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  • The Hon'ble Munshi Narayan Prasad Ashthana, for the appellants:—
  • Pandit Kailash Nath Katju, (for Pandit Shiam Krishna Dar), for the respondents:—
  • The plaintiffs having failed to prove the specific mortgage upon which they came to court, the suit should be dismissed; Sheo Prasad v. Lalit Kuar. The plaintiffs relied upon the entries and alleged admissions, not as saving limitation but as proving the mortgage; for, according to them, the suit was within time independently of any acknowledgement. But entries in revenue papers or admissions made at some previous date, of the existence of an indefinite mortgage cannot prove the specific mortgage sued on; nor do they prove that any mortgage is subsisting now. It is for the plaintiff in a suit for redemption to prove a subsisting title and an entry in a Revenue paper or an admission, showing no more than that at some bygone time there existed some mortgage between the parties or their predecessors, does not shift the burden on to the defendants of proving that no mortgage subsists at the present moment; Frank Hay v. Rafiuddin, Ram Lal v. Sri Thakurji Kiskori Ramanji Maharaj. The case of Dip Singh v. Girand Singh(3) is distinguishable and does not apply to the circumstances of the present case. With the exception of the dakhalnama of 1890, papers relied upon by the plaintiffs do not bear the signatures of the defendants or of any of their predecessors in interest; these latter, therefore, cannot operate as acknowledgements under section 19 of the Limitation Act. The specification, given in the dakhalnama, of the property sold and setting forth that the share was in possession of Manik as mortgagee of his brothers is merely descriptive and not a distinct acknowledgement of an existing liability. It does not amount to an admission in writing of an existing jural relation: for that purpose the consciousness and intention of the person making the admission must be clear. It cannot serve as an acknowledgement under section 19 of the Limitation Act; Dharma Vithal v. Govind Sadvalkar(4). Supposing the dakhalnama be held to be a valid acknowledgement, the plaintiffs have failed to prove that it was made within 60 years of the date of the mortgage.
  • The plaintiffs did not the themselves down to a mortgage of date Sambat 1913: they would be entitled to a decree if it were shown that the land was still held by the defendants as mortgagees and that the plaintiffs had a subsisting title to redeem. Bala v. Shiva(5) Lalla Daibee Pershad v. Beharee Lall(6).
  • Admittedly, at one time, there was a mortgage between the predecessors in interest of the parties. The finding is that the mortgage was executed sometime prior to 1856; neither party has proved the exact date. There are a number of admissions by the predecessors in interest of the defendants showing the existence of a mortgage, and consisting of entries in revenue papers and in the dakhalnama of 1890. Having regard to this series of admissions showing that ever since 1862 the property has been mentioned and described as mortgaged property and sold as such, the onus was upon the defendants of proving that the mortgage bad ceased to subsist. No doubt, ordinarily it is for the plaintiff in a redemption suit to prove a subsisting title; but under the circumstances of the case the onus was shifted on to the defendants of satisfying the court that the mortgage was executed more than 60 years prior to the dates of the admissions. The acknowledgements must be treated as admissions of a subsisting mortgage; and it would be for the defendants to explain them away if they could. To be effective under section 19 of the Limitation Act the acknowledgement's need not contain the details or particulars of the mortgage; Dip Singh v. Girand Singh, Ram Singh v. Baldeo Singh, Daia Chand v. Sarfraz, Uppi Haji v. Mammavan. It is objected that the entries in the revenue papers cannot operate as acknowledgements, as it has not been proved that those papers were signed by the original mortgagees or their successors. As to the wajib-ul-arz of 1862 it must be presumed that it was signed by all the co-sharers. At all events the dakhalnama, is signed by Ram Lal. It is not merely descriptive, but it must be taken as showing that Ram Lal knew that he was purchasing only the mortgagee rights in respect of of the property. It is therefore a conscious admission of the existence of the mortgage, and of the legal result flowing therefrom, namely, his liability to be redeemed. Maniram Seth v. Seth Rupchand, Bala v. Shiva.
