{"id":70605,"date":"1979-08-24T00:00:00","date_gmt":"1979-08-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/valliamma-champaka-pillai-vs-sivathanu-pillai-and-ors-on-24-august-1979"},"modified":"2017-06-29T07:54:52","modified_gmt":"2017-06-29T02:24:52","slug":"valliamma-champaka-pillai-vs-sivathanu-pillai-and-ors-on-24-august-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/valliamma-champaka-pillai-vs-sivathanu-pillai-and-ors-on-24-august-1979","title":{"rendered":"Valliamma Champaka Pillai vs Sivathanu Pillai And Ors on 24 August, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Valliamma Champaka Pillai vs Sivathanu Pillai And Ors on 24 August, 1979<\/div>\n
Equivalent citations: 1979 AIR 1937, \t\t 1980 SCR (1) 354<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nVALLIAMMA CHAMPAKA PILLAI\n\n\tVs.\n\nRESPONDENT:\nSIVATHANU PILLAI AND ORS.\n\nDATE OF JUDGMENT24\/08\/1979\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nSHINGAL, P.N.\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1979 AIR 1937\t\t  1980 SCR  (1) 354\n 1979 SCC  (4) 429\n\n\nACT:\n     New plea-permissible  to be  taken in the final tier of\nthe appeal in the Supreme Court.\n     \"Acknowledgement\"-What  constitutes   under  Limitation\nAct, 1908, explained.\n     Limitation-Time  limit   for  the\t non-redeeming\t co-\nmortgagor  to  file  his  suit\tagainst\t the  redeeming\t co-\nmortgagor-Limitation  Act,   1908   (Travancore\t  Limitation\nRegulation) explained.\n     State decisis,  principle of-Value\t of the\t judgment of\nthe former High Courts of Indian States after Reorganisation\nof the States-Practice and procedure.\n\n\n\nHEADNOTE:\n     Between the  years 1881-1882  the two brothers Madhavan\nand Sivathanu  mortgaged with  possession items 31 to 42 and\n44  of\t the  suit   properties,  which\t  were\tredeemed  by\nPadmanabhan,  father  of  defendants  1\t to  3\t(Respondents\nherein) between the years 1913 and 1918 by paying the entire\nredemption money  and he  alone obtained possession thereof.\nThe redemption\twas effected by obtaining release deeds from\nthe\t  former\tmortgagees-in-possession.\t The\nappellant\/plaintiff, the grand-daughter of the non-redeeming\nco-mortgagor, Madhavan,\t instituted a  suit on July 15, 1946\nfor partition  and possession  of her  one-half of  the suit\nproperties. In respect of items 34 to 36, 38, 39 and 44, she\nclaimed possession  on contribution  of\t her  share  of\t the\nmortgage money\tthat had  been paid  by\t the  redeeming\t co-\nmortgagor to  the mortgagee.  It was  alleged in  the plaint\nthat this  half share  of appellant's father devolved on his\nwidows on  his death,  without male issue, and subsequently,\non the\tdeath of  the widows  the same was inherited by her.\nThe respondents\/defendants resisted the suit, inter alia, on\nthe ground  that appellant  would not be entitled to recover\nher half share in the plaint schedule, items 31 to 42 and 44\nbecause the  period of\tlimitation for\tredemption of  these\nmortgages, under the Travancore Limitation Regulation was 50\nyears which  had expired long before the filing of the suit.\nThe Trial  Court held (a) that the right of the appellant to\nrecover her  half share\t of the plaint items 31 to 42 and 44\nwas  not  barred  by  limitation  (b)  that  the  period  of\nlimitation  for\t a  suit  by  a\t non-redeeming\tco-mortgagor\nagainst the  redeeming mortgagor  is 50\t years under Article\n136 of\tthe Travancore\tLimitation Regulation (corresponding\nto Article  148\t of  the  Limitation  Act,  1908);  (c)\t the\nstarting point\tof limitation  is the  date of redemption by\nthe redeeming comortgagor; and (d) the various release deeds\nby which  the mortgages\t were  redeemed\t by  the  father  of\nRespondents 1  to 3  amounted to  \"acknowledgements\"  giving\nfresh start of limitation.\n     In appeal,\t the learned  single judge of the High Court\nheld that  the suit  was barred\t by limitation so far as the\nplaint items  31 to  42 and 44 were concerned in view of the\nfact that a non-redeeming mortgagor would have only a period\n355\nof 12  years limitation\t under Article 144 of the Limitation\nAct, 1908,  and that  Article 148 of that Act (corresponding\nto Article  136 of  the Travancore Limitation Regulation) is\nnot the\t proper Article,  to be applied to such a suit where\nthe Transfer of Property Act, as amended by the Amending Act\nof 1929, was not in force.\n     In the Letters Patent appeal by the appellant, the full\nBench by  its majority\tjudgments held\tthat a non-redeeming\nco-mortgagor has  two periods  of limitation within which he\nmay file  his suit  against the\t redeeming co-mortgagor\t for\nredemption of  his share,  namely, within  50 years provided\nfor by\tthe Travancore\tLimitation Regulation, starting from\nthe date  of  mortgage,\t or,  if  that\tperiod\thas  already\nexpired, within\t 12 years  of the  date of redemption by the\nredeeming co-mortgagor,\t under Article 132 of the Travancore\nLimitation Regulation  corresponding to\t Article 144  of the\nIndian Limitation Act, 1908. Hence the appeal by certificate\nby the appellant\/plaintiff.\n     Dismissing the appeal, the Court.\n^\n     HELD :  1. Supreme Court will not allow an appellant to\nturn round  and take  up a  plea which\the had\tnot agitated\nbefore the Courts below. [361B&H]\n     2. Under Section 18 of the Limitation Act, 1908, one of\nthe essential  requirements for a valid \"acknowledgement\" is\nthat the  writing concerned  must contain  an admission of a\nsubsisting liability.  A mere  admission of a past liability\nis not\tsufficient to  constitute such an \"acknowledgement\".