Gopalan Nambiyar, Ag. C. J.
1. The two Second Appeals and the Civil Miscellaneous Appeal raise certain questions in regard to the applicability of the provisions of Section 4A of Act 1 of 1964 and the right of a redeeming co-mortgagor to tack on the prior possession of the mortgagee redeemed by him in order to satisfy the length of possession required by Section 4A to claim fixity of tenure. The matter has come up before the full Bench as it was felt that there was some conflict of judicial opinion between the decisions in Bhaskara Menon v. Madhavan, 1975 Ker LT 38 : (AIR 1976 Ker 62) and Lakshmi Pillai v. Chellappan Pillai, (1966 Ker LT 833). When the cases were posted together on 21-3-'77, C. M. A. No. 98 of 1975 was adjourned to explore the prospects of a compromise; but as this did not materialise, the C. M. A. was heard on the 29th March, after arguments in the other cases were concluded. We are dealing with these in a common judgment. We shall proceed to deal with the cases in relation to their facts: S. A. No. 751 of 1973.
This is an appeal by the two unsuccessful plaintiffs in a suit for redemption of the plaint B schedule property which is the southern half of the A schedule property. The entire property belonged to the Maniavilakathu Tarwad. The 2nd plaintiff is the elder brother of the 1st plaintiff and the karnavan of the tarwad. The 2nd defendant is the son of the 1st defendant. The 3rd defendant is the owner of the adiacent property. The allegation was that certain structures had been put up on the B schedule property which were liable to be removed. By Ext. P1 partition dated 24-8-1101/6-4-1926 the jenm right of the B schedule property was allotted to the share of the plaintiffs. At the time of the partition the entire A schedule property was outstanding on a mortgage of 1075 (not exhibited). Defendants 1 and 2 were allotted the northern half of the A schedule property (that is, what was left of it, excluding the B schedule). The 1st defendant obtained the release of the mortgage from the mortgagees. Ext. P2 is a copy of the release deed dated 19-5-1116M. E./2-1-1941. The plaintiffs sakha executed a superior mortgage in 1123 M. E. to the 2nd defendant regarding the B schedule with right to redeem Ext. P2. Ext. P2 was redeemed in 1961. The present suit is brought for redemption -- we say no more for the present, as there is some controversy as to which is the mortgage sought to be redeemed. The trial Court granted a preliminary decree for redemption leaving open the question of value of improvements to be determined at the stage of the final decree. On appeal, the lower appellate court held, that the 2nd defendant was entitled to the benefit of Section 4A of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), and dismissed the suit.
2. Section 4A of the Kerala Land Reforms Act, in so far as it is material, reads as follows :--
'4A. Certain mortgagees and lessees of mortgagees to be deemed tenants.--(1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if-
(a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or
XX XX XX Explanation II.-- In computing the period of fifty years referred to in Clause (a) or the period of thirty years referred to in Clause (c), the period during which the predecessor-in-interest or predecessors-in-interest of the mortgagee or lessee was or were holding the property shall also be taken into account.
XX XX XX The contention raised by the 2nd defendant is that he, a co-mortgagor, had redeemed the mortgage of 1075 and remained in possession thereafter, and therefore, was entitled to tack on to his possession, the prior possession of the mortgagee under the 1075 M. E. mortgage. Omitting the unnecessary words, Clause (a) of Section 4A requires that the mortgagee should have been holding 'the land comprised in a mortgage' for a continuous period of not less than fifty years immediately preceding the commencement of the Act; and by reason of Explanation II the period of holding of the 'precedessor-in-interest' of the mortgagee shall also be taken into account. The questions which accordingly arise for consideration are (1) whether the mortgagees on 1075 could be said to be a 'predeces-sor-in-interest' of the 2nd defendant who redeemed Ext. P2 under which 1075 mortgage was released; (2) Whether the possession of the 1st defendant after Ext. P2 in 1941, and the 2nd defendant after redemption of Ext. P2 in 1961, can be said to be possession as mortgagee under the mortgage of 1075; and (3) If so, whether the 2nd defendant is entitled to the benefit of Section 4A.
