PETITIONER:
VALLIAMMA CHAMPAKA PILLAI
Vs.
RESPONDENT:
SIVATHANU PILLAI AND ORS.
DATE OF JUDGMENT24/08/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 1937 1980 SCR (1) 354
1979 SCC (4) 429
ACT:
New plea-permissible to be taken in the final tier of
the appeal in the Supreme Court.
"Acknowledgement"-What constitutes under Limitation
Act, 1908, explained.
Limitation-Time limit for the non-redeeming co-
mortgagor to file his suit against the redeeming co-
mortgagor-Limitation Act, 1908 (Travancore Limitation
Regulation) explained.
State decisis, principle of-Value of the judgment of
the former High Courts of Indian States after Reorganisation
of the States-Practice and procedure.
HEADNOTE:
Between the years 1881-1882 the two brothers Madhavan
and Sivathanu mortgaged with possession items 31 to 42 and
44 of the suit 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 money and he alone obtained possession thereof.
The redemption was effected by obtaining release deeds from
the former mortgagees-in-possession. The
appellant/plaintiff, the grand-daughter of the non-redeeming
co-mortgagor, Madhavan, instituted a suit on July 15, 1946
for partition and possession of her one-half of the suit
properties. In respect of items 34 to 36, 38, 39 and 44, she
claimed possession on contribution of her share of the
mortgage money that had been paid by the redeeming co-
mortgagor to the mortgagee. It was alleged in the plaint
that this half share of appellant's father devolved on his
widows on his death, without male issue, and subsequently,
on the death of the widows the same was inherited by her.
The respondents/defendants resisted the suit, inter 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
because the period of limitation for redemption of these
mortgages, under the Travancore Limitation Regulation was 50
years which had expired long before the filing of the suit.
The Trial Court held (a) that the right of the appellant to
recover her half share of the plaint items 31 to 42 and 44
was not barred by limitation (b) that the period of
limitation for a suit by a non-redeeming co-mortgagor
against the redeeming mortgagor is 50 years under Article
136 of the Travancore Limitation Regulation (corresponding
to Article 148 of the Limitation Act, 1908); (c) the
starting point of limitation is the date of redemption by
the redeeming comortgagor; and (d) the various release deeds
by which the mortgages were redeemed by the father of
Respondents 1 to 3 amounted to "acknowledgements" giving
fresh start of limitation.
In appeal, the learned single judge of the High Court
held that the suit was barred by limitation so far as 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
355
of 12 years limitation under Article 144 of the Limitation
Act, 1908, and that Article 148 of that Act (corresponding
to Article 136 of the Travancore Limitation Regulation) is
not the proper Article, to be applied to such a suit where
the Transfer of Property Act, as amended by the Amending Act
of 1929, was not in force.
In the Letters Patent appeal by the appellant, the full
Bench by its majority judgments held that a non-redeeming
co-mortgagor has two periods of limitation within which he
may file his suit against the redeeming co-mortgagor for
redemption of his share, namely, within 50 years provided
for by the Travancore Limitation Regulation, starting from
the date of mortgage, or, if that period has already
expired, within 12 years of the date of redemption by the
redeeming co-mortgagor, under Article 132 of the Travancore
Limitation Regulation corresponding to Article 144 of the
Indian Limitation Act, 1908. Hence the appeal by certificate
by the appellant/plaintiff.
Dismissing the appeal, the Court.
^
HELD : 1. Supreme Court will not allow an appellant to
turn round and take up a plea which he had not agitated
before the Courts below. [361B&H]
2. Under Section 18 of the Limitation Act, 1908, one of
the essential requirements for a valid "acknowledgement" is
that the writing concerned must contain an admission of a
subsisting liability. A mere admission of a past liability
is not sufficient to constitute such an "acknowledgement".
