N.H. Bhatt, J.
1. This is an appeal by the heirs of the original plaintiff of the Special Civil Suit No. 67 of 1970 dismissed by the learned 2nd Joint Civil Judge (S.D.) Surat. The original plaintiff had died on, 24-3-73 in the suit filed on 2-5-70. So, the suit was prosecuted by the present appellants, who are the heirs of the original plaintiff Saiyed Abdulraheman. The defendants Nos. 1, 2 and 3 of the suit, being legal representations of one Sadruddin, were impleaded as the main defendants Nos. 4 to 24 were impleaded because they were in possession of various parcels of the suit properties.
2. In order to understand a good deal of controversy raised before us and also before the learned trial Judge on a number of points, the nature of the plaintiffs suit deserves to be noted at the outset. The plainf, No. 1 before the learned trial Judge showed that it was as if a simple suit for partition of some joint properties, joint between the plaintiff on one hand and the defendants Nos. 1 to 3 on the other and the defendants Nos. 4 to 24 were impleaded only on the allegation in paragraph 7 of the plaint that the defendants Nos. 1 to 3 had sold away some of the lands out of the suit lands to them in collusion with one another, but all these transactions of transfer were fraudulent and effected behind the back of the plaintiff. It was alleged that these defendants Nos. 4 to 24 had purchased the different parts of these properties with the full knowledge of the plaintiffs right thereto. The plaintiff in the plaint did not develop how he had got the title to the suit land, but proceeded on the assumption that the properties were joint between him and the predecessor-in-title of the defendants Nos. 1 to 3, i.e. Sadruddin.
3. The suit was hotly contested by the defendants Nos. 20 and 21 by filing the written statement ex. 50; by the defendant Nos. 10 to 13 by filing the written statement ex. 73, by the defendant No. 16 by filing the written statement ex. 81; by the defendants Nos. 1 to 3 by filing the written statement ex. 89; and by the defendant No. 22 by filing the written statement ex. 229.
4. As said above, the plaintiff did not trace his title to the suit properties. The defendants Nos. 1 to 3 and others, however, alleged that the properties were the exclusive properties of the defendants Nos. 1 to 3 and plfts. Nos. 4 to 9 and other defendants were bona fide purchasers. It was also alleged that the defendants Nos. 4 to 9 were also owners of certain parcels of the property in their own rights. These simple unsophisticated pleadings, however, got augmented and enlarged when the matter went to trial and the evidence on the record, of course pertaining to the various issues raised by the learned trial Judge, made many things clear, which are required to be stated in details at this stage. The suit properties, the evidence clearly bears out, belonged to one Hamirbibi. Said Hamirbibi had mortgaged the suit properties as back as in the year 1878 in favour of one Patel Chunilal. Said Hamirbibi died many years ago, leaving behind her, her son Shaikh Maju, her second son Shaikh Vazeer and her daughter Fatimabibi. Shaikh Maju had died in the year 1875, Shaikh Vazeer had expired in 1880 and Fatimabibi had died in the year 1910. Shaikh Vazeer had no heirs and we treat that branch as extinct. Shaikh Maju who had died in the year 1875, had two sons Kamruddin and Nur Mohmad. Nur Mohmad's branch also has become extinct. Kamruddin's son was Sadruddin, the predecessor-in-title of the defendants Nos. 1 to 3. Fatimabibi had died in the year 1910 A.D. and she had a daughter named Mariyam. Said Mariyam had one daughter and that Mariyam's daughter's son is Saiyed Abdul Raheman, the original plaintiff. Now that mortgagee Patel Chunilal's son Motibhai had sold his mortgagee's rights to Vora Alibhai Abdulbhai, the predecessor-in-title of the defendants Nos. 4 to 9. The document is ex. 233 and it is dated 5-7-1909 and so there is no getting away from the fact that only the mortgagee's rights were purchased by said Vora Alibhai Abdulbhai though the latter asserted that he was the absolute purchaser. This transfer of the; mortgagee's right is in the sum of Rs. 1325/- and the document specifically mentions that the rights of usufructuary mortgagee were the subject matter of the transaction. So, on and from 1909, Vora Alibhai Abdulali, the predecessor-in-title of the defendants Nos. 4 to 9, came to enjoy and possess the properties as a mortgagee.
