Hegde, J.
1. This is a second appeal filed by the defendant against the decision of the District Judge of Mysore in R.A. No. 120 of 1952-53. The suit is for recovery of Rs. 3000/- principal and Rs. 3000/- interest, claimed as due on a registered hypothecation bond dated 4-3-1927. The learned Sub-Judge tried the case as O.S. No. 27/50-51 and dismissed the suit as being barred by limitation. On other material issues the Courts below have concurrently found against the defendants.
As against this decision the legal representatives of the plaintiff, (Original plaintiff having died by that time) took up the matter in appeal to the Court of the District Judge, Mysore. The learned District Judge allowed the appeal and decreed the sum claimed in the suit. The defendants have come up in Second Appeal.
As the appeal is governed by Section 100 of the Mysore C.P.C., the appellants are entitled to canvass the correctness of the decision on questions of facts as well, as the judgment appealed against is a reversing one. The only question for consideration in this Second Appeal is one of limitation.
2. The material contentions raised by the learned advocate appearing for the defendants are:
(1) that the finding of the First Appellate Court that, the mortgagee-plaintiff was in possession of Survey No. 190 during the years 1936-37 to 1941-42 is unsustainable on the evidence on record.
(2) that even if the said possession is proved there is no proof of any receipt of income and consequently limitation is not saved by Section 20 (2) of the Limitation Act.
(3) that even if there has been any receipt of income or rent there being no acknowledgement of the payment appearing in the handwriting or in a writing signed by the person, making the payment, limitation is not saved. In ether words his contention is that the proviso in Section 20 governs not merely Section 20, Sub-section (1), but also Sub-section (2) of the said Section.
3. On the other hand the learned Counsel appearing for the respondents questions the correctness of the conclusions of the Courts below in arriving at the finding that the endorsement dated 26-2-1943 does not save the bar of limitation. His contention is that when any one of the co-mortgagors make the payment and acknowledges the same, then the limitation is saved by Section 20 (1) of the Limitation Act. It is necessary to examine those contentions in detail.
4. The most important question to be decided in this appeal is whether the original plaintiff was in possession of any portion of the mortgaged property between the years 1936-37 to 1941-42 as contended by the plaintiff. The plaintiff's case is that the defendants were not in a position to pay the interest.
Hence they put him in possession of Survey No. 190 -- item No. 3 of the mortgaged property for the purpose of paying himself the interest due under the mortgage. His further case is that he was in possession of the said property for a period of six years and enjoyed the income of the said property. The defendants deny this. Unless the plaintiff establishes that he was in possession of the property during this period his suit according to the findings of the Courts below would be barred by limitation.
To establish his possession for six years, the plaintiff has examined a large number of witnesses. P.Ws. 1, 2, 5, 6, 7 and 8 speak to the fact that the plaintiff was in possession of item No. 3 of the mortgaged property during these years and was enjoying the income thereof. P.W. 8 is one of the supplemental plaintiffs.
As such his evidence could be considered as interested; but apart from the evidence of P.W. 3 there is the evidence of the other witnesses who speak to the fact of possession of Survey No. 199 by the plaintiff during the years 1936-37 to 1941-42 and amongst them P.Ws. 6 and 7 speak also to the terms of the agreement under which the property was put in possession of the mortgagee.
They claimed to have been present at the time of the agreement. These witnesses are disinterested witnesses. They are neighbours and persons likely to know both the fact of possession as well as the terms of the agreement spoken to by them. Nothing is brought out against them and there is no reason to disbelieve their evidence.
Apart from the oral evidence in this case there is considerable circumstantial evidence which supports the case of the plaintiff. It is proved that for the years 1037 to 1941 the plaintiff paid the assessment in respect of this property. This is proved by Ex. C-1 to C-4. There is no satisfactory explanation on behalf of the defendants as to how the plaintiff happened to pay the assessment in question.
It is not the case of the defendants that they have paid the assessment during these years. This is a material circumstance in favour of the plaintiff. It is also important to note that the 1st defendant was the Patel of the village in which the suit property is situated and he would have been the best person to speak to the fact as to how the mortgagee happened to pay the assessment of the said property during those years.
