Kesavan Channar Kunjukrishnan Channar vs Kesavan Channar Ramakrishnan Channar and Others

S. Velu Pillai, J.—The suit properties, 6 acres 38 cents in extent, belonged to Lakshmi Amma and were mortgaged by her to Alumottil tarwad. It is convenient to set out the relationship of the parties. The plaintiffs who are the respondents are the children of Kesavan a member of that tarwad. His sister Umminikunju had two sons Padmanabhan and the 10th defendant, the latter being the appellant in second appeal. Defendants 11 to 15 are the children of Padmanabhan by his deceased wife, the 16th defendant is his widow, and defendants 17 to 19 are his children by her. The second defendant is a cousin of Umminikunju and a member of the tarward, and her lineal descendants are defendants 1 and 8 to 9.

In the year 1098, Lakshmi Amma assigned the equity of redemption of the suit properties in the names of Kesavan, Umminikunju and the second defendant, but admittedly to the tavazht of their common ancestress. A sum of Rs. 1675 was reserved under the assignment for payment to Lakshmi Amma. In default of payment, Lakshmi Amma sued the assignees on record, in O. S. 70 of 1100, and obtained Ext. B decree against them personally and charged on the suit properties. Later, as a result of three partition deeds, Exts. A, C, and I of the years 1103, 1105 and 1108, respectively. Padmanabhan became entitled to 1 acre 36 cents, defendants 1 to 9 to 2 acres 65 cents, and the 10th defendant to 1 acre 37 cents, in the suit properties. In execution of Ext. B decree, Kesavan paid (Travancore) Sirkar Rs. 400 on the 15th Meenom, 1106. Padmanabhan mortgaged his shares of the properties with possession by Ext. E to Kesavan and the second defendant. The right under the mortgage, it was agreed, belonged to Kesavan only. On the 17th Karkadakam, 1108, Kesavan made a payment of S. Rs. 254.13.0 in partial discharge of Ext. B and in the year 1120, in proceedings to set aside the sale in execution which had taken place in the year 1118, the second plaintiff deposited S. Rs. 877. Ch. 11.81cs. and succeeded in setting aside the sale.

The suit from which this appeal arises was instituted on the 20th Thulam, 1121, for the realisation of the aggregate sum of Rupees 1631 Ch. 24 cs. 3 and interest thereon from the suit properties. The 10th defendant contended inter alia, that his share of the properties can be made answerable only for the proportionate amount chargeable on it. The Court of first instance held that the suit properties are liable for the full amount, but in appeal the Subordinate Judge found that the claim for S. Rs. 400 paid in the year 1106 was barred by limitation and that the share of defendants 1 to 9 which had been released by Lakshmi Amma in O. S. 70 of 1100 Itself cannot be proceeded against, and decreed the suit for S. Rs. 1227 Ch. 11 cs 8 charged on the share of the 10th defendant on the interest of defendants 11 to 19 in the properties allotted to Padmanabhan and mortgaged to Kesavan.

Learned counsel for the 10th defendant contended that on the principle of contribution, the 10th defendant can be held liable only for the proportionate amount chargeable on his share, viz., 1 acre 37 cents, out of 5 acres 38 cents and that too in the sum of S. Rs. 977 Ch. 11 Cs 8 the payment of S. Rs. 254.13.0 being more than 12 years before the date of the suit. If plaintiffs'' claim falls to be adjudged only under Sections 82 and 100 of the Transfer of Property Act, this is the correct position, but according to learned counsel for the plaintiffs they have been subrogated to Lakshmi Amma''s rights with respect to the charge which the plaintiffs have paid off. In this connection, my attention was drawn on behalf of the 10th defendant to the decision of the Supreme Court in Ganeshi Lal Vs. Joti Pershad, in which it was held, that apart from the provisions of the Transfer of Property Act, a co-mortgagor, redeeming a mortgage over property which belongs to himself and to others, is entitled only to receive from the other co-mortgagors their share in the amount actually paid by him and not in the full amount due on the mortgage redeemed. The present case too, is not governed by the Transfer of Property Act. The rights of a co-mortgagor who redeems more than his share in the mortgaged properly are founded partly on the principle, that he is ft principal debtor only as regards his share, but is a surety as regards the shares of the other co-mortgagors and partly on the principle that an owner cannot be a mortgagee of his own property. Two cases which have followed this view are, Mamundi Kaduvetti Vs. Somasundara Chetty and Others, and Janardhan Bhagwan Dass Vs. Sham Lal Nand Lal and Others, .

The plaintiff who have inherited the rights of their father are in the position of puisne mortgagees of a part of the suit properties viz. the share of Padmanabhan who gave Ext. E mortgage; but even so, as puisne mortgagees of a part of the properties they are entitled to redeem Lakshmi Amma who is in the position of a prior mortgagee, though in truth she was a chargeholder. The rights of a puisne mortgagee as subroge on redemption of the prior mortgage, are not governed by the principles on which the rights of a redeeming co-mortgagor are founded. Moreover, in the case of redemption by a co-mortgagor, as held in AIR 1959 Punjab 170, the integrity of the original mortgage is broken, while in the case of redemption by a puisne mortgagee the integrity of the mortgage is left intact. Subrogation being in essence a rule of substitution, the puisne mortgagee on redemption acquires all the rghtis of the mortgagee and not merely some of them.

Applying these considerations to the present case. It has to be held, that the payments made by Kesavan in the year 1108 and by the second plaintiff in the year 1120 were as puisne mortgagees and by the last payment, Ext. B was paid off completely. Accordingly their cause of action to enforce the right of subrogation accrued to the plaintiffs, from the date when Ext. B was discharged. A similar view was held in Kamlapati Devi v. Jageshwar Dayal AIR 1939 Pat 376 and Vishnu Subramoniam v. Raman Raman Namboothiri, 1940 Trav LR 891 By virtue of the right of subrogation, the plaintiffs are therefore, entitled to a decree for part of the amount they have sued for, S. Rs. 1227 Ch. 11 Cs. 8, charged upon the properties of the 10th defendant and on the Interest of defendants 11 to 19 allotted to Padmanabhan. As for S. Rs. 400 paid in the year 1106, the plaintiffs are not entitled to set up any right as puisne mortgagees and this claim has been rightly disallowed. No other point arises in this second appeal which is, therefore, dismissed with costs.

Leave to appeal prayed for: leave granted. Dismissed.