3. Before we proceed to consider the above questions we might clear the ground by solving the preliminary controversy debated before us as to whether the suit was one for redemption of 1075 mortgage or the melotti (superior mortgage) of 1123. We have gone through the plaint carefully and completely, and on the recitals therein, and particularly of paras 8, 10 and 14, and of the admission in para 9 of the written statement that the earlier mortgage of 1075 had been already redeemed, we entertain little doubt that the suit was only for redemption of the melotti of 1123 (1948) after reimbursing the proportionate part of the mortgage amount paid off for redeeming the 1075 mortgage. In such circumstances, we see little foundation on facts to allow the 2nd defendant to treat the 1075 mortgagee as his predecessor-in-interest when the 1075 mortgage had already been redeemed and released under Ext. P2 in 1941, and the 2nd defendant's superior mortgage (not exhibited) was granted only in 1948, to redeem Ext. P2 (as we gather from the pleadings). It is an unsatisfactory feature of the case that the document evidencing the mortgage sought to be redeemed was not exhibited, but as the objection was not raised at any stage, we say no more. There is no ground on the facts to invoke the provisions of Explanation II to Section 4A of the Act, and to hold that the possession of the mortgagee of 1075 can be tacked on to the possession under the melotti of 1123, granted long after the termination of the 1075 mortgage.
4. That apart, we are satisfied that on principle and on authority the possession of the 2nd defendant after the redemption of Ext. P2 in 1961 in pursuance of the melotti of 1123, cannot be regarded as possession as mortgagee. The case arises from the Travancore area of this State, to which the provisions of the T. P. Act had no application at the relevant time. They were made applicable in respect of agricultural lands like the suit lands, only on and from 1-7-1955. Before that, although the provisions of the T. P. Act did not apply proprio vigore, they were applied as principles of justice, equity and good conscience. The position of a redeeming co-mortgagor who pays off a mortgage and remains in possession thereafter, fell to be considered by the Supreme Court in Ganeshi Lal v. Joti Pershad (AIR 1953 SC 1). The case arose from the Puniab, where, at that time, the Transfer of Property Act was not in operation. It was ruled that where one of several co-mortgagors redeems a mortgage over the property which belonged jointly to himself and the other co-mortgagors, the equitable doctrine of subrogation confers on him a right to reimburse himself for the amount spent in excess of his share in redeeming the mortgage, and that he can call upon the co-mortgagors to contribute towards the excess paid by him. It was further ruled that the redeeming co-mortgagor steps into the mortgagee's shoes, only to the limited extent of getting himself reimbursed from the co-mortgagors to the extent of their shares of the amount actually paid by him and not for the entire amount due on the mortgage. The court observed;
'.....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 surety in respect of the shares of the rest of the debtors. 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 reimbursehimself for the amount spent in excess by him in the matter of redemption; he can call upon the co-mortgagors to contribute towards the excess which he has paid over his ownshare.'
Further down it was stated:
'The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right is, strictly speaking, a right of reimbursement or contribution, and in law, when we have regard to the principles of equity and justice, there should be no difference between a case where he discharges an unsecured debt and a case where he discharges a secured debt. It is unnecessary for us to decide in this appeal whether Section 92 of the T. P. Act was intended to strike a departure from this position when it states that the co-mortgagor shall have the same rights as the mortgagee whose mortgage he redeems, and whether it was intended to abrogate the rule of equity as between co-debtors, and provide for the enforcement of the liability on the basis of the amount due under the mortgage; and this is because, as has been already stated, we are governed not by the statute but by general principles of equity and justice. If it is equitable that the redeeming co-mortgagor should be substituted in the mortgagee's place, it is equally equitable that the other co-mortgagors should not be called upon to pay more than he paid in discharge of the encumbrance.'
It will be noticed that the Supreme Court left open the question whether Section 92 of the T. P. Act made any departure from the position expounded. Strictly speaking, it is not necessary to consider that question in this case, as here again, the matter comes up from an area in which T. P. Act was not in operation at the relevant time. But the question was raised in C. M. A. No. 98 of 1975 and will be dealt with in the judgment therein. The Supreme Court decision was followed and applied by a Division Bench Poti & Janaki Amma JJ.) of our Court in Bhaskara Menon v. Madhavan, 1975 Ker LT 38 : (AIR 1976 Ker 62). The case again was from the Travancore area, not governed at the relevant time, by the T. P. Act. Poti J. expressed himself thus:
'Though the Supreme Court hasnot directly spoken on the questionwith which we are concerned here,it laid down the principle which mayhave to be applied to the facts ofthis case. The rule of subrogationdoes not enable the redeeming co-mortgagor to claim to be the mortgagee but it entitles him to seek tobe reimbursed of whatever monieshe has spent before possession issought to be recovered from him bythe other co-mortgagor. The positionwould be the same where, in thestrict sense, the redemption is not bya co-mortgagor as in the case of oneof the heirs of the deceased mortgagor or one among the several doneesof the several portions of the mortgage. If the right of the redeemingco-mortgagor is only to claim theamount which was actually spentbefore surrendering possession andnot to claim that he should get theproportionate mortgage debt, it wouldnecessarily follow that his possessionis only that of a person who by virtue of having paid amounts to discharge the entire mortgage debt is entitled to seek reimbursement prior tosurrendering possession of the propertyto the other mortgagor. If that bethe case, he cannot claim, by reasonof the redemption, that he is still amortgagee who would come withinthe scope of Section 4A of the Act. Therefore we do not think that it is opento the 9th defendant to set up the pleaof tenancy.'
