1. The second defendant in O. S. No. 148 of 1973 on the file of the Court of the Subordinate Judge of Tiruvannamalai is the appellant, Respondents 1 to 4 in the appeal are the plaintiff, a minor represented by next friend and guardian and defendants 1, 3 and 4 respectively.
2. The facts of the case may be briefly states as follows : The suit property originally belonged to one Subbammal. On 9-1-1956 the said Subbammal executed a settlement deed in respect of the suit property in favour of Rukmani Ammal. Ex. B. 10 is the registration copy of the settlement deed. The 4th defendant is the husband of Rukmani Ammal while the plaintiff (first respondent) is the only daughter of Rukmani Ammal; and the 4th defendant (sic) Rukmani Ammal died leaving the 4th defendant and the plaintiff as her heirs to the suit property. It is not disputed that the 4th defendant has taken a second wife and he has got a number of children through her. The entire suit property is 'an extent of 1.66 acres of wet land comprised in S. No. 224/2 in Chengam Taluk, Tiruvannamalai district. On 26-12-1970 the 4th defendant executed Ex. B-1 sale deed in favour of the first defendant. Ex. B-1 was executed by the 4th defendant for himself and as guardian of the minor plaintiff in respect of 83 cents of the suit property. The consideration was Rs. 16,000/-
Thereafter, the 4th defendant executed Ex. B-15 sale deed on 2-7-1972 for himself and as guardian of the minor plaintiff in respect of the remaining 83 cents of the suit property in favour of the second defendant. The consideration for the said sale was also Rs. 16,000/- . The plaintiff has filed the present suit through her next friend and guardian Govindarajalu Naidu who is said to be her husband stating that Exs. B-1 and B-15 alienations effected by the 4th defendant as regards the minor plaintiff's half share in the suit property are not binding on the minor plaintiff and voidable at her instance. The sale deeds have not been executed for the benefit of the minor. The third defendant was impleaded in her capacity as a usufructuary mortgagee in respect of the suit property. The plaintiff, therefore, prayed for a decree for setting aside Exs. B-1 and B-15 sale deeds and for a division by metes and bounds and recovery of her 1/2 share in the suit property. The suit was no doubt filed in forma pauperis.
3. The first defendant filed a written statement. He admitted that the suit property originally belonged to Subbammal and that Subbammal settled the suit property on Rukmani Ammal. On the death of Rukmani Ammal, according to the first defendant, the 4th defendant became entitled to a half share in 1.66 acres viz. 83 cents. Since the 4th defendant himself had right over 83 cents of the suit property, ex. B-1 sale deed must be deemed to convey the 4th defendant's interest over the suit property to the first defendant. He also raised an alternative contention that even if Ex. B-1 were to be treated as an alienation on behalf of minor plaintiff also the alienation by the 4th defendant was for the benefit of the minor as it was executed for the discharge of the usufructuary mortgage in favour of the third defendant. He further pleaded that having conveyed his entire interest in the suit property to the first defendant under Ex. B-1, the 4th defendant had no right left with him to convey to the second defendant under Ex. B-15.
He also pleaded that the property covered by sale deed Ex. B-15 was entirely different and was not the suit property at all. The first defendant further pleaded that he has filed O. S. No. 984 of 1972 on the file of the District Munsiff's court. Tiruvannamalai against the third defendant (wife of second defendant) for redemption of the usufructuary mortgage, further, even on the date of Ex. B.1 sale deed, the 4th defendant had executed Ex. B-13 an agreement in favour of the first defendant agreeing to convey his remaining half share in the entire 1.66 acres, if for any reason there was any trouble by the minor at a later stage in respect of the minor's share comprised in Ex. B-1 sale deed. In view of Ex. B-13 agreement the first defendant has further pleaded that Ex. B.15 sale deed by the 4th defendant in favour of the second defendant in contravention of the terms of Ex. B-13 agreement would not be valid. He also contended that the second defendant's right under Ex. B-15 would only be subject to his right under Ex. B-13.
