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TMI Blog2003 (12) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... and their legal representatives are on record. For the sake of brevity and convenience we are referring to original parties only. 2. There was a piece of land measuring 1.2 acres in area which belonging to 18 members of a family of Sripandarachetti Cult. It was mortgaged in 1902. There was a partition amongst different groups. The properties involved in partition were listed as Schedules 'A', 'B', 'C' and 'D'. The 'C' Schedule comprised of 30 cents. The property in dispute herein is referable to this Schedule 'C' land. Hereinafter, it is referred to as the 'property in suit'. 3. The property in suit was subject to an usufructuary mortgage of the year 1078 Malyalam Era. After the partition, 10 members out of the 18 to whom different portions of the mortgaged property were allotted filed the suit, bearing O.S. No. 464 of 1117 of Malalyalam Era, for redemption. The suit was decreed in 1950. After the decree one Chellapan Pillai (who died during the pendency of these proceedings and in whose place defendant No. 1 stands substituted) got the property Schedule 'C' redeemed by making full payment of mortgage money. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l court and the First Appellate Court. 4. In the second appeal preferred by the defendant No. 1, it is interesting to note that the High Court has formed an opinion that defendant No. 1 had redeemed the property on behalf of the entire family, and therefore, after the payment of mortgage money and recovering back the possession from the mortgagee, nothing had remained to be redeemed. The plaintiff was entitled to declaration of title and other reliefs prayed for by him. The learned Judge of the High Court entertained serious doubts about correctness of the view taken by the learned single Judge in the earlier order of the High Court remanding the case to the trial court but felt bound (and helpless) by the observations and the directions made in the earlier judgment and rightly so. The learned Judge noted the submission of the learned counsel for the plaintiff that the question of limitation did not arise in the case and all that to which the first defendant was entitled to was to have reimbursement for whatever amount he might have spent on redemption. Having said so the learned Judge observed desperately, I would have readily agreed with this submission of the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of the property commensurate with his share. We have to see what are the rights and obligations of the parties qua each other and whether a suit for partition filed by the plaintiff was maintainable. That would determine the question of limitation as well. 6. The learned counsel for the parties are agreed that the Transfer of Property Act has been applicable to the suit property at all the times material. 7. The learned counsel for the respondent heavily relied on the three-Judge Bench decision of this Court in Valliama Champaka Pillai v. Slvathanu Pillai and Ors. [1980]1SCR354 . In support of his submission that a suit by a non-redeeming co-mortgagor against the redeeming co-mortgagor laying claiming for his share in the property, on payment of his proportionate share of the mortgage money, would be governed by Article 132 or 144 of the Limitation Act, 1908. Article 132 provided for a suit to enforce payment of money charged upon immovable property wherein the period of limitation was 12 years calculated from the date when the money sued for becomes due. Article 144 contemplated a suit for possession of immovable property or any interest therein not otherwise specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless the mortgage in respect of which the right is claimed has been redeemed in full. 9. A bare reading of the provision shows that the first part of this Section deals with subrogation by operation of law. Subrogation by agreement is dealt with in third para. The present one is not a case of subrogation by agreement. The relevant provision applicable would, therefore, be as contained in para I of Section 92. The provision statutorily incorporate the long-standing and settled rule of equity which has been held to be applicable even in such territories where the Transfer of Property Act does not apply. 10. In Ganeshi Lal's case two plaintiffs sued for partition and possession of their two-fifths share in the suit properties alleging that the first defendant was alone in possession of the same, having redeemed the mortgage executed by the joint family of which the plaintiffs and defendants were members. On the date of the Trial Court's decree the two plaintiffs were held entitled to one-sixth share each. The findings of fact arrived at by the Trial Court and the High Court were that the original mortgage was a mortgage transaction of the joint family and that the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice regardless of form; In other words, the fictitious cession in favour of the person who effects the redemption, operates only to the extent to which it is necessary to apply it for his indemnity and protection. (Digambar Das v. Harendra Narayan Panday). 3. The doctrine of subrogation must be applied along with other rules of equity so that the person who discharges the mortgage is amply protected and at the same time there is no injustice done to the other joint-debtors. He who seeks equity must do equity. 