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600 paragraphs · 12,980 wordsS. Ramachandra Iyer, C.J.—This appeal filed against the judgment of Ramakrishnan, J. has been referred to a Full. Bench, as it raises an
important question regarding the period of limitation applicable to a suit for redemption filed by one mortgagor of his share of the mortgaged
properties against another who redeemed and got possession of the same from the original mortgagee.
The facts giving rise to this appeal are these. The properties forming the subject-matter of the litigation originally belonged to two brothers,
Madhavan Pillai and Sivathanu Pillai. They are situate in Kanyakumari Dt. which, on the dates of the mortgage and the redemption thereof, formed
part of the princely State of Travancore, later they came within the territory of Travancore-Cochin State, and after the reorganisation of various
States under the States Reorganisation Act of 1956, they with the rest of the Kanyakumari Dt. became part of the Madras State. The Transfer of
Property Act, which contains inter alia the law relating to mortgages, would govern such transactions in the Madras State; but there was no similar
enactment applying either in the former Travancore State or in the Travancore-Cochin State till that Act was made applicable to those parts after
the merger of that State with the Indian Union. It will be sufficient to state that on the dates material for the decision of the question involved in this
appeal, the provisions of the Transfer of Property Act did not apply. The rights of the parties have, therefore, to be decided in accordance with the
rules of justice, equity and good conscience. On these principles a co-mortgagor will be a person entitled to redeem a mortgage executed by him
jointly with others. Where the mortgage is a possessory one, he will, by virtue of redemption, be entitled to obtain possession from the mortgagee
of the entire property which belongs to him and others. Such possession being acquired by reason partly of his position as the redeeming co-
mortgagor, it will be but plain justice that his otha co-mortgagors should be allowed to obtain from him their share of property on payment of a
portion of the common debt paid off by the former. The question then is about the period within which such redemption by the co-mortgagor from
the redeeming co-mortgagor can be enforced.
Article 148 of the Indian Limitation Act provides a period of 60 days from the time when the right to redeem or to recover possession of the
property accrues. The Travancore State had its own statutory provision in , regard to limitation of suits. Regulation 6 of 1100 Malayalam Era
{which was similar in several respects to the Indian Limitation Act,) provided by Article 136 a period of 50 years from the date when the right to
redeem or to recover possession accrued for a suit for redemption. Article 132 therein which was the residuary provision was identical in terms
with Article 144 of the Indian Limitation Act. Section 29 of the Regulation provided that:
x x x x x x at the determination of period, limited for instituting a suit for possession of any property, his right to such property shall be
extinguished.
It will, therefore, follow from the provisions aforesaid'' that if the right of the co-mortgagor to redeem his share of the property from his co-
mortgagor who had got into possession of the same after redeeming the mortgage, had been extinguished before Kanyakumari Dt. became part of
the Madras State, the claim for redemption as laid in the present case could not be sustained.
Reverting to the narration of facts, Sivathanu Pillai and Madhavan executed, between the year 1881 to 1884, five mortgages in respect of one
or more items of suit properties under Exs. IX, XV, XIX, II and 111 in favour of certain persons. During the years 1913 to 1918, one of the
mortgagors, Sivathanu Pillai (the father of the respondents) paid the entire amount due under the mortgages and obtained from the mortgagee
possession of the properties together with the title deeds relating there to. He also obtained from the mortgagee in accordance, with what appears
to be the practice in that part of the country, documents styled as release deeds. Ex. IV is one such release deed; the recitals in that document can
be taken as typical of the rest The material portion of it reads as follows:
The properties described here-in-below belong to your forward and the same were given in otha and puramkadam rights by your father Thanuvan
Sivathanu since deceased and his elder brother Thanuvan Madhavan, since deceased, to Neela Perurnal Sudalaimadan, since deceased .........and
thereafter we, including the minor, obtained the same and thereunder we as his heirs are in possession and enjoyment of the same till this day
undisputedly and without alienating the same in any manner you, the jenmi of the schedule properties, have now asked us to vacate and surrender
possession of the property to you after receiving the amounts due under the abovesaid other and puramkgdam deeds. Accordingly, the amounts
due to us, including (the minor) under the afore said othi and puramkadam deeds is fanams 1200. Whereas we have this day received in cash the
said amount of fanams one thousand and two hundred only, we have this day surrendered possession to you, the jenmi, the schedule properties
divesting ourselves of the othi and puramkadam rights belonging to us and also the enjoyment rights and have handed over to you the abovesaid
documents.
The redeeming co-mortgagor who obtained possession of the mortgaged property continued enjoying the same till 15th July 1956, when the
appellant, the grandson and, successor-in-interest of the non-redeeming comortgagor, Madhavan Pillai, instituted the suit out of which this appeal
arises, for partition and delivery of'' possession to him of one half share in the properties. The suit, though in form one for partition, substantially,
raises a claim for redemption. Indeed, it was only on this basis that the case proceeded in the Courts below The claim for redemption was
contested on various, grounds, the principal one being that it was barred by limitation.
The learned Subordinate Judge found that the: appellant as the representative of the co-mortgagor was entitled to relief claimed and applying
Article 136 of the Travancore Limitation ''Regulation, he held that the claim, was within time. In his view, the release deed which, had been,
executed within 50 years of the date of the-; suit would amount to a sufficient acknowledgment of the liability on the part of the respondents to be
redeemed.'' and that, therefore, the suit was within time. The suit was decreed.
Ramakrishnan, J., on appeal, did not accept that view. According to the learned Judge, when the comortgagor in the instant case redeemed the
mortgage (the provisions of the Transfer of Property Act not applying: to the case), the mortgage stood extinguished and what the redeeming co-
mortgagor was entitled to thereafter was, a mere equity to recover from, others the amount which'' he had paid in excess of his share with a charge
on the shares of the non-redeeming mortgagors; as such a charge; would not amount to mortgage, Article 136 would have no application to the
case and a non-redeeming co-mortgagor could sue to recover possession of his property on payment of his share of the mortgage money only
within 12 years of the date of redemption. This view proceeded on the footing that possession of the redeeming co-mortgagor on redemption of
the mortgage was adverse to his co-mortgagor after redemption and that Article 132 of the Travancore Limitation Regulation, which corresponded
to Article 144 of the Indian Enactment, would apply to the case. As more than 12 years had elapsed since the date of redemption by the
respondents, the claim of the appellant, was held to be barred.
The question as to the proper article of limitation to be applied in a, case of this kind will depend on the precise nature of the rights of one co-
mortgagor who seeks to redeem his property from his co-mortgagor.
Implicit in any claim for redemption is the idea of the subsistence of the mortgage. We have, therefore, to consider whether the redeeming co-
mortgagor is in the position of a mortgagee vis-a-vis his co-mortgagors with respect to the property which he had obtained possession of on
redeeming the mortgage, jointly executed by them. To appreciate the position property, we shall first refer to the law in this part of the country.
Section 92 of the Transfer of Property Act which was amended by Act XX of 1929 declares that any co-mortgagor shall, on redeeming the
property subject to the mortgage, have, so far as regards redemption, for closure or sale of such property, the same rights as the mortgagee,
whose mortgage he redeems may have against the mortgagor or any other mortgagee. Section 95 provides that a co-mortgagor in enforcing his
rights of subrogation u/s 92 will be entitled to add to the mortgage money such portion of the expenses properly incurred by him to such
redemption as might be attributable to the non-redeeming mortgagor''s share in the property.
