JUDGMENT

Heard the learned counsel on either side.

2.The defendants in O.S.No.322 of 2008 on the file of the Additional District Munsif Court, Padmanabapuram are the appellants in this Second Appeal. The respondent herein filed the said suit seeking the relief of partition and separate possession. The trial Court granted preliminary decree as prayed for. The first appellate Court also confirmed the same. The question that arises for consideration is whether the second appeal deserves to be admitted by formulating the substantial question of law.

3. The basic facts are not in dispute. The suit property originally belonged to one Subramoniam Nadar. After his demise, it devolved on his wife Kochamma Nadachi and son Ponnumuthu Nadar. It is not in dispute that the mother and son jointly executed a mortgage in favour of one Bagavathi vide Ex.B1 dated 12.04.1954. The said Bagavathi passed away and her legal heirs sold the mortgage right in favour of one Bagiyam vide Ex.B3 dated 30.05.1962. Bagiyam in turn sold the same in favour of the first defendant (Chenbagam) who none other than the wife of Ponnumuthu Nadar vide Ex.B.5 dated 03.04.1963. The defence of Chenbagam was that the original mortgage having been executed on 12.04.1954 became time-barred on expiry of 30 years therefrom. Admittedly, the suit was instituted only in the year 2008. The first defendant claimed that she was the absolute owner of the property and hence, the suit for partition at the instance of one of the sons Ponnumuthu Nadar was not maintainable.

4. The Courts below rightly noted that following the demise of Ponnumuthu one of the original mortgagors, the right of redumption devolved on all his legal heirs. The legal heirs are none other than the wife(D1) and sons(plaintiff and D2 to D6 and daughter(D7). The status of the first defendant(Chenbagam) was that she is one of the co-mortgagors who redeemed the mortgage. The Hon'ble Supreme Court of India in the decision reported in AIR 2004 SC 1206 (Krishna Pillai Rajasekharan Nair V. Padmanabha Pillai) held that the co-mortgagor in such cases will not become a mortgagee. The co-mortgagor can be a co-owner too. It was further held as follows:-

“ 21. ... 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.

22. 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. ... ”

Applying the aforesaid ratio, the trial Court granted decree for 1/8th share in favour of the plaintiff on payment of contribution of Rs.125/-. The first appellate Court, after referring to few other decisions of the Hon'ble Supreme Court, upheld the decree. The approach is sound and correct. No substantial question of law arises for consideration. This second appeal is dismissed. No costs.

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