\nHence a\t mere recital in a document as to the existence of a\npast liability,\t coupled with a statement of discharge, does\nnot constitute\tan acknowledgement within section 18. Tested\non this\t touch-stone, the  release deeds,  Exhibits IV, XIV,\nXXI and\t XXII pertaining  to items  31 to  36, 39, 40 and 44\nexecuted by the original mortgagees stating, in effect, that\nthe mortgages  had  been  extinguished\tby  payment  of\t the\nmortgage debts in entirety, by the redeeming co-mortgagor do\nnot amount  to acknowledgement\tof  a  subsisting  liability\nwhich could  give a fresh starting point of limitation. [362\nD-G]\n     Raman Pillai  v. Arthan Pillai, 23 Tr. L.J. 947 Muthiah\nNadar v. Ramaswamy Nadar,<\/a> [1953] 8 DLR 563; Parameshwaran v.\nNarayanan, 8 DLR 562 differed from.\n     3. There  is nothing  in the States Reorganisation Act,\n1956 or\t any  other  law  which\t exalts\t the  ratio  of\t the\ndecisions of  the Travancore  High Court  to the status of a\nbinding\t law,\tnor  could  the\t ratio\tdecidendi  of  those\ndecisions be  perpetuated by  invoking the doctrine of Stare\ndecisis. At  best, they have a persuasive effect and not the\nforce of binding precedents on the Madras High Court. [363A-\nB]\n     4. Even  where the\t Transfer of Property Act was not in\nforce,\ta  redeeming  co-mortgagor  discharging\t the  entire\nmortgage debt,\twhich was the joint and several liability of\nhimself and his co-mortgagor, was, in equity, entitled to be\nsubrogated to  the rights  of the  mortgagee redeemed and to\ntreat the non-redeeming co-mortgagor as his mortgagor to the\nextent of the latter's portion or share in the hypotheca and\nto hold\t that portion  or share\t as security  for the excess\npayment made  by him.  This equitable right of the redeeming\nco-mortgagor stems from the doctrine that he was a principal\ndebtor in  respect of  his own share only. and his liability\nin respect his co-debtor's share of the mortgage debt was\n356\nonly that  of a\t surety; and  when the surety had discharged\nthe entire  mortgage debt,  he was entitled to be subrogated\nto the\tsecurities held\t by the\t creditor, to  the extent of\ngetting himself\t reimbursed for\t the amount paid by him over\nand above  his share  to discharge the common mortgage debt.\n[364G-H, 365A-B]\n     5. Where the Transfer of property is not in force and a\nmortgage with  possession s made by two persons, one of whom\nonly redeems  discharging the  whole of\t the common mortgage\ndebt, he will, in equity, have two distinct rights; Firstly,\nto be  subrogated to the rights of the mortgagee discharged,\nvis-a-vis  the\tnon-redeeming  co-mortgagor,  including\t the\nright to  get into  possession of  the latter's\t portion  or\nshare of  the hypotheca.  Secondly, to\trecover contribution\ntowards the  excess paid  by him  on the  security  of\tthat\nportion or  share of the hypotheca which belonged not to him\nbut to the other co-mortgagor. It follows that where one co-\nmortgagor gets\tthe right  to contribution against the other\nco-mortgagor by\t paying off  the  entire  mortgage  debt,  a\ncorrelated right  also accrues\tto the\tlatter to redeem his\nshare of  the property\tand get its possession on payment of\nhis share of the liability to the former. This corresponding\nright of  the 'non-redeeming' co-mortgagor, to pay his share\nof the liability and get possession of his property from the\nredeeming co-mortgagor,\t subsists as  long as  the  latter's\nright to  contribution subsists.  This right  of  the  'non-\nredeeming' co-mortgagor, is purely an equitable right, which\nexists irrespective  of whether\t the right  of\tcontribution\nwhich the  redeeming co-mortgagor  has as  against the other\nco-mortgagor, amounts to a mortgage or not. [365H, 366A-D]\n     Ganeshi  Lal   v.\tJoti   Parshad<\/a>\t[1953]\tS.C.R.\t243,\nfollowed.\n     6. Since  subrogation  of\tthe  redeeming\tco-mortgagor\nwould give him the right under the original mortgage to hold\nthe non-redeeming co-mortgagor's property as security to get\nhimself reimbursed  for the  amount paid by him in excess of\nhis share  of the  liability, it  follows that\ta  suit\t for\npossession of his share or portion of the property by a non-\nredeeming  co-mortgagor\t on  payment  of  the  proportionate\namount of  the mortgage debt, may be filed either within the\nlimitation prescribed  for a  suit  for\t redemption  of\t the\noriginal mortgage or within the period prescribed for a suit\nfor contribution  by the  redeeming co-mortgagor against the\nother co-mortgagor. [366 G-H]\n     7. In  the instant\t case, the  original mortgages\twere\nmade during  the years\t1881 to\t 1884. They were redeemed by\nthe co-mortgagor  in Sivathanu's line between the years 1913\nto 1918\t by paying  the\t entire\t common\t mortgage  debt\t and\nobtaining possession  of the entire hypotheca. The plaintiff\nwho is\tthe successor-in-interest  of the  non-redeeming co-\nmortgagor, Madhavan,  filed the suit in 1946, for redemption\nof her\thalf share  on payment\tof her\thalf  share  of\t the\nmortgage amount\t and expenses  to the defendant-respondents,\nsuccessors in-interest of Sivathanu. The suit was thus filed\nmore than  12 years  after  the\t expiry\t of  the  50  years'\nlimitation  prescribed\tfor  a\tsuit  for  redemption  under\nArticle 136  of the  Travancore Regulation  and more than 28\nyears after the redemption, in 1918, of the last mortgage by\nthe redeeming  co-mortgagor. This  being the  situation, the\nnon-redeeming mortgagor's suit for his share of the property\non payment  of his proportionate share of the mortgage money\nwould be  barred irrespective  of whether  the limitation is\ngoverned  by   the  provisions\t of  Limitation\t  Regulation\ncorresponding to  Article 132 or 144 or any other Article of\nthe  Indian  Limitation\t Act,  1908.  Since  the  Limitation\nstarted running\t in 1913  or 1918,  the suit was time barred\nfrom every point of view. [367 C-F]\n357\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1295 of
\n1969.\n<\/p>\n
     From the  Judgment and  Decree dated  26-3-1964 of\t the
\nMadras High Court in L. T. A. No. 18\/61.\n<\/p>\n
     Miss Lily Thomas for the Appellant.\n<\/p>\n
     Vepa P. Sarathi and A. V. Rangam for the Respondents.