  • Apart from these acknowledgements there is another ground upon which the suit is within limitation When Manik redeemed the whole mortgage in 1871 he acquired a charge, under the provisions of section 95 of the Transfer of Property Act, in respect of the there of his co-mortgagors. The original mortgage vanished and in its place the charge in favour of Manik came into existence. This view is supported by the cases of Bhagwan Das v. Har Dei and Sagar Mal v. Janki Das. The limitation applicable to a suit like the present, namely, for redemption of the charge in the hands of the redeeming co-mortgagor or his transferee, is that prescribed by article 144, namely, 12 years from the date when the possession of the defendant becomes adverse; and it is for the defendant to prove that his possession became adverse from such a date; Vithal Moreshwar Desai v. Dinkarrao Ramchandrarao, Moidin v. Oothumanganni Jai Kishan Joshi v. Budhanand Joshi. In the present case it is admitted that Ram Lal purchased mortgagee rights. He never set up an adverse title. The view taken in the case of Ashfaq Ahmad v. Wazir Ali was that the limitation for a suit like the present was 60 years, under article 148, from the date of the original mortgage. It was based on the view that the redeeming co-mortgagor steps into the shoes of the mortgagee and he can exercise all the rights and is subject to all the liabilities of the original mortgagee. But this view has not been accepted in later cases, already cited; for it has been held that article 132 applies to a suit by him to enforce his rights, whereas according to I.L.R, 11 All., 423, his suit should come under article 148. When, therefore, one branch of the law laid down in the above case does not hold good, the other branch, too, must go with it.
  • The Hon'ble Munshi Narayan Prasad Ashthana, was not called upon to reply.
Judges
  • Hon'ble Sir Charles Ross Alston
  • Hon'ble Mr. Theodore Caro Pigott
Acts
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  • The Hon'ble Munshi Narayan Prasad Ashthana, for the appellants:—
  • Pandit Kailash Nath Katju, (for Pandit Shiam Krishna Dar), for the respondents:—
  • The plaintiffs having failed to prove the specific mortgage upon which they came to court, the suit should be dismissed; Sheo Prasad v. Lalit Kuar. The plaintiffs relied upon the entries and alleged admissions, not as saving limitation but as proving the mortgage; for, according to them, the suit was within time independently of any acknowledgement. But entries in revenue papers or admissions made at some previous date, of the existence of an indefinite mortgage cannot prove the specific mortgage sued on; nor do they prove that any mortgage is subsisting now. It is for the plaintiff in a suit for redemption to prove a subsisting title and an entry in a Revenue paper or an admission, showing no more than that at some bygone time there existed some mortgage between the parties or their predecessors, does not shift the burden on to the defendants of proving that no mortgage subsists at the present moment; Frank Hay v. Rafiuddin, Ram Lal v. Sri Thakurji Kiskori Ramanji Maharaj. The case of Dip Singh v. Girand Singh(3) is distinguishable and does not apply to the circumstances of the present case. With the exception of the dakhalnama of 1890, papers relied upon by the plaintiffs do not bear the signatures of the defendants or of any of their predecessors in interest; these latter, therefore, cannot operate as acknowledgements under section 19 of the Limitation Act. The specification, given in the dakhalnama, of the property sold and setting forth that the share was in possession of Manik as mortgagee of his brothers is merely descriptive and not a distinct acknowledgement of an existing liability. It does not amount to an admission in writing of an existing jural relation: for that purpose the consciousness and intention of the person making the admission must be clear. It cannot serve as an acknowledgement under section 19 of the Limitation Act; Dharma Vithal v. Govind Sadvalkar(4). Supposing the dakhalnama be held to be a valid acknowledgement, the plaintiffs have failed to prove that it was made within 60 years of the date of the mortgage.
