Case: Valliamma Champaka Pillai Vs. Sivathanu Pillai and Others

legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of red emption; he can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share..................while it can be readily conceded that the joint debtor who pays up and discharges the mortgage sta nds in the shoes of the mortgagee................ he will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection ........"so far as it is necessary to enforce his equity of reimbursement". ........It is as regards the excess of the payment over his own share that the right can be said to exist........The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right, strictly speaking is a right of reimbursement or contribution". 22. It is note-worthy that Ganeshi Lal v. Joti Parshad (supra) was a case from Punjab where the Transfer of Property Act was not in force, and this Court had affirmed the judgment of the Punjab High Court determining the claim of the redeeming co-mortgagor for contribution against the non-redeeming co-mortgagors or principles of justice, equity and good conscience.From what has been said above it is clear that where the Transfer of Property Act is not in force an d a mortgage with possession is made by two persons, one of whom only redeems discharging the whole of the common mortgage debt, he will, in equity, have two distinct rights: Firstly, to be subrogated to the rights of the mortgagee discharged , vis-a-vis the non-redeeming co-mortgagor, including the right to get into possession of the latters portion or share of the hypotheca. Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca, which belonged not to him but to the other co- mortgagor. It follows that where one co-mortgagor gets the right to contribution against the other co-mortgagor by paying off the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the non-redeeming co-mortgagor, to pay his share of the liability an d get possession of his property from the redeeming co-mortgagor, subsists as long as the latters right to contribution subsists. This right of the non- redeeming co-mortgagor, as rightly pointed out by the learned Chief Justice o f the High Court in his leading judgment, is purely an equitable right, which exists irrespective of whether the right of contribution which the redeeming co-mortgagor, has as against the other co-mortgagor, amounts to a mortgage or not. 23. The ground is now clear for ascertaining the appropriate provision of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the non-redeeming co-mortgagors against the redeeming co-mortgagor.Be it noted, that the suit, out of which this appeal has arisen, though, in form, a simple suit for partition raises, in substance, a claim for redemption with regard to items 31 to 42 and 44 which were under mort gage and had been redeemed in entirety by one of the co-mortgagors. Indeed, in the courts below the claim in respect of these items has been fought by the parties as if it were one for redemption. 24. Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagors property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non- redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt, may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor. Article 136 of the Travancore Limitation Regulation (which correspond to Article 148 of Indian Limitation Act 1908) reads as under: "------------------------------------------------------------ Description of suit Period of Time from Limitation begins to run ------------------------------------------------------------ Art. 136 Against a mortgagee to redeem Fifty years When the right to or to recover possession of redeem or to immovable property mortgaged recover possession accrues ------------------------------- -----------------------------" 25. The original mortgages were made during the years 1881 to 1884. They were redeemed by the co-mortgagor in Sivathanus line between the years 1913 to 1918 by paying the entire common mortgage debt and obtaining possession of the entire hypotheca. The plaintiff who is the successor-in-interest of the non-redeeming co-mortgagor, Madhavan, filed the suit in 1946, (which was renumbered as O.S. 135 of 1956) for redemption of her half share on payment of her half share of the mortgage amount and expenses to the defendant respondents successors-in-interest of Sivathanu. The suit was thus filed more than 12 years after the expiry of the 50 years limitation prescribed for a suit for redemption under Article 136 of the Travancore Regulation, and more than 28 years after the redemption in 1918, of the last mortgage by the redeeming co-mortgagor. This being the situation, the non-redeeming mortgagors suit for his share of the property on payment of his proportionate share of the mortgage money would be barred irrespective of whether the limitation is governed by the provisions of Limitation Regulation corresponding to Article 132 or 144 or any other Article of the Indian Limitation Act, 1 908. Therefore, as at present advised, we do not feel the necessity of laying down the law with regard to this aspect of the case. Since the limitation started running in 1913 or 1918, the suit was time-barred from every point of view. 26.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Be that as it may, the crucial part of the learned Judges observation, which has been underlined, is obviously correct. The fact remains that this plea about the family being joint in statue at the material time, was not agitated before the learned Single Judge, nor pressed into argument before the Full Bench in Letters Patent Appeal. The first and the second appellate courts below, therefore, proceeded on the assumption that the two brothers who created the mortgages in question, and their branches were, at all times material, not members of an undivided Hindu family, having a joint status. Nor was the alternative plea, that the two branches of the family were holding these properties as co-owners, and as such, the possession of the redeeming co-mortgagor would be deemed to be on behalf of the non-redeeming co-mortgagor also ever passed into argument before the courts below. Moreover, the material on the record is too meagre to furnish adequate factual foundation for this contention including its alternative limb. Indeed, the counsel