Hence a mere recital in a document as to the existence of a
past liability, coupled with a statement of discharge, does
not constitute an acknowledgement within section 18. Tested
on this touch-stone, the release deeds, Exhibits IV, XIV,
XXI and XXII pertaining to items 31 to 36, 39, 40 and 44
executed by the original mortgagees stating, in effect, that
the mortgages had been extinguished by payment of the
mortgage debts in entirety, by the redeeming co-mortgagor do
not amount to acknowledgement of a subsisting liability
which could give a fresh starting point of limitation. [362
D-G]
Raman Pillai v. Arthan Pillai, 23 Tr. L.J. 947 Muthiah
Nadar v. Ramaswamy Nadar, [1953] 8 DLR 563; Parameshwaran v.
Narayanan, 8 DLR 562 differed from.
3. There is nothing in the States Reorganisation Act,
1956 or any other law which exalts the ratio of the
decisions of the Travancore High Court to the status of a
binding law, nor could the ratio decidendi of those
decisions be perpetuated by invoking the doctrine of Stare
decisis. At best, they have a persuasive effect and not the
force of binding precedents on the Madras High Court. [363A-
B]
4. 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 his 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 his co-debtor's share of the mortgage debt was
356
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.
[364G-H, 365A-B]
5. Where the Transfer of property is not in force and a
mortgage with possession s 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 or
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
right of the 'non-redeeming' co-mortgagor, to pay his share
of the liability 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, 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. [365H, 366A-D]
Ganeshi Lal v. Joti Parshad [1953] S.C.R. 243,
followed.
6. 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 share or portion of the property by a non-
redeeming co-mortgagor 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. [366 G-H]
7. In the instant case, the original mortgages were
made during the years 1881 to 1884. They were redeemed by
the co-mortgagor in Sivathanu's line between the years 1913
to 1918 by paying the entire common mortgage debt and
obtaining possession of the entire hypotheca. The plaintiff
who is the successor-in-interest of the non-redeeming co-
mortgagor, Madhavan, filed the suit in 1946, for redemption
of her half share on payment of her half share of the
mortgage amount and expenses to the defendant-respondents,
successors in-interest of Sivathanu. The suit was thus filed
more than 12 years after the expiry of the 50 years'
limitation prescribed for a suit for redemption under
Article 136 of the Travancore Regulation and more than 28
years after the redemption, in 1918, of the last mortgage by
the redeeming co-mortgagor. This being the situation, the
non-redeeming mortgagor's suit for his share of the property
on payment of his proportionate share of the mortgage money
would be barred irrespective of whether the limitation is
governed by the provisions of Limitation Regulation
corresponding to Article 132 or 144 or any other Article of
the Indian Limitation Act, 1908. Since the Limitation
started running in 1913 or 1918, the suit was time barred
from every point of view. [367 C-F]
357
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1295 of
1969.
From the Judgment and Decree dated 26-3-1964 of the
Madras High Court in L. T. A. No. 18/61.
Miss Lily Thomas for the Appellant.
Vepa P. Sarathi and A. V. Rangam for the Respondents.
The Judgment of the Court was delivered by
SARKARIA, J. This is a plaintiff’s appeal directed
against a judgment and decree, dated March 26, 1964, of the
High Court of Madras, passed in Letters Patent Appeal No. 18
of 1961. The relationship of the main contesting defendants
will be apparent from the following geneological table :
Thanuvan
|
———————————————
| |
Madhavan Sivathanu
| |
Madhavan Thanuvan Padmanadhan Pillai
| =Ammalu Ammal (D-4)
Valliamma |
Chemapaka Pillai ----------------------------
(Pltf) | | |
Sivathanu Easwara Velayudha
Pillai Pillai Pillai
(Dfdt.1) (Dfdt.2) (Dfdt.3)
———————————————————
Valliamma, appellant herein is the original plaintiff.
She is the grand-daughter of Madavan. Respondents 1 to 3 are
the original defendants 1 to 3. They are the grand-sons of
Sivathanu. The properties in dispute are items 31 to 42 and
44 detailed in the plaint.