  • The plaintiffs did not the themselves down to a mortgage of date Sambat 1913: they would be entitled to a decree if it were shown that the land was still held by the defendants as mortgagees and that the plaintiffs had a subsisting title to redeem. Bala v. Shiva(5) Lalla Daibee Pershad v. Beharee Lall(6).
  • Admittedly, at one time, there was a mortgage between the predecessors in interest of the parties. The finding is that the mortgage was executed sometime prior to 1856; neither party has proved the exact date. There are a number of admissions by the predecessors in interest of the defendants showing the existence of a mortgage, and consisting of entries in revenue papers and in the dakhalnama of 1890. Having regard to this series of admissions showing that ever since 1862 the property has been mentioned and described as mortgaged property and sold as such, the onus was upon the defendants of proving that the mortgage bad ceased to subsist. No doubt, ordinarily it is for the plaintiff in a redemption suit to prove a subsisting title; but under the circumstances of the case the onus was shifted on to the defendants of satisfying the court that the mortgage was executed more than 60 years prior to the dates of the admissions. The acknowledgements must be treated as admissions of a subsisting mortgage; and it would be for the defendants to explain them away if they could. To be effective under section 19 of the Limitation Act the acknowledgement's need not contain the details or particulars of the mortgage; Dip Singh v. Girand Singh, Ram Singh v. Baldeo Singh, Daia Chand v. Sarfraz, Uppi Haji v. Mammavan. It is objected that the entries in the revenue papers cannot operate as acknowledgements, as it has not been proved that those papers were signed by the original mortgagees or their successors. As to the wajib-ul-arz of 1862 it must be presumed that it was signed by all the co-sharers. At all events the dakhalnama, is signed by Ram Lal. It is not merely descriptive, but it must be taken as showing that Ram Lal knew that he was purchasing only the mortgagee rights in respect of of the property. It is therefore a conscious admission of the existence of the mortgage, and of the legal result flowing therefrom, namely, his liability to be redeemed. Maniram Seth v. Seth Rupchand, Bala v. Shiva.
  • Apart from these acknowledgements there is another ground upon which the suit is within limitation When Manik redeemed the whole mortgage in 1871 he acquired a charge, under the provisions of section 95 of the Transfer of Property Act, in respect of the there of his co-mortgagors. The original mortgage vanished and in its place the charge in favour of Manik came into existence. This view is supported by the cases of Bhagwan Das v. Har Dei and Sagar Mal v. Janki Das. The limitation applicable to a suit like the present, namely, for redemption of the charge in the hands of the redeeming co-mortgagor or his transferee, is that prescribed by article 144, namely, 12 years from the date when the possession of the defendant becomes adverse; and it is for the defendant to prove that his possession became adverse from such a date; Vithal Moreshwar Desai v. Dinkarrao Ramchandrarao, Moidin v. Oothumanganni Jai Kishan Joshi v. Budhanand Joshi. In the present case it is admitted that Ram Lal purchased mortgagee rights. He never set up an adverse title. The view taken in the case of Ashfaq Ahmad v. Wazir Ali was that the limitation for a suit like the present was 60 years, under article 148, from the date of the original mortgage. It was based on the view that the redeeming co-mortgagor steps into the shoes of the mortgagee and he can exercise all the rights and is subject to all the liabilities of the original mortgagee. But this view has not been accepted in later cases, already cited; for it has been held that article 132 applies to a suit by him to enforce his rights, whereas according to I.L.R, 11 All., 423, his suit should come under article 148. When, therefore, one branch of the law laid down in the above case does not hold good, the other branch, too, must go with it.
  • The Hon'ble Munshi Narayan Prasad Ashthana, was not called upon to reply.
Judges
  • Hon'ble Sir Charles Ross Alston
  • Hon'ble Mr. Theodore Caro Pigott
Acts
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Smart Summary