5. It appears that City Survey had come to be introduced for the City of Surat where the properties are situated deceased Sadruddin the predecessor-in-title of the defendants Nos. 1 to 3 had got the name of the plaintiff Saiyed. Abdulrehman inserted as a co-owner stating that he had half share in the properties. After Sadruddin's death, his widow Khatija acting for her minor sons, got the said name of the plaintiff removed from the City Survey record and then in the year 1947 she had filed the regular civil suit No. 150 of 1947 for redemption of the mortgage. The suit was resisted by Alibhai or his successors, who pleaded that they were the absolute owners of the properties. The said suit was filed on 25-4-1947 by the present defendants Nos. 1, 2 and 3 and their mother Khatija. The plaint is to be found at ex. 270. During the pendency of that suit, the predecessor of the defendants Nos. 4 to 9 and the defendant nos. 1 and 3 and their mother entered into a compromise. The defendant, No. 2 by that time had died and the compromise brought out the deed ex. 306. It is dated 31-7-1952. It is the deed of sale executed by the defendant Nos. 1 and 3 and their mother in favour of the defendants Nos. 4 to 9. It is interesting to note the contents of that deed. We would like to translate some portion from that document because it would be material to refer to them again when we come to the discussion of the existence of the plaintiffs right and the limitational period:
You (transferee of ex. 306) state that you have acquired the right to those properties by gale executed in favour of Alibhai Abdulbhai Chunawala on 5-7-1908 by Patel Chunilal Balmukanddas, who had got a right under the deed dated 4-12-1878. You say that said transaction is an out and out sale and we (defendants Nos. 1 to 3) assert that the said transaction is of mortgage and so if it is treated as a transaction of mortage we have to give you some money and in that connection we have filed the suit No. 250 of 1947 against you. If in that suit it is declared to be a mortgage, then we would be required to pay you money and on that mortgaged land you and your predecessors have put up some furnaces at your costs, which furnaces are of your ownership, but the site will be the mortgaged property and if such site is treated as mortgage property we have to give you moneys and on overall consideration, Rs. 2000/- are fixed to be payable and we have agreed to any the same to yon. but we have no provision for the money and so we have decided inter se that in consideration of Rs. 2000/- decided to be given to you we sell certain portion (which is described, in details in that paragraph towards satisfaction of the said amount of Rs, 2000/- and that having been agreed we hereby give the writing that the aforesaid lands shown in the man are sold to you permanently for the consideration of Rs. 2000.00....
It appears that remaining property came to be taken possession of by the executors of that deed namely Khatija and her sons who appear to be four in number at that time.
6. The years rolled by and the plaintiff, who says that he was out of India and was in Africa, came to India in the year 1969 and came to know that certain unfair dealings had taken place between the defendants Nos. 1 to 3 the defendants Nos. 4 to 9 and the rest of the defendants inter se but he did not specify what those dealings were. He then filed in the year 1970 the aforesaid suit simply for partition and separate possession of his share in the properties.
7. Acting on the contents of the various pleadings of the defendants, the learned Judge had raised various issues, which are reproduced in paragraph 7 of the judgment. The learned Judge held that the plaintiff had proved that the suit properties were joint between him and Sadruddin; that the plaintiff established the alleged relationship with Sadruddin; that the properties were not of the sole ownership of deceased Sadruddin; and that the defendants Nos. 1 and 3, had failed to prove that deceased Sadruddin was mentally unsound and taking advantage of it the plaintiff had got his name entered in the city Survey records. The issue No. 8 related to the defendants Nos. 4 to 24 and it is to the effect that whether the defendants Nos. 4 to 24 had purchased certain suit properties from remaining defendants and in collusion with each other to defeat the suit claim of the plaintiff. The learned Judge held that the defendants had purchased the properties, but not in collusion as alleged. The learned Judge ultimately held that the plaintiffs suit was barred by limitation. The result was that the plaintiffs suit came to be dismissed by the learned Judge.
8. So, the first and foremost question that requires to be considered is whether the plaintiffs suit is barred by limitation. We mention here that the learned trial Judge has accepted the plaintiffs case not for half share, but for 1/4 share. As a matter of fact, substantially other issues are decided in) the plaintiffs favour and if we uphold the contention of Miss Shah, the learned advocate for the appellants, that the suit is not barred by limitation, the matter will be required to be remanded to the learned trial Judge for proceeding further with the matter.