Between the years 1881-1882, the two brothers Madhavan
and Sivathanu mortgaged these properties by way of
usufructuary mortgages which were redeemed by Padmanabhan,
father of defendants 1, 2 and 3 between the years 1913 and
1918 by paying the entire redemption money and he alone
obtained possession thereof. The redemption was effected by
obtaining release deeds from the former mortgagees-in-
possession. The particulars of these mortgages and the
358
release deeds executed in favour of the redeeming co-
mortgagor are as under:
(i) Exhibit III, dated September 29, 1059 (1884), is
the mortgage executed by the two brothers in respect of
items 34 to 36, 38 and 39 and 44 in favour of the
grandfather of D.W.2. Exhibit IV is the release deed, dated
April 18, 1093 (1918), in favour of Padmanabhan.
(ii) Exhibit IX is the mortgage, dated August 19, 1056
(1881), executed by the two brothers in favour of Cochi Ravi
Pillai in respect of items 32 and 40. Exhibit XIV, dated
February 21, 1088 (1913), is the release deed in favour of
Padmanabhan.
(iii) Exhibit XV is the mortgage, dated February 25,
1058 (1883), in respect of plaint item 41 by the two
brothers in favour of Armugham Narayana. Exhibit XVIII,
dated August 31, 1088 (1913), is the release deed.
(iv) Exhibit XIX is the mortgage, dated August 14, 1058
(1883), in respect of items 31,33 and 37 in favour of
Chinnakannu Pandaram. Exhibit XX is the release deed, dated
January 23, 1088 (1913).
(v) Besides the above, the two brothers had executed a
Vellaolai Othi in 1043 (1868) in respect of item 42.
Exhibits 21 and 22 dated August 21, 1088 (1913), are the
release deeds.
The plaintiff, the grand-daughter of the non-redeeming
co-mortgagor, Madhavan, instituted the suit on July 15, 1946
for partition and possession of her one-half share of the
suit properties. In respect of items 34 to 36, 38, 39 and
44, she claimed possession on contribution of her share of
the mortgage money that had been paid by the redeeming co-
mortgagor to the mortgagees. It was alleged in the plaint
that this half share of the plaintiff’s father devolved on
his widow on his death, without male issue, and
subsequently, on the death of the widows, the same was
inherited by the plaintiff.
Defendants 1 to 3 resisted the plaintiff’s suit, inter
alia, on the ground that even if the courts come to the
conclusion that the division of the joint family status
alleged by the plaintiff was true, the plaintiff would not
be entitled to recover her half share in the plaint
schedule, items 31 to 42 and 44, because the period of
limitation for redemption of these mortgages, under the
Travancore Limitation Regulation was 50 years, which had
expired long before the filing of the suit.
359
The suit was tried by the Second Judge of the District
Court, Nagercoil, who on February 16, 1948 passed a
preliminary decree in favour of the plaintiff, declaring her
right over one-half share of the Schedule properties and her
right to recover the same, together with mesne profits,
after division by a Commissioner appointed by the Court. The
case was adjourned for final decree proceedings. By the same
judgment, dated February 16, 1948, the questions covered by
issues 3 to 9 including that of limitation, were left for
decision in the final decree to be passed in the case.
Against that preliminary decree, defendants 1 to 3
preferred a First Appeal in the Travancore-Cochin High
Court. The High Court dismissed the appeal on October 19,
1953, and affirmed the preliminary decree passed by the
trial court. Thereafter, the plaintiff took out a commission
to divide the properties by metes and bounds. The
Commissioner submitted his report, lists and plan of
division.
Against the final decree, both the plaintiff and
defendants 1 to 3 preferred First Appeals 49 and 37 of 1955,
respectively, to the Travancore-Cochin High Court, which
allowed these appeals and sent the matter back to the trial
court for passing a fresh final decree.
The suit was thereafter transferred to the Court of the
Subordinate Judge of Padmanabhapuram, who passed a final
decree on March 19, 1957. It is from this final decree and
judgment that this appeal has arisen.
