Case: Valliamma Champaka Pillai Vs. Sivathanu Pillai and Others

Valliamma, appellant herein is the original plaintiff. She is the grand-daughter of Madavan. Respondents 1 to 3 are the original defendants 1 to 3. They are the grand-sons of Sivathanu. The properties in dispute are items 3 1 to 42 and 44 detailed in the plaintBetween the years 1881-1882, the two brothers Madhavan and Sivathanu mortgaged these properties by way of usufructuary mortgages which were redeemed by Padmanabhan, father of defendants 1, 2 and 3 between the years 1913 and 1918 by paying the entire redemption money and he alone obtained possession thereof. The redemption was effected by obtaining release deeds from the former mortgagees-in-possession. The particulars of these mortgages and the release deeds executed in favour of the redeeming co- mortgagor are as under:(i) Exhibit III, dated September 29, 1059 (1884), is the mortgage executed by the two brothers in respect of items 34 to 36, 38 and 39 and 44 in favour of the grandfather of D.W.2. Exhibit IV is the release deed, dated April 18, 1093 (1918), in favour of) Exhibit IX is the mortgage, dated August 19, 1056 (1881), executed by the two brothers in favour of Cochi Ravi Pillai in respect of items 32 and 40. Exhibit XIV, dated February 21, 1088 (1913), is the release deed in favour of Padmanabhan(iii) Exhibit XV is the mortgage, dated February 25, 1058 (1883), in respect of plaint item 41 by the two brothers in favour of Armugham Narayana. Exhibit XVIII, dated August 31, 1088 (1913), is the release deed(iv) Exhibit XIX is the mortgage, dated August 14, 1058 (1883), in respect of items 31, 33 and 37 in favour of Chinnakannu Pandaram . Exhibit XX is the release deed, dated January 23, 1088 (1913)(v) Besides the above, the two brothers had executed a Vellaolai Othi in 1043 (1868) in respect of item 42. Exhibits 21 and 22 dated August 21, 1088 (1913), are the release deedsThe plaintiff, the grand-daughter of the non-redeeming co-mortgagor, Madhavan, instituted the suit on July 15, 1946 for partition and possession of her one-half share of the suit properties. In respect of items 34 to 36, 38, 39 and 44, she claimed possession on contribution of her share of the mortgage money that had been paid by the redeeming co- mortgagor to the mortgagees. It was alleged in the plaint that this half share of the plaintiffs father devolved on his widow on his death, without male issue, and subsequently, on the death of the widows, the same was inherited by the plaintiffDefendants 1 to 3 resisted the plaintiffs suit, inter alia, on the ground that even if the courts come to the conclusion that the division of the joint family status alleged by the plaintiff was true, the plaintiff would not be entitled to recover her half share in the plaint schedule, items 31 to 42 and 44, because the period of limitation f or redemption of these mortgages, under the Travancore Limitation Regulation was 50 years, which had expired long before the filing of the suit.The suit was tried by the Second Judge of the District Court, Nagercoil, who on February 16, 1948 passed a preliminary decree in favour of the plaintiff, declaring her right over one-half share of the Schedule properties and her right to recover the same, together with mesne profits, after division by a Commissioner appointed by the Court. The case was adjourned for final decree proceedings. By the same judgment, dated February 16, 1948, the questions covered by issues 3 to 9 including that of limitation, were left for decision in the final decree to be passed in the caseAgainst that preliminary decree, defendants 1 to 3 preferred a First Appeal in the Travancore-Cochin High Court. The High Court dismissed the appeal on October 19, 1953, and affirmed the preliminary decree passed by the trial court. There after, the plaintiff took out a commission to divide the properties by metes and bounds. The Commissioner submitted his report, lists and plan of divisionAgainst the final decree, both the plaintiff and defendants 1 to 3 preferred First Appeals 49 and 37 of 1955, respectively, to the Travancore-Cochin High Court, which allowed these appeals and sent the matter back to the trial court for passing a fresh final decreeThe suit was thereafter transferred to the Court of the Subordinate Judge of Padmanabhapuram, who passed a final decree on March 19, 1957. It is from this final decree and judgment that this appeal has arisenThe learned Subordinate Judge held that the right of the Plaintiff to recover her half share of the plaint items 31 to 42 and 44 is not barred by limitation. Following a decision of the Travancore-Cochin High Court, reported in 8 Dominion Law Reporter (T.C.) 562, he held that the period of limitation for a suit by a non-re deeming co-mortgagor against the redeeming co-mortgagor is 50 years under Article 136 of the Travancore Limitation Regulation (corresponding to Article 148 of the Limitation Act, 1908) and that the starting point of limitation is the date of redemption by the redeeming co-mortgagor. He reasoned that since the suit was instituted within 50 years of that date, it was within time. He further held that the various release deeds by which the mortgages were redeemed by the father of de fendants 1 to 3, amounted to acknowledgements, giving fresh starts of limitation.Against this final decree of the Subordinate Judge, defendants 1 to 3 preferred First Appeal 305 of 1957 in the High Court of Judicature at Madras. The appeal was heard by a learned Single Judge (P. Ramakrishnan, J.), who by his judgment, dated December 23, 1960, held that the suit was barred by limitation so far as plaint items 31 to 42 and 44 were concerned. In his view, the plaintiff, who is in t he position of a non-redeeming co- mortgagor, would have only a period of 12 years limitation under Article 144 of the Limitation Act, 1908, and that Article 148 of that Act (corresponding to Article 136 of the Travancore Limitation Regulation) is not the proper Article to be applied to such a suit where the Transfer of Property Act, as amended by the Amending Act of 1929, was not in force. In taking this view, the learned Judge declined to follow the decision of the Travancore Cochin High CourtAggrieved by this judgment and decree of the learned Single Judge, the plaintiff preferred a Letters Patent Appeal. The appeal was ultimately heard by a Full Bench of three learned Judges. S. Ramachandra Iyer, C. J. and Jagadeesan, J. in their separate but concurrent judgments held that a non-redeeming co-mortgagor has two periods of limitation within which he may file his suit against the redeeming co-mortgagor for redemption of his share, namely, within 50 years provided for by the Travancore Limitation Regulation, starting from the date of the mortgage, or, if that period has already expired, within 12 years of the date of redemption by the redeeming co-mortgagor, under Article 132 of the Travancore Limitat ion Regulation corresponding to Article 144 of the Indian Limitation Act, 1908. On this reasoning, the majority held that the plaintiffs suit for recovery of possession in respect of all the aforesaid items, except item 41, was barred by li mitation. The third learned Judge in his dissenting judgment, held that the plaintiff would get a period of 50 years limitation starting from the date of the redemption of her share against the redeeming co-mortgagor. On this reasoning, he found t he suit to be within time.Hence this appeal on certificate issued by the High Court under Article 133 of the Constitution.

Reasoning: 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.