Prior to the amendment effected by Act XX of 1929 there was a certain amount of confusion in the Saw relating to subrogation. While Section
91 permitted redemption by a co-mortgagor, Sections 74 and 75, which conferred the right of subrogation, did not mention a comortgagor as one
entitled to it. But Section 95 provided that where a co-mortgagor redeemed and obtained possession of the mortgaged property, he would be
entitled to a charge on the share of each of the other co-mortgagors for his portion of the expenses incurred. This section was, to say the least,
unhappily worded. It purported to confer only a charge on the redeeming co-mortgagor for the amounts paid by him in excess of his own liability
to which the properties of his co-mortgagors were also liable. It was held in certain cases that the provisions impliedly negatived the right of
subrogation to the rights of the mortgagee who had been paid off by the co-mortgagor. There was also a conflict of opinion as to whether even that
right was available only in a case where on redemption the co-mortgagor got into possession of the mortgaged property or to other cases as well.
The difficulties have been removed by the amendment effected in the year 1929. Sections 92 and 95 as amended expressly confer on the
redeeming co-mortgagor the right of subrogation. That will mean that he will stand in the shoes of the mortgagee who had been redeemed for the
purpose of realising the amounts due to him by way of contribution from the other co-mortgagors.
Subrogation implies that the redeeming co-mortgagor will have his rights as under the original mortgage. That means that his right to obtain
contribution would prevail over any subsequent encumbrance, logically also the period of limitation for enforcing the mortgage will have to be the
same as the one prescribed by law for enforcing the origins mortgage paid off by him. But such a position might prove to be extremely
inconvenient, and even ineffective. For, if the redeeming co-mortgagor is to have only the right of subrogation to the original mortgagee for
enforcing his claim for contribution against his co-mortgagor, such a right in practice might turn out to be illusory in certain cases. Suppose, a co-
mortgagor redeems the original mortgage at the fag end of the period of limitation, that is, practically at the end of 60 years, in cases covered by
Article 148. If his rights to contribution were to be regarded as purely on the basis of the subrogated rights, he would have no right to proceed
against the co-mortgagors by bringing to sale the properties of the excess amounts paid by him referable to their share; because by that time, the
period limited for'' enforcing the original mortgage would have expired. In such a case, can It be said that the redeeming co-mortgagor''s right is
merely one of subrogation to the rights of the mortgagee discharged?
In Ganeshi Lal Vs. Joti Pershad, the Supreme Court has laid down as a principle of equity that if a co-mortgagor redeems a mortgage over a
property which belongs to him and another, the former will have a right to call upon his co-mortgagor to contribute towards the excess which he
has paid over his share. Section 82 of the Transfer of Property Act provides a liability on the property for contribution. A redeeming co-
mortgagor, therefore, will and indeed must have two distinct rights in respect of moneys paid by him in excess of his share for discharging a
common mortgage; (i) a right to stop into the shoes of the mortgagee satisfied by him; and (ii) a right to recover contribution. Where a right of
contribution exists, the redeeming comortgagor will, under Article 132, have a period of 12 years within which to recover the amount due to him
from his co-mortgagor. The right to contribution which a co-mortgagor by paying off the entire mortgage, has as against his other co-mortgagor
can arise only on the date of payment by him. 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 12 years of the date of
payment of mortgage debt by the redeeming comortgagee.
But the provisions of the'' Transfer of Property Act, 1882, did not apply to the area in which the property was situate on the material dates.
The question then for consideration will be what exactly was the right of the redeeming co-mortgogor in the instant case. Ramakrishnan J. held on
the strength of the decisions in Vasudev v. Balaji, ILR 26 Bom 500 and Murajalli Munia Goundan Vs. Ramasami Chetti and Others, that the right
of a redeeming co-mortgagor, was only a charge of the properties belonging to his co-mortgagors and as a. charge would not amount to a
mortgage, Article 148 of the Limitation Act would not apply. The decision in Murajalli Munia Goundan Vs. Ramasami Chetti and Others, was
under the provisions of the unamended Transfer of Property Act, 1882. That decision has been approved in Ayyan Ammal Vs. Vellayammal and
Others, . The decision proceeded on the view that Section 95 of the Transfer of Property Act 1882, as it stood originally prior to its amendment in
1929, conferred on the redeeming co-mortgagor only a charge and that his possession of the co-mortgagor''s share by open assertion of exclusive
title could become adverse to his co-mortgagor. As the Transfer of Property Act was not in force in the Travancore State, there was no provision
like Section 95 to impliedly take away the equitable right of subrogation in the redeeming co-mortgagor. In ILR 25 Bom 500 the Bombay High
Court had taken the same view and it was even held that the law would be the same even apart from the provisions of the Transfer of Property
Act. There is however an earlier decision of this court reported in Assanab Ravuthan v. Vamana Rau, ILR 2 Mad 223, where the general law on
the question of the co-mortgagor''s right of redemption, apart from the provisions of the Transfer of Property Act, was considered, and I consider
that the following passage will be relevant in this connection :
It has long been the re-organised doctrine of Courts of Equity in England (Cholomondeley v. Clinton 1820) 2 Jac. & W.1 that the owner of the
equity of redemption of part of an estate under mortgage is an titled to redeem the whole of the mortgaged estate if the mortgagee, as in this case
insists upon his right to have it so redeemed. When the former elects to pay the entire mortgage debt, he thereby puts himself in the place of the
mortgagee redeemed and acquires a fight to treat the original mortgagor as his mortgagor, and to hold that portion of the estate in which he would
have no interest but for the payment as security for any surplus payment he may have made.
This decision proceeds upon the footing that in a case to which the Transfer of Property Act does not apply the co-mortgager redeeming the
mortgage will be entitled to subrogation in respect of the same. I am also of opinion that the passage cited above embodies the correct rule in cases
where the provisions of the Transfer of Property Act do not apply. The decision in ILR 26 Bom 500 cannot, therefore, be held to be good law.
The true principle in a claim for contribution by a redeeming co-mortgagor has been discussed in the decision of the Supreme. Court in
Ganeshi Lal Vs. Joti Pershad, : It was, no doubt, not necessary for their Lordships to decide for the purpose of the case before them whether the
redeeming co-mortgagor would be entitled to subrogation but from the trend of the discussion in the case one can reasonably say that they were
inclined to accept the rule that even apart from the Act, a redeeming co-mortgagor would be subrogated to the rights of the mortgagee. That, as
pointed out by their Lordships, is a mere application of the wider rule of a surety on payment of the debt being subrogated to the securities held by
the creditor. That rule has been stated thus :
A co-mortgagor redeeming a mortgage is a simple case of subrogation, for a co-debtor is a principal debtor in respect of his own share and a
surety in respect of his co-debtor''s share and when the surety has paid the debt, he is entitled to avail himself of all the creditor''s securities. (Vide
Mullah''s Transfer of Property Act - 4th Edn. pace 534).
The Supreme Court in Ganeshi Lal Vs. Joti Pershad, has laid down the following principle:
The redeeming co-mortgagor being only a surety for the other co-mortgagors his right is strictly speaking right of reimbursement or contribution
and in law when we have regard to the principles of equity and justice there should be no difference between a case where he discharges an
unsecured debt and a case where he discharges a secured debt.
The decision in Murajalli Munia Goundan Vs. Ramasami Chetti and Others, cannot be said to be contradictory of the rule above stated as it
proceeds on the footing that the right of subrogation had been impliedly taken away by Section 95 of the Transfer of Property Act before its
amendment in the year 1929. That decision will have no application after the amendment of the year 1929, or to cases where the Transfer of
Property Act does not apply. When, therefore, the Act does not apply to any transaction, the rule laid down in that case will have no application
and a redeeming co-mortgagor will have the fights of a subrogee in respect of the mortgage he discharged. This was also the view taken by the
High Court of Travancore in Madhavan v. Samuel, 10 Trav. LJ 468, Raman Pillai v. Arthan Pillai, 23 Trav. LJ 947 and Muthia Nadar v.
