Nallammal vs Sivani Ammal alias Chinnammal and Another

P.S. Kailasam, J.—This appeal is preferred by the plaintiff in the suit against the judgment of Natesan, J. The suit was filed for redemption

and partition of 1/3rd share of ''B'' schedule property of an extent of 1 acre and 98 cents of nanja. The short facts are: The property belonged to

one Karutha Pichan Ambalam. He had three sons, Periakaruppa, Chockanand and Velu, and two daughters, Peria Karuppayee and Nallammal.

Nallammal is the plaintiff. On 22nd October, 1918, under Exhibit B-2, Karutha Pichan Ambalam othied the suit property in favour of one Amir

Mia Sahib for Rs. 1,000. Subsequently, Chockanandi, who was entitled to 1/3rd of the suit item, sold his 1/3rd share, to Peria Karuppayee, his

sister for Rs. 1,000 under Exhibit A-1 on 18th March., 1936. Subsequently, by Exhibit B-10, dated 26th August, 1942, Velu, another son of

Karutha Pichan Ambalam, sold his l/3rd share to his brother Chockanandi for Rs. 400. Under Exhibit B-4, dated 26th August, 1942,

Periakaruppa, who was entitled to l/3rd share, and Chockanandi, who was entitled to another l/3rd sharer by virtue of his purchase under Exhibit

B- 10, created a second mortgage of the entire extent of the property to the heir and son of the othidar Amir Mia Sahib for Rs. 260. They again

created another othi under Exhibit B-1, dated 5th July, 1943, in favour of one Subbiah Pillai for Rs. 2,000 and directed him to discharge the

original othi Exhibit B-2 and the subsequent melothi Exhibit B-4, dated 26th August, 1942. Subbiah Pillai discharged the two othies Exhibits B-2

and B-4 and obtained the endorsements Exhibit B-3 and Exhibit B-5 on 6th July, 1943. On 20th August, 1947, under Exhibit B-6 Velu and

Alagupillai Ammal, wife of Chockanandi, sold to Subbiah Pillai the property for Rs. 3,000. Subsequently, under Exhibit B-8, dated 22nd April,

1962, Subbiah Pillai sold the property to the first defendant and his wife, the second defendant, of an extent of 1 acre and 48 cents for Rs. 3,400.

On the same date, under Exhibit B-9, Subbiah Pillai and others sold to the third defendant the remaining 50 cents for Rs. 1,150. The present suit

for redemption of l/3rd share of B schedule property was filed by the plaintiff on 22nd August, 1962.

The plaintiff claimed 1/3rd right of Karutha Pichan Ambalam, as Peria Karuppayee, purchased 1/3rd share of Chockanandi under Exhibit A-1

out of the income from her husband''s estate and as she is the co-widow of Peria Karuppayee. The only question, therefore, is whether the plaintiff

is entitled to redeem and claim partition of 1/3rd share of the B schedule property. That she is entitled to 1/3rd share of the mortgagor''s right is

also not disputed. But the point that is taken is that the plaintiff lost her right due to adverse possession, as two of the mortgagors Periakaruppa and

Chocknandi created a second mortgage under Exhibit B-4 on 26th August, 1942 and a third mortgage under Exhibit B-l, dated 5th July, 1943,

and ultimately sold the property under Exhibit B-6 on 20th August, 1947. It was urged that as the two mortgagors purported to deal with the entire

property, they should be deemed to have been in adverse possession of the right of equity which belonged to the plaintiff and in any event when the

property was sold by the two mortgagors to the exclusion of the plaintiff it was submitted that the right, if any, of the co-mortgagor-plaintiff would

last only for 12 years from that date, and as the plaintiff''s suit is beyond 12 years from that date, her remedy was barred by time.

The trial Court held that the mortgagor had a right to redeem his share of the property within 60 years from the date of the original mortgage,

under Exhibit B-2, dated 22nd October, 1918, and that as the suit was filed in 1962, it was within time. The appellate Court also confirmed the

view of the trial Court. In the second appeal, Natesan, J., also took the view that the mortgagor is entitled to redeem the mortgage within a period

of 60 years from the date of the original mortgage. But because of an observation of a Full Bench of this Court in Rukmani Ammal Vs. N.

Venkatarama Iyer and Others, , he found himself constrained to hold that the plaintiff is not entitled to redeem the mortgage.

The two Full Bench judgments that are referred to and elaborately dealt with by the learned Judge are Valliamma Champaka Vs. Sivathanu

Pillai and Others, and D.C. Roy Vs. The Presiding Officer, Madhya Pradesh Industrial Court, Indore and Others, ; held that a redeeming co-

mortgagor has two distinct rights in respect of moneys paid by him in excess of his share for discharging a common mortgage: (i) a ri=ght to step

into the shoes of the mortgagee satisfied by him; and (ii) a right to recover contribution. Dealing with the right of the non-redeeming co-mortgagor,

the Full Bench held at page 166:

Correlative to the two rights possessed by the redeeming co-mortgagor, there will naturally be a right in the non-redeeming co-mortgagor to

redeem his property on payment of his share of the liability either: (i) within the period allowed for redemption of the original mortgage rights to

which the redeeming co-mortgagor has been subrogated; or (ii) within twelve years of the date of payment of the mortgage debt by the redeeming

co-mortgagee.

