Arokiam Asary and Others vs Vavana Rowthan and Others

Reilly, J.—I agree with the learned Subordinate Judge that the endorsement Ex. A (2) by implication acknowledges the liability under the

mortgage-deed Ex. A and so is sufficient to start a fresh period of limitation u/s 19 of the Limitation Act. But Mr. Rajah Aiyar contends that this

will not affect his clients, defendants 5, 6 and 9. It appears that defendant 5 obtained an othi over part of the property covered by Ex. A after the

date of Ex. A: under the othi it was defendant 5''s duty to pay the Government assessment on the land he failed to do so, and the land was put up

to auction by the Government for arrears at the auction defendant 5 himself bought it. Mr. Rajah Aiyar points out that defendant 5 bought the land

at the revenue sale free of all encumbrances and thereafter it was from the revenue sale, not from the othi, that he got his title. The sale was before

the date of acknowledgment, Ex.A-2, and therefore he contends at the date of Ex. A-2 no acknowledgment made by defendant 1 could affect the

interest of defendant 5. It is not disputed, however, that defendant 5 as an othidar who allowed the land mortgaged to him to be sold for arrears of

Government assessment, which he should have paid and then bought it himself at the revenue sale must be regarded as'' a trustee in respect of the

land u/s 90 of the Trusts Act. The effect of that is that he must hold the land for the benefit of the persons interested in it in derogation of whose

rights he obtained his title by the revenue sale. So far as the mortgagee under Ex.A., defendant 10, and his assignee, the plaintiff, are concerned,

defendant 5 must hold the land bought at the revenue sale as still in effect subject to that mortgage so that the mortgagee and his assignee can

pursue their remedy against the land as before. But that is of use to them only so long as their remedy is not time-barred. It would be barred but for

the acknowledgment of Ex. A-2. Mr. Rajah Aiyar contends that that acknowledgment under the terms of Section 19 of the Limitation Act is of no

use to defendant 10 or to the plaintiff as defendant 5 does not derive his present title through the maker of the acknowledgment, defendant 1. In

my opinion, however, defendant 5 derives liability through defendant 1 within the meaning of Section 19 of the Limitation Act. It was through

defendant 1, the original mortgagor, that the land subsequently mortgaged to defendant 5 on othi became liable for the original mortgage, Ex. A.

That liability remained until the revenue sale. After the revenue-sale though the land sold was freed by the sale from encumbrances, in defendant

5''s hands it still remained liable under the original mortgage, Ex. A, by virtue of Section 90 of the Trusts Act. The original liability had gone; but

what was in effect the same liability had been revived by the provisions of that section. On that view an acknowledgment made"" by defendant I,

through whom the original liability of the land in defendant 5''s hands was derived, was enough to bind defendant 5 so long as the liability u/s 90 of

the Trusts Act remained.

It appears that defendant 6, who is described as the concubine of defendant 5''s father, bought the land now in question from defendant 5. But it

has not been disputed before me that, if the land was liable in defendant 5''s hands, it is still liable in defendant 6''s hands. I am informed that

defendant 9, the other appellant, has no separate case.

The District Munsif made a decree for plaintiff only against defendant 10, and defendant 10 alone appealed. But I agree with the Subordinate

Judge that, as all the defendants were parties before him on appeal, under Rule 33 of Order 41, Code of Civil Procedure, he was at liberty to

make a decree for sale of the mortgaged property, including the part of it in which the, present appellants (defendants 5, 6 and 9) are interested,

and I see no sufficient reason to interfere with the exercise of his power under that rule.

This appeal is dismissed and in this Court appellants will pay the costs of both plaintiff and defendant 10 (two sets)