LexVALLIAMMA CHAMPAKA PILLAI versus SIVATHANU PILLAI AND ORS.
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A B 3S4 VALLIAMMA CHAMPA.KA PILLAI v. SIVATHANU PILLAI AND ORS. August 24,. 1979 [R. S. SARKARIA, P. N. SmNGHAL AND 0. CHINNAPPA REDDY, JJ.] \:_, • '( New plea-Not permissible to be taken in the final tier of the appeal in ""... the Supr'eme Court. "'Acknowledgement"-What constitutes under Umilation A.ct, 1908. explained. C Limitation-Time limit for the non~redeeming co--mortgagor to file his ~uit J) E p G H against the redeeming co.mortgagor-Limitation Act, 1908 (Travancore Limi- tation Regulation) explained. Stare decisis, principle of-Value of the iudgment af the former lligh Courts of Indian States after Reorganisation of the States-Practic,,, and proce- 'ff .dure. Between the years 1881-1882 the two brothers Madhavan and Sivatbanu mortgaged with p<l!8ession items 31 to 42 and 44 of the mit properties, which were redeemed by Padmanabhan, father of defendants 1 to 3 (Respondents herein) between the years 1913 and 1918 by paying the entire redemption 111011ey and he alone obtained possession thereof. The redemption was ellected by obtaining release deeds from the former mortgase-in-pooscasion. The appellant/plaintiff, the grand-daughter of the non-redeeming ce>-mortgaaor, Madbi.van, instituted a suit on July 15, 1946 for partition and polSCSsion of her one-half of the suit properties. In respect of items 34 to 36, 38, 39 and 44, ahe claimed possession on contribution of her share of the mortgage money that bad been paid by the re®eming e<>-mortgagor to the mortgagee. It was olleged in the plaint that this half share of appellant's father devolved on his widows ~ his death, without male issue, and subsequently, on the death of the widows the same was inherited by her. The respondents /defendanm resisted the snit. lnkr alia, on the ground that appellant would not be entitled to recover her half share in the plaint schedule, items 31 to 42 and 44 becauao the period of limitation for redemption of these mortgages, under the Tranncore Limitation lleaulation was SO years which had expired long before the filing of the 'lllit. The Trial Court held (a) that the right of the appellant to recover her half share of the plaint items 31 to 42 and 4-4 was not barred by limitation (b) that the period of limitation for a suit by a non~redeeming co-mortgagor against the re- deeming mortgagor is 50 years under Article ~ 36 of the Trava.ncore Limitation 11.egulation (corresponding to Article 148 of the Limitation Act, 1908); (c) the starting point of limitation is the date of redemption by the :rcdeemiD.J e&- mortgagor; and ( d) the various release deeds by which the mortgages were redeemed by the father of Respondents 1 to 3 amounted to "acknowledge- ments" gi~g fresh start of limitation. Jn appeal, the learned single judge of the High Court held that the suit was barred by limitation so far aa the plaint items 31 to 42 and 44 were concerned in view of the fact that a non.redeeming mortgagor would have only a period • ' v. c. PILLAI v. s. PILLAI (Sarkaria, !.) 355 • of 12 years limitation under Article 144 of the Limitation Ac4 1908, and that A Article 148 of that Act (oorresponding to Article 136 of the Travancore Limi- tation Regnlation) is not the proper Article to be applied to such a suit where the Transfer of Property A~ as amended by the Amending Act of 1929, wa• .cot in force. Jn the Letters Patent appeal by the appellant, the full Bench by its majority judgmen" held that a non-redeeming co-mortgagor has two periods of limi- tation within which he may file his suit agaimt the redeeming co-mortgagor for redCmption of bis share, namely, within 50 years provided for by the Travan~ core Limitation Regulation, starting from the date of mortgage, or, if that period has already expired, within 12 years of the date of redemption by lhe redeem- ina: co-mortgagor, under Article 132 of the Travancore Limitation Regulation corresponding to Articlo 144 of the Indian Limitation A~ 1908. Heoce the appeal by certificate by the appellant/plaintiff. Dismissing the appeal, the Court. RELD : 1. Supreme Court will not allow an appellant to tum round and B c .,. take up a plea which he had not agitated before the Courts below. [361B&H) ... i 2. Under Section 18 of the Limitation Ac4 1908, one of the es>ential re- quirements for a valid "acknowledgement" is that the writing concerned must D contain an a-..1mission of a subsisting liability. A mere ad
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