Ramaswamy Nadar, ILR (1953) Trav Co. 48.
From what I have said above, it will be clear that in a case like the present, the co-mortgagor who paid off the mortgage liability obtains
principally a right to contribution. He obtains by way of subrogation the security possessed by the mortgagee to the extent necessary for realising
the excess amount paid by him from out of the mortgaged property of the other co-mortgagors, in a case where the mortgage is a possessory one,
the redeeming conmortgagor will obtain possession, of the entire mortgaged property from the mortgagee on redemption. In such a case, on his
obtaining contribution from his co-mortgagors, ha should, in justice, deliver possession of the properties belonging to the mortgagor. In other
words, his right to obtain contribution will raise a corresponding obligation to deliver possession of the property on payment by each one of the co-
mortgagors, his share of the mortgage money. Therefore, so long as the right to contribution subsists in the redeeming comortgagor, the non-
redeeming co-mortgagor will have a corresponding right to pay up his share and get delivery of possession of his properties. This is plain equity
and will exist independently of the fact whether the right contribution which the redeeming co-mortgagor has as against the other co-mortgagor
amounts to a mortgage or not.
Therefore, where a redeeming co-mortgagor has a period of 12 years under Article 132 of the Limitation Act for recovery from his other co-
mortgagors the aliquot share of the mortgage money, there should be a corresponding right in the non-redeeming co-mortgagors to obtain
possession of the properties on payment of their share of the mortgage money within that period. 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 recteaming 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 (Art. 136 of the Travancore Limitation Regulation) 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 comortgagor to take advantage of any one of these periods whichever is to his
advantage. This view will obviate the hardship and that anomaly pointed out earlier.
In the present case, Ramakrishnan, J. applied Article 144. That view is no doubt supported by the decision in Murajalli Munia Goundan Vs.
Ramasami Chetti and Others, . I have tried to show how that decision cannot apply to the transactions now before us as there was no statutory
provisions in the Travancore State expressly or impliedly taking away the subrogatory rights secured by a redeeming comortgagor.
The mortgages in the instant case were of the years between 1881 and 1884. The period of limitation of 50 years prescribed by the
Travancore Limitation Regulations for redemption would have expired by 1934, and the claim of the appellant would be prima facie barred even if
the respondents were to be treated as subrogated to the rights of the original mortgagees. The respondent''s right to obtain contribution had also
become barred by limitation as more than 12 years had elapsed from the data of his payment to the original mortgages.
It is argued for the appellant that as the redeeming co-mortgagor becomes a mortgagee with respect to his co-mortgagors on redeeming the
main mortgage, he should be deemed to become a mortgagee from that time, the period of 50 years prescribed by Article 136 of the Travancora
Limitation Regulations should be reckoned from the date of payment and redemption. I cannot accept this contention. In a subrogation what the''
redeeming co-mortgagor obtains is a right to stand in the shoes of the mortgagee whom he had satisfied and, as pointed out in Mamundi Kaduvetti
Vs. Somasundara Chetty and Others, , if the person claiming subrogation wants to enforce his rights over the mortgage redeemed, he would be
governed by the rules of limitation which would be applicable to the mortgage redeemed.
Mr. Gopalachari, appearing for the appellant, next contended that the existence of a release deed by the original mortgagee will make a
difference as it would amount to an acknowledgement of the liability to be redeemed and it would therefore give a fresh starting point for the
purpose of redemption. Reliance was placed in this connection on the two decisions of the Travancore High Court to which we have referred
earlier, namely, 23 Trav LJ 947 and ILR (1953) Trav Co 48. The decisions, no doubt, support the appellant. I am, however, unable, with great
respect to the learned judges, to share the view that the so-called release deed would operate as En acknowledgment. In order to constitute a
valid acknowledgment for tire purposes of limitation, there should be a subsisting liability. In the present case, the mortgagee executing the release
deed refers only to his past and extinguished rights as a mortgagee, acknowledging the payment of the mortgage money. The very purpose of the
release deed was to say the mortgage right had been extinguished by payment and that, the mortgagee had no further rights. That cannot obviously
constitute an acknowladgment of a subsisting liability.
In Karamadai Naicken Vs. R. Raju Pillai and Another, there was a statement in a document by a debtor that he was under a liability; and at
the same time that statement was coupled with another statement that he had discharged the debt. Satyanarayana Rao J. observed that as the
intention of the executant must be gathered by reading the document as a whole, such a statement could not amount to an acknowledgment of a
subsisting liability. I agree with the learned Judge that a recital of past liability accompanied by a statement as to its discharge cannot be construed
as an acknowledgment of liability. In that view, the release deeds in the instant case will not amount to a valid acknowledgment of a subsisting
liability, and, therefore, will not provide for appellant with any fresh starting point of limitation.
It is next argued for the appellant that in construing the Travancore Limitation Regulations, this Court will have to be bound by the decisions of
the Travancore High Court. Support for the contention is sought in the observations of Srinivasa Rao J. (as he then was) in the decision Basappa v.
State, AIR 1959 Mys 1 where the learned Judge held, that though the Mysore High Court was not bound by the previous decisions of any of the
High Courts formerly exercising jurisdiction over the different territories which had later come within the Mysore State, the principle of stare
decision would be applicable. Summarising his view, the learned Judge observed :
When any point is covered by the decisions of one or more of the pre-existing High Courts and there is no conflict amongst them, guidance should
be taken from such decision or decisions.
While I with respect share the view that is expressed by the learned Judge, in the sense that utmost regard; and respect should be given to such
decisions, I am unable to regard the observations as laying down any inflexible rule. The primary duty of this Court is itself to as* certain the law
and mould the decision of the case in accordance therewith. So long as there exists no authority or precedent binding on it, its duty is plain. In the
discharge of such duty, it will undoubtedly give effect to the weighty considerations laid down by the learned. Judge; but, at the same time, it cannot
be said that it is bound to accept such decisions even when it comes to the conclusion that they are incorrect. The principle of stare decisis will
generally apply only, to a decision otherwise binding on the Court, not to decisions of other Courts which at best can only have persuasive, value
have held that in the present case that the alleged statement of liability contained in the release deed cannot be regarded as an acknowledgment of
a subsisting liability. If the releases are not valid as acknowledgments, the claim for redemption should be held to be barred by limitation.
Mr. Gopalachari then contended'' that whatever might be the case in regard to the mortgages covered by Exs. II, III, IX and XIX, the debt
under Ex. XV, which concerns item 41 will stand on a different footing. In that case, there was an assignment by the mortgagee under Ex. XVII of
his mortgage right. That was in the year 1903. It is argued that the recitals contained in the assignment deed would constitute an acknowledgment
of the mortgagee''s right in the property and that would* afford a fresh starting point for redemption. The suit as we stated earlier, was filed within
50 years of the date of assignment. The plea that Ex. XVII would constitute an acknowledgment was not raised In the pleadings in the case, nor
even in the grounds of appeal; the plaint was laid as if it was one for partition. But the suit has been, however, understood by all the parties as one
for redemption. Not much significance can, therefore be attached to the omission to plead Ex. XVII as evidencing any acknowledgment. I am of
opinion that the case in regard to Ex. XVII merits further consideration. The appellant should be given an opportunity to raise the question that
under Ex. XVII there is an acknowledgment of right which will make the plaintiffs suit to be in time in regard to item 41. This matter has not been
Investigated by the lower Court. It is but just that the respondent should have an opportunity of meeting that case. I consider, therefore, that there
could be a fair disposal of the case only after the receipt of the finding from the lower Court as to whether Ex. XVII will constitute a sufficient and
valid acknowledgment of the mortgagee''s right. The learned Subordinate Judge, Padmanabhapuram, will be directed to submit a finding on that
question within six weeks from the date of the receipt of the records. It will be open to the parties to adduce such evidence as they consider
necessary on the question set out above. Time for objections one week after the receipt of the findings. In other respects, the claim of the appellant
for redemption fails.