We wish to record our complete agreement. These two decisions clinch the matter in favour of the appellants.
5. We do not think that the decision in Lekshmi Pillai v, Chellappan Pillai, (1966 Ker LT 833) in any way runs counter to the principle expounded by Poti J. in the above Division Bench ruling. It was felt that it did. That had occasioned this reference to the Full Bench. On fuller consideration, we are satisfied that there is no conflict between the two decisions The ruling in Lekshmi Pillai v. Chellappan Pillai, (1966 Ker LT 833) was not concerned at all with the rights of a subrogee as such, nor with the rights or status of a redeeming co-mortgagor. It was only concerned with the question whether the period of limitation provided under Article 148 of the Indian Limitation Act, 1908, for redemption of a mortgage would stand extended, or whether a fresh start of limitation would commence, when a co-mortgagor redeems the mortgage, from the date of such redemption and getting into possession by the co-mortgagor. It was held that it would not. In coming to that conclusion and formulating the principle for decision the Division Bench surveyed the provisions of the Transfer of Property Act and of the Indian Contract Act, and after an exhaustive survey of these provisions, reached the conclusion that limitation would start from the date of the original mortgage sought to be redeemed, and not from the date of redemption and possession by the co-mortgagor. It would not be appropriate to wrench certain observations out of the context and cite them without relation to the ratio of the decision. In the light of the principle decided, we do not find that there is any conflict between this ruling and the Division Bench ruling in Bhaskara Menon v. Madhavan, 1975 Ker LT 38 : (AIR 1976 Ker 62).
6. The position and the rights of a redeeming co-mortgagor had come up for consideration in the very early decision in Asansab v. Vamana Row, (1880) ILR 2 Mad 223 even before the passing of the Transfer of Property Act. That Decision ruled that a co-mortgagor who pays the entire mortgage-debt puts himself in the place of the mortgagee redeemed and acquires a right to treat the other mortgagors as his mortgagors and to hold that portion of the property in which he would have no interest but for the payment as a security for any surplus payment made by him. At page 225, the learned Judges observed:
'.....It has long been the recognised doctrine of courts of Equity in England that the owner of the equity of redemption of a part of an estate under mortgage is entitled to redeem the whole of the mortgaged estate if the mortgagee as in this case insists upon his right to have it so redeemed. When the former elects to pay the entire mortgage debt he thereby puts himself in the place of the mortgagee redeemed and acquires a right to treat the original mortgagor as his mortgagor and to hold that portion of the estate in which he would have no interest but for the payment as a security for any surplus payment he might have made.'
In Mulla's T. P. Act, Sixth Edition at page 587 the position is stated as follows:
'Where co-mortgagor redeems.--A co-mortgagor redeeming a mortgage is a simple case of subrogation (a), for a co-debtor is a principal debtor in respect of his own share and a surety in respect of his co-debtor's shares, and when a surety has paid the debt he is entitled to avail himself of all the creditor's securities (b), ......,...........'
In the light of the above authorities, we are of the view that the possession of a redeeming co-mortgagor cannot be regarded as that of a mortgagee.
7. Assuming the possession of the 2nd defendant was a mortgagee, there is a further difficulty. As we said the suit was for redemption of the superior mortgage of 1123. The 1075 mortgage took in only a portion of the properties in this superior mortgage; so that even if the possession of the 1075 mortgagees were to be tacked on, it would not cover the lands comprised in the 1123 mortgage, which should mean the entire lands comprised therein.
8. We allow this Second Appeal, set aside the judgment and decree of the lower appellate court and restore that of the trial Court with costs throughout. S. A. No. 971 of 1973.
