TMI Blog1979 (8) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Padmanabhan. (ii) 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 fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff 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 decree. The 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 arisen. The 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-redeeming 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion advanced by the learned counsel appearing for the appellants is that at the time when the two brothers, Madhavan and Sivathanu made the mortgages in question, they were members of a joint Hindu family and the mortgages were also made of the joint family property; consequently, the redemption by one of the co-mortgagors of the whole property, could only be on behalf of and for the benefit of all the members of the joint family, including the plaintiffs. In the alternative, it is submitted that even if it is conceded that some time after the mortgages but before the redemption, the family had divided in status, then also, after the redemption, the two branches of the family would be deemed to be holding the property as tenants-in-common or co-owners in defined shares. In either case, it is argued, no question of adverse possession or limitation would arise as the possession of the redeeming co-mortgagor would, in law, be the possession of the non-redeeming co-owners, also. We are afraid, the appellant cannot be allowed to turn round and take up this plea which he had not agitated, either before the learned Single Judge or the Letters Patent Bench of the High Court. In this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on some decisions of the Travancore High Court, namely : Raman Pillai v. Arthan Pillai; Muthiah Nadar v. Ramaswami Nadar; Parameshwaran v. Narayanan. It is emphasised that at the material time, the suit properties were situated in the territory of the erstwhile Travancore State, and in view of the States Reorganisation Act, 1956, the law applicable to the case is the law prevailing prior to 1st November, 1956, and not the law in the Madras State to which the territory from which the case has arisen, was added. The point sought to be made out is that the Madras High Court was legally bound to apply the Travancore Limitation Regulation as interpreted by the Travancore High Court, in preference to the earlier decisions of the Madras High Court. It is urged that even on the doctrine of stare decisis, the learned Judges of the High Court ought to have adhered to the view taken by the Travancore Court in the said cases. This 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong in holding that limitation for such a suit (brought after the expiry of 50 years from the date of the original mortgages) was governed by Article 132 of the Travancore Limitation Regulation corresponding to Article 144, Indian Limitation Act, 1908, because this Article cannot apply to a suit for redemption of his share by a nonredeeming co-mortgagor against the redeeming co- mortgagor, and the latter's possession cannot become adverse to the plaintiff. It is maintained that limitation for the suit will be governed by Article 136 of the Travancore Regulation (corresponding to Art. 148 of the Indian Limitation Act, 1908), but the starting point of limitation will not be the date of the old mortgage but the date on which the old mortgage was redeemed by the redeeming co- mortgagor and in its place, a split-up mortgage in an abated form confined to the plaintiff's share came into being. It is argued that in this new situation the nonredeeming mortgagor's right to redeem and to recover possession will accrue only after the redemption of the old mortgage, with the result that under Article 136 of the Travancore Regulation, the plaintiff would have a period of 50 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mortgagee redeemed and to treat the non-redeeming co-mortgagor as his mortgagor to the extent of the latter's 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 codebtor's 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 conscienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 and get possession of his property from the redeeming co-mortgagor, subsists as long as the latter's right to contribution subsists. This right of the 'non- redeeming' co-mortgagor, as rightly pointed out by the learned Chief Justice of 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. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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