M. Sasidharan Nambiar, J.
1. Plaintiffs 1 and 3 in O.S.119 of 1992 on the file of Munsiff Court, Adoor are the appellants. Legal heirs of the deceased sole defendant are respondents 1 to 3. Second plaintiff is the fourth respondent. On his death, additional respondents 5 to 7 were impleaded as his legal heirs. Learned Munsiff passed a preliminary decree for partition in respect of item No.2 of the plaint schedule properties but dismissed the claim for partition of item No.1 of the plaint schedule properties. Appellants challenged the decree before Additional District Court, Pathanamthitta in A.S.19 of 1996. Learned Additional District Judge confirmed the findings of the learned Munsiff and dismissed the appeal confirming the dismissal of the claim for partition of item No.1 of the plaint schedule properties. Appeal is filed challenging the decree. The appeal was admitted formulating the following substantial questions of law.
1) Whether the redemption taken by Sri. Narayana Pillai is for himself or is for and on behalf of the tharawad.
2) Whether the recital in Ext.A1 document regarding the availability of other items for partition refers to this property also”.
2. Learned counsel appearing for the appellants and the respondents were heard. Learned counsel appearing for appellants argued that item No.1 of the plaint schedule properties admittedly belonged to Neelakanda Pillai and on his death, it devolved on his son Raman Pillai. Appellants, fourth respondent and first respondent are the children of Raman Pillai. It is submitted that admittedly Neelakanda Pillai had created two usufructory mortgage in favour of Ayyan in 1106 ME being the eastern portion of item No.1 of the plaint schedule property and in favour of Mathai being the western portion of item No.1 of the plaint schedule property in 1112 ME. Later the deceased defendant who was the Karanavan of the family redeemed the mortgage in 1115-ME for and on behalf of the family. Appellants have paid their share of the mortgage money, interest and litigation expenses to the defendant. Therefore item No.1 of the plaint schedule properties, which on the death of Raman Pillai devolved on the appellants, fourth respondent and the defendant. They are in joint possession. Plaintiffs are entitled to their share each separated.
3. Defendant resisted the suit contending that the mortgages were redeemed by him and he did not receive any contribution from the plaintiffs. As the mortgage was redeemed in 1115 ME, he stepped into the shoes of the mortgagees. The period for institution of suit for redemption by the plaintiffs is barred. Hence defendant is the absolute owner in possession of item No.1 of the plaint schedule property and it is not available for partition.
4. Before the learned Munsiff only the first plaintiff was examined as PW1. Ext.A1, the subsequent partition deed entered into between the plaintiffs and defendant and Ext.B1, sale deed in respect of item No.2 of the plaint schedule property were marked. Defendants did not adduce oral evidence. Learned Munsiff on the evidence found that item No.1 of the plaint schedule properties was outstanding in the possession of the mortgagees under possessory mortgage of 1106 and 1112 ME and Neelakanda Pillai, the mortgagor died on 22nd Meenam 1106 and his son, the father of plaintiffs and defendant died on 22nd Medam 1106 and evidence establish that defendant redeemed the mortgage in 1115 ME. It was found that on redemption of the mortgage, defendant became the absolute owner in possession of his share of the property and stepped into the shoes of the mortgagees in respect of the share of the plaintiffs and as the mortgages were redeemed in 1115 ME, the mortgage became irredeemable and thus plaintiffs lost the right to redeem the mortgage over their proportionate share, as provided under Section 27 of the Limitation Act and therefore held that item No.1 of the plaint schedule properties are not available for partition. Learned Additional District Judge on re-appreciation of the evidence found that though plaintiffs contended in the plaint that they have paid their share of the mortgage money with interest and litigation expenses, when examined as PW1 deposed that he did not have any scrap of paper to prove the payment and therefore held that redemption of the mortgage was by the defendant only. It was also found that there was no pleading in the plaint that redemption was for and on behalf of the plaintiffs and instead plea was that they jointly redeemed the mortgage and had sufficiently contributed towards the litigation expenses and the payment of the mortgage money for redeeming the mortgage, but did not succeed in establishing the payment. Holding that mortgage was redeemed 64 years back and therefore appellants are not entitled to claim share in item No.1 of the plaint schedule proper, confirming the findings of the learned Munsiff, the appeal was dismissed.