Jagadisan, J.
I respectfully agree with the judgment just delivered by my Lord, the Chief Justice. In fact, my concurrence with it is so complete that I could
have spared myself the task of adding these few lines. But, having read the judgment of my learned brother, Venkataraman, J, who finds himself
unable to agree with my Lord, I feel called upon to be a little more expressive than to say I agree.
There is no necessity to restate the facts or to discuss the question of law raised at any great length. The point in issue is, what is the period of
limitation for a co-mortgagor to institute a suit for recovery of his share of the hypotheco from his co-debtor (mortgagor) who is in possession after
discharging the mortgage. I am referring; to a usufructuary mortgage which is re deemed by one of several co-mortgagors and in respect of which
the redeeming mortgagor obtains possession from the mortgagee by reason of such redemption. The right of redemption belongs to all the
mortgagors where there are more than one, and the right is joint and several. One of them can, without the concurrence of the others, redeem the
mortgage by satisfying the claim of the mortgagee in full. Such an individual act of redemption results in the mortgage debt being discharged but
brings in its train other rights and obligations between the mortgagors inter se. The personality of the mortgagee disappears of instant his mortgage
is satisfied. does the redeeming mortgagor step into the shoes of the mortgagee who had made his exit, vis-a-vis the non-redeeming mortgager,
and, if so, to what extent? Does the non-redeeming mortgagor retain only his former rights under the mortgage even after the redemption by his co-
debtor, or, does he acquire further rights consequent on the redemption? These are the questions which confront us in the present case and the
solution depends upon the equitable principles underlying the provisions of the Transfer of Property Act (which are not applicable! to the territory
of Kanyakumari before its merger in the Madras State) and the Regulations of Limitation in Travancore, the provisions of which are almost similar
to the provisions of the Indian Limitation Act.
A co-mortgagor can redeem independently of the other mortgagors : Narendra Narain Singh v. Dwarkalal Mundur, 5 Ind App 18 (PC).
Besides the mortgagor certain other persons can also redeem, they are (i) any person who has an interest in or charge upon the property
mortgaged or in or upon the right to redeem, (ii) any surety for the payment of the debt, (iii) any creditor of the mortgagor who has in a suit for the
administration of his estate obtained a decree for sale of the mortgaged property. Section 92 of the Transfer of Property Act, as it now stands,
provides that any of the persons entitled to redeem, other than the mortgagor, and any co-mortgagor shall, on redeeming property subject to the
mortgage, have so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee, may have against the
mortgagor. The right conferred by this section is called the right of subrogation and a person acquiring the same is said to be subrogated to the
rights of the mortgagee whose mortgage he redeems. This section was introduced into the statute by the amending Act XX of 1929. Before that,
the doctrine of subrogation was spelt out from Sections 74 and 75 of the Act, the terms of which were so enigmatic that they caused doubts and
difficulties in their application. Section 95 of the Act as it stood before; the amendment under Act XX Of 1929, added to the complexity of the
situation. The old section stated that where one of several co-mortgagors re-deems the mortgaged: property and obtains possession thereof he has
a charge on the share of each of the other co-mortgagors in that property for his proportion of the expenses properly incurred in redemption. The
present section states that where one of several comortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation
against his co-mortgagors, be entitled to add to the mortgage money recoverable from them such proportion of the expenses properly incurred in
redemption as is attributable to their share in the property.
The Use of the expression charge in the old Section 95, which no doubt referred to the recovery of this proportionate share of the expenses
incurred by the redeeming co-mortgagor led to conflict of judicial opinion. It would not be said that the charge provided for under the old Section
95 was only in respect of the recovery of the proportionate share of the expenses but that the redeeming mortgagor became substituted in the
place of the mortgagee for the purpose of recovery of the share of the mortgage money payable by the non-redeeming mortgagor. Particularly the
clevage of judicial opinion was prominent in deciding the question as to the period Of limitation which should govern a suit by the non-redeening
co-mortgagor against the redeeming co-mortgagor for recovery of the former''s share of the hypotheca. One view was that a co-mortgagor
redeeming the entire mortgage property and obtaining possession merely acquired a charge u/s 95 of the Transfer of Property Act, before; its
amendment, that it did not bring the mortgagor within Article 148 of the Indian Limitation Act and a suit brought against the redeeming co-
mortgagor by the other mortgagors to recover their share of the property was not a suit for redemption but a suit for recovery of possession
governed by Article 144. This view found favour in the decisions reported in Ramchandra Khaserao Thorat Vs. Ganesh Balvant Tagare, , Purna
Chandra Pal Vs. Barada Prosanna Bhattacharjya, , Har Kesh and Another Vs. Emperor, , Ramnarayan v. Ramdevi, 6 Pat LJ 680 : AIR 1923 Pat
98.
The other view was that a suit against the redeeming co-mortgagor fell under Article 148 and not under Article 144. This was based on the ground
that the redeeming mortgagor stood in the shoes of the mortgagee and the proper article applicable would be Article 148 and that limitation should
run from the date when the original mortgage became redeemable, and not from the time when the defendant redeemed the mortgaged property.
This is e.xnressed in the following decisions: Wazir Ali and Another Vs. Ali Islam, Mukh Narain Singh and Others Vs. Ramlochan Tiwari and
Others, , Raghavendracharya Appacharya Katti Vs. Vaman Shriniwas Deshpande, and AIR 1940 97 (Oudh) . The difference in judicial opinion
on this question arose by reason of the use of the expression ""charge"" in the old Section 95 of the Transfer of Property Act. The learned Judges,
who took the view that a suit by the non-redeeming comortgagor for recovery of his share of the property hypothecated, no doubt, after paying the
due share of his liability under the original mortgage was a suit for possession, proceeded on the footing that a charge clearly negatived the theory
of substitution or subrogation, and that, if the redeeming co-mortgagor had only a charge in, respect of the mortgage money and the expenses, the
from-redeeming mortgagor cannot be said to have a right to redeem the mortgage which ex concession has been discharged. The learned Judges,
who took the other view appear to have been impressed by the fact, that in substance, charge or mortgage, the redeeming mortgagor had a right to
recover the excess payment of the mortgage money and expenses over and above his share on the security of the property; and if that was the true
position the non-redeeming mortgagor could only have a right of redemption. But there is really no scope for any diversity, of judicial opinion on
this question after the amendment of Sees. 92 and 95 of the Transfer of Property Act.
Section 92 categorically states that a co-mortgagor shall, on redeeming property, have so far as regards redemption, foreclosure and sale, the)
same rights the mortgagee whose mortgage he redeems may have against the mortgagor. Section 95 does not now contain the expression ""charge"".
It 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 a proportionate share of his expenses properly incurred in redemption. The position,
therefore, is that the redeeming mortgagor is placed as far as possible in the position of the mortgagee who, having been paid off, has no further
interest in the hypotheca. This much is clear. But it cannot be said that provisions of the Transfer of Property Act afford a just solution in respect of
all cases, normal and abnormal.
The mortgagor who redeems the mortgage cannot obtain any new rights in respect of his property beyond freeing it from the encumbrance.