Judgment Summary — Piggott and Lindsay, JJ.

Factual and Procedural Background

This appeal arises from an order of the Subordinate Judge of Agra acting in appellate capacity. The original suit was a suit for redemption instituted in the court of the Munsif of Agra by Taik Ram and others, who described themselves as descendants of one Sukhjit.

In paragraph 3 of the plaint the plaintiffs alleged a mortgage executed in Sambat 1913 by Sukhjit in favour of Muhammad Husain Khan for Rs. 200, a mortgage with possession, profits to be taken by the mortgagee in lieu of interest, and specified mortgaged land totaling 10 bighas and 9 biswas. It was also alleged that after Sukhjit's death (about 1871) the mortgage had been redeemed by Manik, one of Sukhjit's five sons.

The defendants asserted title through Ram Lal, who in 1890 purchased the property in execution of a decree obtained against Daya Ram (one of Manik's brothers). The defendants denied the existence of the alleged mortgage, claimed adverse and proprietary possession, and pleaded various defences including limitation. Six issues were framed in the court of first instance.

The Munsif dismissed the plaintiffs' suit, holding that the plaintiffs failed to prove the specific mortgage and that any alleged acknowledgements were not shown to have been made while limitation was running. On appeal the Subordinate Judge confined the issue to limitation, rejected the plaintiffs' oral evidence of the 1913 Sambat mortgage, but concluded that certain acknowledgements (including a dakhalnama of 1890) might still leave a subsisting title; he therefore remitted the suit to the court of first instance to determine the remaining issues.

The defendants (appearing as appellants before this Court) appealed, raising five grounds challenging the appellate court's refusal to dismiss the suit, the sufficiency of acknowledgements to prove the alleged mortgage and subsisting right to redeem, the shifting of the burden of proof, treatment of the 1890 dakhalnama, and the plaintiffs' obligation to show any relied-upon acknowledgements were within 60 years of the original mortgage.

Legal Issues Presented

  1. Whether the plaintiffs discharged the burden of proving the specific mortgage alleged in paragraph 3 of the plaint and thus had a subsisting title enabling a suit for redemption.
  2. Whether the documents and admissions relied upon by the plaintiffs — in particular the dakhalnama of 1890 and other documents — amount to acknowledgements sufficient to bring the suit within the period of limitation applicable to redemption suits.
  3. What rule of limitation applies to this suit and whether Article 148 of the First Schedule to the Limitation Act (60 years) governs the action.
  4. Whether the lower appellate court correctly shifted the burden of proof to the defendants to explain away an alleged acknowledgement.
  5. Whether the dakhalnama of 28 September 1890 should be treated as an acknowledgement within the meaning of the Limitation Act (as relied upon by the plaintiffs and addressed by the lower appellate court).

Arguments of the Parties

Appellants' (Defendants') Arguments

  • The lower appellate court erred in not dismissing the suit after finding that the plaintiffs had failed to prove the specific mortgage pleaded.
  • That mere acknowledgements do not, by themselves, prove the specific mortgage alleged in the plaint nor that any such mortgage remains subsisting.
  • The lower appellate court wrongly placed the burden on the defendants to prove the suit was time-barred.
  • The appellate court erred in its treatment of the dakhalnama of 1890 — in particular, in treating it as an acknowledgement for purposes of limitation.
  • The plaintiffs bore the onus of proving that a subsisting mortgage existed and that any acknowledgements relied upon were made within sixty years of the date of the original mortgage.

Respondents' (Plaintiffs') Assertions

  • Plaintiffs pleaded particulars of a mortgage (Sambat 1913) and relied on various admissions/acknowledgements and documents to show they had a continuing right of redemption and that the suit was within limitation.
  • They relied specifically on several documents and admissions, including a dakhalnama dated 28 September 1890, and other documents such as a Wajib-ul-arz (1862), Khewat (1862), a certified copy of a fly-sheet of mutation proceedings, and a Khewat of 1876–77 (the opinion notes these were referred to by the plaintiffs).
  • The plaintiffs used the dakhalnama and other admissions to contend that the cause of action was within the applicable period of limitation and that they retained a subsisting right to redeem.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ashfaq Ahmad v. Wazir Ali (Full Bench) The Limitation rule applicable to this category of redemption suit: article 148 of the First Schedule to the Limitation Act — a period of 60 years from the date of execution of the mortgage or when the mortgage money becomes due. The court treated this Full Bench ruling as settling the applicable limitation provision for this case and applied article 148 (60 years) to assess whether any acknowledgement or right to redeem remained within time.
Dharma Vithal v. Govind Sadvalkar (Bombay High Court) Principle that a formal receipt or possession receipt given in execution of a decree is not necessarily an acknowledgement of an existing liability within the meaning of the Limitation Act; an acknowledgement requires consciousness and intention to admit the liability. The court relied on this decision to conclude that the 1890 dakhalnama — a receipt for possession after purchase at auction — was a description of property delivered and not an acknowledgement of liability under section 19 of the Limitation Act; accordingly it could not be relied upon to revive or re-create the alleged mortgage liability for limitation purposes.
Dip Singh v. Oirand Singh Authority cited by the lower appellate court for the proposition that upon proof of an acknowledgement the burden may shift to defendants to explain it away. The present Court noted that the lower court relied on this case but, on the facts before it, declined to accept that the burden should be shifted to the defendants because the defendants did not have any special means of knowledge not equally available to the plaintiffs; accordingly the court did not apply that burden-shifting approach in this instance.