The learned Subordinate Judge held that the right of
the Plaintiff to recover her half share of the plaint items
31 to 42 and 44 is not barred by limitation. Following a
decision of the Travancore-Cochin High Court, reported in 8
Dominion Law Reporter (T.C.) 562, he held that the period of
limitation for a suit by a non-redeeming co-mortgagor
against the redeeming co-mortgagor is 50 years under Article
136 of the Travancore Limitation Regulation (corresponding
to Article 148 of the Limitation Act, 1908) and that the
starting point of limitation is the date of redemption by
the redeeming co-mortgagor. He reasoned that since the suit
was instituted within 50 years of that date, it was within
time. He further held that the various release deeds by
which the mortgages were redeemed by the father of
defendants 1 to 3, amounted to acknowledgements, giving
fresh starts of limitation.
Against this final decree of the Subordinate Judge,
defendants 1 to 3 preferred First Appeal 305 of 1957 in the
High Court of Judicature at Madras. The appeal was heard by
a learned Single Judge (P. Ramakrishnan, J.), who by his
judgment, dated December 23,
360
1960, held that the suit was barred by limitation so far as
plaint items 31 to 42 and 44 were concerned. In his view,
the plaintiff, who is in the position of a non-redeeming co-
mortgagor, would have only a period of 12 years limitation
under Article 144 of the Limitation Act, 1908, and that
Article 148 of that Act (corresponding to Article 136 of the
Travancore Limitation Regulation) is not the proper Article
to be applied to such a suit where the Transfer of Property
Act, as amended by the Amending Act of 1929, was not in
force. In taking this view, the learned Judge declined to
follow the decision of the Travancore Cochin High Court.
Aggrieved by this judgment and decree of the learned
Single Judge, the plaintiff preferred a Letters Patent
Appeal. The appeal was ultimately heard by a Full Bench of
three learned Judges. S. Ramachandra Iyer, C. J. and
Jagadeesan, J. in their separate but concurrent judgments
held that a non-redeeming co-mortgagor has two periods of
limitation within which he may file his suit against the
redeeming co-mortgagor for redemption of his share, namely,
within 50 years provided for by the Travancore Limitation
Regulation, starting from the date of the mortgage, or, if
that period has already expired, within 12 years of the date
of redemption by the redeeming co-mortgagor, under Article
132 of the Travancore Limitation Regulation corresponding to
Article 144 of the Indian Limitation Act, 1908. On this
reasoning, the majority held that the plaintiff’s suit for
recovery of possession in respect of all the aforesaid
items, except item 41, was barred by limitation. The third
learned Judge in his dissenting judgment, held that the
plaintiff would get a period of 50 years limitation starting
from the date of the redemption of her share against the
redeeming co-mortgagor. On this reasoning, he found the suit
to be within time.
Hence this appeal on certificate issued by the High
Court under Article 133 of the Constitution.
The first contention advanced by the learned counsel
appearing for the appellants is that at the time when the
two brothers, Madhavan and Sivathanu made the mortgages in
question, they were members of a joint Hindu family and the
mortgages were also made of the joint family property;
consequently, 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 members of the joint family, including
the plaintiffs. In the alternative, it is submitted that
even if it is conceded that some time after the mortgages
but before the redemption, the
361
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 is argued, 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.
We are afraid, the appellant cannot be allowed to turn
round and take up this plea which he had not agitated,
either before the learned Single Judge or the Letters Patent
Bench of the High Court. In this connection, the learned
Single Judge has observed: “Though there was an issue that
these two branches (of Madhavan and Sivathanu) were
undivided in status, the finding of the Court below was that
they were divided at all material times, and this finding is
not the subject of controversy in this appeal.”