\n     The Judgment of the Court was delivered by
\n     SARKARIA, J.  This is  a  plaintiff’s  appeal  directed
\nagainst a  judgment and decree, dated March 26, 1964, of the
\nHigh Court of Madras, passed in Letters Patent Appeal No. 18
\nof 1961.  The relationship of the main contesting defendants
\nwill be apparent from the following geneological table :\n<\/p>\n
\t\t      Thanuvan
\n\t\t\t\t\t\t\t   |\n<\/p><\/blockquote>\n
     ———————————————\n<\/p><\/blockquote>\n
     |\t\t\t\t\t\t |\n  Madhavan\t\t\t\t     Sivathanu\n     |\t\t\t\t\t\t |\n  Madhavan Thanuvan\t\t\t Padmanadhan Pillai\n     |\t\t\t\t\t=Ammalu Ammal (D-4)\n  Valliamma\t\t\t\t\t |\n  Chemapaka Pillai\t     ----------------------------\n  (Pltf)\t\t     |\t\t   |\t\t|\n\t\t\t Sivathanu\tEaswara\t   Velayudha\n\t\t\t Pillai\t\tPillai\t   Pillai\n\t\t\t (Dfdt.1)\t(Dfdt.2)   (Dfdt.3)\n<\/pre>\n
   ———————————————————
\n     Valliamma, appellant  herein is the original plaintiff.\n<\/p><\/blockquote>\n
She is the grand-daughter of Madavan. Respondents 1 to 3 are
\nthe original  defendants 1  to 3. They are the grand-sons of
\nSivathanu. The\tproperties in dispute are items 31 to 42 and
\n44 detailed in the plaint.\n<\/p>\n
     Between the  years 1881-1882, the two brothers Madhavan
\nand  Sivathanu\t mortgaged  these   properties\tby   way  of
\nusufructuary mortgages\twhich were  redeemed by Padmanabhan,
\nfather of  defendants 1,  2 and 3 between the years 1913 and
\n1918 by\t paying the  entire redemption\tmoney and  he  alone
\nobtained possession  thereof. The redemption was effected by
\nobtaining  release  deeds  from\t the  former  mortgagees-in-
\npossession. The particulars of these mortgages and the
\n358<\/span>
\nrelease deeds  executed\t in  favour  of\t the  redeeming\t co-
\nmortgagor are as under:\n<\/p>\n
     (i) Exhibit  III, dated  September 29,  1059 (1884), is
\nthe mortgage  executed by  the two  brothers in\t respect  of
\nitems 34  to  36,  38  and  39\tand  44\t in  favour  of\t the
\ngrandfather of\tD.W.2. Exhibit IV is the release deed, dated
\nApril 18, 1093 (1918), in favour of Padmanabhan.\n<\/p>\n
     (ii) Exhibit  IX is the mortgage, dated August 19, 1056
\n(1881), executed by the two brothers in favour of Cochi Ravi
\nPillai in  respect of  items 32\t and 40.  Exhibit XIV, dated
\nFebruary 21,  1088 (1913),  is the release deed in favour of
\nPadmanabhan.\n<\/p>\n
     (iii) Exhibit  XV is  the mortgage,  dated February 25,
\n1058 (1883),  in respect  of  plaint  item  41\tby  the\t two
\nbrothers in  favour of\tArmugham  Narayana.  Exhibit  XVIII,
\ndated August 31, 1088 (1913), is the release deed.\n<\/p>\n
     (iv) Exhibit XIX is the mortgage, dated August 14, 1058
\n(1883), in  respect of\titems 31,33  and  37  in  favour  of
\nChinnakannu Pandaram.  Exhibit XX is the release deed, dated
\nJanuary 23, 1088 (1913).\n<\/p>\n
     (v) Besides  the above, the two brothers had executed a
\nVellaolai Othi\tin  1043  (1868)  in  respect  of  item\t 42.