Court's Reasoning and Analysis

The Court proceeded by first identifying the plaintiffs' primary burden: in a suit for redemption the plaintiffs must prove that at the time of filing they had a subsisting title entitling them to a decree for possession. The question was whether the plaintiffs had discharged that burden.

On limitation, the Court accepted the Full Bench decision in Ashfaq Ahmad v. Wazir Ali as settling the applicable rule: Article 148 of the First Schedule to the Limitation Act governs such suits, giving a 60-year period from the mortgage's execution or from when the mortgage money became due.

Turning to proof of the mortgage, the Court found that no primary documentary proof of the alleged 1913 Sambat mortgage was produced; the plaintiffs relied on secondary evidence which had been discredited by both the Munsif and the Subordinate Judge. The Court concluded that the Munsif was correct in finding that the alleged mortgage (as pleaded in paragraph 3) was not established and was likely to have been executed sometime prior to the Sambat year pleaded.

The Court then examined the acknowledgements and admissions invoked by the plaintiffs. It observed that several documents referred to by the plaintiffs (Wajib-ul-arz 1862, Khewat 1862, fly-sheet, Khewat 1876–77) were not signed by the parties against whom the claim was made or by persons from whom title was derived, and therefore could not serve as proper acknowledgements under the Limitation Act.

The dakhalnama of 28 September 1890 (a receipt given by Ram Lal to the court officer upon taking formal possession after purchase at auction) was the only document that might, on its face, be relied upon under section 19 of the Limitation Act. The Court carefully examined the dakhalnama and, relying on the reasoning in Dharma Vithal v. Govind Sadvalkar, held that such a receipt is merely a description of the property delivered and a record that possession passed to the purchaser; it does not demonstrate the requisite consciousness and intention to admit an existing liability (i.e., an acknowledgement of a subsisting mortgage liability) within the meaning of section 19.

Even if the dakhalnama were treated as an acknowledgement, the Court addressed the lower appellate court's placing of the burden on the defendants to explain it away. The Court noted that burden allocation depends on facts of each case and that the general principle is that the party with special means of knowledge should bear the burden. Here the defendants were descendants of Ram Lal, who had purchased at auction in 1890, and the Court found it unlikely they had special knowledge unavailable to the plaintiffs. Moreover, the plaintiffs themselves had alleged detailed particulars of the mortgage in the plaint, thereby assuming responsibility for the accuracy of those particulars; it was therefore for the plaintiffs to prove that any alleged acknowledgement occurred within the applicable period of limitation.

On these grounds — failure to prove the specific mortgage, insufficiency of the documents and acknowledgements relied upon, and misplacement of burden by the lower appellate court — the Court concluded that the plaintiffs had not established a subsisting right to redeem at the time of filing.

Holding and Implications

Holding: The appeal is allowed. The order of the Subordinate Judge (lower appellate court) is set aside and the decree of the court of first instance (the Munsif), which dismissed the suit, is restored. The appellants are awarded their costs in this Court and in the lower appellate court.

Implications:

  • The direct effect is that the plaintiffs' suit for redemption is dismissed for failure to prove a subsisting mortgage or an acknowledgement within the applicable period of limitation.
  • The Court applied the existing Full Bench rule on limitation (article 148 — 60 years) and relied on precedent (Dharma Vithal) to hold that a possession receipt (dakhalnama) is not necessarily an acknowledgement of liability under the Limitation Act; the decision is an application of those authorities to the facts rather than a pronouncement of new law.
  • No new general legal principle was announced beyond the Court's factual application of settled rules on limitation, proof of title and the character of written acknowledgements.

Show full summary ...