4. There is a distinction between a third party who claims subrogation and a co-mortgagor who claims the right. The co-mortgagors stand in a fiduciary relationship qua each other. The redeeming co-mortgagor can only claim the price which he has actually paid together with incidental expenses. Strictly speaking, therefore, when one of several mortgagors redeems a mortgage, he is entitled to be treated as an assignee on the security which he may enforce in the usually way for the purpose of reimbursing himself. The subrogation to the rights of the mortgagee by the redeeming co-mortgagor is confined only to the extent necessary for his own equitable protection. The rede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. Firstly, it was sought to be urged that the parties being members of joint-Hindu family, the redemption by one of the co-mortgagors of the whole property could only be on behalf of and for the benefit of all the joint family members including the plaintiffs. In the alternative, it was urged that even if sometime after the mortgage, but before the redemption, the family had divided in status then also after the redemption the two branches of the family would be deemed to be holding the property as tenants-in-common or co-owners in defined shares. In either case, it was urged, no question of adverse possession or limitation would arise as the possession of the redeeming co-mortgagor would in, law, be the possession of the non-redeeming co-owners also. This Court refused to entertain this plea on the ground that such a plea was not agitated either before he learned Single Judge or the Letters Patent Bench of the High Court. Secondly, the suit though filed as a simple suit for partition it was assumed that it was a claim for redemption with regard to the properties which were under mortgage and had been redeemed in entirety by one of the co-mortgagors. In the courts below the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghout treated the suit as one for redemption and to which stand taken by the plaintiff, their Lordships held, that the plaintiff was bound and could not make a departure, and therefore, held that the suit being one for redemption the Article relevant to the suit for redemption of a mortgage would apply. 16. It is to be noted that the limitation for a suit for contribution would become relevant only when the redeeming co-mortgagor sues the non-redeeming co-mortgagor for enforcing the latter's obligation to make contribution; a suit filed by a co-owner-cum-co-mortgagor for partition and separate possession against the redeeming co-mortgagor and subject to payment of contribution would remain a suit for partition though the defendant in possession of the property would be justified in insisting that property was not liable to be partitioned unless the plaintiff contributed his share of the money paid for redemption and incidental expenses. To the latter case, wherein the suit has been filed not by the party claiming contribution but the right to claim partition was being set up only as defence in equity, the limitation provided for filing a suit for contribution cannot apply. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as' according to Black's Law Dictionary means 'In the manner prescribed'. Thus a co-mortgager in possession of excess share redeemed by him, can enforce his claim against non-redeeming mortgagor by exercising rights of foreclosure or sale as is exercised by mortgagee under Section 67 of the Transfer of Property Act. But that does not make him mortgagee. It was further observed that the abovesaid legal position does not alter either because during partition equity of redemption in respect of property redeemed was transferred or because in the plaint it was claimed that mortgage subsisted. 19. In our opinion, the law as stated in Variavan Saraswathi and Anr.'s case where Section 92 of the Transfer of Property Act has been specifically dealt with and which, as admitted at the Bar, applies to the mortgage, in question, clinches the issue arising for decision in the present case. 20. A subrogation rests upon the doctrine of equity and the principles of natural justice and not on the privity of contract. One of these principles is that a person, paying money which another is bound by law to pay, is entitled to be reimbursed by the other. This principle is enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contribution and not to part with the property unless the non-redeeming co-mortgagor had discharged his duty to make contribution. This equitable defence taken by the redeeming co-mortgagor in the written statement would not convert the suit into a suit for contribution filed by the non-redeeming co-mortgagor. 23. It was submitted that the earlier order of remand dated 10.2.1981 made by the High Court whereby the High Court had held that the suit filed by the plaintiff ought to have contained a prayer for redemption of the mortgage property and even if it did not contain such a prayer, it ought to be construed as a suit for redemption and the limitation for filing the suit should be calculated accordingly, has achieved a finality in view of not having been appealed against and, therefore, it is not any more open for the plaintiff to contend now that his suit was not a suit for redemption but only for declaration of title, partition and possession. We cannot agree. 24. Sub-section (2) of Section 105 of the Civil Procedure Code, 1908 provides that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be preclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne being a non-redeeming co-mortgagor and the other being a redeeming co-mortgagor. The law would remain the same and its applicability would not change whether the parties are treated as co-tenants or tenants-in-common. 26. For the foregoing reasons, the appeal is held liable to be allowed. The suit filed by the appellant is held as one within limitation. The plaintiff is held entitled to the preliminary decree for partition. 27. It was stated at the Bar that even during the pendency of this litigation the property has changed hands and substantial construction has come up on the property which is likely to create insurmountable difficulties in dividing the property by metes and bounds consistently with the entitlement of the parties. That aspect need not detain us at this stage. We have stated the correct position of law which should govern the suit and the parties. In spite of the preliminary decree having been passed it will be open for the court, at the state of passing a final decree, to see how the law and the equities are to be adjusted and whether instead of actually dividing the property it would be more appropriate to adopt some other mode of satisfying the claims ..... X X X X Extracts X X X X X X X X Extracts X X X X
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