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Jamiat Singh Vs. State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular First Appeal Nos. 1430 to 1432 of 1982
Judge
Reported inAIR1984P& H351
ActsLand Acquisition Act, 1894 - Sections 4 and 30; Limitation Act, 1963 - Schedule - Article 61
AppellantJamiat Singh
RespondentState of Punjab and ors.
Cases ReferredMange v. Des Raj.
Excerpt:
.....co-sharers and if the latter fail to pay up their share of the debt within time prescribed for redeeming a mortgage under art. this is equally the undisputed position that in the absence of applicability of this act to the state of punjab, the principles of justice, equity and good conscience govern the situation and these principles have all through been made applicable in this state. as a matter of fact none of these cases has directly considered the question of extent or degree of subrogation, a redeeming co-mortgagee would enjoy vis-a-vis the non-redeeming co-mortgagors. in cases like the one in hand, the doctrine of subrogation has to 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..........further right, consequent on redemption to get back his portion or share of the hypotheca from the redeeming mortgagor on payment of the proportionate amount of the common mortgage debt discharged by the latter? the factual aspect of the matter is not in dispute and is as follows.2. the property in question was initially mortgaged by the predecessors-in-interest of the private parties to these appeals on june 6, 1922. on may 18, 1974 the appellants redeemed the entire mortgaged property including the share of the non-redeeming mortgagors through a decree of redemption. in pursuance of this decree the appellants secured possession of this property on july 25, 1974. a part of this property was notified for acquisition under section 4 of the land acquisition act. 1894 on june 23, 1976......
Judgment:

I.S. Tiwana, J.

1. The short but significant question that arises for consideration in these three appeals--R. F. As. Nos. 1430 to 1432 of 1982--is as to what is the period of limitation for a suit by a non-redeeming co-mortgagor to recover possession of his share of the hypotheca on payment of the proportionate amount of the mortgage debt discharged by the redeeming co-mortgagor? In the absence of any statutory provision directly dealing with the question. the answer to the same to my mind, essentially depends on the answer to some of the ancillary questions, such as, does a co-mortgagor step into the shoes of the mortgagee whom he has paid off vis-a-vis the non-redeeming co-mortgagor? That is to say is the redeeming co-mortgagor's right merely one of subrogation to the rights of the mortgagee discharged? If so, to what extent? Further, what are the correlated rights of the non-redeeming co-mortgagor in the property after the entire mortgage has been redeemed by his co-debtor? Does he retain only the rights under the former mortgage? or does he acquire further right, consequent on redemption to get back his portion or share of the hypotheca from the redeeming mortgagor on payment of the proportionate amount of the common mortgage debt discharged by the latter? The factual aspect of the matter is not in dispute and is as follows.

2. The property in question was initially mortgaged by the predecessors-in-interest of the private parties to these appeals on June 6, 1922. On May 18, 1974 the appellants redeemed the entire mortgaged property including the share of the non-redeeming mortgagors through a decree of redemption. In pursuance of this decree the appellants secured possession of this property on July 25, 1974. A part of this property was notified for acquisition under Section 4 of the Land Acquisition Act. 1894 on June 23, 1976. Compensation payable for this acquired property was determined by the Collector, Land Acquisition, vide his award dt. Nov. 17, 1977. The redeeming mortgagor-appellants contested the right of the non-redeeming mortgagor-respondents to have any share in the compensation amount. This led to the making of a reference by the Land Acquisition Collector in terms of S. 30 of the Land Acquisition Act and the Land Acquisition Court (Additional District Judge), Hoshiarpur has upheld the claim of the non-redeeming mortgagors to have the compensation to the extent of their shares minus the amount payable to the redeeming mortgagor-appellants on the basis of the initial mortgage. It is this award of the land acquisition Court which is under challenge in these three appeals. The learned counsel are agreed that on account of the identity of the facts and the contentions raised these can conveniently be disposed of together.

