PETITIONER:
VALLIKAT THEKKEDATH VALAPPIL LAKSHMIKUTTYAMMA & ORS.
Vs.
RESPONDENT:
VALLIKAT THEKKEDATH VALAPPIL DEMODARAMENNON & ORS.
DATE OF JUDGMENT: 29/11/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises against the judgment and decree of the Kerala High Court, made on 22.7.1993 in S.A. No.616/85.
The admitted facts are that item 6 of the Plaint Schedule Property belonged to the Tarawad. The Karanawan had executed the Possessory mortgage as per Exhibit B-1 for a sum of Rs.200/-. The appellant Ithiridutty Appachi filed suit No. OS-114/70 in the Court of Munsiff, Pattambi for redemption of the mortgage, Exhibit B-1. The property was redeemed by the appellant. Thereafter, the present suit came to be filed for partition of the plaint schedule property in their respective shares. We are not concerned in this case with other items. We are concerned only with respect to item 6 of the mortgage property. Based on the contentions, it was found and accepted by the trial Court and the District Court that since the appellant had redeemed the property, he subrogated himself into the shoes of the mortgagee. Since the respondents have not redeemed the mortgage within a period of 30 years from the date of execution of Exhibit B- 1, the appellant has become absolute owner of the property. As a result, the suit for partition in respect of item No.6 of the Plaint Schedule Property is not partible; it does not lie. The High Court in the above impugned judgment has reversed the finding and held that item 6 is also partible.
The learned counsel appearing for the appellant relied on Valliamma Champaka Pillai vs, Sivathanu Pillai & Ors. [(1979) 4 SCC 429] and contended that the respondent have failed to redeem the property within the limitation and, therefore, they cannot file a suit for partition. It is difficult to accept the contention of the learned counsel. It is seen that in that case in the suit for redemption by one of the mortgagers, he had redeemed the mortgage but the suit was filed for delivery of the possession after 50 years or after the expiry of 12 years from the date of the redemption of the mortgage was decreed. The question, therefore, was: when the limitation for filing the suit for possession would arise? It was held in para 28 as under:
"Steering clear of the tangled web
of conflicting and confusing
decisions rendered on an
interpretation of the relevant
provisions of the Transfer of
property Act, 1882, as they stood
before the amendment of 1929, we
may say at once that even where the
Transfer of property Act was not in
force, a redeeming co-mortgagor
discharging the entire mortgage
debt, which was the joint and
several liability of himself and
co-mortgagor, was, in equity,
entitled to be subrogated to the
rights of the mortgagee redeemed
and to treat the non-redeeming co-
mortgagor as his mortgagor to the
extent of the latter’s portion or
share in the hypotheca and to hold
that portion or share as security
for the excess payment made by him.
This equitable right of the
redeeming co-mortgagor stems from
the doctrine that he was a
principal debtor in respect of his
own share only, and his liability
in respect of his co-debtor’s share
of the mortgage debt was only that
of a surety; and when the surety
had discharged the entire mortgage
debt, he was entitled to be
subrogated to the securities held
by the creditor, to the extent of
getting himself reimbursed for the
amount paid by him over and above
his share to discharge the common
mortgage debt."
From what has been said above it is
clear that where the Transfer of
Property Act is not in force and a
mortgage with possession is made by
two persons, one of whom only
redeems discharging the whole of
the common mortgage debt, he will,
in equity, have two distinct
rights: Firstly, to be subrogated
to the rights of the mortgagee
discharged, vis-a-vis the non-
redeeming co-mortgagor, including
the right to get into possession of
the latter’s portion of share of
the hypotheca. Secondly, to recover
contribution towards the excess
paid by him on the security of that
portion or share of the hypotheca
which belonged not to him but to
the other co-mortgagor. It follows
that where one co-mortgagor gets
the right to contribution against
the other co-mortgagor by paying
off the entire mortgage debt, a
correlated right also accrues to
the latter to redeem his share of
the property and get its possession
on payment of his share of the
liability to the former. This
corresponding and get possession of
his property from the redeeming co-
mortgagor, subsists as long as the
latter’s right to contribution
subsists. This right of the ’non-
redeeming’ co-mortgagor, as rightly
pointed out by the learned Chief
Justice of the High court in his
leading judgment, is purely an
equitable right, which exists
irrespective of whether the right
of contribution which the redeeming
co-mortgagor has as against the
other co-mortgagor, amounts to a
mortgage or not.
Since subrogation of the redeeming
co-mortgagor would give him the
right under the original mortgage
to hold the non-redeeming co-
mortgagor’s property as security to
get himself reimbursed for the
amount paid by him in excess of his
share of the liability, it follows
that a suit for possession of his
hare or portion of the property by
a non-redeeming co-mortgagor’s on
payment of the proportionate amount
of the mortgage debt, may be filed
either within the limitation
prescribed for a suit for
redemption of the original mortgage
or within the period prescribed for
a suit for contribution by the
redeeming co-mortgagor against the
other co-mortgagor."
It is now settled legal position that one of the coowners or one of the co-mortgagers is entitled to redeem the mortgage and on redemption, he subrogates into the shoes of the mortgagees. To the extent of his liability for the mortgage, he gets discharge and to the extent of the shares of other co-mortgagers, he stands in the position of mortgagee viz-a-viz other co-mortgagers. Therefore, it would be open to the other mortgagers to sue for possession of the property, after paying their share within the period of limitation. It is not in dispute that 12 years is a period of limitation for possession of the property since the appellant came into possession to the extent of the share of other co-owners, namely, their Karvans of the Tarwad as a mortgagee. They are entitled to pay to the extent of the respective shares of the mortgage amount and seek possession from the co-mortgagor, namely, appellant within 12 years from the date of the redemption of the mortgage. Under these circumstances, suit has been filed within limitation for a partition of property and preliminary decree shall follow subject to the payment of mortgage amount to the extent of their shares to the appellant.
The appeal is accordingly dismissed with the above modifications but, in the circumstances, without costs.