The act of redemption only enlarges the security in favour of the puisne mortgagee. The mortgagor cannot use the discharged mortgage as a should
against subsequent encumbrances. This is because the mortgagor cannot derogate from his own grant. But, as between the co-mortgagors inter se
the position is somewhat different. When one of several mortgagors redeems the mortgage in full, it is presumed that he has paid more than his
share of his original liability under the mortgage. He therefore acquires rights ever the mortgaged property when he becomes entitled to recover
from the non-redeeming mortgagor the amount paid by him in excess of his due share of liability.
This is a right of contribution recognised by Section 82 of the Transfer of Property Act and this right arises only when the redeeming mortgagor
suffers a greater burden in redeeming the mortgage than what he had originally undertaken at the inception. It is therefore indisputable that the
redeeming mortgager has a fight to recover from his co-mortgagors the excess amount paid by him on the security of that portion of the hypothe
heca which does not belong to him. A suit by such a mortgagor for recovery of the money is governed by Article 132 of the Indian Limitation Act
and he has a right to enforce that claim within 12 years from the date of redemption. This is consistent not merely with the present provisions in the
Transfer of Property Act but also under the law as it stood prior to the Amending Act XX of 1929.
But then, the question is what is the period of limitation within which the non-redeeming co-mortgagor should bring his suit for recovery of his
share of the hypotheca. It is clear that he cannot take possession of the property taken possession of by the redeeming comortgagor, unless he
pays not merely his due share of the original mortgage liability but also his share of the expenses incurred by the redeeming co-mortgagor in
redeeming the .mortgage. I do not wish to affix any labels to the right of the non-redeeming co-mortgagor in the matter of recovery of his property.
It is partly a right of redemption and partly a right to recover possession of the hypotheca. One thing is clear and it is this. The period of limitation
for a mortgagor to redeem the mortgage which is 60 years under Article 148 of the Limitation Act and 50 years under the Travancore Regulation
(6 of 1100 Malayalam Era), cannot be curtailed by anything which a, co-mortgagor might do in respect of the mortgage, it cannot be said that if
one of several mortgagors redeems long before the expiry of 60 years prescribed for redemption the non-redeeming mortgagors should be
compelled to file a suit within any period shorter than the 60 years period. There can be no denial of this basic right of each and every mortgagor
where there are more than one to redeem the mortgagee either by payment of the mortgage money in full if the mortgagee''s claim is not satisfied or
by payment of his share of the mortgage money if the other mortgagor had redeemed and is entitled only to recover more than his share of the
liability. It is true that after redemption the redeeming mortgagor can only enforce his right to recover the contributory amount from his co-debtors
within a period of 12 years from the date of redemption. But this would not compel the non-redeeming mortgagor to file a suit within the same
period if the period of redemption of 60 years provided for under Article 148 has not expired.
I may point out that my learned brother Venkataraman J. has also accepted this position as being well-founded in law. After redemption by
one of the several mortgagors the non-redeeming mortgagor gets a; further period of 60 years from the date of redemption is the view taken by
Venkataraman J. With respect, I am unable to agree with it. The learned Judge observes that though the period of limitation might be extended to
as much as hundred and twenty years or even slightly more from the date of the original mortgage, that should not be a circumstance which should
be taken into account in interpreting the provisions of the Indian Limitation Act. The learned Judge also observes that if Article 148 cannot be
applied in respect of the claim of the non-redeeming mortgagor there is no other provision which could properly be invoked as, in his view, Article
144 of the Limitation Act cannot be brought in at all as there can be no question of adverse possession by a redeeing co-mortgagor in respect of
the share of the property belonging to the non-redeeming mortgagor.
It seems to me that the conjoint effect of the present provisions of Sections 92 and 95 of the Transfer of Property Act, which we may take it to
be rules o justice, equity and good conscience also (as we are now dealing with a case to which the provisions of the Transfer of Property Act are
not directly and in terms applicable) is not a mere substitution of the redeeming mortgagor in the place of the mortgagee. It must be remembered
that a co-mortgagor who redeems is under a liability to pay at least his share of the original mortgage liability. By discharging the obligation, he
cannot be said to take the place of the mortgagee completely and fully, as the mortgagee''s right was to recover the full amount from any or all of
the mortgagors. The substitution1 is a legal fiction to enable the redeeming mortgagor to get the benefit of the security originally tendered in respect
of his claim for recovery of the excess amount paid by him over and above his share. The redeeming mortgagor obtains priority in respect of his
claim over subsequent or puisne encumbrances that might have been created by the non redeeming mortgagor. The act of redemption clothes the
person redeeming with fresh rights which were certainly not part and parcel of the original mortgage transaction. The contributory right to which the
redeeming comortgagor becomes entitled to is a statutory right which is founded upon well understood rules of equity. If the redeeming mortgagor
gets a fresh right by the very act of redemption of the mortgage, why should not the non-'' redeeming mortgagor also acquire further right as against
the co-debtor? I have already pointed out that the minimum right which a mortgagor has is to seek redemption within the period fixed under Article
148.
Consequent upon the right of contribution acquired, by the redeeming mortgagor the non-redeeming mortgagor must also acquire a right to enforce
recovery of his I share of the mortgaged property from the co-debtor despite the fact that the period of limitation provided for under Article 148
had expired. But he cannot resuscitate, as it were, the original mortgage; nor will it be open to him to say that ha has got a further period of 60
years from the date of redemption as if the statute has created a new mortgage between the redeeming mortgagor and the non-redeeming
mortgagor. It is true that a co-mortgagor who redeems and keeps possession of the hypotheca cannot be said to claim adversely as against his
codebtor in respect of the property belonging to him so long as the right of redemption under the original mortgage subsists in his favour. As stated
already the fact of redemption by one of the comortgagors would not curtail his right to sue for redemption within the period fixed by law. But,
after the lapse of 60 years of the original mortgage and during the subsistence of the right of the redeeming co-mortgagor to sue for contribution,
the right of the non-redeeming mortgagor to recover his share of the property would also subsist if within the 12 year period the redeeming
mortgagor files a suit for recovery of the money. The non-redeeming mortgagor can pay it and take back possession of his property. If, however,
he fails to do so and does not take'' any action for recovery of the excess money, can it be said that the non-redeeming mortgagor would yet have
a right to redeem the mortgage beyond the 12 year period founding himself on Article 148 of the Indian Limitation Act? It seems to me that after
the lapse of the 12 year period it can be said that the redeeming mortgagor has been in adverse possession of the share of the non-redeeming
mortgagor in the hypotheca and that the latter would be precluded from recovering the property after that period.
To a limited class of cases Article 148 would apply. These are cases where the period, of limitation for redeeming the original mortgage is not
over. I may point out that though the view taken by a Bench of this Court in ILR 41 Mad 650 : AIR 1913 Mad 19 and in Deivanayaga Padayachi
Vs. Muthu Reddi and Others, that the possession of a redeeming mortgagor is adverse to his co-mortgagor from the data 6f redemption has been
accepted as correct in the Full Bench decision in ILR (1956) Mad 587 : AIR 1955 Mad 354, and though that view cannot now be siteported in
view of the definite provisions of the ''amended Transfer of Property Act Sections 92 and 95, the principle may yet be applicable to a case where
the non-redeeming mortgagor is out of time to sue for redemption under Article 148, and has only a bare right to ask for possession of his share of
the property by reason of the accident of his co-debtor having redeemed the mortgage in full.