3. The sole submission of the learned counsel for the appellants is that since by the date, i. e.. Nov. 17. 1977. compensation became payable for the acquired land the period of limitation for the redemption of the same by the respondent-mortgagors had expired. their interest or title in the property in question became extinct and the appellant-redeeming mortgagors having stood subrogated as mortgagees, they alone are entitled to the payment of compensation. This stand of the learned counsel is forcefully controverted by the non-redeeming mortgagors on the plea that in the cases in hand two remedies were open to them. i. e., (i) by filing a suit for redemption of the mortgaged property within the period of limitation prescribed by Art. 61 of the Limitation Act, 1963 or (ii) by filing a suit for possession of their share of the land against the appellants (redeeming mortgagors) within a period of twelve years from the date (May 18. 1974) the latter had redeemed the entire land. Since at the time of hearing of the matter by me in single Bench I had my doubt about the correctness of the ratio of a single Bench judgment of this Court in Sis Ram v. Sukh Lal, AIR 1982 Punj & Har 185. firmly relied upon by the counsel for the appellants. I referred the matter to a larger Bench for decision and that is how these appeals are before us now.

4. For the above noted stand. the learned counsel for the appellants, as already indicated. place primary reliance on Sis Ram's case (supra) wherein the learned Judge has held as follows:--

'Though Section 92. T. P. Act was as such not applicable to the State of Punjab the principle underlying the section being one based on justice. equity and good conscience was applicable and therefore where one of the several mortgagors paid up and discharged the entire mortgage debt he should be held to be subrogated to all the rights of the mortgagee and not merely as holding a charge on the property for the share of the debt due by the non-redeeming co-mortgagors and which he was entitled to claim from them. Therefore, the redeeming co-mortgagor would be the mortgagee qua the other co-sharers and if the latter fail to pay up their share of the debt within time prescribed for redeeming a mortgage under Art. 148. Limitation Act, 1908 (Art. 61 of 1963 Act) their right would become extinct.'

Besides this judgment, the learned counsel also make a reference to Harbans Lal v. Sadhu Ram (1968)70 Pun LR 37 (SN) AIR 1955 NUC 5719 (Punj) (RSA No. 789 of 1951): Ram Chander v. Prabhu Dayal decided on February 9. 1955): and Khuda Bakhsh v. Ata Mohammad (major) AIR 1942 Lah 135. wherein a view has been expressed that the position of a co-mortgagor who redeems the entire mortgage, is that of a mortgagee and not of a mere charge-holder in respect of the share of the other non-redeeming co-mortgagors. The legal position as enunciated in these judgments, however, appears to be in conflict with the view expressed by the Supreme Court in Ganeshi Lal v. Joti Parshad, AIR 1953 SC 1. and later approved and followed in Valliama Champaka Pillai v. Sivathanu Pillai, AIR 1979 SC 1937.

5. Ganeshi Lal's case (AIR 1953 SC l) (supra) was a case from Punjab where undisputably the provisions of Transfer of Property Act and more particularly Section 92 thereof are not applicable as such. This is equally the undisputed position that in the absence of applicability of this Act to the State of Punjab, the principles of justice, equity and good conscience govern the situation and these principles have all through been made applicable in this State. It is to be remembered that the doctrine of subrogation which means substitution of one person in place of another and giving him the rights of the latter is too an equitable doctrine in its origin and application. The question that needs to be settled and which has undoubtedly been the subject-matter of some controversy over the years is about the extent of the rights of a subrogee in this type of cases. By virtue of the redemption, does he get all the rights of the mortgagee and hold the mortgage as a shield against the co-mortgagors for the full amount due on the mortgage on the date of redemption whatever he may have himself paid to get it discharged or does he stand in the mortgagees shoes only to the extent of getting reimbursed from co-mortgagors for their shares in the amount actually paid by him? It is on an answer to this question that the answer to the first question as already referred to in the opening part of this judgment, is dependent. This question, to my mind, has squarely been posed and pronounced upon by the Supreme Court in Ganeshi Lal's case (supra) wherein the following meaningful observations have been made:--

'While it can be readily conceded that the joint debtor who pays up and discharges the mortgage stands in the shoes of the mortgagee and secures to himself the benefit of the security by such payment, the extent to which he can enforce his right as against the other joint debtors is a different matter altogether...... There is a distinction in this respect between a third party who claims subrogation and a co-mortgagor who claims the right...............