    Khiali Ram v. Taik Ram

    Piggott and Lindsay, JJ.:— This is a defendant's appeal against an order passed by the Subordinate Judge of Agra in the exercise of his appellate powers. He has directed that a suit which had been pending in the court of the Munsif of Agra, and in which an appeal had been preferred to his court, should be sent back to the court of first instance for determination of the remaining issues. The suit which was before the Munsif was a suit for redemption brought by Taik Ram and others, who alleged themselves to be the descendants of one Sukhjit. In the third paragraph of the plaint the plaintiffs gave particulars of the mortgage under which they claimed to have a right of redemption. It is stated in that paragraph of the plaint that the mortgage had been made in the Sambat year 1913; that the name of the mortgagor was Sukhjit; that the mortgage had been executed in favour of Muhammad Husain Khan; that the total amount of the mortgage-debt was Rs. 200, and that the mortgage was with possession, the agreement being that profits should be taken by the mortgagee in lieu of interest. In addition to these particulars the plaintiffs gave details of the mortgaged property consisting of various plots of land, the total area being 10 bighas, 9 biswas. It was further alleged in the plaint that after the death of the mortgagor Sukhjit, i.e, in or about the year 1871, this mortgage was redeemed by one Manik who was one of the five sons of Sukhjit, the mortgagor. The defendants in the present case, it is said, are the mortgagees in possession of the property described in the plaint. They have acquired title through one Ram Lal, who, it is said, in the year 1890, in execution of a decree obtained against Daya Ram, one of the brothers of Manik, the man just mentioned, purchased this property. The case for the plaintiffs, therefore, was that these defendants were in possession as mortgagees and that they were liable to submit to redemption. In the fifth paragraph of the plaint there was a statement made to the effect that at various times the mortgagees had admitted the existence of the mortgage executed in favour of Muhammad Husain, and in particular, a reference was made to an admission or acknowledgement contained in a document described as a dakhalnama which was written in the year 1890. This document was referred to by the plaintiffs with the object of showing chat their suit was within limitation. The defendants traversed the various pleats set out in the plaint and in the first paragraph of the additional pleas contained in the written statement it was asserted that the mortgage upon which the plaintiffs relied had never existed. The defendants claimed that they were in adverse and proprietary possession of the property in suit. Various other pleas were taken, including one of limitation; and on the pleadings put forward by the parties six issues were raised in the court of first intance. The Munsif came to the conclusion that the plaintiffs had failed to prove the specific mortgage which they set out in the plaint, and, being of opinion that they had not succeeded in making out any subsisting title, he dismissed the suit. With reference to the various admissions or acknowledgements referred to in paragraph 5 of the plaint, the Munsif held that the plaintiffs had failed to show that any acknowledgement made by the mortgagee had been made while limitation was still running. The case came up in appeal before the Subordinate Judge, and he begins his judgement by saying that the only question before him for determination was one of limitation. The learned Subordinate Judge agreed with the first court that the oral evidence which had ben adduced by the plaintiffs in order to prove the execution of the mortgage in the year 1913 Sambat was altogether worthless. As regards the acknowledgements, however, he took a different view from the court of first instance. He refers to the various statements which were relied upon by the plaintiffs as acknowledgements and held that in the circumstances it lay upon the defendants to show that these acknowledgements had been made at a time beyond the period of limitation fixed for a suit for redemption. Being of opinion therefore that the plaintiffs had still a subsisting title on the strength of which they were justified in asking for a decree for redemption, he sent the case back to the court of first instance to dispose of the other issues in the case. The defendants now come in appeal in this Court, and five grounds are taken in the memorandum of appeal. The first of these is that the lower appellate court, having found that the plaintiffs had failed to prove the particular mortgage set up by them, ought to have dismissed the suit. The second ground relates to the acknowledgements. It is contended that mere acknowledgements do not by themselves prove the specific mortgage that was set up in the plaint, or that the particular mortgage upon which the plaintiffs relied was still subsisting. In the third ground it is complained that the lower appellate court wrongly threw upon the defendants the burden of proving that the suit was time-barred. In the fourth ground exception was taken to the manner in which the lower appellate court dealt with one particular acknowledgement, viz., that which is contained in the dakhalnama of the year 1890. The last ground is, that the plaintiffs ought to have proved that there was a subsisting mortgage and that any of the acknowledgements upon which they relied was made within 60 years of the date of the original mortgage. The suit being one for recovery of possession of land by redemption there can be no doubt that it lay upon the plaintiffs to show that at the time the suit was brought they had in themselves a title on the strength of which they could ask the court to give them a decree for possession, and the question which we have to decide is whether or not the plaintiffs have discharged their burden. In this connection the first point to be considered is the question of limitation. What is the rule of limitation governing a suit of the present description? It will be remembered that the suit as framed is really a suit brought by the representatives of some co-motgagors against the legal representatives of a co-mortgagor who redeemed the entire mortgage. So far as the law of limitation is concerned we must take it that it is settled for a case of this kind by the Full Bench ruling which is reported in Ashfaq Ahmad v. Wazir Ali. It is true that this judgement has in subsequent decisions of this Court been criticized with reference to the view there taken regarding the status of one of several co-mortgagors who redeems the entire mortgage; but, as far as we are aware, the rule of limitation which is laid down in this judgement has never been decided to be erroneous, and we must take it therefore that the article which applies to this suit is article 148 of the first schedule of the Limitation Act, i.e, that limitation extends for a period of 60 years from the date of execution of the mortgage or from the date when the mortgage money becomes due. It must be taken on the findings of the court below that the plaintiffs have failed to prove that a mortgage was made by Sukhjit in favour of Muhammad Husain Khan in the year 1913 Sambat. No document was produced before the court of first instance and the plaintiffs put forward secondary evidence which has been discredited by both courts. [Some evidence was here referred to.] We have no doubt therefore that the Munsif was quite right when he said that the mortgage which had been executed in favour of Muhammad Husain must have been executed sometime previous to the year 1913 Sambat we have it settled then that the plaintiffs were unable to establish the execution of the mortgage which was set out in all its details in paragraph 3 of the plaint.