\nExhibits 21  and 22  dated August  21, 1088  (1913), are the
\nrelease deeds.\n<\/p>\n
     The plaintiff,  the grand-daughter of the non-redeeming
\nco-mortgagor, Madhavan, instituted the suit on July 15, 1946
\nfor partition  and possession  of her  one-half share of the
\nsuit properties.  In respect  of items\t34 to 36, 38, 39 and
\n44, she\t claimed possession  on contribution of her share of
\nthe mortgage  money that  had been paid by the redeeming co-
\nmortgagor to  the mortgagees.  It was  alleged in the plaint
\nthat this  half share  of the plaintiff’s father devolved on
\nhis  widow   on\t his   death,  without\t male\tissue,\t and
\nsubsequently, on  the death  of the  widows,  the  same\t was
\ninherited by the plaintiff.\n<\/p>\n
     Defendants 1  to 3 resisted the plaintiff’s suit, inter
\nalia, on  the ground  that even\t if the\t courts come  to the
\nconclusion that\t the division  of the  joint  family  status
\nalleged by  the plaintiff  was true, the plaintiff would not
\nbe  entitled  to  recover  her\thalf  share  in\t the  plaint
\nschedule, items\t 31 to\t42 and\t44, because  the  period  of
\nlimitation for\tredemption of  these  mortgages,  under\t the
\nTravancore Limitation  Regulation was  50 years,  which\t had
\nexpired long before the filing of the suit.\n<\/p>\n
359<\/span><\/p>\n
     The suit  was tried by the Second Judge of the District
\nCourt,\tNagercoil,   who  on  February\t16,  1948  passed  a
\npreliminary decree in favour of the plaintiff, declaring her
\nright over one-half share of the Schedule properties and her
\nright to  recover the  same, together  with  mesne  profits,
\nafter division by a Commissioner appointed by the Court. The
\ncase was adjourned for final decree proceedings. By the same
\njudgment, dated\t February 16, 1948, the questions covered by
\nissues 3  to 9\tincluding that\tof limitation, were left for
\ndecision in the final decree to be passed in the case.\n<\/p>\n
     Against that  preliminary decree,\tdefendants  1  to  3
\npreferred a  First  Appeal  in\tthe  Travancore-Cochin\tHigh
\nCourt. The  High Court\tdismissed the  appeal on October 19,
\n1953, and  affirmed the\t preliminary decree  passed  by\t the
\ntrial court. Thereafter, the plaintiff took out a commission
\nto  divide   the  properties   by  metes   and\tbounds.\t The
\nCommissioner  submitted\t  his  report,\tlists  and  plan  of
\ndivision.\n<\/p>\n
     Against  the  final  decree,  both\t the  plaintiff\t and
\ndefendants 1 to 3 preferred First Appeals 49 and 37 of 1955,
\nrespectively, to  the Travancore-Cochin\t High  Court,  which
\nallowed these  appeals and sent the matter back to the trial
\ncourt for passing a fresh final decree.\n<\/p>\n
     The suit was thereafter transferred to the Court of the
\nSubordinate Judge  of Padmanabhapuram,\twho passed  a  final
\ndecree on  March 19,  1957. It is from this final decree and
\njudgment that this appeal has arisen.\n<\/p>\n
     The learned  Subordinate Judge  held that\tthe right of
\nthe Plaintiff  to recover her half share of the plaint items
\n31 to  42 and  44 is  not barred  by limitation. Following a
\ndecision of  the Travancore-Cochin High Court, reported in 8
\nDominion Law Reporter (T.C.) 562, he held that the period of
\nlimitation  for\t a  suit  by  a\t non-redeeming\tco-mortgagor
\nagainst the redeeming co-mortgagor is 50 years under Article
\n136 of\tthe Travancore\tLimitation Regulation (corresponding
\nto Article  148 of  the Limitation  Act, 1908)\tand that the
\nstarting point\tof limitation  is the  date of redemption by
\nthe redeeming  co-mortgagor. He reasoned that since the suit
\nwas instituted\twithin 50  years of that date, it was within
\ntime. He  further held\tthat the  various release  deeds  by
\nwhich  the   mortgages\twere   redeemed\t by  the  father  of
\ndefendants 1  to 3,  amounted  to  acknowledgements,  giving
\nfresh starts of limitation.\n<\/p>\n
     Against this  final decree\t of the\t Subordinate  Judge,
\ndefendants 1  to 3 preferred First Appeal 305 of 1957 in the
\nHigh Court  of Judicature at Madras. The appeal was heard by
\na learned  Single Judge\t (P. Ramakrishnan,  J.), who  by his
\njudgment, dated December 23,
\n360<\/span>
\n1960, held  that the suit was barred by limitation so far as
\nplaint items  31 to  42 and  44 were concerned. In his view,
\nthe plaintiff, who is in the position of a non-redeeming co-
\nmortgagor, would  have only  a period of 12 years limitation
\nunder Article  144 of  the Limitation  Act, 1908,  and\tthat
\nArticle 148 of that Act (corresponding to Article 136 of the
\nTravancore Limitation  Regulation) is not the proper Article
\nto be  applied to such a suit where the Transfer of Property
\nAct, as\t amended by  the Amending  Act of  1929, was  not in
\nforce. In  taking this\tview, the  learned Judge declined to
\nfollow the decision of the Travancore Cochin High Court.\n<\/p>\n
     Aggrieved by  this judgment  and decree  of the learned
\nSingle Judge,  the  plaintiff  preferred  a  Letters  Patent
\nAppeal. The  appeal was\t ultimately heard by a Full Bench of
\nthree  learned\tJudges.\t S.  Ramachandra  Iyer,\t C.  J.\t and
\nJagadeesan, J.\tin their  separate but\tconcurrent judgments
