JUDGMENT

The judgment dated 02.03.1994 passed by the Principal Munsiff's Court, Thiruvananthapuram, dismissing O.S.No.829/1992, which stands confirmed by the Additional District Court III, Thiruvananthapuram in A.S.No.230/1994 dated 31.07.2002, is under challenge in this Regular Second Appeal.

2. The plaintiff and defendant are siblings.

The plaint schedule property originally belonged to Neelakantan Padmanabhan, the father of the plaintiff and defendant. Neelakandan Padmanabhan mortgaged the plaint schedule property to one Kochukutty Krishnan for 1400 phanams by executing a mortgage deed No.1717/1098 ME. The original mortgagee died intestate. The plaintiff redeemed the mortgage from the legal representatives of the original mortgagee, who executed a release deed No.7100 dated 27.12.1963 (Ext.A3) in favour of the plaintiff.

3. The plaintiff claims he has been in exclusive possession and enjoyment of the plaint schedule property. According to the plaintiff, the defendant attempted to trespass upon the plaint schedule property, and hence he prayed for a permanent prohibitory injunction against the defendant.

4. The defendant resisted the claim of the plaintiff, contending that the plaintiff is only a co-owner of the plaint schedule property, over which he never got exclusive title or possession. The defendant also denied the allegation of trespass pleaded by the plaintiff. According to the defendant, the suit has been instituted to deny his co-ownership right and the joint possession and enjoyment of the property.

5. The trial Court dismissed the suit holding that the plaintiff and defendant are co-owners of the plaint schedule property and that the plaintiff is not entitled to an injunction as prayed for. 6. The First Appellate Court confirmed the findings of the trial Court and held that the defendant is also in possession and enjoyment of the plaint schedule property from the date of execution of Ext.A3 release deed and that the plaintiff failed to plead and establish ouster against the defendant. On 08.01.2004, this Court admitted the Second Appeal and formulated the following substantial question of law:

“Is not the appellant co-mortgager subrogated to the rights and privileges of the original mortgagee against the non-redeeming co-mortgager, respondent when he redeemed the plaint schedule property under Ext.A3”.

7. Heard Smt.M.A.Zohra, the learned counsel for the appellant.

8. The plaint schedule property originally belonged to Neelakandan Padmanabhan, the father of the plaintiff and the defendant, who had mortgaged the same to one Kochukutty Krishnan by way of mortgage deed No.1717/1098 ME. The plaintiff redeemed the mortgage from the legal representatives of the original mortgagee by way of release deed No. 7100 of 1963 (Ext.A3).

9. Both the trial Court and the First Appellate Court held that the plaintiff and the defendant are in joint possession of the plaint schedule property after the execution of Ext.A3 release deed.

10. The short question that falls for consideration is whether the plaintiff, co- mortgager subrogated to the rights and privileges of the original mortgagee against the non-redeeming co-mortgager when he redeemed the plaint schedule property under Ext.A3.

11. Simply on account of paying off mortgage debt and obtaining release from a mortgagee, one of the co-mortgagers who had obtained such a release does not step into the shoes of the mortgagee.

12. The doctrine of subrogation must be applied along with other rules of equity so that the person who discharges the mortgage is amply protected, and at the same time, there is no injustice done to the other joint debtors.

Therefore, he who seeks equity must do equity.

13. There is a distinction between a third party who claims subrogation and a co-mortgagor who claims the right. The co-mortgagors stand in a fiduciary relationship qua each other. The redeeming co-mortgagor can only claim the price which he has actually paid together with incidental expenses. Strictly speak