S. Ramachandra Iyer, C.J.
1. The question involved in this reference which has been made by Kailasam, J. relates to the period of limitation applicable to a suit for redemption instituted by one co-mortgagor against another who had earlier redeemed the mortgage and obtained possession of the mortgage property. Recently this Court had occasion to consider this very question in Valliamma Champaka v. Sivathanu Pillai, L. P. A. No. 18 of 1961 : : AIR1964Mad269 , where a Full Bench, by a majority held that in regard to mortgages created prior to the Transfer of Property Act, a redeeming co-mortgagor would be entitled to be subrogated to the rights of the mortgagee whom he redeemed, and that he in turn would be liable to be redeemed by his co-mortgagor with respect to the latter's share of the mortgaged property within the period of limitation prescribed for the redemption of the original mortgage or with in a period of 12 years from the data when as a consequence of his redeeming, he obtained possession of the mortgage property.
2. We shall now refer briefly to the facts of the present appeal which arises out of a suit for redemption instituted by the appellant. The entire properties relative to this litigation originally belonged to three brothers who executed two this on 104-1881 in favour of two persons Unnamalai and Palaniandi, stipulating a period of six years for redemption.
3. The mortgagors' right subsequently devolved by purchase in two brothers Radhakrishna Iyer and Balakrishna Iyer. They later divided the entirety of their joint family properties except with regard to their interest in the equity of redemption in the properties now forming the subject-matter of this litigation. Quoad such Interest they continued thereafter, in view of the unequivocal character of the partition to be co-owners. While so, on 19-10-1896 Balakrishna Iyer died leaving his widow and a daughter, the appellant herein. She after her mother's death succeeded to the interest of Balakrishna Iyer.
4. On 14-2-1922, Radhakrishna Iyer purported to sell the entire mortgagors' interest in the said properties, to the first respondent's father. Shortly after his purchase, the latter filed 0. S. Nos. 361 and 362 of 1924 in the District Munsif's Court Tenkasi for redemption of the two mortgages executed on 10-4-1881. The suits were decreed and after payment of the amount due, the first respondent's father obtained on 15-6-1927 and 17-6-1927 delivery of possession of the properties.
5. The appellant claiming to be in the position of co-mortgagor succeeding as she did to the interests of Balakrishna Iyer, filed the present suit on 20-7-1956 for redemption, partition and separate possession of a half share in the properties covered by the two original mortgages. The substantial defence to the action was limitation; and that has been upheld by the Courts below. The case for the appellant is that the first respondent being subrogated to the rights of the original mortgagees - Unnamalai and Palaniandi, her claim for redemption of her share will be governed by Article 148 of the Limitation Act. If that case were to be accepted it is conceded on behalf of the respondent, that the present suit must be regarded as being filed within time, in view of two written acknowledgments made by each one of the mortgagees' sons on 10-5-1906 and 10-7-1923.
6. Mr. S.V. Gopalakrishna Iyer appearing for the respondent, however, contended that Article 144 and not Article 148 would be the proper provision of the Limitation Act that would apply to the present case. Article 144 is a residuary article in regard to suits for possession. We have, therefore, to see first whether the suit in the present case is one for possession and secondly whether there is no other appropriate provision in the Limitation Act within which the claim will fall.
7. The first aspect of the question presents little difficulty. A claim by a non-redeeming co-mortgagor to recover his share of the mortgage property from the redeeming co-mortgagor who came into possession of it on redemption, can be made only on payment of his share of mortgage amount, costs of redemption incurred etc. No right to possession exists without such payments as under the law, the redeeming co-mortgagor is subrogated to the rights of the original mortgagee; the co-mortgagors' suit even if it be for possession will in substance be only for redemption. That cannot, therefore, be regarded as a suit for possession. Learned counsel, however, would argue that when the co-mortgagor (first respondent's father) paid off the mortgagee, the mortgage was automatically extinguished and that no further rights could subsist in the person redeeming on the basis of the discharged mortgage. Support for this contention was sought in the decision of the Supreme Court in Prithi Nath v. Suraj Ahir, : 3SCR302 , where it was held that once the mortgage money was paid by the mortgagor to the mortgagee there would not remain any debt from the mortgagor to the mortgagee and that, therefore, the mortgagee would no longer subsist. The decision was not concerned with any adjudication of rights between the co-mortgagors, the dispute there being between the immediate parties to the mortgage, namely, the mortgagor and the, mortgagee. The argument indeed runs counter to Sections 92 and 95 of the Transfer of Property Act. It is now well settled that where a co-mortgagor redeems a mortgage created after Act 20 of 1929 which secured not only his property but that of his co-mortgagor, the latter will be entitled to redeem his share of the mortgage property from the redeeming co-mortgagor by payment of his share of the original liability, expenses of redemption etc. In the decision rendered in L. P. A. 18 of 1961 : : AIR1964Mad269 , recently this court held that the rule will be the same even in respect of mortgages created prior to the coming into force of the Transfer of Property Act 1882 as in the instant case. But learned counsel for the respondent would however argue that such a right of redemption in the co-mortgagor would be unrelated to the original mortgage but stand as a distinct statutory right in its essence as a claim for possession. This contention again has been negatived by the majority of the Judges in the unreported decision to which reference has Just now been made. Even in the dissenting judgment of Venkataraman, J. it was held that the position of the redeeming co -mortgagor would be that of a statutory mortgagee and