Relief Act plaintiff had given up all claim for the pattom due up to 1-1-1107 and had limited the claim for the subsequent pattom due up to 1-1-1115 to an amount representing interest at 6 per cent per annum on the mortgage amount. Since pattom due under a lease like Ext. B has to be treated as interest only for the limited purposes of Ss. 8 and 9 of Agriculturists' Relief Act the amount due for the period from 1-1-1115 onwards cannot (sic) be claimed as pattom itself and at the rate stipulated in the lease deed. Such a claim is perfectly sustainable.

6. This is also the view taken in — ‘Nayasetti Prabhu v. Raman Vydian’, 37 Cochin LR 147. Thus even assuming that the finding of the lower appellate Court that the claim for recovery of the mortgage amount has become barred by limitation is correct that cannot in any way affect the claim for recovery of the pattom due under the lease deed Ext. B. Because the claim for pattom is independent in itself and not by way of interest following the principal amount of the mortgage money.

7. The next contention urged on behalf of the appellant defendant is that the plaintiff is not entitled to get a decree for recovery of possession of the property from the defendant. Under the terms of the mortgage deed, Ext. A, the plaintiff is entitled to be in possession of the mortgaged property until redemption by the mortgagor. The present possession of the mortgagor defendant is merely in his capacity as the lessee under the lease-deed Ext. B executed by him in favour of the plaintiff. So long as the plaintiff's rights as lessor subsist his claim for recovery of possession of the property cannot be resisted by the lessee. No doubt the lessee in this case happens to be the mortgagor under Ext. A. But that fact is of no consequence in the suit for eviction brought forward on the strength of the lease-deed Ext. B. The mortgagor defendant's right to get back possession of the property from the mortgagee will arise only on redemption of the mortgage Ext. A. The defendant under the lease-deed Ext. B cannot also claim any fixity of tenure under S. 4 of the Cochin Verumpattomdars' Act (Act 8 of 1118). Leases like Ext. B granted by the usufructuary mortgages are expressly excluded from the scope of that Act as per Cl. (b) of S. 3 of the Act.

8. The learned advocate for the appellant argues that the plaintiff cannot, be said to be a usufructuary mortgagee under Ext. A so as to entitle him to the benefits of the exception granted by Clause (b) of Section 3 of the Verumpattomdars' Act. We see no force in this contention. A reading of Ext. A shows that it satisfied all the essential features of a usufructuary mortgage. There is also a personal liability undertaken by the mortgagor for the mortgage amount. This additional undertaking in Ext. A cannot by itself destroy the effect of the other essential features of the document as a usufructuary mortgage. Ext. A is nonetheless a usufructuary mortgage as it is ordinarily understood and as such the lease granted under Ext. B by the plaintiff mortgagee comes within the Exception provided under S. 3 of Cl. (b) of the Verumpattomdars' Act. In this view of the matter also, the plaintiff's claim for recovery of possession of the property from the defendant on the strength of Ext. B is sustainable.

9. The point raised in the objection memorandum filed by the plaintiff respondent questioning the correctness of the lower appellate Court's finding that the claim for the mortgage amount is time barred may now be considered. According to the plaintiff he has been regularly receiving a portion of the rent due in respect of the plaint property and that the receipt of such rent is sufficient under Clause (2) of Section 21 of the Cochin Limitation Act corresponding to Section 20 of the Indian Limitation Act to keep alive his right to sue for the mortgage amount. On behalf of the first defendant it was contended that no such ground of exemption from the bar of limitation was expressly set up in the plaint as required by R. 6 of O. 7 of the CPC and that therefore the plaintiff is not entitled to seek the benefit of Cl. (2) of Section 21 of the Limitation Act. This argument appears to have found favour with the lower appellate Court. But on going through the pleadings in the case we are satisfied that the necessary averments to show that there is no bar of limitation for the plaintiff's claim for a decree for the mortgage amount under Ext. A are contained in the pleadings and that there is no justification for holding that the plaintiff is not entitled to invoke the aid of the provision contained in Cl. (2) of Section 21 of the Limitation Act.

10. No doubt the plaint does not expressly state that the plaintiff has been receiving rent as contemplated in Cl. (2) of S. 21 and that therefore the claim for the mortgage amount is within time. At the same time it is clear that the absence of express words to that effect has not in any way put defendant in the dark as to the ground on which the plaintiff seeks to bring his claim for the mortgage amount within the period of limitation allowed by law so as to have deprived the defendant of the chance of setting up his defence. On the other hand, the defendant is seen to have only understood the nature of the pleadings as put forward by the plaintiff and to have objected to the claim for the mortgage amount by setting up the defence that the plaintiff is not entitled to the benefit of Clause (2) of Section 21 of the Limitation Act. This aspect of the question of limitation appears to have been fully argued before the trial court as also before the lower appellate Court. Coming to the pleadings themselves it is stated in Paragraph 3 of the plaint that as per the direction in the mortgage deed, Ext. A the plaintiff had to pay the annual jenmi dues amounting to Rs. 201- to the Chittur Devasvvom under whom the defendant was holding the property.