He has not been examined in the case. The endorsement dated 26-2-1943 which is proved also remains unexplained. As against the evidence adduced by the plaintiff, there is only the interested testimony of D.W. 2 and the evidence of D.W. 3. D.W. 2 is the second defendant and as such much value cannot be attached to his evidence. It is true that D.W. 3 speaks to the fact that the second defendant has been cultivating the property in question during the relevant period.
He is said to be a person not belonging to the village and there is no reason to prefer his evidence to that of the P. Ws. above referred to. But the learned Counsel for the defendants has pressed before us the fact that the plaintiff is a rich man, lending monies and as such must be maintaining accounts.
From the fact that he has not produced his account books an adverse inference must be drawn against him. It is further contended that there is admission from some of the plaintiff's witnesses that he had some sort of an account. Even these have not been produced. P.W. 8 swears that no accounts were kept. It is true that his evidence does not carry conviction.
This is certainly a circumstance in favour of the defendant. But I do not think this circumstance by itself is sufficient to outweigh the evidence adduced on behalf of the plaintiffs. It is quite unlikely that the plaintiff who is a man of means would have allowed his claim to be barred by sleeping over his rights unless he had the pus session of the property as claimed by him.
The learned District Judge has elaborately discussed the evidence on this question and has come to the conclusion that the plaintiff has proved that he was in possession of Survey No. 190 (item No. 3 of the plaint property) from 1936-37 to 1941-42, and I entirely agree with his conclusion. Normally I should have given some weight to the opinion of the trial judge in accepting or rejecting the oral testimony adduced in a case like this. But unfortunately there is nothing in the judgment of the learned Sub-Judge to indicate as to why the evidence of P.Ws. 1, 2 and 5 to 8 should be rejected. All that he says is that they do not lose anything by coming and deposing. This is an irrelevant consideration. Hence I come to the conclusion that the plaintiff was in possession of item No. 3 of the mortgaged property for the period 1936-37 to 1941-42.
5. This takes me to the next question as to whether there is proof that the plaintiff was in receipt of the income from the mortgaged property during this period. The contention of Mr. Venkataramiah appearing for the appellants is that it is not sufficient to prove that the mortgagee was in possession of the mortgaged property.
It must also be proved that his possession was qua-mortgagee and in pursuance of the terms of the mortgaged document. His further contention is that it must be proved that he was in receipt of the rent or produce of such land. Taking the first question as to whether there is proof of the receipt of the rent or produce of the land, it is contended by the learned advocate for the appellants that the account books if produced would have proved the receipt of the rent or produce.
The non-production of the account books raises a presumption or at least an inference that no rent or produce has been received during the period in question. He has also taken us through the evidence of the witnesses and he says, the evidence even if accepted in its entirety merely establishes that (a) plaintiff was is possession of the land (b) was enjoying the same and (c) has raised crops thereon.
It is his contention that this evidence is not sufficient, but there must be positive evidence that he was in receipt of the rent or produce. This contention is highly technical. When once it is established that the plaintiff was in possession of the land and he has raised the crops thereon during the years in question, the inference naturally flows that he gathered the produce of the crops raised by him.
It is a normal and natural human conduct. The receipt of the income by the plaintiff is satisfactorily established.
6. All that Section 20 (2) requires is that the mortgagee should be in possession of the whole or a portion of the mortgaged property and he should be in receipt of the rent or produce. It is wholly unnecessary that he should be in possession in pursuance of the terms of the mortgage bond. If the contention of the appellants are accepted, Section 20 (2) would not apply to any mortgage other than usufructuary mortgage or anomalous mortgage.
The wording of the Section does not support this contention. It has been uniformly held by all t-he Courts that even a simple mortgagee who has been put in possession of the mortgaged property and who has received the rent or produce therefrom is entitled to the benefit of Section 20 (2).
7. The appellants' contention that the agreement being oral is not admissible in evidence does not merit serious consideration. By the subsequent agreement the parties merely created a machinery to discharge the interest. This is not hit by Section 92 of the Evidence Act.