5. The argument of the learned counsel appearing for the appellants is that even though appellants specifically contended in the plaint that they have contributed for redemption of the mortgage by paying their share of the mortgage money, interest and litigation expenses and it was denied by the defendant in the written statement, no evidence was adduced by the defendant to prove that the redemption was not for and on behalf of the plaintiffs and therefore when the redemption was by one of the co-owners, in law it could only be treated as redemption for and on behalf of the co-owners. It was argued that once the mortgages were redeemed the mortgage comes to an end and no second suit for redemption would lie. Learned counsel argued that the law was not correctly appreciated by the courts below and once a co-mortgagor redeem mortgage, though he is entitled to hold the share of the non redeeming co-mortgagor till he was paid the share of the mortgage money paid by him for redemption, he will not step into the shoes of the mortgagee and at best he could only contend that till the share of the mortgage money is paid by the plaintiffs, he is entitled to be in possession of the property and a suit for partition cannot be defeated on that ground.
6. The learned counsel relied on the decision of the Apex Court in Krishna Pillai v. Padmanabha Pillai, 2004 (2) KLT 61 and that of this court in NarayaniGowri and others v. Parvathy Padmavathy, 2011 (2) KLJ 511 and MadhavanEzhuthassan v. Venkatarama Iyer, 2008 (2) KLT 60. It was argued that on the evidence, when it is clear that defendant was the Karanavan of the family and the suit for redemption was filed by him, it should enure to the benefit of all the plaintiffs, the other co-owners, especially when in view, of Section 60 of the Transfer of Property Act, a fractional shareholder of equity of redemption is not entitled to redeem the mortgage on payment of the proportionate part of the mortgage money and therefore item No.1 of the plaint schedule property is available for partition.
7. Learned counsel appearing for respondents 1 to 3 argued that though the mortgage deeds were not produced, in the plaint itself it was admitted that Neelakanda Pillai mortgaged the eastern portion of the property in favour of Aiyan in 1106 ME and the western portion in favour of Mathai in 1112 ME and the evidence of PW1 established that mortgage was redeemed by the defendant in 1115 ME and no evidence was adduced to establish that plaintiffs paid any portion of the mortgage money or interest and hence it could only be found that the redemption was by the defendant only on his behalf and therefore he is entitled to the right of subrogation provided under Section 92 of the Transfer of Property Act. The argument of the learned counsel is that once the mortgages were redeemed, defendant became the owner in absolute possession of his share and stepped into the shoes of the mortgagees in respect of their proportional shares and when no suit for redemption was filed and period for redemption of the mortgage expires, courts below rightly dismissed the suit. Learned counsel relied on the decision of the Apex Court in VallikatThekkedath Valappil Lakshmikutty Amma and others v. Vallikat Thekkedath Valappil Damodara Menon and others, AIR 1997 SC 1909 and VariavanSaraswathi v. Eachampi Thevi and others, 1993 Supreme (2) SCC 201 and argued that the legal position is that when the defendant redeemed the two mortgages in respect of item No.1 of the plaint schedule property, he stepped into the shoes of the mortgagees in respect of the share due to the plaintiffs and as the period for redemption of the mortgages is over, finding of the courts below that item No.1 of the plaint schedule properties is not available for partition is perfectly correct. The learned counsel argued that though appellants contended that plaintiffs paid their share of the mortgage money, there is no evidence to prove the same and therefore as found by the courts below, it could only be held that the mortgages were redeemed by the defendant and plaintiffs did not contribute their share of the mortgage money. Learned counsel also argued that when the suit was filed claiming partition, without offering to pay their share of the mortgage money and when the mortgage was redeemed in 1115 ME, prior to 1940, the suit for partition in respect of item No.1 of the plaint schedule properties is not maintainable.