Counsel points out that the observation of the learned
Single Judge to the effect, that the “Court below” (trial
court) had found that the two branches of the family were
divided in status, was wrong inasmuch as he referred to a
finding in an earlier judgment of the trial court which had
been set aside in appeal. It is submitted that after the
remand such a finding was not reiterated by the Subordinate
Judge. Be that as it may, the crucial part of the learned
Judge’s observation, which has been underlined, is obviously
correct. The fact remains that this plea about the family
being joint in statue at the material time, was not agitated
before the learned Single Judge, nor pressed into argument
before the Full Bench in Letters Patent Appeal. The first
and the second appellate courts below, therefore, proceeded
on the assumption that the two brothers who created the
mortgages in question, and their branches were, at all times
material, not members of an undivided Hindu family, having a
joint status. Nor was the alternative plea, that the two
branches of the family were holding these properties as co-
owners, and as such, the possession of the redeeming co-
mortgagor would be deemed to be on behalf of the non-
redeeming co-mortgagor also ever passed into argument before
the courts below. Moreover, the material on the record is
too meagre to furnish adequate factual foundation for this
contention including its alternative limb. Indeed, the
counsel requested that the case should be remanded to the
trial court for determining this plea after giving the
parties another opportunity to produce evidence thereon.
For the aforesaid reasons we do not permit the
appellant to reagitate this plea which in any of its aspects
was not pressed into argument in the courts below.
362
The second contention of the learned counsel is that
the release deeds executed by the original mortgagees would
amount to an acknowledgement of the liability to be
redeemed, and thus furnished a fresh start of limitation for
a suit for redemption. Reliance for this argument has been
placed on some decisions of the Travancore High Court,
namely : Raman Pillai v. Arthan Pillai; Muthiah Nadar v.
Ramaswami Nadar; Parameshwaran v. Narayanan. It is
emphasised that at the material time, the suit properties
were situated in the territory of the erstwhile Travancore
State, and in view of the States Reorganisation Act, 1956,
the law applicable to the case is the law prevailing prior
to 1st November, 1956, and not the law in the Madras State
to which the territory from which the case has arisen, was
added. The point sought to be made out is that the Madras
High Court was legally bound to apply the Travancore
Limitation Regulation as interpreted by the Travancore High
Court, in preference to the earlier decisions of the Madras
High Court. It is urged that even on the doctrine of stare
decisis, the learned Judges of the High Court ought to have
adhered to the view taken by the Travancore Court in the
said cases.
This contention was raised before the appellate Bench
of the High Court, also, and was rightly rejected. Under
Sec. 18, Limitation Act, one of the essential requirements
for a valid ‘acknowledgement’ is that the writing concerned
must contain an admission of a subsisting liability. A mere
admission of a past liability is not sufficient to
constitute such an ‘acknowledgement’. Hence a mere recital
in a document as to the existence of a past liability,
coupled with a statement of its discharge, does not
constitute an ‘acknowledgement’ within this section. Tested
on this touchstone, the release-deeds, Exhibits IV, XIV, XXI
and XXII pertaining to items 31 to 36, 39, 40 and 44,
executed by the original mortgagees stating, in effect, that
the mortgages had been extinguished by payment of the
mortgage debts in entirety, by the redeeming co-mortgagor,
do not amount to acknowledgements of a subsisting liability,
which could give a fresh starting point of limitation.
If we may say so, with due deference, the view taken by
the Travancore (or T.C.) High Court in the aforesaid
decisions did not proceed on a correct interpretation of the
corresponding provisions of the Travancore Regulation. We
find ourselves in respectful agree-
363
ment with the reasoning and the finding of the High Court
(majority) on this point, in the judgment under appeal.
These erroneous decisions of the Travancore Court
could, at best, have a persuasive effect and not the force
of binding precedents on the Madras High Court. There is
nothing in the States Reorganisation Act 1956 or any other
law which exalts the ratio of those decisions to the status
of a binding law, nor could the ratio decidendi of those
decisions be perpetuated by invoking the doctrine of stare
decisis.
In short, the plaintiffs suit could not be saved from
being timebarred in respect of items 31 to 36, 39, 40 and 44
on the ground that the release deeds relating thereto amount
to ‘acknowledgements’ within the contemplation of the
relevant Limitation Statute.