    We now have to consider the acknowledgements or the admissions on which the plaintiffs relied in this case. The position is somewhat curious, because obviously the plaintiffs were not relying upon these acknowledgements or admissions in order to show that the suit was within time. Clearly they were unable to show that the mortgage had in fact been executed in favour of Muhammad Husain in the year 1913 Sambat, and it would have been superfluous for them to rely upon any acknowledgement for a suit based upon the mortgage of 1913 Sambat, it being within limitation on the date on which the present suit was filed. However, we proceed to consider the so-called acknowledgements upon which the plaintiffs rely for the purpose of showing that they have still a subsisting right to redeem. [Four documents, namely (1) Wajib-ul-arz of 1862, (2) Khewat of 1862, (3) Certified copy of the fly-sheet of the record of a mutation case and (4) Khewat of 1876-1877 were here referred to and it was pointed out that none of them was signed by the parties against whom the property was claimed or by any one from whom they derived title]. We come now to the last document upon which the plaintiffs relied, and in fact it is the only document upon which they could rely for the purpose of proving an acknowledgement under section 19 of the Limitation Act. It is proved that in the year 1890 Ram Lal, who is the father of the first defendant in the case, obtained a decree against Daya Ram, and in execution of that decree purchased certain immovable property which was in Daya Ram's possession. Having purchased it he got formal possession delivered to him by an officer of the court, and the dahkalnama, dated the 28th of September, 1890, is the receipt given by Ram Lal to the court's officer on the date upon which he delivered possession of the land. There seems to be no doubt that this document was signed by Ram Lal. At the bottom of this document there is a description, of the property which Ram Lal had acquired at the auction sale. It is described in the following words:—“10 bighas and 9 biswas belonged to Manik absolutely while four shares were in possession of Manik as mortgagee of his brothers, Daya Ram, Bhim Sen, Pirthi and Nawal Kishore.” It has been argued by the learned vakil who appears to support the appeal that the learned Subordinate Judge was wrong in treating this document as an acknowledgement for the purpose of section 12 of the Limitation Act. Before proceeding to discuss the point, we may observe that the court must be taken to have fallen into error in taking notice of the other documents in which it is said certain acknowledgements were contained. The learned Subordinate Judge failed to notice that it was necessary for the plaintiffs to show that any document purporting to contain an acknowledgement must bear the signature of all the persons against whom the claim is being made. To return to the dakhalnama. We have carefully examined this document and we have come to the conclusion that it should not be treated as an acknowledgement for the purpose of section 19 of the Limitation Act. In this connection we refer to the decision of the Bombay High Court reported in Dharma Vithal v. Govind Sadvalkar. The (acts of that case are in many respects similar to the facts of the case now before us. It appears from the report that the plaintiff's ancestor mortgaged some land to the defendant's ancestor in 1797 and placed him in possession. A few years after this mortgage was executed both the mortgagor and mortgagee went out of the country. The mortgagor returned first and resumed possession of the land. When the mortgagee came back he found it necessary to file a suit against the mortgagor for the purpose of recovery of possession. The suit was brought in the year 1826. In execution of the decree possession of the property was delivered to the mortgagee and a formal receipt was given by him to the court officer acknowledging that possession had been received. In the year 1880 the representative of the original mortgagor brought a suit for redemption, and, for the purpose of showing that the claim was within time, he relied upon the receipt which was given in the year 1827 by the mortgagee after he had obtained possession. The lower appellate court had held that because this formal receipt contained a reference to the decree in execution of which possession of the land was delivered it was evidence of the acknowledgement by the mortgagee that there was a mortgage