To compel the co-debtors or co-mortgagors to pay more than their share of what was paid to the creditor or mortgagee would be to perpetrate an inequity or injustice, as it would mean that the debtor who is in a position to pay and pays up can obtain an advantage for himself over the other joint debtors. Such a result will not be countenanced by equity: the favouritism shown by law to a surety, high as it is, does not extend so far. The surety can ask to be indemnified for his loss; he can invoke the doctrine of subrogation as an aid to his right of contribution.'

Thus according to their Lordships, the right of the co-mortgagor who redeems the mortgage can only be spoken of as a right of reimbursement. With these observations their Lordships further approved the following statement of law as recorded at page 640 of Pomeroy's monumental work on equity Jurisprudence:--

'The mortgagor himself who has conveyed the premises to a grantee in such manner that the latter has assumed payment of the mortgage debt becomes an equitable assignee on payment, and is subrogated to the mortgagee, so far as is necessary to enforce his equity of reimbursement or exoneration from such grantee.'

It is thus abundently clear that a redeeming co-mortgagor will be subrogated to the right of the mortgagee only to the extent necessary for his own equitable protection. In the light of this authoritative pronouncement and the binding precedent, I feel it wholly unnecessary to notice in detail and comment upon the ratio of the above noted decisions relied upon by the learned counsel for the appellants. Suffice it to say that the view expressed therein to the extent that a co-mortgagor who redeems the entire mortgage is to be subrogated or treated as a mortgagee for all intents and purposes qua the non-redeeming mortgagors, is not the correct enunciation of law. As a matter of fact none of these cases has directly considered the question of extent or degree of subrogation, a redeeming co-mortgagee would enjoy vis-a-vis the non-redeeming co-mortgagors. In cases like the one in hand, the doctrine of subrogation has to 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. Besides the above noted judgments relied upon by the learned counsel for the appellants, they also make a reference to a Division Bench judgment of the Lahore High Court in Abdul Ghafur Khan v. Firm Mangat Rai Ganga Sahai. AIR 1938 Lah 184. wherein according to the learned counsel, the same view that on redeeming a mortgage by a co-mortgagor he stands completely subrogated to the rights of the original mortgagee qua the non-redeeming mortgagors, has been expressed. I, however, find that this has not been so said in such absolute terms as the learned counsel want to make out. Therein the learned Judges have been cautious enough to qualify the above-noted statement of law by saying that 'a redeeming co-mortgagor is subrogated to the rights of the original mortgagee as regards his right to claim contribution from the co-mortgagors.' In case that judgment can be taken to mean what the stand of the learned counsel for the appellants is, that a redeeming co-mortgagor stands subrogated or substituted for the mortgagee for all intents and purposes, then to my mind the said judgment not being in consonance with the ratio of Ganeshi Lal's case (AIR 1953 SC l) (supra) has to be respectfully dissented from.

6. As pointed out earlier, the analysis of the legal position as elucidated in Ganeshi Lal's case (supra) has later been approved and followed by their Lordships of the Supreme Court in Raghunath v. Kanhiya, AIR 1979 SC 1936. again a case from an area (Travancore) to which the provisions of the Transfer of Property Act were not applicable as such. This latter-mentioned judgment also deals with the first question as posed in the opening part of this judgment and answers in unmistakable terms that a non-redeeming co-mortgagor has two distinct rights or remedies vis-a-vis the redeeming co-mortgagor, i e., (i) to get the property redeemed within the period of limitation prescribed by Art. 148 of the Limitation Act (now 61 of the 1963 Act) and (ii) an equitable right to get possession of his share of the property on payment of his share of the mortgage money within twelve years from the date of the redemption of the hypotheca by the redeeming co-mortgagor. This aspect of the matter is abundantly clear from the following weighty observations made by their Lordships in this judgment:--

'Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagor's property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non-redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor.'

And further:--

'From what has been said above it is clear that where the T. P. Act is not in force and a mortgage with possession is made by two persons, one of whom only redeems discharging the whole of the common mortgage debt, he will in equity, have two distinct rights, firstly, to be subrogated to the rights of the mortgagee discharged, vis-a-vis the non-redeeming co-mortgagor, including the right to get into possession of the latter's portion or share of the hypotheca. Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca which belonged not to him but to the other co-mortgagor. It follows that where one co-mortgagor gets the right to contribution against the other co-mortgagor by paying off the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the 'non-redeeming' co-mortgagor, to pay his share of the liability and get possession of his property from the redeeming co-mortgagor, subsists as long as the latter's right to contribution subsists. This right of the 'non-redeeming' co-mortgagor as rightly pointed out by the learned Chief Justice of the High Court in his leading judgment (AIR 1964 Mad 269 (FB)) is purely an equitable right, which exists irrespective of whether the right of contribution which the redeeming co-mortgagor has as against the other co-mortgagor, amounts to a mortgage or not.'