At page 168, the Full Bench has stated the position as follows:

From the foregoing it will be plain that there will be two periods within which a non-redeeming mortgagor can obtain his property from his co-

mortgagor who had redeemed; the first is based on the rule of subrogation and the second is the correlative obligation in the redeeming co-

mortgagor to give up the property belonging to his co-mortgagor on being paid the money due by him. In the former case where the mortgage is

possessory, the period of limitation will be governed by Article 148 (Article 136 of Travancore Limitation Regulations) and the starting point for

limitation will be the same as for the original mortgage redeemed. In the latter case, the non-redeeming co-mortgagor will have a period of twelve

years from the date of redemption of the original mortgage by the other co-mortgagor. It will be open to the non-redeeming co-mortgagor to take

advantage of anyone of these periods, whichever is to his advantage.

The Full Bench decision is clear authority for the proposition that the non-redeeming mortgagor would have 60 years from the date of the original

mortgage or 12 years from the date when the redeeming mortgagor redeemed the mortgage, the mortgagor being at liberty to avail either of the

periods which is advantageous to him. Applying this rule, there could be no difficulty in holding that the plaintiff in the present case is entitled to

redeem, as the suit for redemption is within 60 years from the date of the original mortgage.

The point that was taken before Natesan, J., and also before us was that the observation of the Full Bench is not applicable to a case where the

mortgage was created before the amendment Act II of 1929 came into force. In support of this contention, a passage in the Full Bench, decision in

Rukmani Ammal Vs. N. Venkatarama Iyer and Others, was relied on. The Full Bench was considering a case where a mortgage deed was dated

10th April, 1881. In 1922 one of the mortgagors purported to sell the entire interest of the mortgagors to the father of the respondent, who filed

the suit for redemption. The suit was decreed and possession was taken on 15th June, 1927 and 16th June, 1927. The co-mortgagor filed the

action, which was the subject-matter of the decision of the Full Bench, for redemption on 20th July, 1956. The Full Bench observed that the

period of limitation applicable for redemption by the non-redeeming co-mortgagor of his share of the property will be the same as that for

redemption of the original mortgage as prescribed under Article 148 of the Limitation Act, that is, 60 years from the date of the original mortgage.

Before the Full Bench, it was pleaded that as the suit by the father of the respondent for redemption was decreed on 15th June, 1927 that is two

years before the amendment of Sections 92 and 95 of the Transfer of Property Act, came into force, the non-redeeming mortgagor was not

entitled to the benefits of the amendment. The Full Bench negatived the contention and held that the non-redeeming mortgagor is entitled to redeem

within a period of 60 years from the date of the original mortgage. Regarding the plea that the redeeming co-mortgagor was in adverse possession,

the Full Bench held that though the redeeming co-mortgagor might have been asserting full title to the property in himself, his possession being

referable to a lawful title under which he could hold the entire property, no question of unlawful or adverse possession postulating a trespass can at

all arise. Thus, the contention that the redeeming co-mortgagor was in adverse possession was also negatived.

The sentence which gave rise to the difficulty, which Natesan, J., found insurmountable, runs as follows:

It is now well settled that where a co-mortgagor redeems a mortgage created after Act II of 1929 which secured not only his property but that of

his co-mortgagor, the latter will be entitled to redeem his share of the mortgage property from the redeeming co-mortgagor by payment of his

share of the original liability, expenses of redemption, etc.

The words "" where a co-mortgagor redeems a mortgage created after Act 11 of 1929"" were understood as laying down that the right of the co-

mortgagor to redeem his share of the property is confined only to mortgages that were created after Act II of 1929. In our view, in the context

what the Full Bench meant was that the right of the non-redeeming co-mortgagor will be available to cases where the redeeming co-mortgagor

redeemed the mortgage after Act II of 1929 came into force. The amended Sections 92 and 95 make the position very clear. Whatever the rights

of the redeeming co-mortgagor and the non-redeeming co-mortgagor might have been before the amendment came into force, u/s 92 of the

Transfer of Property Act, the co-mortgagor along with the other per-sons referred to in Section 91 shall, on redeeming the property subject to the

mortgage, have so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems

may have against the mortgagor or any other mortgagee. This right of the co-mortgagor redeeming properties subject to the mortgage is available

whenever there is a redemption by the co-mortgagor after the amendment came into force. There are no qualifying words in the section to construe

that this benefit is available only to mortgages that were created after the amendment came into force. Section 95 of the Transfer of Property Act

also provides that where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation u/s 92 against

his co-mortgagors, be entitled to add to the mortgage-money recoverable from them such proportion of the expenses properly incurred in such

redemption as is attributable to their share in the property. This right is also available to one of the mortgagors to redeem the mortgaged property

after the amendment came into force. We find, therefore, no difficulty in understanding the observation of the Full Bench as referring only to cases

where the redeeming co-mortgagor redeems the mortgage after Act II of 1929 came into force. We, feel that Natesar, J., was in error in giving a

literal construction to the words in the decision of the Full Bench, giving them a meaning which they would never have intended. We find that the

non-redeeming co-mortgagor''s suit within 60 years from the date of the original: mortgage is in time and his suit for redemption cannot be resisted.

The contention that the redeeming co-mortgagor is in. adverse possession cannot also be accepted because that position has been clearly laid

down by both the decisions of the Full Bench referred to above. In the result, we allow the appeal with costs throughout. The decree of the trial

Court will be restored.