\nheld that  a non-redeeming  co-mortgagor has  two periods of
\nlimitation within  which he  may file  his suit\t against the
\nredeeming co-mortgagor\tfor redemption of his share, namely,
\nwithin 50  years provided  for by  the Travancore Limitation
\nRegulation, starting  from the\tdate of the mortgage, or, if
\nthat period has already expired, within 12 years of the date
\nof redemption  by the  redeeming co-mortgagor, under Article
\n132 of the Travancore Limitation Regulation corresponding to
\nArticle 144  of the  Indian Limitation\tAct, 1908.  On\tthis
\nreasoning, the\tmajority held  that the plaintiff’s suit for
\nrecovery of  possession in  respect  of\t all  the  aforesaid
\nitems, except  item 41,\t was barred by limitation. The third
\nlearned Judge  in his  dissenting judgment,  held  that\t the
\nplaintiff would get a period of 50 years limitation starting
\nfrom the  date of  the redemption  of her  share against the
\nredeeming co-mortgagor. On this reasoning, he found the suit
\nto be within time.\n<\/p>\n
     Hence this\t appeal on  certificate issued\tby the\tHigh
\nCourt under Article 133 of the Constitution.\n<\/p>\n
     The first\tcontention advanced  by the  learned counsel
\nappearing for  the appellants  is that\tat the time when the
\ntwo brothers,  Madhavan and  Sivathanu made the mortgages in
\nquestion, they\twere members of a joint Hindu family and the
\nmortgages were\talso made  of  the  joint  family  property;
\nconsequently, the  redemption by one of the co-mortgagors of
\nthe whole  property, could  only be on behalf of and for the
\nbenefit of  all the  members of\t the joint family, including
\nthe plaintiffs.\t In the\t alternative, it  is submitted\tthat
\neven if\t it is\tconceded that  some time after the mortgages
\nbut before the redemption, the
\n361<\/span>
\nfamily\thad   divided  in   status,  then  also,  after\t the
\nredemption, the\t  two branches of the family would be deemed
\nto be holding the property as tenants-in-common or co-owners
\nin defined shares. In either case, it is argued, no question
\nof adverse  possession or  limitation  would  arise  as\t the
\npossession of  the redeeming  co-mortgagor would, in law, be
\nthe possession of the non-redeeming co-owners, also.\n<\/p>\n
     We are  afraid, the appellant cannot be allowed to turn
\nround and  take up  this plea  which he\t had  not  agitated,
\neither before the learned Single Judge or the Letters Patent
\nBench of  the High  Court. In  this connection,\t the learned
\nSingle Judge  has observed:  “Though there was an issue that
\nthese  two   branches  (of   Madhavan  and  Sivathanu)\twere
\nundivided in status, the finding of the Court below was that
\nthey were divided at all material times, and this finding is
\nnot the subject of controversy in this appeal.”\n<\/p>\n
     Counsel points  out that the observation of the learned
\nSingle Judge  to the  effect, that  the “Court below” (trial
\ncourt) had  found that\tthe two\t branches of the family were
\ndivided in  status, was\t wrong inasmuch\t as he referred to a
\nfinding in  an earlier judgment of the trial court which had
\nbeen set  aside in  appeal. It\tis submitted  that after the
\nremand such  a finding was not reiterated by the Subordinate
\nJudge. Be  that as  it may,  the crucial part of the learned
\nJudge’s observation, which has been underlined, is obviously
\ncorrect. The  fact remains  that this  plea about the family
\nbeing joint in statue at the material time, was not agitated
\nbefore the  learned Single  Judge, nor pressed into argument
\nbefore the  Full Bench\tin Letters  Patent Appeal. The first
\nand the\t second appellate courts below, therefore, proceeded
\non the\tassumption that\t the two  brothers who\tcreated\t the
\nmortgages in question, and their branches were, at all times
\nmaterial, not members of an undivided Hindu family, having a
\njoint status.  Nor was\tthe alternative\t plea, that  the two
\nbranches of  the family were holding these properties as co-
\nowners, and  as such,  the possession  of the  redeeming co-
\nmortgagor would\t be deemed  to be  on  behalf  of  the\tnon-
\nredeeming co-mortgagor also ever passed into argument before
\nthe courts  below. Moreover,  the material  on the record is
\ntoo meagre  to furnish\tadequate factual foundation for this
\ncontention  including  its  alternative\t limb.\tIndeed,\t the
\ncounsel requested  that the  case should  be remanded to the
\ntrial court  for determining  this  plea  after\t giving\t the
\nparties another opportunity to produce evidence thereon.\n<\/p>\n
     For  the\taforesaid  reasons  we\tdo  not\t permit\t the
\nappellant to reagitate this plea which in any of its aspects
\nwas not pressed into argument in the courts below.\n<\/p>\n
362<\/span><\/p>\n
     The second\t contention of\tthe learned  counsel is that
\nthe release  deeds executed by the original mortgagees would
\namount\tto   an\t acknowledgement  of  the  liability  to  be
\nredeemed, and thus furnished a fresh start of limitation for
\na suit\tfor redemption.\t Reliance for this argument has been
\nplaced on  some decisions  of  the  Travancore\tHigh  Court,
\nnamely :  Raman Pillai\tv. Arthan  Pillai; Muthiah  Nadar v.