The search for a proper article of limitation which should govern a suit by the non-redeeming mortgagor for obtaining possession of his share of
the mortgaged property after discharging his obligation to the redeeming mortgagor who has paid the mortgagee in full is no doubt beset with
difficulties. If the non-redeeiming mortgagor happens to be within time to redeem the original mortgage, nothing can stand in his way to prevent
recovery of the property as it does not matter how he discharges his primary obligation under the mortgages and as his right of redemption cannot
in any way be abrogated or minimized by any act or conduct on the part of his co-debtor behind his back. The difficulty arises only in a case where
the non-redeeming mortgagor is out of time qua his right of redemption of his original mortgage. The applicability of Article 144 of the Limitation
Act to such exceptional cases may not be wholly inappropriate. I am free to concede that the possession of the whole property on redemption by
the co-mortgagor is not ipse facto adverse by reason only of the fact that he keeps exclusive possession after redemption. The possession of the
redeeming co-mortgagor does not become forthwith adverse from the date of redemption. The possession may become adverse on the assertion
by the rendering mortgagor of a hostile title to the knowledge of the non redeeming mortgagor. But where 12 years elapse after a redemption and
the redeeming mortgagor fails to be the excess amount paid by him over and above his due share of the liability for reasons best known to himself,
it cart be well said that he had been in possession of the entire property in assertion of a hostile title as against the non-redeeming mortgagor. In my
opinion . 144 can Art properly be invoked as against the non-redeeming co-mortgagor who fails to redeem the mortgage with in the period of 60
years provided for under Article 148 of the Limitation Act and who keeps quiet for a period of 12 years, after the date of redemption of the entire
mortgage by his co-debtor.
The right to enforce payment of the money due by the non-redeeming mortgagor from and out of his share of the mortgaged property tacitly
recognises that that share is not the property of the redeeming mortgagor. A lien or holder of an encumbrance holds the lien or encumbrance only
against another''s property and of course not against his own. One does not stultify or attenuate his ownership by himself making a claim against it.
Therefore, it could be plausibly contended that the right of contribution which a redeeming mortgagor can enforce till the expiry of 12 years from
the date of redemption involves an assumption that the non-redeeming mortgagor''s right in the property is kept intact. But this has to be taken
along with the operation of Section 28 of the Indian Limitation Act That reads:
At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to property shall be
extinguished.
This is an exception to the well accepted rule that limitation bars only the remedy and does not extinguish the title. It lays down a rule of substantive
law by declaring that after the lapse of the period the title ceases to exist and not merely the remedy. A suit for redemption of a usufructuary
mortgage and for recovery of possession of the hypotheca would obviously fall within Section 28. A mortgagor who allows his right of redemption
to barred by not instituting the suit as prescribed under Article 148 of the Limitation Act, loses his title to the property. If this is the true position,
the implication of a right of property in the non-redeeming mortgagor after the lapse of the period fixed in Article 148 is just to satisfy the
contribution claim of the redeeming mortgagor. From, this follows the right of the non-redeeming mortgagor to get his share of the property until
such time the contributory right of the co-mortgagor does not become extinct. It seems to me that once the non-redeeming mortgagor loses his
right of ownership by the combined operation of Section 28 and Article 148 of the Indian Limitation Act, it would not be logical or a sound rule of
law to assume that he would have further rights of redemption by a fresh application of Article 148, as if the co-mortgagor''s redemption can revive
lost rights. I don''t think that the doctrine of subrogation has this effect. This, in my opinion, is another way of looking at the problem to reach the
conclusion that the co-mortgagor''s redemption would not set in motion Article 148 of the Limitation Act, but would only give a 12 year period to
the non-redeeming mortgagor.
I entirely agree with my Lord, the Chief Justice, that the non-redeeming mortgagor has got two rights: 1. to redeem the mortgage within the
period allowed for redemption of the original mortgage; and (2) to sue to'' recovery of possession of his share of the property from the redeeming
mortgagor within 12 years of the date of payment. It would rather be strange and anomalous to recognise a right of contribution in the redeeming
comortgagor for a period of 12 years from the date of redemption and to deny in the same breath the right to the non-redeeming mortgagor to
recover his share of the property within the same period. It would be equally unjust to allow him to get the benefit of Article 148 over again.
Justice, equity and good conscience clearly support this view of the matter and I cannot say that the statutory provisions do not lend themselves to
enable me to take that view.
On the other questions dealt with and discussed In the judgment of my Lord, I do not propose to cover the same ground over again as I am in
respectful concurrence with the view taken.
I therefore agree with the order pronounced by my Lord, the Chief Justice, in L. P. Appeal No. 18 of 1961.
Venkataraman, J.
I have had the advantage of perusing the Judgments just now pronounced by my Lord, the Chief Justice and by Jagadisan, J. Naturally I have
the utmost deference for their opinions but I very much regret that 1 have to differ from them on a material point and the final conclusion.
As pointed out by my Lord, there was no statute taw In Kanyakumari Dt. corresponding to the Transfer of Property Act, 1882, either at the
time of the original mortgages or later when they were redeemed. It is the principles of natural justice, equity and good conscience which must be
applied. My Lord has, at that point, considered the law as it stands now in this part of the country (as well as in Kanyakumari Dt.) after the
amendments effected in the Transfer of Property Act, 1882, by Act 20 of 1929. As my Lord has pointed out, as a result of the statutory changes
effected in 1929, the redeeming co-mortgagor has been subrogated to the position of the original'' mortgagee. But, the substitution of the
redeeming co-mortgagor in the place of the mortgagee cannot be complete and the substitution can only be to the extent consistent with the rights
inter se between the redeeming comortgagor and the non-redeeming comortgagor. Thus, while it is true that by virtue of the subrogation right
conferred by Section 92, as amended the redeeming co-mortgagor will have the benefit of the security of the original mortgage (which is
redeemed) and priority over any subsequent encumbrances created by the non-redeeming co-mortgagor, the law must also recognise and in fact,
in my opinion, it does not recognise, the fact that the redeeming co-mortgagor cannot enforce against the non-redeeming co-mortgagor the exact
rights which the original mortgagee could have enforced against both of them.
Vis a vis the non-redeeming comortgagor, the redeeming co-mortgagor can recover only the portion of the mortgage money attributable to the
share of the nonredeeming co-mortgager on the principle of contribution contained in Section 82 of the Transfer of Property Act. Besides, he can
recover u/s 95 of the Act, as amended, the corresponding proportion of the expenses incurred in the redemption. Again, the redeeming co-
mortgagor, in making his claim on the non-redeeming co-mortgagor, cannot proceed on the basis of the mortgage amount which the original
mortgagee could have collected, but he must proceed only on the basis of the actual amount which the redeeming ^mortgagor had to pay for
redemption. (Vide the decision of the Supreme Court in Ganeshi Lal Vs. Joti Pershad, . Equally, the non-redeeming co-mortgagor can, on
payment of his share of the mortgage debt and the expenses incurred in redemption, redeem from the redeeming co-mortgagor only his
(nonredeeming co-mortgagor''s) share of the property. He can no longer redeem that whole mortgage as he could have done before. All this is
merely another way of stating that on account of the rights of parties inter se which the law recognises the integrity of the original mortgage has
been broken by operation of law by virtue of the redemption, and regarding the share of the redeeming comortgagor he has become the full owner
(assuming as we are entitled to, for the purpose of this discussion that there are no other encumbrances) and similarly in respect of the share of the
non-redeeming co-mortgagor, the position of the redeeming co-mortgagor is that of a mortgagee, and the position of the non-redeeming co-
mortgagor is that of the mortgagor. To that extent the principle of subrogation will apply. It cannot apply in the sense of the continuation of the
original mortgage in its initial form. The mortgage in its initial form has really in one sense been extinguished by the redemption, and in its place, the
mortgage as split up by operation of law, giving effect to the legitimate action of redemption by one mortgagor has come into effect. The proper
view, however, would be to treat the original mortgage as modified by the law in the light of the redemption without break in the continuity of the
existence of the original security for the benefit of the redeeming co-mortgagor. In this respect the right of subrogation conferred u/s 92 differs in its
consequences between a case where a comortgagor redeems and a case where a puisne mortgagee redeems a prior mortgage, in the case of the
puisne mortgagee there is complete substitution and the original mortgage continues with its incidents, but not so in the case of redemption by a co-
mortgagor.