11. When the plaintiff mortgagee gave the property on lease to the defendant as per the terms of Ext. B the arrangement was that out of the stipulated annual pattom of Rs. 80/- a sum of Rs. 20/- was to be utilised by the lessee for payment of the jenmi dues and the balance of Rs. 60 was to be paid direct to the lessor himself. This averment is contained in Paragraph 6 of the plaint. In Paragraph 6 of the plaint it is stated that no portion of the amount due under Exts. A and B has been paid by the defendant. On the basis of such an averment the plaintiff has claimed in the suit the mortgage amount as well as the arrears of pattom due to him. Such arrears have been calculated at the rate of Rs. 60/- per year. When the averment contained in Paragraph 6 of the plaint is read along with the averments contained in Paragraphs 3 and 5 of the plaint and in the light of the extent of arrears of pattom claimed in the suit it is clear that it was conceded in the plaint that the jenmi dues payable as per the stipulations in the lease-deed had been duly paid up by the defendant and that what was left in arrears was only the balance of the pattom payable to the plaintiff himself.

12. In the written statement filed by the defendant he has not set up any case that he has committed any default in the payment of the dues to the jenmi. The plea set up by him was one of a total discharge of the liabilities under Exts. A and B. But this plea of discharge has been concurrently found against him so far as the arrears of pattom due to the plaintiff at the rate of Rs. 60/- and also the mortgage amount due under Ext, A, are concerned. So far as the payment of jenmi dues there was no dispute between the parties. Thus, it was common ground that such dues at the rate of Us. 20/- per year were being paid regularly by the defendant. Since he has been holding the property on the strength of Ext. B the payment of jenmi dues by him has to be taken to have been made by him as per the directions contained in the lease deed itself. The application of Cl. (2) of Section 21 of the Limitation Act has to be considered in the light of this fact.

13. Sections 20 and 21 of the Limitation Act that was in force in Cochin were similar to Sections 19 and 20 of the Indian Limitation Act. Section 21 was as follows:

“21(1) Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or the legacy or by his duly authorised agent, a fresh period of limitation shall be computed from the time when the payment is made;

Provided that an acknowledgment of the payment appears in the handwriting of or in a writing signed by the person making the payment.

(2) Where the mortgaged land is in the possession of the mortgagee, the receipt of the rent or the produce of such land shall be deemed to be a payment for the purpose of sub-s. (i).”

14. An acknowledgment in the strict sense of the term is dealt with in the previous section. There it is stated:

“That where before the expiration of the period prescribed 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 some person through whom he derives title or liability a fresh period of limitation shall be computed from the time when the acknowledgment was signed.”

15. To constitute an acknowledgment under this section there must be an acknowledgment of the liability in writing and signed by the party or by his duly authorised agent. The rigour of these conditions is to some extent relaxed in the face of an acknowledgment contemplated by Cl. (1) of S. 21 and is still further relaxed in the case of the acknowledgment contemplated by Cl. (2) of the same section. For the purpose of Cl. (1), it is not necessary that there must be a direct acknowledgment of the liability by the party concerned. On the other hand, it is sufficient that there has been a payment which by implication would amount to-an acknowledgment of the existence of such liability. Accordingly it is stated that when a payment on account of a debt or of interest on a legacy is made by the person liable to pay the debt or legacy or by his duly authorised agent before the expiration of the prescribed period of limitation a fresh period of limitation shall be computed from the date of such payment in case there is an acknowledgment of such payment in the handwriting of or signed by the person making the payment.

16. These conditions are not insisted on in the case of the acknowledgment contemplated by Cl. (2) of S. 21. This clause is expressly confined to cases where the mortgaged land is in the possession of the mortgagee having a right to claim the mortgage amount from the mortgagor. That right would be kept alive if there has been an acknowledgment satisfying the requirements of S. 20 or if there has been a payment satisfying the conditions laid down by Cl. (1) of S. 21. That right would also be kept alive if the conditions laid down in Cl. (2) of the same section are satisfied. These conditions are (1) that the mortgagee should be in possession of the mortgaged land and (2) that he must be in receipt of the rent or produce of such land within the prescribed period. For the purpose of this clause the mortgagee who is in possession of the land need not necessarily be in direct possession. It is sufficient even if he is in possession of the property through his lessee or agent. This is obvious from the expression “receipt of the rent” as used in the clause. The contingency of the mortgagee receiving rent in respect of the mortgaged property can arise only when such property has been given out by him under a lease or on any I rental arrangement. When the mortgagee himself is in direct possession of the property the question of the receipt of the produce of such land will not arise.