9. This Second Appeal is by the legal representatives of the 1st plaintiff. The suit was for redemption of Ext. P1 mortgage dated 9-12-1077 M. E. and of a purakanam of 1090 M. E. (not exhibited). The two items of suit properties belonged to the Kizhakke veedu tarwad which executed Ext. P1 in respect of the suit items and others. One Kurup purchased the equity of redemption over the items other than the two suit items, and obtained a decree in O. S. No. 582 of 1121 for redemption of all the properties. He recovered possession of all the properties on 6-8-1123, and assigned the rights over the suit properties by a series of documents, the last of which was, Ext. P3 dated 10-4-1968, to the 1st defendant. The equity of redemption of item No. 1 was purchased by the plaintiffs father under Ext. P2 dated 9-6-1105, and devolved on the plaintiff that of item No. 2 was acquired by the plaintiff's tarwad, and on partition of the tarwad, was allotted to the plaintiff with authority to redeem. The 2nd defendant is in possession under the 1st defendant. The 1st defendant's plea was that himself and the tarwad were entitled to one-half of the equity of redemption each, over item No. 1, as the acquirer being the plaintiff's father, a Mishravazhi Ezhava, his rights on death would devolve on the plaintiff and the tarwad in equal moities. Regarding item No. 2, defendants 1 and 2 claimed half plus 1/15th rights. A plea of fixity of tenure under Section 4A of Act 1 of 1964 was raised on the ground that the possession of the 1st defendant was that of a mortgagee, and that he was entitled to relate his possession back to 1077 M. E., the date of Ext. P1.
10. The suit in this case is one for redemption, plain and simple, of Ext. P1 mortgage. This was redeemed by a stranger, -- Kurup, on 6-8-1123, who assigned his rights to the 1st defendant. The equity of redemption has devolved on the plaintiff. Kurup was the owner of the equity of redemption over items other than the two suit items and the plaintiff has succeeded to the equity of redemption in respect of the two suit items. The plaintiff and Kurup were therefore in the position of the co-mortgagors. Kurup having redeemed the mortgage of 1077 was in the position of a redeeming co-mortgagor and he had assigned his rights to the 1st defendant. The position disclosed therefore is exactly what is covered by the principle of the Supreme Court decision in Ganeshi Lal v. Joti Pershad, (AIR 1953 SC 1) and of this Court in Bhaskara Menon v. Madhavan. 1975 Ker LR 38: (AIR 1976 Ker 62). The 1st defendant is therefore not entitled to count his possession after redemption by Kurup, as that of a mortgagee. The decision of the courts below was wrong. We set aside their judgments and decrees and hold that the plaintiffs are entitled to redemption of Ext. P1 mortgage sued on. The trial Court did not consider and determine issues 3 to 5 and 7 nor did it fix the redemption price. Nor did the appellate court deal with these matters as it only confirmed the decree of the trial Court. To fix the redemption price and to deal with the other issues, the suit is remanded back to the trial Court. The appellants are entitled to their costs and to a refund of the court-fee paid on the Memorandum of Appeal.
C. M. A. No. 98 of 1975
11. The question left open by the Supreme Court in Ganeshi Lal v. Joti Pershad, (AIR 1953 SC 1) as to whether the provisions of the T. P. Act have made any difference in the position of a redeeming co-mortgagor as against a non-redeeming one, was again raised vehemently --but we think unnecessarily -- in this appeal. The matter arises out of a suit for redemption of about two acres of properties mortgaged in 1073 M. E. (not exhibited). The 1st defendant in the suit is the appellant before us. There was a superior mortgage of 1085 M. E. (Ext. P1) which directed redemption of the earlier mortgage. In 1096 M. E. there was a partition in the mortgagor's tarwad under which the equity of redemption in respect of the two acres of mortgaged land was allotted in equal shares to four different branches. The plaintiff, as a member of one of the branches, obtained the equity of redemption allotted to his share in a subsequent partition in that branch. The rights of the three other branches came to vest in the first defendant. The 1st defendant obtained the release in 1958 of the 1085 mortgage rights from the superior mortgages. The suit fox redemption was in respect of the 50 cents allotted to the plaintiff's individual share on partition of her branch. The trial Court (in the second round, after remand by the appellate court), held that the first defendant was entitled to the benefits of Section 4A. This was reversed on appeal by the lower appellate court on the basis of the ruling in Bhaskara Menon v. Madhavan 1975 Ker LT 38 : (AIR 1976 Ker 62).
12. Counsel for the appellant contended that although the mortgage sought to be redeemed was of 1085, the same had been released in her favour in 1958, and that therefore that should be the relevant time with respect to which the applicability of the principle of subrogation had to be decided. We are unable to agree. The transaction of mortgage sought to be redeemed in the suit is of the year 1085 M. E. No authority was cited to show that the law of subrogation must be judged as on 1958 in this case, when the mortgage of 1085 was redeemed and not on the date of the transaction of mortgage itself in 1085 M. E. We see no ground to accept this submission. Being so, strictly speaking, the provisions of the Transfer of Property Act would not apply, as the case arises from the Travancore area, prior to Transfer of Property Act being made applicable to it. The matter is directly governed by the principle of the decision of the Supreme Court in Ganeshi Lal v. Joti Pershad, (AIR 1953 SC 1) and of Asansab v. Vamana Row, (1880) ILR 2 Mad 223 and 1975 Ker LT 38 : (AIR 1976 Ker 62), noticed in our judgment in S. A. No. 751 of 1973. Following the same, and in view of the facts which are incidental to what has been noticed in Second Appeal No. 971 of 1973, the judgment of the lower appellate court has only to be affirmed.