4. The second defendant filed a written statement contending that Ex. B-15 sale in his favour was valid and binding on the minor plaintiff and it was executed for his benefit. It was only out of the sale proceeds that the marriage of the minor plaintiff was celebrated by the 4th defendant.
5. The third defendant filed a written statement wherein she pleaded that she had advanced Rs. 5000/- to the 4th defendant on certain usufructuary mortgages for family expenses and maintenance of the minor plaintiff. She also pleaded having lent Rs. 4000/- for family expenses and having obtained a decree in O. S. No. 1203 of 1971 on the file of the District Munsiff's Court, Tiruvannamalai. She claimed reimbursement of these amounts.
6. On these pleadings the trial court raised the following issues for consideration:
1. Whether the alienations in favour of defendants 1 and 2 are not valid and binding on the share of the plaintiff ?
2. Whether the sale in favour of the 1st defendant was in respect of 4th defendant's share alone in suit properties as contended by the 1st defendant?
3. Whether, in any event, the alienation is binding upon the plaintiff as contended by the 1st defendant ?
4. Whether the sale in favour of 2nd defendant does not relate to the suit property as contended by the 1st defendant ?
5. Whether the 1st defendant is entitled tot he equity claimed by him in para 12 of his statement ?
6. Whether the valuation of the plaint and the court fee paid are not correct ?
7. Whether the suit as framed is not maintainable ?
8. To what relief is the plaintiff entitled ?
The trial Court found that Exs, B-1 and B-15 sale deeds were executed by the 4th defendant for himself and on behalf of the minor plaintiff. Since the 4th defendant did not obtain any sanction from the Court prior to the execution of Exs. B-1 and B-15 sale deeds the minor plaintiff was not bound by the alienations, and that consequently, the alienations are liable to be set aside as not binding on her share of the property. On issue No. 4, the trial Court found that Ex. B-15 sale deed also related to the suit property. In the result, the trial Court set aside the sale deeds Exs. B-1 and B-15 to the extent of minor's share over the suit property and passed a preliminary decree for partition and separate possession of the plaintiff's one half share over the suit property.
Further, the learned Judge gave a direction that in dividing the property by metes and bounds the plaintiff should be allowed the portion other than the one covered by Ex B-1 as far as possible, so that the dispute inter se between defendants 1 and 2 could be settled in a competent separate suit. This later direction was made on the basis of Ex. B-13 an agreement executed by the 4th defendant in favour of the first defendant agreeing to convey his other 1/4th share over the suit property in the event of the first defendant suffering any loss at the instance of the plaintiff with reference to Ex. B-1 sale deed.
7. It is against this decree of the trial Court that the second defendant has filed the above appeal.
8. Though the memorandum of appeal contains grounds challenging the finding of the trial court setting aside Exs. B-1 and B-15 sale deeds to the extent of the plaintiff's share in the suit property, Mr. Parasaran, learned counsel for the appellant did not canvass the correctness of the said finding. The learned counsel fairly submitted that on the death of Rukmaniammal the 4th defendant and the minor plaintiff succeeded to the suit property, and that consequently, the 4th defendant as guardian was obliged to obtain the sanction of the Court before alienating the minor's share over the suit properties, and he having not done so Exs. B-1 and B-15 were voidable at the instance of the minor plaintiff to the extent of her share. I therefore, confirm the finding of the trial court that Exs. B-1 and B-15 will not bind on the plaintiff's half share over the suit property.
9. The main attack of Mr. Parasaran against the judgment of the trial Court is as regards that portion of the decree which directed that in effecting partition by metes and bounds the plaintiff should be allotted as far as possible the portion not covered by Ex. B-1. According to the learned counsel under Ex. B-1, what was conveyed to the first defendant was 411/2 cents belonging to the 4th defendant and another 411/2 cents belonging to the minor plaintiff. Therefore, on the terms of Ex. B-1 itself it could not for a moment be contended that the first defendant obtained land or Ex B-1 the entire 83 cents belonging to the 4th defendant.