8. The next contention raised by Mr. E. S. Venkataramiah on behalf of the appellants is that the proviso in Section 20 governs both Sections 20 (1) and Section 20 (2). Section 20 (2) is as follows :
'When mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of Sub-section (1)'.
He emphasises the words 'deemed to be payment for the purpose of Sub-section (1)' and he wants us to dovetail the sub-section to Section 20 (1) and read it as a part and parcel of Section 20 (1). Once having read so, he would say that the proviso governs the whole of the section. His further contention is that Sub-section (2) by itself does not provide for the extension of the period of limitation. If we read it independently i.e. independent of Section 20 (1) it makes no meaning.
He wants us to construe this sub-section as an explanation to Section 20 (1) i.e. as an explanation of the word 'payment' appearing in Section 20 (1). It follows from that the proviso governs both the sections. The argument looks attractive at first sight. There is no authority in support of the proposition contended for on behalf of the appellant. Such authorities as are available are against the appellants' contention.
9. Section 20 of the Limitation Act has undergone considerable change. Prior to the amendment in 1929 the Section was as follows:
'When interest on a debt or legacy is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or legacy, or by his agent duly authorised in this behalf, or when a part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a new period of limitation, according to the nature of the original liability, shall be computed from the time when the payment was made;
Provided that, in the case of part payment of the principal of a debt, the fact of the payment appears in the handwriting of the person making the same.'
'Where mortgaged land is in the possession of the mortgagee, the receipt of the produce of such land shall be deemed to be a payment for the purpose of this section.'
10. The amending Act of 1929 made material changes in this section. Until then only the part payment of the principal of a debt needappear In the handwriting of the person making the payment. It was not necessary in the case of payment of interest as such. The amending Act put both classes of payment in the same category.
Another important change that was made was that in the place of the words 'the payment appears in the handwriting of the person making the same' -- which has given rise to considerable conflict of opinion -- the amended Act used the expression 'appears in the handwriting of or in a writing signed by the person making the payment.'
The last paragraph of the old section was numbered as Sub-section (2) and instead of the words 'for the purpose of this section', the words used are 'for the purpose of Sub-section (1)'. This section was further amended by Act XVI of 1942 which is unnecessary for our purpose.
11. Under the Section as it stood prior to the amendments in 1929 three factors extended the period of limitation: (1) payment of interest as such (2) part payment of the principal when duly acknowledged and (3) when mortgaged land is in the possession of the mortgagee, and he received the produce of the said land.
Neither in the case of the payment of interest as such nor in the case of the receipt of the produce of the mortgaged land acknowledgment was necessary.
12. The question whether a particular payment is towards interest or towards principal gave rise to considerable controversy and gave room for adducing false evidence. To shut out this controversy and to remove the artificial distinction between the payment of interest as such and part payment of principal the legislature enacted the present proviso which laid down that both in the case of payment of interest or the part payment of the principal the only mode of proof shall be that the payment should appear in the handwriting of or in the writing signed by the person making the payment.
Payment is one thing, acknowledgment is another. What extends limitation is payment, acknowledgment is a mere proof of the payment. See Sant Lal v. Kamla Prasad, : [1952]1SCR116 (A). Both in the case of payment of interest or part payment of principal a statutory proof is stipulated by the proviso. In the case of receipt of the produce by the mortgagee the very possession of the property is a good proof.
It was a different category of payment. That part of the section had not given rise to much difficulty in the matter of proof. Hence legislative interference was not called for. But the question is did the legislature in fact interfere and call for the statutory proof as in the case of other payment contemplated in Section 20 (i).
13. It will be seen that under Section 20 as It stood prior to the amendment in 1929 where the mortgaged land is in possession of the mortgagee, the receipt of the produce of such land 'shall be deemed to be a payment for the purpose of this section''. (Underlining here into ' ' is mine). The section, as it stand provided for two types of payments, payment of interest as such and part payment of the principal.