\nRamaswami  Nadar<\/a>;   Parameshwaran  v.\tNarayanan.   It\t  is
\nemphasised that\t at the\t material time,\t the suit properties
\nwere situated  in the  territory of the erstwhile Travancore
\nState, and  in view  of the States Reorganisation Act, 1956,
\nthe law\t applicable to\tthe case is the law prevailing prior
\nto 1st\tNovember, 1956,\t and not the law in the Madras State
\nto which  the territory\t from which the case has arisen, was
\nadded. The  point sought  to be\t made out is that the Madras
\nHigh  Court  was  legally  bound  to  apply  the  Travancore
\nLimitation Regulation  as interpreted by the Travancore High
\nCourt, in  preference to the earlier decisions of the Madras
\nHigh Court.  It is  urged that even on the doctrine of stare
\ndecisis, the  learned Judges of the High Court ought to have
\nadhered to  the view  taken by\tthe Travancore\tCourt in the
\nsaid cases.\n<\/p>\n
     This contention  was raised  before the appellate Bench
\nof the\tHigh Court,  also, and\twas rightly  rejected. Under
\nSec. 18,  Limitation Act,  one of the essential requirements
\nfor a  valid ‘acknowledgement’ is that the writing concerned
\nmust contain  an admission of a subsisting liability. A mere
\nadmission  of\ta  past\t  liability  is\t not  sufficient  to
\nconstitute such\t an ‘acknowledgement’.\tHence a mere recital
\nin a  document as  to the  existence of\t a  past  liability,
\ncoupled\t with\ta  statement  of  its  discharge,  does\t not
\nconstitute an  ‘acknowledgement’ within this section. Tested
\non this touchstone, the release-deeds, Exhibits IV, XIV, XXI
\nand XXII  pertaining to\t items 31  to 36,  39,\t40  and\t 44,
\nexecuted by the original mortgagees stating, in effect, that
\nthe mortgages  had  been  extinguished\tby  payment  of\t the
\nmortgage debts\tin entirety,  by the redeeming co-mortgagor,
\ndo not amount to acknowledgements of a subsisting liability,
\nwhich could give a fresh starting point of limitation.\n<\/p>\n
     If we may say so, with due deference, the view taken by
\nthe  Travancore\t (or  T.C.)  High  Court  in  the  aforesaid
\ndecisions did not proceed on a correct interpretation of the
\ncorresponding provisions  of the  Travancore Regulation.  We
\nfind ourselves in respectful agree-\n<\/p>\n
363<\/span><\/p>\n
ment with  the reasoning  and the  finding of the High Court
\n(majority) on this point, in the judgment under appeal.\n<\/p>\n
     These  erroneous  decisions  of  the  Travancore  Court
\ncould, at  best, have  a persuasive effect and not the force
\nof binding  precedents on  the Madras  High Court.  There is
\nnothing in  the States\tReorganisation Act 1956 or any other
\nlaw which  exalts the ratio of those decisions to the status
\nof a  binding law,  nor could  the ratio  decidendi of those
\ndecisions be  perpetuated by  invoking the doctrine of stare
\ndecisis.\n<\/p>\n
     In short,\tthe plaintiffs\tsuit could not be saved from
\nbeing timebarred in respect of items 31 to 36, 39, 40 and 44
\non the ground that the release deeds relating thereto amount
\nto  ‘acknowledgements’\t within\t the  contemplation  of\t the
\nrelevant Limitation Statute.\n<\/p>\n
     The case  of item\t41, however,  (it is  common  ground
\nbefore us)  stands on  a different footing. The High Court’s
\nfinding, that  in respect  of this  item the  suit is within
\ntime has not been challenged before us.\n<\/p>\n
     The last  and the most important question that falls to
\nbe determined  is: Which  Article of  Travancore  Limitation
\nRegulation  will  govern  a  suit  by  a  non-redeeming\t co-
\nmortgagor  to\trecover\t possession  of\t his  share  of\t the
\nhypotheca on  payment of  the proportionate  amount  of\t the
\nmortgage debt discharged by the redeeming co-mortgagor ?\n<\/p>\n
     The counsel  for the  appellant submits  that the\tHigh
\nCourt was  wrong in  holding that limitation for such a suit
\n(brought after\tthe expiry  of 50 years from the date of the
\noriginal mortgages)  was governed  by  Article\t132  of\t the
\nTravancore Limitation  Regulation corresponding\t to  Article
\n144, Indian  Limitation\t Act,  1908,  because  this  Article
\ncannot apply  to a  suit for  redemption of  his share\tby a
\nnonredeeming  co-mortgagor   against   the   redeeming\t co-
\nmortgagor, and the latter’s possession cannot become adverse
\nto the\tplaintiff. It  is maintained that limitation for the
\nsuit will  be governed\tby Article  136\t of  the  Travancore
\nRegulation  (corresponding   to\t Art.\t148  of\t the  Indian
\nLimitation Act,\t 1908), but the starting point of limitation
\nwill not  be the  date of  the old  mortgage but the date on
\nwhich the  old mortgage\t was redeemed  by the  redeeming co-
\nmortgagor and in its place, a split-up mortgage in an abated
\nform confined  to the  plaintiff’s share came into being. It
\nis argued  that\t in  this  new\tsituation  the\tnonredeeming
\nmortgagor’s “right to redeem and to recover possession” will
\naccrue only  after the\tredemption of the old mortgage, with
\nthe  result   that  under  Article  136\t of  the  Travancore
\nRegulation, the
\n364<\/span>
\nplaintiff would\t have a\t period of  50 years commencing from
\nthe date  of the  redemption, to  recover possession  of his
\nshare from  the redeeming  co-mortgagor. In  short,  counsel
\nhave canvassed for the dissenting view taken by Venkataraman
\nJ. According to counsel, this was also the view taken by the
\nformer Travancore  High Court,\tand the\t same ought  to have
\nbeen followed  on the  principle of  stare  decisis  by\t the
\nMadras High Court.\n<\/p>\n
     For  dealing   with  this\t contention  in\t  the  right
\nperspective, it is necessary to appreciate the true position
\nof  a\tco-mortgagor  redeeming\t  the  whole   hypotheca  by
\ndischarging the\t entire\t mortgage  debt.  Does\tsuch  a\t co-
\nmortgagor step\tinto the  shoes of the mortgagee whom he has
\npaid off,  vis-a-vis the non-redeeming co-mortgagor? That is
\nto say,\t is the redeeming co-mortgagor’s right merely one of
\nsubrogation to\tthe rights  of the mortgagee discharged ? If
\nso, to what extent ? Further, what are the correlated rights
\nof the\tnon-redeeming co-mortgagor in the property after the
\nentire mortgage has been redeemed by his co-debtor ? Does he
\nretain only  the rights under the former mortgage ? Or, does
\nhe acquire a further right, consequent on redemption, to get
\nback  his  portion  or\tshare  of  the\thypotheca  from\t the
\nredeeming  co-mortgagor\t on  payment  of  the  proportionate
\namount of  the common mortgage debt discharged by the latter
\n? These\t are some of the preliminary questions which have to
\nbe answered  before ascertaining  the appropriate Article of
\nthe relevant  statute which  will govern  limitation in this
\ncase.\n<\/p>\n
     In that  connection, it  is important  to bear  in mind
\nthat both  at the  time of  making these mortgages and their
\nredemption by  one of  the co-mortgagors,  the\tTransfer  of
\nProperty Act  or any  like statute  was not  in force in the
\nState of Travancore, wherein these properties were situated.
