1. The plaintiff-appellant has filed this appeal against the judgment and decree of the Additional District Judge, Karnal, dated July 24, 1970, whereby the decree of the trial Court dismissing his suit was maintained.
2. The appellant filed a suit against Sukh Lal and others defendants-respondents, for a declaration to the effect that he had become the owner of one-half share of the suit land and that the sale of a portion of the said land by Shrimati Patori in favour of Sukh Lal, respondent, on June 6, 1968, was not binding on him. It was alleged in the plaint that Data Ram was the original owner of the land and he mortgaged orally the suit land in favour of Jawahra for a sum of Rs.440/- for which the mutation was sanctioned on Nov. 30, 1903. It was alleged that Data Ram died before 1947, and the appellant, Sukh Lal, respondent, and several others being his heirs, became the mortgagors qua the suit land. It was also alleged that Jawahra mortgagee also died before 1947 and Hardeva and others became the mortgagees being the heirs of Jawahra. The appellant and Sukh Lal, respondent, filed an application in the Court of the Revenue Assistant, Karnal, against the mortgagees for redemption of the mortgage and also deposited Rs.440/-. By order of the Revenue Assistant dated May 8, 1947, the redemption was ordered in favour of the appellant and Sukh Lal, respondent. It was further alleged that the share of the mortgagors other than the appellant and Sukh Lal, respondent, came to be mortgaged with them and the possession of the and was also given to them. The mutation was sanctioned in their favour of June 9, 1947. According to the appellant, the mortgage was more than 60 years' old at the time of sale by Shrimati Patori on June 6, 1968. so, he and Sukh Lal, respondent, had become the owners of the land, in suit, in equal shares and Shrimati Patori mortgagor had no right to sell the land inasmuch as she had lost all rights in the land by efflux of time. The sale made by Shrimati Patori mortgagor, to Sukh Lal, respondent, was not binding on him to the extent of one-half share. The suit was contested by the defendants-respondents on various grounds and on the pleadings of the parties, the following two preliminary issues were framed by the trial Court:
1. Whether the person recorded as mortgagors owners of the suit land are not necessary parties in this case ?
2. It being the very case of the plaintiff that the share of mortgagors other than the plaintiff and defendant No. 1 came to be mortgaged with the plaintiff and defendant No. 1 in consequence of the redemption order obtained by them on May 8, 1947, whether the plaintiff can claim extinction of the right of redemption of this mortgage on the ground that the original mortgage by Data Ram was created in the year 1903 ?
No finding was given on issue No. 1, issue No. 2 was found against the appellant and consequently, his suit was dismissed by the trial Court, his suit was dismissed by the trial Court. In appeal, the finding of the trial Court on issue No. 2 was maintained. Feeling aggrieved against the same, the appellant has come up in second appeal to this Court.
3. According to the findings of the lower appellate Court, the position of the other co-mortgagors was that of co-sharers with the mortgagors who redeemed the mortgage and, therefore, no question of extinction of the right of ownership, by lapse of time, arose in the present case. It was also held that the provisions of S. 92 of the T. P. Act, (hereinafter called the Act) were not altercated to the present case in view in Janardhan Bhagwan Dass v. Sham Lal Nand Lal, AIR 1959 Punj 170, wherein, according to the learned Additional District Judge, it was held that the mortgagor, who has redeemed the whole mortgage, cannot be taken to have been subrogated to all the rights of the original mortgagees. The learned counsel for the appellant contended that both these findings, arrived at by the lower appellate Court, are erroneous, in law, as well as on facts. According to the learned counsel, it has nowhere been held in Janardhan Bhagwan Dass's case (AIR 1959 Punj 170) (supra), that a co-mortgagor who has redeemed the whole mortgage could not be taken to have been subrogated to all the rights of the original mortgagee. Even though the provision of the Act, as such are not applicable, argued the learned counsel, yet the principles of S. 92 of the Act have always been made applicable on the principles of justice, equity and good conscience and, therefore, in equity the appellant and Sukh Lal, respondent, had been subrogees qua the other non-redeeming co-mortgagors and the limitation for redemption qua the non-redeeming co-mortgagors was 60 years from the date of the original mortgage which, in the present case, was in the year 1903. In support of his contention, the learned counsel relied upon Ram Chander v. Prabhu Dayal, AIR 1955 NUC (Punj) 5719. The decision in the said case was given in Regular Second Appeal No. 789 of 1951 decided on Feb, 9, 1955. The learned counsel also relied upon a Full Bench judgment of the Madras High Court in Valliamma v. Sivathanu, AIR 1964 Mad 269, which was later on also affirmed by the Supreme Court in Valliama Champaka Pillai v. Sivathanu Pillai, AIR 1979 SC 1937. On the other hand, the learned counsel for the respondents, submitted that the position of a redeeming co-mortgagor is that of a charge holder. He does not become the mortgagee qua the non-redeeming co-mortgagors. According to the learned counsel, the redeeming co-mortgagor is only entitled to enforce the charge on the mortgaged property and he has no other right qua the non-redeeming co-mortgagors who are co-sharers in the property redeemed earlier. In support of his contention, the learned counsel placed reliance on Mahommad Ali v. Ghulam Nabi, AIR 1936 Lah 290 ; Ganeshi Lal v. Joti Pershad, AIR 1953 SC 1 ; Kedar Lal v. Hari Lal, AIR 1952 SC 47 ; Lakshmi Pilla v. Easwara Pillai, AIR 1977 Ker 148 (FB); Aziz Ahmad Khan v. Chote Lal, AIR 1928 All 241 and Kenchappa v. Rokhade Nagappa, AIR 1957 Mys. 1 (FB).