9. The document, ex. 306, the substance of which is reproduced by us after translating the same, clinches the question, in our view. Hamirbibi had mortgaged the property in the year 1878. After she died the property is claimed by the present plaintiff as her heir, to be exact as one of her heirs. If Hamirbibi was a mortgagor and if she has died, leaving behind her two or more heirs and legal representatives, those heirs and legal representatives for legal purposes will be co-mortgagors. Vide Section 58-A of the Transfer of Property Act. So, despite the plaintiffs clever drafting of the plaint, as if it is a suit for simple partition on the basis of alleged half title of his to the suit properties, the basis of his case is of his being one of the heirs and legal representatives of deceased mortgagor. So, the basis of the suit can be none other than the plaintiffs alleged right as a co-mortgagor or heir of Hamirbibi. We repeat that in the plaint, the plaintiff had kept the things deliberately loose and fluid. He did not show how he claimed to be the co-owner, but the evidence has made the whole position crystal clear. The only legal substratum that would allow the plaintiff to stand qua the suit properties will be his right as a co-mortgagor and none else. If no action had been taken by him within 60 years from 1878 A.D., the mortgagor's right to redeem the property would have been lost under the law. Fortunately for the heirs of Hamirbibi, the heir of, the original mortgagee had acknowledged this mortgage on 5-7-1909, when he transferred his mortgagee's rights to Chunilal, the predecessor-in-title of the defendants Nos. 4 to 9. In that deed, there is specific acknowledgement of the existence of the mortgage and so the period of limitation would start afresh from 5-7-1909 and if within 60 years from that date the mortgagor or a co-mortgagor comes forth to claim the mortgaged property either from the mortgagee or from his assignee, he will be perfectly within his rights. Unfortunately, for the plaintiff, the suit had come to be filed only on 2-5-70, that is, after the expiry of 60 years' period. If we take the plaintiffs co-mortgagor's right as the basis of his suit, then his suit is ex facie time-barred, it having been filed after the expiry of 60 years period from the date of the acknowledgement of the mortgage by the mortgagee in the deed of transfer ex. 233 dated 5-3-1909. To put this situation in this manner simply, we can say that the plaintiffs right to get back the property as a co-mortgagor or an heir of the mortgagor had come to be lost. It is the settled legal position that in suits relating to immovable properties, not only the remedy but the right is also lost, on the expiry of the period; of limitation.
10. However, Miss Shah urged that the deed ex. 306 dated 30-7-1952 saved the situation for the plaintiff. By this deed, the defendants Nos. 1 to 3 purported to sell half of the property to satisfy the mortgage dues. According to Miss Shah, therefore, there was an acknowledgement of mortgage on the part of the defendant Nos. 4 to 9's predecessor-in-title, who had presented the said document ex. 306 for registration and, therefore, the document is to be treated as his acknowledgement of the existence of the mortgage within the period of limitation. The argument, though ingenious, is difficult to be accepted. This document, ex. 306, is a document speaking of the redemption of the mortgaged property followed by the transfer of roughly half share by the co-mortgagor, namely, the defendants Nos. 1 to 3, in favour of the mortgagee. There is no escape from the fact that this document ex. 306 unequivocally shows that the defendants Nos. 1 to 3 redeemed the mortgage, but instead of paying the amount of the mortgage money that was due, they parted with a part of the property in lieu of that mortgage debt. In other words, they redeemed the mortgage; got back the property and in consideration of the payment of the mortgage dues, they sold part of the mortgaged properties. This means that the defendants Nos. 1 to 3 in their capacity as the heirs of Hamirbibi and, therefore, co-mortgagors with the plaintiff, redeemed the property. No doubt, they at the time of the document purported to claim to be exclusive owners. The learned Judge has found, and we also confirm that finding, that their exclusive claim to the property was not tenable. They were co-owners with the plaintiff. So, whatever may be their claim, the legal effect would be that they redeemed this property as co-mortgagors and, therefore, for all legal purposes they were subrogated to the mortgagee's position and the share of the plaintiff in the suit property. If it be so, and in our view it must be so, because there is no other possible interpretation that can be placed on the transaction, the defendant nos. 1 to 3 became mortgagees qua the share of the plaintiff. It was perfectly open to the plaintiff to call upon the defendants Nos. 1 to 3 to return that half share on payment of the proportionate amount of the mortgage debt, but this they could do only within the period of limitation. Section 92 of the Transfer of Property Act makes the position very clear. The said section has seen the light of the day only in the year 1929, but before that section came to hold the field, formally the very principle of subrogation was applied under the well-known principles of justice, equity and good conscience. Section 92 for our purpose would read as follows:.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....
11. Without dilating much upon this question, we would at once turn to the judgment of the Supreme Court dealing with this very question. It is the judgment in the case of Valliama Champaka Pillai v. Sivathanu Pillai : 1SCR354 Paragraph 28 lays down the ratio in exquisite and explicit terms as under:
Steering clear of the tangled web of conflicting and confusing decisions rendered on an interpretation of the relevant provisions of the Transfer of Property Act, 1882, as they stood before the amendment of 1929, we may say at once that even where the Transfer' of Property Act was not in force, a, redeeming co-mortgagor discharging the entire mortgage, debt, which was the joint and several liability of himself and his co-mortgagor was, in equity, entitled to be subrogated to the rights of the mortgagee redeemed and to treat the non-redeeming co-mortgagor as his mortgagor to the extent of the latter's portion or share in the hypotheca and to hold that portion or share as security for the excess payment made by him. This equitable right of the redeeming co-mortgagor stems from the doctrine that he was a principal debtor, in respect of his own share only, and his liability in respect (of) his co-debtor's share of the mortgage debt was only that of a surety; and when the surety had discharged the entire mortgage debt, he was entitled to be subrogated to the securities held by the creditors to the extent of getting himself reimbursed for the amount paid by him over and above his share to discharge the common mortgage debt.