\nThe  questions\tposed  are  therefore,\tto  be\tanswered  in
\naccordance with\t the principles\t of justice, equity and good
\nconscience.\n<\/p>\n
     Steering clear  of the  tangled web  of conflicting and
\nconfusing decisions  rendered on  an interpretation  of\t the
\nrelevant provisions  of the  Transfer of Property Act, 1882,
\nas they\t stood before  the amendment  of 1929, we may say at
\nonce that even where the Transfer of Property Act was not in
\nforce,\ta  redeeming  co-mortgagor  discharging\t the  entire
\nmortgage debt,\twhich was the joint and several liability of
\nhimself and his co-mortgagor, was, in equity, entitled to be
\nsubrogated to  the rights  of the  mortgagee redeemed and to
\ntreat the non-redeeming co-mortgagor as his mortgagor to the
\nextent of the latter’s portion or share in the hypotheca and
\nto hold\t that portion  or share\t as security  for the excess
\npayment made  by him.  This equitable right of the redeeming
\nco-mortgagor stems from the doctrine that he was a principal
\ndebtor
\n365<\/span>
\nin respect  of his  own share  only, and  his  liability  in
\nrespect his  codebtor’s share  of the mortgage debt was only
\nthat of\t a surety:  and when  the surety  had discharged the
\nentire mortgage\t debt, he  was entitled\t to be subrogated to
\nthe securities\theld by\t the  creditor,\t to  the  extent  of
\ngetting himself\t reimbursed for\t the amount paid by him over
\nand above his share to discharge the common mortgage debt.\n<\/p>\n
     For the  view we  take, we\t derive support from certain
\nobservations of\t this Court  in Ganeshi Lal v. Joti Parshad.
\nWhile<\/a> discussing  the nature  and extent  of a redeeming co-
\nmortgagors right to recover contribution from his co-debtor,
\nthis Court  speaking through  Chandrashekhara Aiyar J., made
\nthese incidental  observations which,  for our\tpurpose, are
\napposite:\n<\/p>\n
     “Equity insists  on the  ultimate payment\tof a debt by
\none who\t  in justice and good conscience is bound to pay it,
\nand it is well recognized that where there are several joint
\ndebtors, the  person making  the payment  is  the  principal
\ndebtor\tas   regards  the  part\t of  the  liability,  he  is
\ndischarged and a surety in respect of the shares of the rest
\nof the\tdebtors. Such  being the legal position as among the
\nco-mortgagors, if  one of  them redeems\t a mortgage over the
\nproperty which\tbelongs jointly\t to himself  and  the  rest,
\nequity confers\ton him\ta right to reimburse himself for the
\namount spent  in excess\t by him in the matter of redemption;
\nhe can call upon the co-mortgagors to contribute towards the
\nexcess\t  which\t    he\t  has\t  paid\t  over\t  his\t own
\nshare………………while it can be readily conceded that
\nthe joint  debtor who  pays up\tand discharges\tthe mortgage
\nstands in the shoes of the mortgagee……………. he will
\nbe subrogated  to the  rights of  the mortgagee\t only to the
\nextent\tnecessary   for\t  his\town   equitable\t  protection
\n……..”so far\t as it is necessary to enforce his equity of
\nreimbursement”………It is  as regards  the excess  of the
\npayment over  his own  share that  the right  can be said to
\nexist……..The redeeming  co-mortgagor being only a surety
\nfor the other co-mortgagors, his right, strictly speaking is
\na right of reimbursement or contribution”.\n<\/p>\n
     It is  note-worthy that  Ganeshi Lal  v.  Joti  Parshad<\/a>
\n(supra) was  a\tcase  from  Punjab  where  the\tTransfer  of
\nProperty Act  was not  in force, and this Court had affirmed
\nthe judgment  of the Punjab High Court determining the claim
\nof the\tredeeming co-mortgagor\tfor contribution against the
\nnon-redeeming co-mortgagors or principles of justice, equity
\nand good conscience.\n<\/p>\n
     From what\thas been  said above  it is clear that where
\nthe Transfer  of Property Act is not in force and a mortgage
\nwith possession is
\n366<\/span>
\nmade by\t two persons,  one of  whom only redeems discharging
\nthe whole  of the  common mortgage debt, he will, in equity,
\nhave two  distinct rights:  Firstly, to be subrogated to the
\nrights of  the\tmortgagee  discharged,\tvis-a-vis  the\tnon-
\nredeeming co-mortgagor,\t including the\tright  to  get\tinto
\npossession of the latters portion or share of the hypotheca.