The payment of interest as such did not require any acknowledgment. Hence it cannot be argued that when the last paragraph of the section said 'shall be deemed to be a payment for the purpose of this section' it also attracted thefurther concept of 'acknowledgment.' It merely referred to payment. The cases decided under this section prior to the amendment unanimously held that the receipt of the produce by the mortgagee in possession of the mortgaged land did not require any acknowledgment.
There is Ho reason to think that the law was changed in this respect after the amendment by the amending Act of 1029. On the other hand by converting the last paragraph of Section 20 into a separate sub-section it is made quite independent of Section 20 (1). On an examination of the scheme of the section, it would be seen that the proviso requiring acknowledgment has been placed immediately after Sub-section (1) which contemplated payment of interest or part payment of principal.
Sub-section (2) comes after the proviso. If the legislature wanted the proviso to govern both the sub-sections there would not have been any difficulty to have the proviso after Sub-section (2). It will not be correct to presume that the legislature was either negligent or the proviso has been placed in between Section 20 (1) and 20 (2) by oversight. Both the history of the section and the scheme thereof is against such a contention.
14. Even from a commonsense point of view there is no justification for requiring any acknowledgment when mortgagee receives rent or produce. In the case of receipt of rent or produce there is no person making the payment. The mortgagee is in possession of the property and is enjoying the income. He is paying himself, if there is any payment at all. It would bf- unreasonable to expect that whenever the mortgagee realises income out of the mortgaged property, the mortgagor should come and acknowledge the payment, it is difficult to imagine that the legislature would have intended such course of conduct.
15. On a fair reading of the section, it would be clear that the words 'shall be deemed to be a payment for the purpose of Sub-section (1)' merely relate to payment, and not acknowledgment. As stated herein above, it would be seen that Sub-section 20 (1) merely speaks of payment. It is the proviso that requires that such payment as is specifically referred to In Sub-section (1) to be acknowledged and not all types of payment.
16. The question whether the proviso governs merely Section 20 (1) or both Section 20 (1) and Section 20 (2) had come up for consideration before their Lordships of the Patna High Court in the case reported in Mathura Singh v. Palakdhari Rai, AIR 1940 Pat 512 (B). Their Lordships rejected the contention that the proviso governs both Sections 20 (1) and 20 (2) Their Lordships proceeded on the footing that this is a well accepted proposition.
They rightly remarked that it did not seem to them that the intention of the legislature in enacting this proviso was to abrogate the long established and traditional practice by which the mortgagee in possession of a land is deemed to be in receipt of interest and to have a fresh start of limitation from the period when his possession ceases. This question again came up for consideration before their Lordships of the Travancore-Cochin High Court in the case reported in Kumari Ittaman v. Bhaskara Menon, AIR 1953 Trav-Co. 63 (C).
The relevant discussion is found in paragraph 5 at page 68. They are also of opinion that no acknowledgment is necessary. I amclearly of opinion that no acknowledgment is necessary in the case of receipt of the produce or rent of the mortgaged land by the mortgagee in possession of the property. This contention of the appellant is rejected.
17. The above findings are sufficient to dispose of the appeal before us. But Mr. Krishnamurthy appearing on behalf of the respondents pressed before us the contention that the endorsement made by one of the co-mortgagors on 26-2-1943 must be deemed to be an acknowledgment under Sub-section 20 (1) of the Limitation Act and the same is sufficient to save limitation. The point raised being some what important I shall examine the contention.
His contention is that on a proper reading of Section 20 (1) it would be clear that the acknowledgment in question could be made by any of the co-mortgagors as any one of them is a 'person liable to pay the debt or legacy'. According to him it is not necessary that all the persons liable to pay the debt or legacy should be parties to the acknowledgment. If the mortgagors could take the benefit of the payment made by anyone of the co-mortgagors they should equally be bound by such payment coupled with the acknowledgment.
According to him their rights are co-extensive with their liability. But the main difficulty in the way of Mr. Krishnamurthy is Section 21, Clause (2) of the Limitation Act. The said section reads as follows:
'Nothing in the said sections renders one of several joint contractors, partners executors or mortgagees chargeable by reason only of a written acknowledgment signed or of a payment made by, or by the agent of any other or others of them.'