requested that the case should be remanded to the trial court for determining this plea after giving the parties another opportunity to produce evidence thereon.For the aforesaid reasons we do not permit the appellant to reagitate this plea which in any of its aspects was not pressed into argument in the courts belowThis contention was raised before the appellate Bench of the High Court, also, and was rightly rejected. Under Sec. 18, Limitation Act, one of the essential requirements for a valid acknowledgement is that the writing concerned must contain an admission of a subsisting liability. A mere admission of a past liability is not sufficient to constitute such an acknowledgement. Hence a mere recital in a document as to the existence of a past liability, coupled with a statement of its discharge, does not constitute an acknowledgement within this section. Tested on this touchstone, the release-deeds, Exhibits IV, XIV, XXI and XXII pertaining to items 31 to 36, 39, 40 an d 44, executed by the original mortgagees stating, in effect, that the mortgages had been extinguished by payment of the mortgage debts in entirety, by the redeeming co-mortgagor, do not amount to acknowledgements of a subsisting liability, which could give a fresh starting point of limitation.If we may say so, with due deference, the view taken by the Travancore (or T.C.) High Court in the aforesaid decisions did not proceed on a correct interpretation of the corresponding provision s of the Travancore Regulation. We find ourselves in respectful agreement with the reasoning and the finding of the High Court (majority) on this point, in the judgment under appealSteering clear of the tangled web of conflicting and confusing decisions rendered on an interpretation of the relevant provisions ofthe Transfer of Property Act, 1882, as they stood before the amendment of 1929, we may say at once that even where the Transfer of Property Act was not in force, a redeeming co-mortgagor discharging the entire mortgage debt, which was the joint and several liability of himself and his co-mortgagor, was, in equity, entitled to be subrogated to the rights of the mortgagee redeemed and to treat the non-redeeming co-mortgagor as his mortgagor to the extent of the latters portion or share in the hypotheca and to hold that portion or share as security for the excess payment made by him. This equitable right of the redeeming co-mortgagor stems from the doctrine that he was a principal debtor in respect of his own share only, and his liability in respect his co-debtors share of the mortgage debt was only that of a surety: and when the surety had discharged the entire mortgage debt, he was entitled to be subrogated to the securities held by the creditor, to the extent of getting himself reimbursed for the amount paid by him over and above his share to discharge the common mortgage debt.For the view we take, we derive support from certain observations of this Court in Ganeshi Lal v. Joti Parshad. While discussing the nature and extent of a redeeming co-mortgagors right to recover contribution from his co-debtor, this Court speaking through Chandrashekhara Aiyar J., made these incidental observations which, for our purpose, are apposite:"Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognized that where there are several joint debtors, the person making the payment is the principal debtor as regards the part of the liability, he is discharged and a surety in respect of the shares of the rest of the debtors. Such being the legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of red emption; he can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share..................while it can be readily conceded that the joint debtor who pays up and discharges the mortgage sta nds in the shoes of the mortgagee................ he will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection ........"so far as it is necessary to enforce his equity of reimbursement". ........It is as regards the excess of the payment over his own share that the right can be said to exist........The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right, strictly speaking is a right of reimbursement or contribution"The ground is now clear for ascertaining the appropriate provision of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the non-redeeming co-mortgagors against the redeeming co-mortgagor.Be it noted, that the suit, out of which this appeal has arisen, though, in form, a simple suit for partition raises, in substance, a claim for redemption with regard to items 31 to 42 and 44 which were under mort gage and had been redeemed in entirety by one of the co-mortgagorsSince subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagors property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non- redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt, may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagorThe original mortgages were made during the years 1881 to 1884. They were redeemed by the co-mortgagor in Sivathanus line between the years 1913 to 1918 by paying the entire common mortgage debt and obtaining possession of the entire hypotheca. The plaintiff who is the successor-in-interest of the non-redeeming co-mortgagor, Madhavan, filed the suit in 1946, (which was renumbered as O.S. 135 of 1956) for redemption of her half share on payment of her half share of the mortgage amount and expenses to the defendant respondents successors-in-interest of Sivathanu. The suit was thus filed more than 12 years after the expiry of the 50 years limitation prescribed for a suit for redemption under Article 136 of the Travancore Regulation, and more than 28 years after the redemption in 1918, of the last mortgage by the redeeming co-mortgagor. This being the situation, the non-redeeming mortgagors suit for his share of the property on payment of his proportionate share of the mortgage money would be barred irrespective of whether the limitation is governed by the provisions of Limitation Regulation corresponding to Article 132 or 144 or any other Article of the Indian Limitation Act, 1 908. Therefore, as at present advised, we do not feel the necessity of laying down the law with regard to this aspect of the case. Since the limitation started running in 1913 or 1918, the suit was time-barred from every point of view.