that the non-redeeming co-mortgagor could obtain redemption within sixty years from the date of redemption. None of the learned Judges who decided that case, regarded the suit by the non-redeeming co-mortgagor as anything but one for redemption. It is true that the liability of the non-redeeming co-mortgagor Is based on the principle of contribution and such liability will not be of the same character as the one for repayment of the original liability. The exact nature of the liability arose for consideration in M. Kaduvetti v. Somasundara Chetti, : AIR1959Mad555 , where a non-redeeming co-mortgagor sought the scaling down under the provisions of the Madras Act IV of 1938 of the amount due by him by way of contribution, as if his liability was part of the original mortgage liability. That claim was negatived. But that does not mean that the redeeming co-mortgagor does not get the benefit of the security which he redeemed when he seeks to proceed against the co-mortgagor for contribution. The security being available to him, any slit by the non-redeeming co-mortgagor for recovery of his share of the property can only be one for redemption. In other words, although there is no identity of the original debt with the liability of the non-redeeming to the redeeming co-mortgagor, the subrogated rights possessed by the latter over the security will be redeemable. Therefore, the period of limitation applicable for redemption by the non-redeeming co-mortgagor of his share of the property will be the same as that for redemption' of the original mortgage. In the Full Bench decision referred to above, it was held that there was an alternative period available; but for obvious reasons the appellant is not basing his rights on it.
8. Learned counsel for the respondent then argued that whatever might be the position in ordinary cases of redemption by a co-mortgagor, the same rule should not apply to a case where a co-mortgagor proceeded to redeem the mortgage asserting exclusive title in himself. Such assertion, it was claimed, amounted to a ouster of the co-mortgagor, who if he did not redeem within 12 years of the open assertion of hostile title should be held to have lost his rights by adverse possession. It appears that during the pendency of the suit filed by the first respondent's father for redemption of the original mortgage, a claim was made by the appellant's mother for a half share of the property then under mortgage; the same was repudiated by the former by his notice dated 23-9-1924.
9. We are, however, unable to see how there can be any question of adverse possession in such circumstances. At the time when the notice was issued by the first respondent's father asserting full title to the property, he was the owner of only one half in the equity of redemption; further he was not in actual possession of the property. There could, therefore, be no question of any adverse possession of the appellant's half share of property for the reason that the first respondent's father was not then in possession of the property. Nor is there any evidence of adverse possession of the appellant's share of the equity of redemption. Even earlier the first respondent's father filed the two suits in that year for redemption of the mortgages on the basis that he had acquired title to the equity of redemption by virtue of the sale effected by Radhakrishna Iyer. In so doing, he should be regarded as asserting only his legal right to the equity of redemption, namely, that of a co-mortgagor to obtain redemption of the mortgage. When as a result of those suits, he obtained possession of the property, he should be held to have obtained redemption and consequent possession by using his position as a co-mortgagor and not otherwise. Again his possession thereafter cannot be regarded as hostile to the co-mortgagor because under the law he would be entitled to retain such possession under a lawful title by virtue of his redemption of the original mortgage. To put it differently, although he might have been asserting full title to the property in himself, his possession being referable to a lawful title under which he could hold the entire property, no question of unlawful or adverse possession postulating a trespass can at all arise. Further till 20-7-1956 when alone the appellant offered to pay her share of the mortgage liability, she could not have obtained possession without payment of the mortgage money. It will follow, therefore, that there will be no title available to the first respondent by adverse possession. The decision in Palania Pillai v. Ibrahim Rowther, ILR 1943 Mad 15 : AIR 1942 Mad 622 on which reliance was placed was a case where a co-sharer in possession of the property created an usufructuary mortgage over more than her share asserting exclusive title to the full extent. It was held that the purchaser who obtained possession of the property from the co-sharer must be held to have ousted the other co-sharer, as his possession of the entire property was to the knowledge of the other co-sharer adverse. In the present case, when Radhakrishna Iyer sold the equity of redemption to the first respondent's father he had no possession of the property, the actual possession being in the mortgagee. There has, therefore, been no ouster of the appellant by the first respondent. This does not mean that there could be no adverse possession with regard to a share in an equity of redemption. What all we say is that there is nothing in the present case beyond the notice dated 23-9-1924 to show that the first respondent's father had prescribed any title by adverse possession to a half share in the equity of redemption possessed by the other co-mortgagor. The notice itself was given after the commencement of the suit for redemption which in the circumstances of the case must be regarded as having been filed in the exercise of the lawful rights of the first respondent's father as a co-mortgagor. The question, therefore, in the present case is one of limitation and not adverse possession. Having regard to the fact that the appellant's suit in substance is one for redemption of her share of the property it must be held to be within time as it has been filed within period allowed for redemption of the original mortgages created on 10-4-1881. The result is that the second appeal succeeds. A preliminary decree for redemption and thereafter for partition will be passed in favour of the appellant. Time for redemption two months.