8. On certain facts, there is no dispute. The property originally belonged to Neelakanda Pillai. He created a possessory mortgage in favour of Ayyan in 1106 ME and another possessory mortgage in 1112, in favour of Mathai. The mortgages thus created were respectively the eastern and western portion of item No.1 of the plaint schedule properties. Though the right of equity of redemption, which vested on Neelakanda Pillai devolved on Raman Pillai, his son, on his death. On the death of Raman Pillai, it devolved on the plaintiffs, defendant, his children. The mortgages were not redeemed by either Neelakanda Pillai or Raman Pillai. Mortgages were redeemed later, after the death of the grand father and the father, by the defendant in 1115 ME. Though the details of the suit or the decree for redemption were not disclosed, when the first appellant was examined as PW1, it is admitted that the mortgages were redeemed by the defendant PW1, did not deny the fact that the redemption was in 1115 ME. As rightly pointed out by the learned counsel appearing for the appellants, first respondent being the sharer of the equity of redemption, could not have redeemed the mortgage by deposit of his proportional share of the mortgage money in view of Section 60 of Transfer of Property Act. Defendant was admittedly the eldest member of the family and thus the Karanavan. Ext.A1 establishes that fact. It is therefore clear that the suits for redemption were filed by the senior-most male member of the family, the defendant and on deposit of the mortgage money, both the mortgages were redeemed. What is the legal consequence of such redemption is the disputed question. When the learned counsel appearing for respondents 1 to 3 would contend that on such redemption, the defendant stepped into the shoes of the mortgagees with regard to the proportional share of the mortgages to the extent of the right of equity of redemption of the plaintiffs, appellants would contend that on redemption of the mortgage, by one of the co-owner, the redeeming co-owner cannot step into the shoes of the mortgagees to the extent of the share of the non redeeming mortgagor and he could at best only claim the contribution of the mortgage money from the non redeeming co-mortgagors.
9. The learned counsel appearing for respondents 1 to 3 relied on the decision of the Apex Court in VallikatThekkedath Valappil Lakshmikutty Amma’s case (supra). In that decision, relying on an earlier decision of the Apex Court in ValliammaChampaka Pillai v. Sivathanu Pillai, 1979 (4) SCC 429, where it was held that where one co-mortgagor gets the right of contribution against the other co-mortgagor by paying off the entire mortgage debt, a co-related right also accrues to the latter to redeem his share of property and gets possession on payment of the share of his liability to the former and to the extent of his liability, he gets discharged and to the extent of the shares of the other co-mortgagors, he stands in the position of mortgagee vis--vis the other co-mortgagors. It was held that it would be open to the other co-mortgagors, to sue for possession of the property, after paying their share within the period of limitation. The argument of the learned counsel is that as no suit was filed within twelve years after redemption of the mortgages in 1115 ME, plaintiffs lost their rights in the property and defendant became the absolute owner in possession of the property and therefore item No.1 of the plaint schedule properties is not available for partition.
10. The decision in VariavanSaraswathi’s case which was relied on in ValappilLakshmikutty Amma’s case was considered by a later bench of the Honourable Supreme Court in KrishnaPillai’s case (supra). After elaborately considering the earlier decisions, the position was summorised as follows. A subrogation rests upon the doctrine of equity and principles of natural justice and not on privity of contract. The provision of Section 92 of Transfer of Property Act recognizes the same equity of re-imbursement as underlined in Section 69 of the Indian Contract Act that a person interested in payment of money, which another is bound by law to pay, and who therefore pays it is entitled to be reimbursed by the other. Such a payment carries with it at times an equitable charge under Section 92 of the Transfer of Transfer Act, but does not have the effect of the substitute becoming a mortgagee. The provision confers certain rights on the redeeming co-mortgagor and also provides for remedy of redemption, foreclosure and sale, being available to the substitute as they were available to the substitutor. A property subject to mortgage is available as between co-mortgagors for partition subject to adjustment for the burden on the property. One of the co-mortgagors by redeeming the mortgage in its entirety cannot claim a right other than what he otherwise had faced with a claim for partition by the other co-owners. He cannot defeat the legal claim for partition though he could insist on the exercise of such legal right claimed by the other co-owner cum co-mortgagor being made subject to the exercise of equitable right vested in him by subrogation. There is no difference in the principles laid in VariavanSaraswathi’s case relied on by the learned counsel appearing for the respondents. What was held in the said decision was also that even under subrogation, the legal concept means substitution applied on the English Law principle even earlier, inserted now as Section 92 of the Transfer of Property Act, the rights that are created in favour of a co-mortgagor as a result of discharge of debt are, so far as regards redemption, foreclosure or sale of such property, this same rights as the co-mortgagor whose rights is redeemed. There is distinction between a redemption by a co-mortgagor and a third party. A third party would definitely step into the shoes of the mortgagee but that is not the case with the co-mortgagor who redeems the mortgage.
