Nallammal vs Sivani Ammal and Another

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 one-third share of B schedule property of an extent of 1 acre and 98 cents of nania. The short facts are: The property belonged to one

Karutha Pichan Ambalam. He had three sons, Periaka-ruppa, Chockanandi and Velu. and two daughters, Peria Karuppayee and Nallam-mal.

Nallarnmal is the plaintiff. On 22-10-1918, under Ex. 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 one-third of the suit item, sold his one-third share to Periakaruppayee. his sister, Rs.

1,000 under Ex. A-l on 18-3-1936. Subsequently, under Ex B-10, dated 26-8-1942, Velu, another son of Karutha Pichan Ambalam sold his

one-third share to his brother Chockanandi for Rs. 400. Under Ex. B-4, dated 26-8-1942, Periakaruppa, who was entitled to one-third share,

and Chockanandi, who was entitled to another one-third share by virtue of his purchase under Ex. 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 Ex. B-l dated 5-7-

1943, in favour of one Subbiah Pilial for Rs. 2,000 and directed him to discharge the original othi Ex. B-2 and the subsequent melothi Ex. B-4,

dated 26-8-1942. Subbiah Pillai discharged the two othles Exs. B-2 and B-4 and obtained the endorsement Ex. B-3 and Ex. B-5 dated 6-7-

1943. On 20-8-1947 under Exhibit B-6 Velu and Alugu Pillai Animal, wife of Chockanandi, sold to Subbiah Pillai the property for Rs. 3,000.

Subsequently, under Ex. B-8, dated 22-4-1962. 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 Ex. B-9. Subbiah Pillai and others sold to the third defen- dant the remaining

50 cents for Rs. 1150. The present suit for redemption of one-third share of B schedule property was filed by the plaintiff on 22-8-1962.

The plaintiff claimed one-third right of Karutha Pichan Ambalam, as Peria Karuppayee, purchased one-third share of Chockanandi under Ex.

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 one-third share of the B schedule property. That she is entitled to one-third share of the

mortgagor''s right is also not disputed. But the point that is taken 19 that the plaintiff lost her right due to adverse possession, as two of the

mortgagors Periakaruppa and Chockanandi created a second mortgage under Ex. B-4 on 26-8-1942, and a third mortgage under Ex. B-l, dated

5-7-1943, and ultimately sold the property under Ex. B-6 on 20-8-1947. 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 Ex. B-2, dated 22-10-1918, 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 v. Champaka v Sivathanu Pilial, 1964 1

MLJ 16 = AIR 1964 Mad 2691 and Rukmani Ammal Vs. N. Venkatarama Iyer and Others, The Full Bench in Valliamma Champaka Vs.

Sivathanu Pillai 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 right 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 p. 166 of Mad LJ = (at p. 272 of AIR) :--

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 the 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 (of Mad LJ) = (at p. 273 of AIR) 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 the 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 12

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 any one 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 data of the original mortgage.

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

mortgage was created before the amendment Act 20 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

10-4-1881. 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 15-6-l927 and l6-6-1927. The co-mortgagor filed the action, which was the

subject-matter of the decision of the Full Bench, for redemption on 20-7-1956. 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 15-6-1927, 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 20 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 Ms

share of the original liability, expenses of redemption etc.

The words ""where a co-mortgagor redeems a mortgage created after Act 20 of 1929"" were understood as laying down that the right of the co-

mortsagor to redeem his share of the property is confined only to mortgages that were created after Act 20 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 case where the redeeming co-mortgagor

redeemed the mortgage after Act 20 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-mortgaeor along with the other persons 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, 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, therefore, have 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 20 of 1929 came into force. We feel that Natesan. J., was in error in giving

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.