subsisting in the year 1827. Accordingly it was of opinion that any suit for redemption filed before 1887 would be within time. The learned Judges of the Bombay High Court held that the interpretation which the lower appellate court had put upon this document was erroneous. Referring to the language of section 19 of Act XV of 1877, they pointed out that the section intends a distinct acknowledgement of an existing liability to serve as a re-creation of it at the time of such acknowledgement, but that there cannot really be an acknowledgement without knowledge that the party is admitting something. They went on co-observe that all that the receipt admitted by implication was that certain land had been awarded to the mortgagee and had passed into his possession. In the latter part of the judgement they proceeded as follows, (see page 102 of the report):—“The intention of the law is manifestly to make an admission in writing of an existing jural relation of the kind specified equivalent for the purposes of limitation to a new contract: but for this purpose the consciousness and intention must be as clear as they would be in a contract itself, and no one would pretend that a contract to buy land awarded by a particular decree was an admission of the particulars of the judgement. The reference would be merely a means of defining the thing bargained for, and here the reference was merely a means of defining the thing delivered.” Applying this principle to the case now before us, we think that what is relied upon by the plaintiffs as an acknowledgement contained in the dakhalnama amounts to nothing more than a description of the property of which Ram Lal had got possession after he had purchased it at an auction sale. We are clearly of opinion that this document cannot be relied upon as an acknowledgement of liability within the meaning of section 19 of the Limitation Act. Even if we are to assume that the document could be regarded in this light we should be unable to follow the reasoning of the lower court with regard to the shifting of the burden of proof. We have already mentioned that the learned Judge held that the dakhalnatna had been made beyond the period of limitation. He referred to the case of Dip Singh v. Oirand Singh, and on the authority of that case he held that it lay upon the defendants here to explain away this acknowledgement. The question of the burden of proof must be decided in every case according to its own facts, and it is not for us to say that the decision relied upon by the lower appellate court was in any way erroneous. We have to confine our attention to the facts which we have now before us and to ask ourselves in this particular case, should the burden of proof be laid upon the defendants? The principle is of course that the party who has special means of knowledge of a fact is under the obligation to take up the burden of proving that fact. But as the defendants in the present case are sons and grandsons of one Ram Lal, who, in the year 1890, acquired the property at an auction sale, it would, we think, be difficult for them to have any special knowledge or means of knowledge which is not equally within the power of the plaintiffs in the present case. The plaintiffs themselves had by the frame of their plaint taken up the position that they had accurate knowledge of particulars of the mortgage under which they claimed to have right of redemption; otherwise it would have been impossible for them to set out such details of fact as are mentioned in paragraph 3 of the plaint. We think, as regards the admission contained, or said to be contained, in the dakhalnamat it was for them to show that this acknowledgement had been made at some date within the period of limitation which would govern a suit for redemption based upon the mortgage upon which they relied. We have come to the conclusion, therefore, that the order of the lower appellate court cannot stand. For the reasons we have given we find that the plaintiffs came to court with a specific cade, which they had failed to prove, and that they were unable to show that on the date the suit was brought they had any subsisting right to redeem. Their suit was, therefore, liable to dismissal. We allow the appeal, set aside the order of the court below and restore the decree of the court of first instance. The appellants will have their costs both here and in the lower appellate court.

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    Khiali Ram v. Taik Ram
    (Jun 1, 1916)