17. It is because the clause is intended to cover cases where the mortgagee is in direct possession of the property and also where he is in constructive possession of such property through his lessee or agent that the clause expressly refers to the receipt of the rent or produce of such land. All that is required by the clause is that the mortgagee must be in receipt of the rent or produce of the land, no matter whether what he receives represents the whole of the rent or the produce of such land. Receipt of the produce of the land by the mortgagee when he himself is in possession of the property simply means that he is getting in or collecting such produce, it cannot, be said to be a payment to him by the mortgagor. Similarly, the receipt of rent may also be from a stranger lessee except in cases where the mortgagor himself happens to be the lessee. When rent is received from a stranger lessee it cannot be said that such rent is being paid by the mortgagor. Thus, the receipt of such rent or produce of the land by the mortgagee cannot be expected to be evidenced by a document in writing or signed by a mortgagor as in the case of payments towards the debt or of any interest due thereon as contemplated by Cl. (1) of the section. That appears to be the reason why Cl. (2) of the section does not insist that there should be a document in the handwriting of or signed by the mortgagor or his agent in token of the receipt by the mortgagee of the rent or produce of the mortgaged land in his possession. At the same time, it is stated in Cl. (2) that the mere receipt by the mortgagee of the rent or produce of the mortgaged land shall be deemed to be a payment for the purpose of Cl. (1) i.e for the purpose of giving a fresh period of limitation in respect of the debt in question, commencing from the date of the receipt of such rent or produce.

18. By putting the mortgagee in possession of the mortgaged property and by enabling him to receive the rent or the produce of such land the mortgagor is by implication deemed to be making payments on account of the mortgage debt or interest due thereon and then by acknowledging the liability for payment of the debt itself. To have the effect of such acknowledgment, it is sufficient if the conditions prescribed in Cl. (2) of S. 21 are satisfied. There is no warrant for reading more conditions into Cl. (2) or for holding that the clause is subject to or controlled by the conditions specified in Cl. (1). This view gains support from the decision in—‘Tarwad Karnavan v. Abdul Rahiman’, AIR 1926 Mad 1061. The facts of that case were almost similar to the facts of the present case. There was a usufructuary mortgage followed by a leaseback. There was a direction in the lease-deed that out of the rent stipulated to be paid by the mortgagor lessee he was to utilise a portion towards payment of the tax due on the property. Such payment by him was held to amount to receipt by the mortgagee of the rent due in respect of the mortgaged property as contemplated by Clause (2) of Section 20 of the Indian Limitation Act. It was also told that such payment by itself gives a fresh starting point of limitation in respect of the right to sue for the mortgaged amount. It was further held that since the tax was paid by the mortgagor on behalf of the mortgagee and out of the rent due to him, the payment amounted to receipt of the rent by the mortgagee.

19. To the same effect is the decision in — ‘Mani v. Kochuraman’, 6 Cochin LR 328 where also the effect of payment of rent due under a lease deed executed by the mortgagor in favour of the mortgagee in respect of the mortgaged property was considered. The facts established in the present case are also sufficient to attract Clause (2) of Section 21 of the Cochin Limitation Act and to save the plaintiff's claim for a decree for the mortgage amount from the bar of limitation. As already pointed out plaintiff obtained the right to be in possession of the mortgaged property when Ext. A was executed in his favour by the defendant. The subsequent possession of the property by the defendant was only on the strength of the lease-deed Ext. B. The defendant lessee is seen to have been regularly making payments on behalf of the plaintiff towards the pattom due to the Chittur Devaswom which is the ultimate jenmi of the suit property. Such payments were being made by the defendant lessee out of the pattom stipulated in Ext. B. Thus to the extent of such payments the plaintiff has been receiving the rent due in respect of the mortgaged property. Such of those payments gave a fresh starting point of limitation in respect of the claim for recovery of the mortgage amount. Since the jenmi dues are found to have been paid without any default even up to the date of the present suit, no question of limitation can arise in respect of the claims for a decree for the mortgaged amount. It follows, therefore, that the respondent's objection against the lower appellate Court's finding that the claim for the mortgaged amount is barred by limitation is entitled to succeed. The other points raised in the objection memorandum relate to the question of costs and also to an omission stated to have been committed in the preparation of the decree in the case. Since the plaintiff respondent succeeds in the main contention urged by him regarding his claim for the mortgaged amount he is entitled to his costs in respect of that amount also. The plaintiff's claim for recovery of the property with future pattom from the date of the suit onwards has been allowed by the lower Courts. The absence of a provision for recovery of future pattom in the decree is obviously an omission committed due to an oversight. This mistake will be rectified by inserting in the decree the provision for recovery of future pattom also.

20. In the result the appeal is dismissed and the objection memorandum is allowed. The lower appellate Court's decree disallowing the plaintiff's claim for the mortgage amount is reversed and the trial Court's decree in the suit is restored. To the extent of the plaintiff's success in the suit, he will get his costs throughout from the defendant who will bear his own.

B./D.H

21. Order accordingly.