If this part of the submission is accepted then the learned counsel argues, that the 4th defendant had with him 411/2 cents belonging to him and another 411/2 cents belonging to the minor which he conveyed under Ex. B-15 to the second defendant. The effect of setting aside of Exs. B-1 and B-15 sale deeds to the extent of the minor plaintiff's half share over the suit properties would be that the first defendant obtained 411/2 cents and the second defendant obtained 411/2 cents over the suit property. The trial Judge ought to have accepted this view and allowed 1/4th share each of the first defendant and the second defendant.
10. On the other hand, Mr. M.N. Padmanabhan, counsel for the first defendant submits that he has got an agreement for sale in respect of the balance 411/2 cents belonging to the defendant and not covered by Ex. B-1 sale deed under Ex. B-13 which was executed on the same day as Ex. B-1. Therefore, according to the learned counsel the moment Ex. B-1 sale deed was found invalid to the extent of the minor Plaintiff's share, Ex. B-13 came into operation and that would defeat the right obtained by the second defendant under Ex. B-15.
11. On consideration of the respective contentions put forward on either side I am inclined to agree with the submissions made by Mr. Parasaran, counsel for the second defendant. Ex. B-15 is more in the nature of indemnity agreement. Under Ex. B-13 the 4th defendant has agreed that in the event of the first defendant losing the 411/2 cents belonging to the minor under Ex. B-1 sale deed the 4th defendant would convey his remaining 411/2 cents to the first defendant for the sum of Rs. 8,000/- which is one half of consideration paid under Ex. B-1. Ex. B-13 also contains a provision that if the 4th defendant failed to do so the first defendant could seek appropriate remedies through court. In this connection, it may be mentioned that Mr. N.N. Padmanabhan did accept the position that what was sold under Ex. B-1 was 411/2 cents belonging to the 4th defendant and 411/2 cents belonging to the minor plaintiff and that therefore the title of the 4th defendant over the suit property which passed to the first defendant under Ex. B-1 was only in respect of 411/2 cents.
12. Mr. M.N. Padmanabhan made a feeble attempt to contend that he was put in possession of the entire property pursuant to Ex. B-13 and that consequently he was entitled to resist the second defendant from claiming possession of 4th share in the suit property belonging to the 4th defendant on the basis of Ex. B-15 on the principle embodied in . After taking time for looking into the authorities, learned counsel fairly concluded that the facts of the case would not attract the principle contained in S. 53-A of the Act. When once the applicability of S. 53-A of the Act is eschewed, then we have to consider what exactly is the right created in favour of the first defendant by the 4th defendant under Ex. B-13. It is well Known that under Indian law an agreement to sell does not create any interest over immovable property.
Therefore, learned counsel for the first defendant was compelled to admit that under Ex. B-13 no right, title or interest over immovable property was created in praesenti in respect of the remaining 411/2 cents of the 4th defendant and that what right he has under Ex. B-13 was only to enforce the agreement in the event of the title which he got under Ex. B-1 in respect of minor's 1/4th share being lost to him at the instance of the minor. Once it is conceded that Ex. B-13 does not create any interest in the property the 4th defendant was competent to execute a sale in respect of the remaining 411/2 cents in favour of the second defendant which he did under Ex. B-15. May be such a right may be liable to be defeated or not defeated as and when the first defendant chooses to enforce the terms of Ex. B-13. But till such time as the first defendant chooses to enforce Ex. B-13 and get Ex. B-15 avoided it could not be said that the right that the second defendant obtained under Ex. B-15 was inchoate.
I, therefore, accept the submissions of Mr. Parasaran on behalf of the second defendant and find that the trial court was not in order in keeping open the dispute between the first defendant and the second defendant for adjudication in separate proceedings. On the documents produced in the suit it is clear that the first defendant has title over 411/2 cents belonging to the 4th defendant and the second defendant has title in respect of the remaining 411/2 cents belonging to the 4th defendant. The second defendant will, therefore, be entitled to claim partition of that 1/4th share in the present proceedings itself subject to of course the second defendant paying the necessary court fee.