Such being the substantive rights of the parties as emerging from the provisions of the Transfer of Property Act 1882, we shall see first what
provisions of the Limitation Act, 1908 will apply in this part of the country to such a situation. Taking first the similar aspect of the right of the
redeeming co-mortgagor to recover contribution from the non-redeeming mortgagor in enforcement of the substantive rights Under Sections 82,
92 and 95 of the Transfer of Property Act, Article 132 will apply and as the starting point of limitation will be the date of the payment made by him
for redemption. Article 132 says:
Description of Period of Time from which
suit. limitation. period begins to
run
---------------- ------------ ----------------
To enforce pay- Twelve years. When the money
went of money sued for becomes
charged upon im- due.
moveable property.
The money sued for by the redeeming co-mortgagor will become due within the meaning of the third column of the article only on the payment
necessary for redemption. It is only then that the exact amount recoverable from the non-redeeming co-mortgagor can be ascertained. The money
due will comprise not only the proportionate share of the mortgage debit which has been paid off attributable to the share of the non-redeeming
co-mortgagor, but also the expenses properly incurred during redemption attributable to that share u/s 95 of the Transfer of Property Act.
Turning now to the more difficult question of the article of the Limitation Act, applicable to the corresponding suit of the non-redeeming co-
mortgagor to recover his share of the hypotheca, it is Article 148 which will apply, the reads:
Description of Period of Time from which
suit. limitation. period begins to
run
------------------ ----------- ------------------
Against the mort- Six years. When the right
gagee to redeem or to redeem or to re-
cover possession cover possession
of Immovable pro- accrues.
perty mortgaged.
It is true that Article 148 speaks only about a suit against a mortgagee, but I have pointed out that, at any rate, after the amendments effected in the
Transfer of Property Act tinder Sections 92 and 95 by Act 20 of 1929, the position of the redeeming co-mortgagor becomes that of a mortgagee.
I think that point need not be laboured because even the judgment of my Lord recognises this. My Lord says that the non-redeeming co-
mortgagor will have two periods of redemption, one under Article 148 the starting point of limitation being the date of the original mortgage and the
other a period of 12 years from the date of the redemption by the co-mortgagor. Thus the judgment of my Lord the Chief Justice itself recognises
the applicability of Article 148 to the suit by the non-redeeming co-mortgagor on redemption of his share, but it only takes the starting point as the
date of the original mortgage. Similarly the whole discussion in the Full Bench decision in Ayyan Ammal Vs. Vellayammal and Others, proceeds on
the footing that under the provisions of the Transfer of Property Act as amended by the Act 20 of 1929, a suit for redemption by the non-
redeeming comortgagor of his share will be governed by Article 148 (f), or otherwise the whole discussion would have been unnecessary.
In that case the original mortgage was of the year'' 1890, their redemption by the co-mortgagor was some time between 1908 and 1912 and the
suit by the nonredeeming co-mortgagor for redemption of her share was filed in 1946. Satyanarayana Rao J. before whom the appeal came up for
hearing in the first instance pointed out that if the amendments effected by Act 20 of 1929 of the Transfer of Property Act which came into force
on 1st April 1930 would have retrospective effect, the suit would be governed by Article 148, otherwise it might tie governed by the decision of
this Court in Murajalli Munia Goundan Vs. Ramasami Chetti and Others, and Deivanayaga Padayachi Vs. Muthu Reddi and Others, , according to
which decisions, the possession of the redeeming co-mortgagor would be adverse to that of the non-redeeming co-mortgagor from the date of
redemption, and his title would become perfect after a period of 12 years, and so the suit for redemption by the non-redeeming co-mortgagor
would have to be instituted within 12 years of the redemption. The suit which was filed in 1946, was 12 years beyond the date of redemption, and
would, according to those decisions, be out of time. That was why it became necessary to consider whether the amendments effected by Act 20 of
1929 to the Transfer of Property Act were retrospective of not. In that case, the question which we are specifically considering, viz., the starting
point of the limitation for the suit by the non-redeeming co-mortgagor for recovery of his share of the hypothecs did not specifically arise, because
the suit of the plaintiff was instituted within 60 years from the date of the original mortgage. So far as I am able to see, this question as to the
starting point of limitation under Article 148 for the suit by the non-redeeming co-mortgagor has not so far come up for decision in this Court and
the matter Is res integra.
It seems to me that where the. non-redeeming co-mortgagor seeks to redeem his share of the hypotheca or to recover possession thereof from
the redeeming comortgagor, it can aptly be said that the right to redeem or to recover possession accrues to the non-redeeming comortgagor on
the date of the. redemption by the co-mortgagor within the meaning of the third column of Article 148. His right to redeem or to recover
possession within the meaning of the third column cannot, in the situation created after the redemption by the co-mortgagor, apply to the original
mortgage, because the original mortgage is no longer there and has been modified and split up. The words when the right to redeem and to recover
possession accrues could have meant the right of redemption of the old mortgage only before the redemption by the redeeming co-mortgagor, but
once redemption by the co-mortgagor has taken place, the words will have to be interpreted to suit the new situation which has arisen with the
sanction of the law. In this new situation, the right to redeem or to recover possession will accrue only after redemption. In the new situation it is
not the old mortgage which is sought to be reedmed in its unabated original form, but it is only the split-up mortgage which is sought to be
redeemed. In other words, it is only the share of the redeeming co-mortgagor which is sought to be redeemed. Such right cannot possibly accrue
at any time prior to the redemption by the redeeming comortgagor.
It seems to me that this construction flows naturally from the words in the Limitation Act in the light of the substantive law enacted in the
Transfer of Property Act. If we are to deny this construction as invalid, it would mean that the Limitation Act has failed to provide for a very
important class of suits such as this, viz., the suit by that non-redeeming co-mortgagor to recover his share of the property in a case to which the
amended provisions of the Transfer of Property Act apply. Article 144 cannot, in my opinion, apply because the position of the redeeming co-
mortgagor cannot become adverse to the non-redeeming co-mortgagor merely by virtue of the fact of redemption. Indeed redemption by the co-
mortgagor is permitted by law and possession which is thus acquired by lawful means cannot be regarded as adverse to the non-redeeming co-
mortgagor. In such a case, if Article 148, as interpreted by me, is not applied, it is only the residuary Article 120 that will apply, end in such a case
the period will be six years from the time the right to sue accrues, and the right to sue should beheld to accrue to the non-redeeming co-mortgagor
from the time of redemption by the redeeming co-mortgagor. But before invoking Article 120, the Court must be satisfied that Article 148 cannot
apply at all to the suit by the non-redeeming co-mortgagor construing it in the way in which 1 have done, viz., that the right to recover possession
accrues to the non-redeeming co-mortgagor only on the redemption by the redeeming co-mortgagor. As a principle of construction of the articles
in the Limitation Act, the Court should favour the more liberal construction giving the longer period of limitation and that would be particularly so
when we are asked to invoke the residuary provision of Article 120.
It is true that my construction may in some cases involve the result that the period of redemption is extended to as much as 120 years or even
slightly more from the date of the original mortgage, but I do not think that this s a circumstance which should guide us in interpreting the provisions
of the Limitation Act and moulding them to suit the substantive law and the rights of parties arising on redemption by one of the mortgagors.