The case of item 41, however, (it is common ground
before us) stands on a different footing. The High Court’s
finding, that in respect of this item the suit is within
time has not been challenged before us.
The last and the most important question that falls to
be determined is: Which Article of Travancore Limitation
Regulation will govern a suit by a non-redeeming co-
mortgagor to recover possession of his share of the
hypotheca on payment of the proportionate amount of the
mortgage debt discharged by the redeeming co-mortgagor ?
The counsel for the appellant submits that the High
Court was wrong in holding that limitation for such a suit
(brought after the expiry of 50 years from the date of the
original mortgages) was governed by Article 132 of the
Travancore Limitation Regulation corresponding to Article
144, Indian Limitation Act, 1908, because this Article
cannot apply to a suit for redemption of his share by a
nonredeeming co-mortgagor against the redeeming co-
mortgagor, and the latter’s possession cannot become adverse
to the plaintiff. It is maintained that limitation for the
suit will be governed by Article 136 of the Travancore
Regulation (corresponding to Art. 148 of the Indian
Limitation Act, 1908), but the starting point of limitation
will not be the date of the old mortgage but the date on
which the old mortgage was redeemed by the redeeming co-
mortgagor and in its place, a split-up mortgage in an abated
form confined to the plaintiff’s share came into being. It
is argued that in this new situation the nonredeeming
mortgagor’s “right to redeem and to recover possession” will
accrue only after the redemption of the old mortgage, with
the result that under Article 136 of the Travancore
Regulation, the
364
plaintiff would have a period of 50 years commencing from
the date of the redemption, to recover possession of his
share from the redeeming co-mortgagor. In short, counsel
have canvassed for the dissenting view taken by Venkataraman
J. According to counsel, this was also the view taken by the
former Travancore High Court, and the same ought to have
been followed on the principle of stare decisis by the
Madras High Court.
For dealing with this contention in the right
perspective, it is necessary to appreciate the true position
of a co-mortgagor redeeming the whole hypotheca by
discharging the entire mortgage debt. Does such a co-
mortgagor step into the shoes of the mortgagee whom he has
paid off, vis-a-vis the non-redeeming co-mortgagor? That is
to say, is the redeeming co-mortgagor’s right merely one of
subrogation to the rights of the mortgagee discharged ? If
so, to what extent ? Further, what are the correlated rights
of the non-redeeming co-mortgagor in the property after the
entire mortgage has been redeemed by his co-debtor ? Does he
retain only the rights under the former mortgage ? Or, does
he acquire a further right, consequent on redemption, to get
back his portion or share of the hypotheca from the
redeeming co-mortgagor on payment of the proportionate
amount of the common mortgage debt discharged by the latter
? These are some of the preliminary questions which have to
be answered before ascertaining the appropriate Article of
the relevant statute which will govern limitation in this
case.
In that connection, it is important to bear in mind
that both at the time of making these mortgages and their
redemption by one of the co-mortgagors, the Transfer of
Property Act or any like statute was not in force in the
State of Travancore, wherein these properties were situated.
The questions posed are therefore, to be answered in
accordance with the principles of justice, equity and good
conscience.
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 his 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
365
in respect of his own share only, and his liability in
respect his codebtor’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.
For the view we take, we derive support from certain
observations of this Court in Ganeshi Lal v. Joti Parshad.