4. I have heard the learned counsel for the parties at a great length and have also gone through the case law cited at the bar.
5. The only question involved in Janardhan Bhagwan Dass's case (AIR 1959 Punj 170) (supra), was whether the non-redeeming co-mortgagors were entitled to redeem their share only and that they were not bound to bring a suit for the redemption of the entire mortgaged property. While dealing with this contention, it has been held therein that it will be in accordance with the principles of justice, equity and good conscious to allow the plaintiffs (non-redeeming co-mortgagors, in that case) to redeem their share of the property on payment of the proportionate amount of the mortgage money. In the said case, reference has also been made to the decision of the Supreme Court in Ganeshi Lal's case (AIR 1953 SC 1) (supra) and observations were made by the Supreme Court in that case, reproduced in para 5, are as follows :
'If we remember that the doctrine of subrogation which means substitution of one person in place of another and giving him the rights of the latter is essentially an equitable doctrine in the origin and application, and if we examine the reason behind it, the answer to the question which we have to decide in this appeal is not difficult. Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognised that where there are several joint debtors, the person making the payment is a principal debtor as regards the part of the liability he is to discharge and a surely in respect of the shares of the rest of the debtor. Such being the legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of redemption; be can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share.'
Thus, it can be held that though the provisions of S. 92 of the Act as such are not applicable to the State of Punjab, but the said principle being, based one justice, equity and good conscience, have always been made applicable. In this view of the matter, it is clear that the lower appellate Court has erred in placing reliance on Janardhan Bhagwan Dass' case (AIR 1959 Punj 170) (supra), in coming to the conclusion that the redeeming co-mortgagors cannot be taken to have been subrogated to all the rights of the original mortgagee. In fact, Ganeshi Lal's case (AIR 1953 SC 1) (supra), decided by the Supreme Court, was from Punjab and the principles contained in S. 92 of the Act were made applicable as it was held therein that the doctrine of subrogation which means substitution of one person in place of another and giving him the rights of the latter is essentially an equitable doctrine in its origin and application, and it if we examine the reason behind it, the answer to the question which we have to decide in this appeal is not difficult. Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognised that where there are several joint debtors, the person making the payment is a principal debtor as regards part of the liability he is to discharge and a surety in respect of the shares of the rest of the debtors. The contention raised on behalf of the respondents, that the position of a redeeming co-mortgagor is that of a charge holder, in one sense does not go contrary to these principles. Of course, the redeeming co-mortgagor has a charge on the property till the non-redeeming co-mortgagor makes the payment of his share in the mortgaged property, but it does not advance the case of the respondents more than this. The non-redeeming co-mortgagor cannot be said to be a co-sharer till the amount of his share is paid by him to the redeeming co-mortgagor, the limitation for which was then provided under Art. 148 of the Limitation Act, 1908. This matter has been fully discussed in Ram Chander's case (AIR 1955 NUC (Punj) 5719) (supra) by a learned single Judge of this Court. Reference therein has also been made to Abdul Ghafur Khan v. Firm Mangat Rai Ganga Sahai, AIR 1938 Lah 184 and Khuda Bakhsh v. Ata Mohammad, AIR 1942 Lah 135. It has been clearly held in Ram Chander's case (supra), that the position of a co-mortgagor who redeems the entire mortgage is that of a mortgagee and not that of a mere charge holder in respect of the other co-sharers. The same view has also taken by the Patna High Court in Mukh Narain Singh v. Ramlochan Tiwari, AIR 1941 Pat 147. It has been further observed in Ram Chander's case (supra) that a co-mortgagor who has redeemed a mortgage is subrogated to the position of the mortgagee and a suit against him by the other mortgagors for redemption is governed by Art. 148 and time runs against the plaintiffs from the date of the original mortgage. I am in full agreement with these observations in the above-said case.
6. For the reasons recorded above, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and the finding of the Courts below on issue No. 2 is reversed. Since the matter has been decided on the preliminary issues only and the appellant's suit was dismissed, this case is demanded to the trial Court for fresh decision on merits in accordance with law. The parties, through their counsel, have been directed to appear in the trial Court on Nov. 27, 1981. The record of the case be sent back immediately. No costs.
7. Appeal allowed.