Pappayee Ammal and Another vs Subramanian

Srinivasan, J.—This appeal arises out of a spit for recovery of possession of the suit properties, by the respondent herein, who was one of

the four brothers who mortgaged the property usufructurily in favour of one Padmanabha Reddiar. The four brothers had also executed a simple

mortgage in favour of one Balarama Reddiar. The brothers entered into a partition on 27.5.1976 in which they agreed that they should share

equally for discharging the mortgages. The plaintiff filed O.S.No.213 of 1976for redeeming the usufructuary mortgage. In the suit he impleaded the

other three brothers as parties and the mortgagee besides other transferees. The suit was decreed on 27.8.1976. By virtue of the decree, the

plaintiff became entitled to possession. When he sought to execute the decree the defendants, who ate the appellants in the appeal, obstructed the

same.

The suit was filed on the ground that the appellants are not entitled to be in possession as the plaintiff had been subrogated to the right of the

usufructuary mortgagee by virtue of the redemption decree. The suit was resisted by the appellants on the ground that the first appellant had

purchased a portion of the property from one of the brothers viz., Santhana Gounder on 19.6.1976 under Ex. B-4 with an agreement for

reconveyance on the same date under Ex. A-2. The second defendant claimed to have obtained a usufructuary mortgage from another brother

Sangeni Gounder under Ex.B-1, dated 9.6.1976. According to the appellants they were entitled to be in possession as they had redeemed the

earlier mortgages pursuant to the directions given by their vendors.

The courts below refused to accept the factual plea put forward by the appellants that they had redeemed the earlier mortgages. The courts

below held that the plaintiff respondent having obtained a decree for redemption against the usufructuary mortgages was entitled to be in

possession as he was subrogated to the rights of the said mortgagee. Consequently, the trial court passed a decree in favour of the plaintiff, which

was confirmed on appeal by the appellant court.

In this second appeal, learned Counsel for the appellants contends that even if the factual plea of the appellants that they had redeemed the

earlier mortgages is rejected, the appellants are entitled to redeem the plaintiff, who is one of the co-mortgagors and who has been subrogated to

the rights of the usufructuary mortgage. Learned Counsel submits that even in the written statement a plea has been raised that the defendants

should be allowed to redeem the mortgage as they have stepped into the shoes of two other co-mortgagors who are non-redeeming co-

mortgagors.

I am unable to agree with the contention put forward by learned Counsel for the simple reason that the only person entitled to be in possession

as on date is the plaintiff as he has redeemed the usufructuary mortgage. The only right of the defendants will be to contribute their shares of the

amount spent by the Plaintiff in redeeming the mortgage, and seek a partition and separate possession of their shares in the property. Admittedly,

there were four brothers and the defendants would represent if at all, only two brothers. The plaintiff having redeemed the entire mortgage, is

entitled to be in possession of the entire property so long as the contribution by the other three brothers is not paid to him. By virtue of his own

share in the properties, he is entitled to be in possession of one portion of the property. What exactly is that portion, can be determined only in a

partition. Therefore, as on date, the plaintiff is the only person who can claim to be in possession and the defendants and the other brother, who is

not before court, must only seek recovery of possession of their respective shares after a partition, on payment of their respective shares of the

amount spent by the plaintiff for redemption.

Learned Counsel for the appellants makes a reference to the judgment of the Supreme Court in Ganeshi Lal Vs. Joti Pershad, and the judgment

of a Full Bench of this Court in Rukmani Ammal Vs. N. Venkatarama Iyer and Others, . In both the cases, the person who redeemed the

usufructuary mortgage was in possession and the only question which arose for consideration was the extent of the right of such person vis-a-vis

the other non-redeeming co-mortgagors with regard to the contributions and it was held in those cases that the redeeming co-mortgagors would be

entitled only to recover the shares due from the other non-redeeming co-mortgagors and cannot insist upon the payment of the entire amount due

under the mortgage. The Full Bench of this Court in the case referred to above clarified the two rights which a redeeming co-mortgagor has in law

by virtue of his redemption of the entire mortgage. The Full Bench laid down that no right to possession existed in the non-redeeming co-mortgagor

without making payments to the redeeming co-mortgagor, as under law the redeeming co-mortgagor was subrogated to the rights of the original

mortgagee. Hence, the judgment of the Full Bench is really against the appellants herein.

The only consequence is to dismiss the appeal and it is hereby done. There will be, however, no order as to costs,