13. We shall, how ever, assume --without deciding -- with counsel for the appellant that the case is governed by the provisions of the T. P. Act. Even on that basis, we are of the opinion that the appellant cannot succeed. The position disclosed is that of a redeeming co-mortgagor faced with a suit filed by a non-redeeming co-mortgagor. AIR 1953 SC 1 directly considered and propounded the principle for decision in such cases. It was pointed out that, a redeeming co-mortgagor was only a surety for the other co-mortgagors and his right was only one for reimbursement or contribution. That the position is precisely the same even after the enactment of the T. P Act, was expressly ruled in Mamundi Kaduvetti v. Somasundara Chetti, (AIR 1959 Mad 555). Ramachandra lyer J. (as he then was) considered the question of the right of one of two co-mortgagors who discharged an encumbrance binding on both to recover from the other, more than the proportionate share of the amount actually paid. It was held that the co-mortgagor who made the payment was not in the position of a mortgagee under Section 9A of the Madras Act 4 of 1938 and therefore the claim of such a mortgagor for subrogation Cannot be sustained under that section. Ramachandra Iyer J. noticed the decision in Asansab v. Vamana Row, (1880) ILR 2 Mad 223 and also of the Supreme Court decision in Ganeshi Lal v. Joti Pershad, (AIR 1953 SC 1) and observed at page 557:
'This decision (that is, the Supreme Court decision) was rendered before the Transfer of Property Act .....This is also the law under the Transfer of Property Act.' The decision is therefore a direct authority that the principle of the Supreme Court decision in Ganeshi Lal v. Joti Pershad, (AIR 1953 SC 1) continues to govern even after the enactment of the T. P. Act In Mulla's T. P. Act (Sixth Edition) at page 588 the decision of the Supreme Court in Ganeshi Lal v. Joti Pershad (AIR 1953 SC 1) is noticed, with the remark that the same principle has been applied where the Transfer of Property Act is in force. The authority for the latter part of the statement is noted in the foot-note as the decision in Mamundi Kaduvetti v. Somasundara Chetti (AIR 1959 Mad 555).
14. Apart from authority, we are prepared to examine the matter on the statutory provisions. The relevant provisions of the Transfer of Property Act are the following. Section 91 confers the right of redemption on the co-mortgagor and (a) any person (other than the mortgagee) who has an interest in or charge upon the property mortgaged, or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; or (c) any creditor of the mortgagor. Sections 92 and 95 may be quoted in full:
'92. Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.
The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems.
A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.
Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.'
XX XX XX
15. Where one of several mortgagors redeems the mortgaged property he shall, in enforcing his right of subrogation under Section 92 against his co-mortgagors, be entitled to add to the mortgage-money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.' Section 92 does not provide that the redeeming co-mortgagor shall be deemed to be a mortgagee, or shall be substituted to the full rights of the mortgagee for all purposes. It is careful enough to provide that he shall have the same rights as the mortgagee redeemed, only for the limited purpose of redemption, foreclosure or sale. Mark the difference in language in the third clause of Section 92, where subrogation is allowed 'to the rights of the mortgagee Whose mortgage has been redeemed.' Mark again, the provision in Section 95 which elucidates the right of the redeeming co-mortgagor, to be only to add to the mortgage-money recoverable from the other co-mortgagors, such proportion of the expenses properly incurred in redemption of the mortgage, as is attributable to the share of the non-redeeming co-mortgagors. In the light of these provisions of the Transfer of Property Act, it appears to us that the position under the Transfer of Property Act is the same as expounded by the Supreme Court in Ganeshi Lal v. Joti Pershad (AIR 1953 SC 1). We say nothing in this case again about the document evidencing the mortgage not having been exhibited, as no objection on the ground was raised at any stage.
16. In view of the principle that we have discussed above, it is clear that the position of the 1st defendant after redemption of the 1073 mortgage is not that of a mortgagee as such. He cannot therefore avail of the beneats of Section 4A of Act 1 of 1964 (as amended). The decision of the lower appellate court following 1975 Ker LR 38 : (AIR 1976 Ker 62), is correct. We affirm the judgment of the lower appellate court and dismiss this appeal with costs.