These weighty observations completely support the stand of the learned counsel for the non-redeeming mortgagors. It is not a matter of dispute that the redeeming mortgagors could file a suit for contribution or recovery of the mortgage amount paid by them in excess of their share within twelve years from the date of the redemption of the original mortgage or taking possession of the land of the non-redeeming mortgagors. It then follows in the light of the above noted observations of the Supreme Court that non-redeeming mortgagors could also enforce their right of securing possession of the land to the extent of their shares within that very period, that is, twelve years, on payment of their share of the mortgage money.

7. Faced with this binding precedent, the learned counsel for the appellants seek to contend that even if a non-redeeming co-mortgagor can recover or take possession of his share of the property from the redeeming mortgagor on contributing his share of the mortgage money but this can only be done by him within the period prescribed for the redemption of the original mortgage. In a nut shell, the submission is that the period of twelve years during which a non-redeeming co-mortgagor can institute a suit to force the redeeming co-mortgagor to accept his share of the mortgage money and give him the share of the mortgaged property, is subject to the overall period of limitation prescribed for the redemption of the original mortgage. For this stand of his, the learned counsel seek firm reliance on the observations made to this effect by a Division Bench of this Court in Mange v. Des Raj. AIR 1967 Punj 270. Having minutely gone through the judgment I find that this observation has wrongly been attributed to the learned majority Judges (S. Ramachandra Iyer C. J. and Jagadisan J.) in Valliama Champaka's case (AIR 1964 Mad 269) (FB) (supra). The learned Judges of the Division Bench after holding that a non-redeeming co-mortgagor can recover his share of the hypotheca after contribution to the redeeming co-mortgagor in possession either within sixty years from the date of the original mortgage under Art. 148 (now Art. 61 of 1963 Act) or within twelve years from the date of redemption by the redeeming co-mortgagor under Art. 132 (now Art. 62 of 1963 Act), have further observed 'but this would be subject to the period of limitation of sixty years for redeeming the mortgage contained in Art. 148.' As already pointed out, this statement of law has been attributed to the majority Judges of the High Court in Valliama Champaka's case (supra). Yet on a perusal of that judgment I find no such limitation therein. Thus I am of the view that this last mentioned sentence that 'period of twelve years of limitation is subject to the overall prescribed period of limitation for redemption of a mortgage' does not form the ratio of the judgment and is rather in the nature of obiter dicta; but if it does, it being not in consonance with the law laid down by the Supreme Court in Valliama Champaka's case (AIR l979 SC 1937) (supra). I find it difficult to follow the same. As already pointed out. a non-redeeming mortgagor's right to get his portion or share of the hypotheca on contribution to the redeeming co-mortgagor to the extent of his share of the mortgage debt is a correlated right which accrues to the former and survives or remains alive till the redeeming mortgagor has the right to recover the excess amount paid by him at the time of redeeming the mortgage. This right of the non-redeeming mortgagor cannot thus possibly be subject to the overall period prescribed for the redemption of a mortgage.

8. Thus a combined reading of the above noted two judgments of the Supreme Court completely answers the questions posed in the opening part of this judgment and in the light of the same it has to be held that in equity a redeeming co-mortgagor has a right of reimbursement from a non-redeeming mortgagor to the extent of the latter's share in the mortgage money and the non-redeeming mortgagor can recover possession of his share of the hypotheca on payment to the redeeming co-mortgagor. In the face of this conclusion of mine these appeals apparently have no merit as by the time the land in question was acquired and compensation for the same was determined. the right of the non-redeeming respondents to get their share of the property in question had not become extinct. These appeals are thus dismissed with costs throughout.

S.P. Goyal, J.

9. I agree.

10. Appeals dismissed.


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