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2004(1) Supreme 15
SUPREME COURT OF INDIA
(From Kerala High Court)
R.C. Lahoti & Ashok Bhan, JJ.
Krishna Pillai Rajasekharan Nair (D) by Lrs. -Appellants
versus
Padmanabha Pillai (D) by Lrs. and Ors. -Respondents
Civil Appeal No. 13133 of 1996
Decided on 15-12-2003
Counsel for the Parties :
For the Appellant : B.V. Deepak, Ms. Malini Poduval, Ms. Lansinglu Rongmei, Advocates.
For the Respondents : S. Balakrishnan, Sr. Advocate, Abhay Kumar, R. Gopalakrishnan, Ms. Prachi Vajpai, S. Prasad and M.K.D. Namboodiri, Advocates
Held : The present one is a case of subrogation by the operation of law and hence governed by the first para of Section 92 of the Transfer of Property Act. The provision recognizes the same equity of reimbursement as underlies Section 69 of the Indian Contract Act that "a person who is interested in the payment of money, which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other". Such a payment made, carries with it, at times, an equitable charge. Section 92 of the Transfer of Property Act does not have the effect of a substitutee becoming a mortgagee. The provision confers certain rights on the re-deeming co-mortgagor and also provides for the remedies of redemption, foreclosure and sale being available to the substitutee as they were available to the substituted. These rights the subrogee exercises not as a mortgagee reincarnate but by way of rights akin to those vesting in the mortgagee. The co-mortgagor can be a co-owner too. A property subject to mortgage is available as between co-mortgagors for partition, of course, subject to adjustment for the burden on the property. One of the co-mortgagors, by redeeming the mortgage in its entirety, cannot claim a right higher than what he otherwise had, faced with a claim for partition by the other co-owner. He cannot defeat the legal claim for partition though he can insist on the exercise of such legal right claimed by the other co-owner-cum-mortgagor being made subject to the exercise of the equitable right vesting in him by subrogation. (Para 21)
In our opinion, the suit filed in the present case being a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Article 120 of Limitation Act, 1908. For a suit for partition the starting point of limitation is -when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. In such a suit, the right of the redeeming co-mortgagor would be to resist the claim of non-redeeming co-mortgagor by pleading his right of contribution and not to part with the property unless the non redeeming co-mortgagor had discharged his duty to make contribution. This equitable defence taken by the redeeming co-mortgagor in the written statement would not convert the suit into a suit for contribution filed by the non-redeeming co-mortgagor. (Para 22)
It was stated at the Bar that even during the pendency of this litigation the property has changed hands and substantial construction has come up on the property which is likely to create insurmountable difficulties in dividing the property by metes and bounds consistently with the entitlement of the parties. That aspect need not detain us at this stage. We have stated the correct position of law which should govern the suit and the parties. In spite of the preliminary decree having been passed it will be open for the court, at the state of passing a final decree, to see how the law and the equities are to be adjusted and whether instead of actually dividing the property it would be more appropriate to adopt some other mode of satisfying the claims of the parties as per their entitlement. (Para 27)
JUDGMENT
R.C. Lahoti, J.-The facts relating to the property which forms subject-matter of suit are very many, spread over a period of almost a century by this time and so is the number of persons who have dealt with the property and amongst whom the property has changed hands. Shorn of unnecessary details, we would concentrate on bare essential facts, to the extent relevant for appreciating the legal issues arising for decision. For the sake of convenience we would be referring to the appellant and respondent No. 1 respectively as the plaintiff and defendant No. 1 as they were arrayed before the trial court. They are the principal contesting parties. Unfortunately, both of them have died and their legal representatives are on record. For the sake of brevity and convenience we are referring to original parties only.
2. There was a piece of land measuring 1.2 acres in area which belonged to 18 members of a family of Sripandarachetti Cult. It was mortgaged in 1902. There was a partition amongst different groups. The properties involved in partition were listed as Schedules A , B , C and D . The C Schedule comprised of 30 cents. The property in dispute herein is referable to this Schedule C land. Hereinafter, it is referred to as the property in suit .
3. The property in suit was subject to an usufructuary mortgage of the year 1078 Malyalam Era. After the partition, 10 members out of the 18 to whom different portions of the mortgaged property were allotted filed the suit, bearing O.S. No. 464 of 1117 of Malayalam Era, for redemption. The suit was decreed in 1950. After the decree one Chellapan Pillai (who died during the pendency of these proceedings and in whose place defendant No.1 stands substituted) got the property Schedule C redeemed by making full payment of mortgage money. He also entered into possession over the property in the year 1953. The appellant-plaintiff is the assignee from certain non-redeeming co-mortgagors of a share in C Schedule property. His share in the property is stated to be 9/12th in 25 cents of C Schedule property. In the year 1971, the plaintiff filed the present suit seeking relief declaration of title with recovery of possession, and in the alternative, the relief of partition. On 7.12.1973, the trial court decreed the suit upholding the plaintiff s entitlement to 9/12 shares in the suit property but subject to payment of Rs. 208/- to reimburse the first defendant by way of contribution towards the amount spent by him in redeeming the property. A preliminary decree determining the share of the plaintiff and his entitlement to partition was passed. The trial court s decree was upheld by the First Appellate Court dismissing the appeal preferred by defendant No. 1. Defendant No. 1 preferred a second appeal (No. 1149 of 1976). Vide Judgment dated 10.2.1981, the High Court allowed the appeal and set aside the decrees of the two courts below. It was urged before the High Court on behalf of the defendant No. 1 that the property being subject to mortgage and defendant No. 1 having subrogated himself in place of original mortgagee, the suit filed by the plaintiff barely for declaration, partition and recovery of possession, was not maintainable and it was necessary for the plaintiff to have sought for the relief of redemption. Even if the relief of redemption of mortgage was not specifically sought for, it was submitted on behalf of the defendant No.1 that the suit in substance was one for redemption and construed so it was barred by time under Article 148 of the Limitation Act, 1908. The High Court formed an opinion that this aspect of the case did not appear to have engaged the attention of the courts below and, therefore, the case needed to be remanded for decision afresh. The High Court allowed the appeal, set aside the decree under appeal and remanded the case to the trial court with a direction to allow the parties an opportunity of amending the pleadings, so that the plaintiff could seek
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