While discussing the nature and extent of a redeeming co-
mortgagors right to recover contribution from his co-debtor,
this Court speaking through Chandrashekhara Aiyar J., made
these incidental observations which, for our purpose, are
apposite:
“Equity insists on the ultimate payment of a debt by
one who in justice and good conscience is bound to pay it,
and it is well recognized that where there are several joint
debtors, the person making the payment is the principal
debtor as regards the part of the liability, he is
discharged and a surety in respect of the shares of the rest
of the debtors. Such being the legal position as among the
co-mortgagors, if one of them redeems a mortgage over the
property which belongs jointly to himself and the rest,
equity confers on him a right to reimburse himself for the
amount spent in excess by him in the matter of redemption;
he can call upon the co-mortgagors to contribute towards the
excess which he has paid over his own
share………………while it can be readily conceded that
the joint debtor who pays up and discharges the mortgage
stands in the shoes of the mortgagee……………. he will
be subrogated to the rights of the mortgagee only to the
extent necessary for his own equitable protection
……..”so far as it is necessary to enforce his equity of
reimbursement”………It is as regards the excess of the
payment over his own share that the right can be said to
exist……..The redeeming co-mortgagor being only a surety
for the other co-mortgagors, his right, strictly speaking is
a right of reimbursement or contribution”.
It is note-worthy that Ganeshi Lal v. Joti Parshad
(supra) was a case from Punjab where the Transfer of
Property Act was not in force, and this Court had affirmed
the judgment of the Punjab High Court determining the claim
of the redeeming co-mortgagor for contribution against the
non-redeeming co-mortgagors or principles of justice, equity
and good conscience.
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
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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 latters portion or 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 right of the
‘non-redeeming’ co-mortgagor, to pay his share of the
liability 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.
The ground is now clear for ascertaining the
appropriate provision of the relevant statute of limitation
which prescribes limitation for a suit to enforce this
correlated right of the ‘non-redeeming’ co-mortgagors
against the redeeming co-mortgagor.
Be it noted, that the suit, out of which this appeal
has arisen, though, in form, a simple suit for partition
raises, in substance, a claim for redemption with regard to
items 31 to 42 and 44 which were under mortgage and had been
redeemed in entirety by one of the co-mortgagors. Indeed, in
the courts below the claim in respect of these items has
been fought by the parties as if it were one for redemption.
Since subrogation of the redeeming co-mortgagor would
give him the right under the original mortgage to hold the
non-redeeming co-mortgagors 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 share or portion of the property by a non-
redeeming co-mortgagor 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.
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Article 136 of the Travancore Limitation Regulation
(which correspond to Article 148 of Indian Limitation Act
1908) reads as under:
————————————————————
Description of suit Period of Time from Limitation begins to run
————————————————————
Art. 136
Against a mortgagee to redeem Fifty years When the right to
or to recover possession of redeem or to
immovable property mortgaged recover possession
accrues
————————————————————
The original mortgages were made during the years 1881
to 1884. They were redeemed by the co-mortgagor in
Sivathanu’s line between the years 1913 to 1918 by paying
the entire common mortgage debt and obtaining possession of
the entire hypotheca. The plaintiff who is the successor-in-
interest of the non-redeeming co-mortgagor, Madhavan, filed
the suit in 1946, (which was renumbered as O.S. 135 of 1956)
for redemption of her half share on payment of her half
share of the mortgage amount and expenses to the defendant-
respondents successors-in-interest of Sivathanu. The suit
was thus filed more than 12 years after the expiry of the 50
years’ limitation prescribed for a suit for redemption under
Article 136 of the Travancore Regulation, and more than 28
years after the redemption in 1918, of the last mortgage by
the redeeming co-mortgagor. This being the situation, the
non-redeeming mortgagor’s suit for his share of the property
on payment of his proportionate share of the mortgage money
would be barred irrespective of whether the limitation is
governed by the provisions of Limitation Regulation
corresponding to Article 132 or 144 or any other Article of
the Indian Limitation Act, 1908. Therefore, as at present
advised, we do not feel the necessity of laying down the law
with regard to this aspect of the case. Since the limitation
started running in 1913 or 1918, the suit was time-barred
from every point of view.
For all the fore-going reasons, we uphold the finding
of the High Court that the plaintiff’s claim in regard to
suit items 31 to 40, 42 and 44 was time barred and dismiss
the appeal. In the peculiar circumstances of the case, the
parties are left to pay and bear their own costs in this
Court.
S.R. Appeal dismissed.
368