11. Their Lordships in VariavanSaraswathi’s case held that a co-mortgagor in possession excess share redeemed by him, can enforce his claim against the non redeemed mortgagor by exercising rights of foreclosure or sale as exercised by the mortgagee under Section 67 of Transfer of Property Act but that does not make him a Mortgagee therefore, a co-mortgagor or a junior member of the tharawad who continues in possession over the excess share got redeemed is not a mortgagee, after redemption the mortgage comes to an end. In the light of the settled law, it could only be held that on the redemption of the mortgages by the defendant, he cannot claim to be a mortgagee in respect of the share of the redeemed co-mortgagors. He could only claim that he is entitled to be in possession of the property, till their share of the mortgage money is paid. A claim for partition cannot be defeated on that basis.
12. True, appellants contented in the plaint that the mortgage was redeemed by the defendant on their behalf and they paid their share of the mortgage money. On going through the evidence, it is clear that first appellate counter mis-appreciated the pleadings and the evidence. The pleading is not that the mortgage was redeemed jointly by the defendant and plaintiffs, the other co-owners as stated by the first appellate court. Plea was specific that it was redeemed by defendant who filed the suits and deposited the mortgage money. Plea was that plaintiffs paid their share of the mortgage money, interest and expenses. Though learned Additional District Judge further found that in cross examination, PW1 admitted that he did not have any scrap of paper to prove the payment of contribution of the mortgage money, on going through the evidence of PW1 it is clear that such a question was not put to PW1 and he did not give any such alleged admission. In fact, it was stated in chief examination that the mortgage was redeemed by all the co-owners. There was no cross examination by the defendant regarding the payment of contribution. Evidently, in chief examination PW1 did not specifically depose that he paid any amount to the defendant as contribution of the mortgage money, interest or expenses. But that does not mean that the defendant can defeat the claim for partition by the non redeemed co-mortgagors, unless any law enables the defendant to deny his share. I have gone through the written statement filed by the defendant. There is no plea that rights of the co-owners was lost by ouster and adverse possession. The plea was only that suit is barred by limitation as the period for seeking redemption of the mortgage is over. When the mortgage admittedly stood redeemed, even according to the defendant in 1115 ME and no mortgage subsists thereafter, there is no necessity to institute for redemption. At best defendant could only claim that as he did not receive the contribution of the mortgage money payable by the other co-owners, before paying that contribution, they are not entitled to get their share separated.
13. Though it was contended by the appellants that they have contributed their share of the mortgage money, there is no evidence to prove the payment of share of the mortgage money. Therefore, plaintiffs are entitled to get their share separated on payment of their share of the mortgage money with interest, which defendant had deposited and got the mortgages redeemed. Therefore subject to that right, item, No.1 of the plaint schedule properties is available for partition. The share of the mortgage money and interest payable by the plaintiffs is to be worked out in the final decree proceedings.
14. Appeal is therefore allowed. The decree of the learned Munsiff as confirmed by the first appellate court in O.S.210 of 1992, with regard to item No.1 of the plaint schedule properties is set aside. A preliminary decree in respect of item No.1 of the plaint schedule properties is passed as follows. Item No.1 of the plaint schedule properties is available for partition. It is to be divided into four shares. Each of the plaintiffs is entitled to one such share. Defendant is entitled to the share of the mortgage money, interest and share of the expenses of the litigation for redemption made by him for in respect of the mortgage, which is to be worked out in the final decree proceedings and to be deposited by the plaintiffs. Plaintiffs are also entitled to get their share of profits from the date of filing of the suit. Cost of the suit shall come out of the estate.