This means that a redeeming co-mortgagor, who discharge the entire mortgage debt, which was joint and several liability of himself and his co-mortgagor, was, in equity, entitled to be subrogated to the rights of a mortgagee of the mortgagee redeemed and to treat the non-redeeming co-mortgagor as his mortgagor to the extent of the latter's portion or share in the hypotheca and to hold that portion or share as security for the excess payment made by him.
12. Then in paragraph 34 of the said judgment, the dictum has been carried further by the Supreme Court. Said paragraph 34 also is reproduced below:
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-mortgagee.
As the redeeming co-mortgagor qua the share of the other co-mortgagor the defendants Nos. 1 to 3 were mortgagees, they having stepped into the shoes or footsteps of the mortgagee and the other co-mortgagor has to file a suit for possession of his share or portion of the property 'within the limitation prescribed for a suit for redemption of the original mortgage'. We, with respects, repeat that this is a very clear exposition of law on the subject and, therefore, there is little that could be urged against this settled legal position.
13. Miss Shah, however, advanced two alternative arguments in this regard to counteract the unpleasant position, unpleasant obviously for the plaintiff. She in one breadth submitted that the document, ex. 306, was not a document of redemption. We have already said above that for all practical purposes, this document speaks of redemption. No doubt, the mortgagee asserted that he considered himself as an owner, but this was only an untenable tall claim put forward in view of the earlier document ex. 233 dated 5-9-1909 under which Chunilal got clearly the right, title and interest of the mortgagee. So Chunilal was a mortgagee and none else but a mortgagee. That mortgage continued till the year 1969. In the year 1952, this mortgage relationship was present very much and the deed also makes it clear that calculating the amount due as mortgage debt, the sum of Rs. 2000/- was arrived at and this mortgage debt was paid by the persons who redeemed the property by transferring half of the property. So, Miss Shah is not right in submitting alternatively that there was no redemption by the defendants Nos. 1 to 3.
14. Miss Shah's alternative argument before us was that when the defendants Nos. 1 to 3. who were held to be and who have to be held co-mortgagors and co-owners also, got back the property, they held the same for and on behalf of the body of co-owners and they would not be entitled to claim any title adverse to the co-owners, unless there was an overt act of hostile perpetration by them to the knowledge of the person who had allegedly sought to be affected by adverse possession. She tried to derive an indirect support for her possession from one argument advanced before the Supreme Court in that Valliama's case (supra). In paragraph 16 of the reported judgment, there is reference to an argument of this nature pressed in service on behalf of the claimant there, as it is the plaintiffs attempt before us.
15. The Supreme Court did not permit this question to be gone into on the ground that no such plea was ever raised before the Courts below. Miss Shah wants us to infer that as the Supreme Court negatived this argument on a preliminary ground, it must be assumed that the Supreme Court was satisfied with this argument, but got over it by rejecting it on a preliminary point. We are afraid, such an inference cannot be permitted. We are not oblivious of the analogical assistance that can be had in the sphere of ratiocination, but this sort of argument is unknown to law or to logic. We, therefore, do not entertain that argument. In this connection Miss Shah's further argument was that if the deed ex. 306 was treated as a deed evidencing redemption of the mortgage, then there was an acknowledgement of mortgage both by the defendants Nos. 1 to 3 on, one hand and the predecessor-in-title of the defendants Nos. 4 to 9 on the other and as a corollary her submission was that a fresh period of limitation started to run from the date of that deed, namely, 31-7-1952. This argument stands negatived by the observation of the Supreme Court in paragraph 34 of the very judgment in Valliama's case (supra). The said paragraph 34 is already referred to by us above. When a co-mortgagor redeems a property, he does not redeem, as the agent of his co-mortgagor. He redeems it in order to safeguard his own interests and incidentally he comes to hold the mortgagee's position qua the share of the co-mortgagor. So, for the co-mortgagor, whose share has been redeemed by the other co-mortgagor, he is a mortgagee for all purposes. If the plaintiff could not have succeeded against the defendants Nos. 4 to 9 in the year 1970, the plaintiff cannot expect to succeed against these very persons and the defendants Nos. 1 to 3, who stepped into the mortgagee's shoes qua the share of the plaintiff. This will be incongruous on the face of ex. 306.
16. In this view of the matter and for the reasons stated hereinbefore, we hold that the plaintiffs suit has been rightly held to be barred by limitation. We, therefore, dismiss this first appeal, but in the facts and circumstances of this, there will be no order as to costs.