This section specifically lays down that the acknowledgment made by anyone only of the joint contractors cannot bind the other joint contractors. But Mr. Krishnamurthy's contention is that the word 'joint contractors' does not include 'joint mortgagors'. He says that while the section mentions 'mortgagees' there is no reference specifically to 'mortgagors'. He further contends that if the word 'joint contractors' is intended to include 'mortgagors' there was no necessity for specifically mentioning 'mortgagees' as the 'mortgagees' are also 'joint contractors'. It is not necessary for me in this case to decide as to why the 'mortgagees' were specifically included in this section.
Legislature possibly intended that Sections 19 and 20 read with Section 21 should govern not merely the contractual obligations of the mortgagees but also their other obligations. Undoubtedly the mortgagors are 'joint contractors' and there is no valid reason to exclude them from the category of 'joint contractors'. It has been held in a number of decisions that the mortgagors are 'joint contractors' within the meaning of Section 21 Clause (2). See Muthu Chettiar v. Muhammad Hussain, AIR 1920 Mad 418 (D), Thayammal v. Muthu Kumaraswami Chettiar, AIR 1929 Mad 881 (E), Dashrath Motiram v. Gajanan Keshav, ILR (1943) Bom 486 : (AIR 1943 Bom 381) (F), U so Maung v. J. Thom, AIR 1939 Rang 287 (G). No case has been brought to our notice which has taken a contrary view.
Next point that is urged before us is the import of the word 'chargeable'. What Mr. Krishnamurthy wants us to conclude is that while the personal liability of the 'joint mortgagors'cannot be kept alive by the acknowledgment made by one of the co-mortgagors, the liability on the property can be kept alive by such acknowledgment. He contends that the mortgagee is one and indivisible, and if for any reason once the mortgage is kept alive it is kept alive in its entirety. He further contends that the legislature has advisedly used the words 'joint contractors' and, 'chargeable'. His case is that what the legislature tried to protect by Section 21, Sub-section (2) is the contractual liability of the joint contractors which according to him is only personal liability.
This argument cannot be accepted as sound. The co-mortgagor enters into a contract not merely about his personal liability, but also about the liability of the property that he offers as security. As a result of that contract he is chargeable not merely in respect of his personal liability, but also in respect of the liability of his properly. What reason is there to give a restricted meaning to the word 'chargeable'? There is no justification to allow the period of limitation being extended by one of the co-mortgagors as against the property of the other co-mortgagors. This might open the door for fraud.
Mr. Krishnamurthy seeks considerable support for his argument from the decision of Justice James in the case reported in Sripati Samanta v. Laljj Sahu, AIR 1936 Pat 361 (H) and also from the observations made by Wort J. in the case reported in Baijnath Prasad v. Satilal Sahu, AIR 1938 Pat 383 (I). The observations of Wort J. are obiter. The question for decision in that case was whether the personal liability of one of the co-mortgagors can be kept alive by the payment and acknowledgment made by the other en-mortgagor. Their Lordships came to the conclusion that it cannot be done. Incidentally his Lordship Justice Wort remarked::
'It is true that the mortgage itself may be kept alive by payment by one of the mortgagors, but when the question which arises is a matter not of the liability on the mortgage, but the liability on the personal covenant, the matter which has to be determined is whether the payment by one joint contractor can be deemed to be the payment of the other joint contractors and that as Section 20 in my judgment quite clearly implies quite apart from Section 21, can only arise where the payment is made by the one as the agent of the other.'
In this decision there is no discussion about the import of the words 'joint contractors' and 'chargeable' as appearing in Section 21 (2). Neither the decision of James J nor the observations in case reported in AIR 1938 Pat 383 (I) could be considered as correct. There is a long catena of decisions which have laid down that the bar of Section 21, Clause (2) is applicable not merely to personal debts, but also to mortgaged debts. They specifically lay down that the word 'joint contractors' includes 'co-mortgagors' and the word 'chargeable' refers to not merely the personal liability but also the liability on the property. It was so held in the cases reported in AIR 1920 Mad 418 (D).
