Nature of right of subrogation.

This Second Appeal arises out of the decree of the learned Subordinate Judge of Tanjore in A.S. No. 138 of 1955, modifying that of the District Munsif of Pattukottai in O.S. No. 370 of 1953.

The plaintiff is the appellant in this Second Appeal. He filed the suit for redemption of a mortgage, Exhibit A-1, dated 22nd June, 1898, under the following circumstances. The suit properties and certain other properties were originally owned by one Muthu and his son Odayappa. They executed a possessory mortgage over certain items of properties in favour of one Sokkan Chettiar prior to 1898. On 22nd June, 1898, they executed a second usufructuary mortgage under Exhibit A-1 over those and certain other properties in favour of one Ramaswami. The mortgagee was directed to redeem from out of the portion of the mortgage money left in his hands the earlier mortgage in favour of Sokkan. The second mortgagee however failed to so redeem. The right of the mortgagee under Exhibit A-1 was transferred to one Alagappan. On the side of the mortgagor there were a few transactions by way of sales of equity of redemption as a result of which the properties vested in regard to some items in the appellant’s father, some others in Sokkan, and the remaining properties in one Karuppan and one Arunachalam. The result is that the three sets of persons above-named, namely, the plaintiff’s father Sokkan and Karuppan and Arunachalam came to own the equity of redemption and were in the position of co-mortgagors. Thereafter suits for redemption were filed. O.S. Nos. 52 and 158 of 1926 were filed, by Alagappan in the Court of the District Munsif of Pattukottai to redeem Sokkan’s mortgage. O.S. No. 281 of 1952 was filed by Sokkan claiming as the owner of the equity of redemption under the transfer above-mentioned to redeem Alagappan’s mortgage. In those litigations a decree was ultimately passed decreeing redemption of Alagappan’s mortgage by Sokkan as well as Karuppan and Arunachala. In pursuance of the decree for redemption Sokkan paid a sum of Rs. 1,092 and Karuppan and Arunachala paid a sum of Rs. 1,226 redeemed Exhibit A-1 and entered into possession of the respective properties. Thereupon the appellant claiming under the purchase by his father filed the suit for redemption out of which the Second Appeal arises against the representatives of Sokkan.

His case was that he was in the position of a co-mortgagor and was entitled to redeem the mortgage to which Sokkan and the other persons became entitled by virtue of being subrogated to the rights of Alagappan’s mortgage, which they redeemed. The appellant’s further case was that Karuppan and Arunachala had executed a release of their rights in his favour. As regards the mortgage money payable for redemption, the appellant claimed that no amount was due as the debt was discharged under the provisions of section 9-A of Madras Agriculturists Relief Act (IV of 1938), the mortgagee under Exhibit A-1 having been in possession of the properties for more than 30 years.

This claim was contested by the respondents who claimed under Sokkan. They pleaded that certain items claimed in the plaint were not the subject-matter of mortgage under Exhibit A-1 that certain other items were lost to the mortgagee by reason of adverse possession, etc., and that as regards the remaining items Sokkan and his representatives were entitled to retain what they purchased from the mortgagor. They also contested the claim of the appellant as to the applicability of the provisions of section 9-A of Madras Act IV of 1938.

The District Munsif held that four of the items mentioned in the plaint were not included in the othi, and that therefore the appellant was not entitled to redeem them. He further held that the appellant has lost title to about 20 items on account of adverse possession of the same by third parties and that the plaintiff was entitled to redeem only the remaining items. The District Munsif accepted the case of the appellant that h