Further, it will be open to the redeeming comortgagor to prevent such a situation of a long period of redemption, by filing a suit for contribution
within 12 years of the date of redemption compelling the* non-redeeming co-mortgagor to redeem his share of the mortgage or, in the alternative,
bringing to sale the share of the non-redeeming co-mortgagor. The redeeming comortgagor will presumably take such a course where it is
profitable to him, but where it is not profitable to him, he may refrain from filing the suit for contribution, and in such a case I do not say any
inherent injustice in allowing the non-redeering co-mortgagor the period of sixty years from the time of redemption by the redeeming co-mortgagor
for filing his suit for redemption of his share. That the period for the contribution suit is 12 years but the period for the suit for redemption is sixty
years need not cause any surprise, because it is inherent in the scheme of the Limitation Act with respect to the original mortgage itself, viz., Article
132 fixes a period of 12 years for recovery of the mortgage money and Art 148, a period of 60 years for redemption. Just as. Article 148 is the
counterpart of Article 132 in respect of the original mortgage, it seems to be logical to hold that Article 148 will be the counterpart for Article 132
in the changed situation arising after the redemption by the co-mortgagor. We have seen that in the changed, situation, the starting point for the suit
under Article 132 by the redeeming co-mortgagor for contribution is the date of redemption by him. That will be the starting. point also for the suit
by the non-redeeming co-mortgagor under Article 148.
There are two decisions which support the view which I have taken. The first is AIR 1930 300 (Nagpur) and the other is Narayana Pillai v.
Nanyana Prabhakaran, AIR 1955 Trav Co 130 . In the AIR 1930 300 (Nagpur) the mortgage was of the year 1892, but it was modified by an
award of the Debt Conciliation Board in 1904. One of the mortgagors paid off the mortgage debt as educed and took, possession in 1909. The
other co-mortgagors filed a suit for redemption of their share more than 12 years after 1909. The question was whether Article 144 applied and
the possession of the redeeming co-mortgagor was adverse to the non-redeeming co-mortgagor from the time of redemption in 1909 or whether
Article 148 would apply. Article 148 was held to be applicable and the starting point was taken, as the date of the redemption of the mortgage.
In AIR 1955 Trav Co 130 the predecessor of the plaintiffs Adichan Narayanan sold certain property to that first defendant. There was a defect in
the title and consequently by a decree of 18-1-1110 M.E. (1924 A.D.) Adichan Narayanan''s legal representatives were directed to refund the
sum of 2069 fanams which had been paid by the vendee, the first defendant, towards the sale with interest at 12 per cent per annum and the first
defendant was allowed to remain in possession of the property till such payment Later, the plaintiffs filed the suit to recover the property on
payment of the money due. It was held that the first defendant was in the position of a mortgagee and the period of limitation was 50 years within
the relevant article of the Travancore-Cochin Regulation. The relevancy of the case so far as we are concerned is that the learned Judges observed
that in the situation* created by the decree, dated 18th January 1110 Malayalam Era, the first defendant became a mortgagee of the property by
operation of law, and Ghosh on Law of Mortgages was referred to. Similarly, here by the act of redemption by the redeeming co-mortgagor the
original mortgage became by operation of law a split-up mortgage in respect of the non-redeeming co-mortgagor''s share and there would be a
period of 60 years from the time of redemption under Article 148 of the Limitation Act, 1908.
To support some of the incidental propositions which I have stated, I would refer to a few more decisions. Firstly there is the passage from
ILR 2 Mad 223 quoted by my Lord. It will be seen that the passage recognises that the redeeming co-mortgagor will be entitled to treat the non-
redeeming co-mortgagor as his (re-deeming co-mortgagor''s) mortgagor in respect of the'' nor redeeming co-mortgagor''s share in the hypotheca.
This was the position before the Transfer of Property Act was enacted and that is also the position under the Transfer of Property Act as amended
by Act 20 of 1929. The decision in ILR 2 Mad 223 has been followed and referred to with approval in Nainappa Chetti v. Chidambaram Chetti,
ILR 21 Mad 18.
There are two Full Bench decisions, one of the Lucknow Chief Court in AIR 1942 449 (Oudh) and another of the Mysore High Court in
Kenchappa v. Nagappa, AIR 1957 Mys 1, which recognise that under the amended provisions of the Transfer of Property Act, the redeeming co-
mortgagor has a period of 12 years from the time of the payment made by him for redemption, to recover the contribution from the non-redeeming
co-mortgagor under Article 132 of the Limitation Act. That is recognised in the judgment of my Lord and Jagadisan J.
The decision of my Lord, in Mamundi Kaduvetti Vs. Somasundara Chetty and Others, , also recognises that though u/s 92 of the Transfer of
Property Act, as amended, the redeeming co-mortgagor is subrogated to the rights of the mortgagee, there is no absolute substitution and there is
some modification of the original mortgage and the subrogation is only to the extent necessary.
So far, I have discussed the position in this part of the country under the* Transfer of Property Act, 1882, as it now stands, and that is also
now applicable to Kanyakumari Dt., but since there was no such statute in application in Kanyakumari Dt., at the time of the original mortgage or
at the time of redemption by Sivathanur Pillai, it is the principles of justice, equity and good conscience that would apply. I do not see why the law
in the Transfer of Property Act, as it now stands, would not be held to embody the principles of justice, equity and good conscience. In fact the
judgments of my Lord and Jagadisan J. proceed on that basis and where we have differed is only on the effect of the statutory provisions with
reference to the question of limitation.
The next question Is whether, assuming that the principles of justice, equity and good conscience apply, the right of the non-redeeming co-
mortgagor In the suit became barred by limitation under the relevant regulations in force in the Kanyakumari Dt., for if the right of the non-
redeeming co-mortgagor had become barred by limitation and a vested right had accrued to the redeeming co-mortgagor u/s 29 of Regulation VI
of 1100 Nalayalam Era, before the suit out of which the appeal arises was filed, the present suit would straightaway had to be dismissed. I find on
that point that, corresponding to Article 132 of the Limitation Act of 1908 there is Article 119 of Regulation VI of 1100 of Malayaam Era,
corresponding to Article 144 of the Limitation Act, there is Article 132 of the Regulation (VI of 1110) Malayalam Tra and corresponding to
Article 148 of the Limitation Act of 1908, there is Article 136 of the Regulation VI of 1100 Malayalam Era but providing a period of 50 years. It
is sufficient to quote Article 119 and 136 of Regulation Vi of 1100 Malayalam Era.
Description of suit Period of Time from which
limitation period begins
to run
------------------------ ---------- ------------------
To recover money or 12 years When the money
paddy due under a hypo- or paddy sued for
thecation bond or to becomes due.
enforce payment of money
or customary dues charged
upon Immovable property.
Description of suit Period of Time from which
limitation period begins
to run
Explanation : The allowance
and fees respectively
called Adukkuvathu
Olapanam, Etterthanam
and Miehavaramand
also all the fees customarily
paid to the Janmis,
shall, for the purpose of
this article be deemed to
be money charged upon
immovable property. ... ...
Against a mortgagee 50 years When the right to
to redeem or to recover redeem or to recover
possession of immovable posission
property mortgaged. accrues.
In my opinion the wording of these regulations, in particular, the wording of Article 136 is the same as Article 148/ of the Limitation Act, 1908 and
for the reasons already stated, I construe Article 136 of Regulation VI of 1100 Malayalam Era as applying to the case in the sense explained,
namely, the redemption furnishing the starting, point. It would follow that since the suit was filed within 50 years of the redemption by Sivathanu
Pillai (that took place in 1913 and 1918 and the suit was filed in 1956), the plaintiff''s right had not become time-barred and the suit is within time
on, my. view, therefore the appeal would have to be allowed straight away.