13. Mr. M.N. Padmanabhan then submitted that at the time of Ex. B-1 the entire 1.66 acres was in possession of the third defendant, the wife of the second defendant as usufructuary mortgagee. The first defendant filed O. S. No. 984 of 1972 on the file of the District Munsif's Court, Tiruvannamalai for redemption and recovery of possession from the mortgagee and he also obtained possession of the entire 1.66 acres from the third defendant. Ex. B-6 is the copy of the preliminary decree and Ex. B-7 is the copy of the final decree. Ex. B-8 evidences the fact that the first defendant obtained possession in execution of the redemption decree on 12-9-1974. The learned counsel therefore submitted that he having redeemed the mortgage at any rate in his capacity as co-owner, the second defendant cannot recover possession in this suit, and that he must be compelled to file a separate suit for redemption. He submitted that the result of his having redeemed the third defendant was that he stepped into the shoes of the third defendant mortgagee and that therefore be entitled to be in possession till he is redeemed by the second defendant in a properly framed suit for redemption. I am unable to agree.
14. No doubt under Section 92 of the transfer of Property Act, 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 mortgagor he redeems may have against the mortgagor or any other mortgagee. This right is called the right of subrogation. But the rule of subrogation does not entitle the redeeming co-mortgagor to claim to be the mortgagee but it entitles him to seek reimbursement of whatever money he has spent before possession is sought to be recovered from him by the other co-mortgagor. The right of redeeming co-mortgagor is only to claim the amount which was actually spent before surrendering possession.
15. In Krishna Bhaskara Menon v. Madhavan : AIR1976Ker62 it has been held thus (at p. 64 of AIR):
'The rule of subrogation does not enable the redeeming co-mortgagor to claim to be mortgagee but it entitles him to seek to be reimbursed of whatever monies he has spent, before possession is sought to be recovered from him by the other co-mortgagor.................... If the right of the redeeming co-mortgagor is only to claim the amount which was actually spent before surrendering possession and not to claim that he should get the proportionate mortgage debt, it would necessarily follow that his possession is only that of a person who by virtue of having paid amounts to discharge the entire mortgage debt, is entitled to seek reimbursement prior to surrendering possession of the property to the other mortgagor. If that be the case, he cannot claim by reason of the redemption that he is still a mortgagee.'
16. In the above case, the decision of the Supreme Court is Ganeshi Lal v. Joti Pershad : 4SCR243 has been quoted which is to the following effect (at p. 4 of AIR):
'The redeeming co-mortgagor being only s 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 Transfer of Property 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 mortgagee 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.'
17. Therefore, the right of the first defendant who could be termed a redeeming co-mortgagor is only to be reimbursed to the extent of the second defendant's share of the amount spent by the first defendant in redeeming the mortgage from the third defendant. For settling this, it is not necessary that the second defendant should be compelled to file a separate suit for redemption. The matter could be settled in final decree proceedings in the present suit itself, Mr. Parasaran, learned counsel for the second defendant did not dispute the fact that the first defendant had filed a suit, obtained possession of the entire 1.66 acres, and that before recovering his 1/4th share of the suit property he would be bound to contribute his share of the amount spent by the first defendant in redeeming the mortgage.
18. I therefore modify the judgment and decree of the trial Court. I confirm the preliminary decree passed by the trial Court for partition of plaintiff's 1/2 share over the suit properties. I declare that the second defendant will be entitled to and recover possession of the 1/4th share viz., 411/2 cents which he purchased from the 4th defendant under Ex. B-15. I further hold that before the second defendant recovers possession of the said 1/4th share, he will be liable to contribute to the first defendant 1/4th of the amount spent by the first defendant in redeeming the usufructuary mortgage and recovering possession of the property from the third defendant. The quantum of the said amount will be determined in final decree proceedings.
19. The question as regards the right of the first defendant to enforce Ex. B-13 agreement and whether Ex. B-15 sale deed executed by the 4th defendant in favour of the second defendant is liable to be defeated at the instance of the first defendant on the basis of Ex. B-13 agreement is left open to be decided in appropriate proceedings. The appeal is accordingly party allowed but under the circumstances without costs.
20. Appeal party allowed.