Charles Perry Hobhouse, J.

1. The plaintiffs below, now appellants, are therepresentatives in estate of one Nurud Hossein Khan, who on the 17th of October1788 effected a usufructuary mortgage of the property now in dispute along;with other property to secure the sum of Rs. 105,783 due on bonds to three,several persons. One of the mortgagees was named Sadhu Ram to whom one. of thebonds was owing. In some wary not now apparent a settlement was; made in or aboutthe year 1806 by virtue of which the other creditors were, satisfied and 14annas of the property released. A two anna share remained as a security toSadhu Ram, but on the terms of the original mortgage adjusted to the divisionof interest. It will be convenient to speak of the parties and their successorsrespectively as mortgagors and mortgagees. The terms of the mortgage are asfollows:

Until the whole and entire sum the principal aforementionedand interest thereon, whatever that may be by account, is not repaid to theaforenamed persons, the said villages shall remain in the possession andenjoyment of the aforenamed persons: they will year by year take the proceedsthereof and then give, without objection, receipt annually for Rs. 6,201 inpart payment of the aforementioned debt. They will with confidence keepcultivating the aforesaid mouzahs. If there be an increase in the proceedsderived from the villages or if there be a decrease, which God forbid, theywill take the profit and loss on themselves. I have and will have by no meansany concern with the increase or decrease.

2. In the year 1817 the mortgagees, having been dispossessedby the mortgagors, sued for possession of their two anna share, and the Courtgranted them a decree on that footing, adding that if the defendants have anyobjection as the money of the usufructuary mortgage having been liquidated theyare at liberty to bring a separate suit."

3. The mortgagors did bring a suit accordingly in the year1819 praying for possession of the land and return of their bonds on the groundthat the mortgagees had been overpaid. By the decree of the District Judgedated 3rd October 1820, it was found that the mortgagees had not been paid andthe suit was dismissed, but with some directions for the final payment inliquidation of the mortgage and for the restoration of the land in the year1231 Fasli, A.D. 1824 or thereabouts. This litigation was "continued byappeals to the Provincial Court and thence to the Sudder Dewani Adawlat. On27th August 1833 a final decree was passed finding that the mortgagees were notpaid and dismissing the mortgagors appeal. The mortgagees have been inpossession ever since.

4. On the 20th February 1893 the present suit was commencedby the mortgagors who allege that the whole, debt was discharged in 1288 Fasli(A.D. 1881), and pray for possession and other relief. It is not necessary toconsider any other defence than that of bar by time.

5. The earliest law which placed a limit of time upon suitsby mortgagors to recover the mortgaged property is Act XIV of 1859. It wasthereby provided (section 1, Clause 15) that no suit shall be maintainedagainst a mortgagee of Immovable property for recovery of the same unless it isinstituted within 60 years from the time of the mortgage; or, if in themeantime an acknowledgment of the title of the mortgagor or of his right ofredemption shall have been given in writing signed by the mortgagee or someperson claiming under him, from the date of such acknowledgment in writing. ThisAct remained in force till repealed by the Limitation Act of 1871. By Section18, coupled with a subsequent Act XI of 1861, suits instituted before the 1stJanuary 1862 were to be determined as if the Act had not been passed.

6. According to the terms of this law suits by themortgagors of 1788 were barred on the 17th October 1848 unless in the meantimethe required acknowledgment was given. Their right to sue was kept alive till1862; but as they did not sue, the Act remains unqualified by that proviso.

7. The Act of 1871 provided the same limits of time forsuits of this kind, and it added the provision (section 29) that at theexpiration of the period thereby limited to any person for instituting a suitfor the possession of any land his right to such land shall be extinguished.The period thereby limited in the case of this mortgage was the 17th October1848 and the title of. the mortgagors was extinguished on that day unless theycan show a previous acknowledgment in writing.

8. The Subordinate Judge decided in their favour on thispoint. He relied on the proceedings in the suits of 1817 and 1819. The recordshad been destroyed in the Mutiny, but the mortgagors produced copies of thedecrees [which recited the pleadings. The plaint in the earlier suit and thewritten statement in the later asserted the title of the mortgagees as such.The Subordinate Judge considered that he was bound to presume that thesepleadings were signed by the mortgagees because the law required them to do it.The High Court, however, point out that there was no such law then existing;plaints might be and were signed by Vakils, and written statements did notrequire any signature at all. Therefore there could be no presumption that anysuch acknowledgment as the Acts of 1859 and 1871 require was given by themortgagees.

9. These pleadings constitute the only ground for allegingthat prior to the 17th October 1848 any written acknowledgment of title wasgiven by the mortgagees to the mortgagors. As this ground fails, it followsthat as from the 17th October 1848 the right of the mortgagors to sue wasbarred by force of the Act of 1859, and their right to the land wasextinguished by force of the Act of 1871.

10. The Subordinate Judge also relies on a number oftransactions which go to show that the mortgagees considered that they stillretained that character. In that character they applied for mutation of namesin the Collectorate Register, and they granted leases, and they gave receiptsfor rent. The High Court did not think it necessary, nor do their Lordships,to examine those transactions in detail. Only one took place prior to theextinction of the mortgagors title in 1848, and that is an application formutation of names in 1839 which was not an acknowledgment made to themortgagors, but only an official proceeding to substitute the successor of amortgagee for his predecessor under the title which then actually existed.

11. Only one of these transactions has been seriouslyinsisted upon during the present argument. On the 8th January 1872 BeniPrashad, a mortgagee, granted to Makbul Fatima, a mortgagor, a lease of themortgaged property or part of it for a term of 10 years. In this grant thelessor is described as usufructuary mortgagee. This is not now put forward as anacknowledgment "which gave a new starting point of time for limitation.But Mr. Haldane contended that it estopped the mortgagee from repudiating thatcharacter in a litigation with the mortgagor. If the lessor were seeking toimpeach the lease on the ground that he was not usufructuary mortgagee he wouldbe estopped. But the lessee had the full benefit of the lease, and for mattersoutside the lease it contains nothing to preclude the lessor from asserting histrue title.

12. But it is further contended that this description of thelessor amounts to a representation which he is bound to make good. In order tosucceed on this ground the mortgagors must show that the description of thelessor was an essential part of the contract, that the lessee made the contractin reliance on those terms, and that her position was in some way altered bythe terms in which her lessor spoke of himself. See Citizens Bank of Louisianav. First National Bank of New Orleans (1873) L.R., 6 E. & I. App. (360);and unless the lessee could show at least so much she would have no foundationfor contending that her extinct right was revived or rather re-granted by theterms of the lease. In effect what is asserted for her is the creation of a newright. But there is not a vestige of evidence for any such case, nor any reasonto believe that the description of the lessor was anything but a merecontinuance of the description by which the mortgagees were entered asproprietors in the Collectors books in 1839.

13. The case is a singular one. Probably the time at whichthe title of the mortgagors to sue became extinct or at which their right wasbarred was not clearly present to the minds of the mortgagees or indeed ofeither party. But that does not prevent the operation of she law which laysdown fixed rules for the bar of suits by time. The High Court have rightlyinterpreted it and their Lordships will humbly advise Her Majesty to dismissthe appeal. The appellants must pay the costs.

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Fatimatulnissa Begum and Ors. vs. Sundar Das and Ors. (24.03.1900 - CALHC)