Spencer and Seshagiri Rao JJ. after an elaborate discussion of the relevant provisions opined that the distinction between simple debts and real debts mentioned in the English law of Limitation is abrogated by Section 31 and that there is no distinction made by the section between the co-mortgagors and co-mortgagees. They further held that the word 'joint contractors' in the section include 'joint mortgagors' also. They are of opi-nion that Section 21 of the Limitation Act is really an explanation to Sections 19 and 20 of the Act. According to them the object of the explanation is to provide that only one of the contracting parties shall not ordinarily impose a liability on the other by anything done by him.
Limitation, whether treated as a right or as liability is prima facie personal and unless the legislature so provides, a co-operative right or liability should not be imposed. I am in full agreement with the views expressed in this cape. This view was shared by Ramesham and Jackson JJ. in AIR 1929 Mad 881 (E), their Lordships opined that the word 'chargeable' in Section 21 prima facie means all kinds of chargeability under a contract and that it cannot be limited to personal liability only. In the case reported in Nagayya Naidu v. Duraiswami Naidu : AIR1938Mad111 , Burn J. followed the decision reported in AIR 1920 Mad 418 (D). The Madras view is shared by the other High Courts.
The High Court of Rangoon accepted the correctness of the Madras view in the case reported in AIR 1939 Rang 387 (G). The same is the opinion of the Bombay High Court as could be seen in the case reported in ILR (1943) Born 486: (AIR 1943 Bom 381) (F). The Calcutta view seems also to be the same as could be seen by the decision reported in Azizur Rahaman v. Upendra Nath : AIR1938Cal129 . In fact there seems to b more or less a unanimity of opinion amongst the different High Courts on this point. Whatever the stray observations may be in some of the cases reported, the weight of authority is heavily against the view contended for by Mr. Krishnamurthy. The said contention has no basis either in principle or on authority.
18. It is argued on behalf of the appellant that if we should hold that the mortgagee was in possession of the property from 1936-37 to 1941-42 then he must account for the income for that period and should give appropriate deductions from the amount due. The case of the mortgagee is that the mortgagee is in possession under a specific understanding that the entire income of the year was to go towards the interest due in that year. We have been taken through the evidence on this point.
I do not think that the evidence is such as to accept the specific understanding contended for. All that the evidence establishes is that the property in question was to be in possession of the mortgagee primarily for the purpose of paying interest. Hence it is necessary that the mortgagee should account to the mortgagors for the income received by him during the period he was in possession of the mortgaged property. An account will have to be taken before a decree for specific amount could be passed.
19. The next Point urged before us is that the fourth defendant has sold Item No. 4 of the mortgaged property to the plaintiff on 29-1-1932 under Ex. VII. To this extent there has been a merger of the rights of the mortgagee and mortgagor. Hence the defendants contend that out of the amount due under the mortgage pro rata deduction will have to be given in respect of the property sold. This plea of the defendants hag been accepted by learned District Judge, but he has decreed the entire amount claimed and directed the Subordinate Judge of Mandya to enquire into the value of the properties before passing the final decree and give credit to that portion of the debt as Item No. 4 bears to the whole property mortgaged. This is not a correctprocedure and it would be more desirable to give the necessary deduction even before a decree is passed. Hence I set aside the decrees of the lower Courts and remand the case to the District Judge, Mysore to pass a fresh decree in the light of the findings given herein above.
20. If the parties desire to adduce additional evidence on the question of accounting by the plaintiff-mortgagee in respect of his possession of the property from 1936-37 to 1941-42 (as directed in para 18 of the judgment) and also in respect of the deduction that the defendants are entitled to, in view of the alienation of Item No. 4 of the mortgaged property to the plaintiff as per Ex. VII (as found in para 19 of the Judgment) they may be allowed to do so. The additional evidence may be recorded either by the District Judge himself or through the Trial Court.
21. The appellants have substantially failed in this appeal. Hence the cost of this appeal shall he paid by them to the respondents, (one set). The appellant will be entitled to certificate under Section 10 of the Mysore Court-fees Act for a refund of the Court fees paid by them on the appeal Memo.
Das Gupta, C.J.
22. I agree.
23. Order accordingly.