\nSecondly, to recover contribution towards the excess paid by
\nhim on\tthe  security  of  that\t portion  or  share  of\t the
\nhypotheca, which  belonged not\tto him\tbut to the other co-
\nmortgagor. It  follows that  where one co-mortgagor gets the
\nright to  contribution against\tthe  other  co-mortgagor  by
\npaying off the entire mortgage debt, a correlated right also
\naccrues to  the latter\tto redeem  his share of the property
\nand get\t its possession\t on payment  of\t his  share  of\t the
\nliability to  the former.  This corresponding  right of\t the
\n‘non-redeeming’\t co-mortgagor,\tto  pay\t his  share  of\t the
\nliability and  get  possession\tof  his\t property  from\t the
\nredeeming co-mortgagor,\t subsists as  long as  the  latter’s
\nright to  contribution subsists.  This right  of  the  ‘non-
\nredeeming’ co-mortgagor,  as  rightly  pointed\tout  by\t the
\nlearned Chief  Justice of  the High  Court  in\this  leading
\njudgment,  is\tpurely\tan  equitable  right,  which  exists
\nirrespective of\t whether the right of contribution which the
\nredeeming  co-mortgagor,   has\tas  against  the  other\t co-
\nmortgagor, amounts to a mortgage or not.\n<\/p>\n
     The  ground   is  now   clear  for\t  ascertaining\t the
\nappropriate provision  of the relevant statute of limitation
\nwhich prescribes  limitation for  a  suit  to  enforce\tthis
\ncorrelated  right   of\tthe   ‘non-redeeming’  co-mortgagors
\nagainst the  redeeming co-mortgagor.\n<\/p>\n
     Be it  noted, that\t the suit,  out of which this appeal
\nhas arisen,  though, in\t form, a  simple suit  for partition
\nraises, in  substance, a claim for redemption with regard to
\nitems 31 to 42 and 44 which were under mortgage and had been
\nredeemed in entirety by one of the co-mortgagors. Indeed, in
\nthe courts  below the  claim in\t respect of  these items has
\nbeen fought by the parties as if it were one for redemption.\n<\/p>\n
     Since subrogation\tof the\tredeeming co-mortgagor would
\ngive him  the right  under the original mortgage to hold the
\nnon-redeeming co-mortgagors  property  as  security  to\t get
\nhimself reimbursed  for the  amount paid by him in excess of
\nhis share  of the  liability, it  follows that\ta  suit\t for
\npossession of his share or portion of the property by a non-
\nredeeming  co-mortgagor\t on  payment  of  the  proportionate
\namount of  the mortgage debt, may be filed either within the
\nlimitation prescribed  for a  suit  for\t redemption  of\t the
\noriginal mortgage or within the period prescribed for a suit
\nfor contribution  by the  redeeming co-mortgagor against the
\nother co-mortgagor.\n<\/p>\n
367<\/span><\/p>\n
     Article 136  of the  Travancore  Limitation  Regulation
\n(which correspond  to Article  148 of  Indian Limitation Act
\n1908) reads as under:\n<\/p>\n
————————————————————\n<\/p>\n
Description of suit\t      Period of\t  Time from\n\t\t\t      Limitation  begins to run\n<\/pre>\n
————————————————————
\nArt. 136
\nAgainst a mortgagee to redeem Fifty years When the right to
\nor to recover possession of\t\t  redeem or to
\nimmovable property mortgaged\t\t  recover possession
\n\t\t\t\t\t  accrues\n<\/p>\n
————————————————————\n<\/p>\n
     The original  mortgages were made during the years 1881
\nto  1884.   They  were\t redeemed  by  the  co-mortgagor  in
\nSivathanu’s line  between the  years 1913  to 1918 by paying
\nthe entire  common mortgage debt and obtaining possession of
\nthe entire hypotheca. The plaintiff who is the successor-in-
\ninterest of  the non-redeeming co-mortgagor, Madhavan, filed
\nthe suit in 1946, (which was renumbered as O.S. 135 of 1956)
\nfor redemption\tof her\thalf share  on payment\tof her\thalf
\nshare of  the mortgage amount and expenses to the defendant-
\nrespondents successors-in-interest  of Sivathanu.  The\tsuit
\nwas thus filed more than 12 years after the expiry of the 50
\nyears’ limitation prescribed for a suit for redemption under
\nArticle 136  of the  Travancore Regulation, and more than 28
\nyears after  the redemption in 1918, of the last mortgage by
\nthe redeeming  co-mortgagor. This  being the  situation, the
\nnon-redeeming mortgagor’s suit for his share of the property
\non payment  of his proportionate share of the mortgage money
\nwould be  barred irrespective  of whether  the limitation is
\ngoverned  by   the  provisions\t of  Limitation\t  Regulation
\ncorresponding to  Article 132 or 144 or any other Article of
\nthe Indian  Limitation Act,  1908. Therefore,  as at present
\nadvised, we do not feel the necessity of laying down the law
\nwith regard to this aspect of the case. Since the limitation
\nstarted running\t in 1913  or 1918,  the suit was time-barred
\nfrom every point of view.\n<\/p>\n
     For all  the fore-going  reasons, we uphold the finding
\nof the\tHigh Court  that the  plaintiff’s claim in regard to
\nsuit items  31 to  40, 42 and 44 was time barred and dismiss
\nthe appeal.  In the  peculiar circumstances of the case, the
\nparties are  left to  pay and  bear their  own costs in this
\nCourt.\n<\/p>\n
S.R.\t\t\t\t\t   Appeal dismissed.\n368<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Valliamma Champaka Pillai vs Sivathanu Pillai And Ors on 24 August, 1979 Equivalent citations: 1979 AIR 1937, 1980 SCR (1) 354 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh 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","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-70605","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nValliamma Champaka Pillai vs Sivathanu Pillai And Ors on 24 August, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/valliamma-champaka-pillai-vs-sivathanu-pillai-and-ors-on-24-august-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Valliamma Champaka Pillai vs Sivathanu Pillai And Ors on 24 August, 1979 - 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