Judgment :- 1. The appellants are mortgagors whose suit for partition, and for redemption and possession of their share of the mortgaged property from the hands of their co-mortgagor 1st defendant, who having redeemed the mortgage was in possession, has been dismissed by the courts below on the ground that it is barred by time. In so doing, the courts regarded the suit (as indeed it purported to be, and, in truth, is) as a suit for the redemption of the appellants' share of the mortgage and for possession as a consequence. And they counted time from the date when the right to redeem what I might call the original mortgage (though there is in reality only one mortgage) and to recover possession accrued. This seems to me clearly in accord with both principle and authority. But, it is urged on behalf of the appellants on the strength of Valliamma v. Sivathanu (AIR. 1964 Madras 269 (F.B ) that they have 12 years' time from the date of the redemption by the 1st defendant under Art.132, if not 60 years under Art.148, of the Limitation Act. It is because of this contention that the case has been referred to a division bench. 2. The mortgage, an Otti (which, in the Travancore area from which this case arises, means a simple mortgage usufructuary) was of the year 1887. The redemption by the 1st defendant was in 1954 and was in execution of a decree obtained by him in a suit instituted in 1950. That was beyond the normal period of limitation, but the 1st defendant successfully pleaded an acknowledgement of liability which made his suit in time. No such plea has however been taken in the present suit which was brought on 25 91958. A suit for the redemption of the mortgage had become barred under Art.136 of the Travancore Limitation Act, which gave only 50 years' time, before the Indian Limitation Act, 1908, giving a longer period of 60 years under Art.148, was extended to the Travancore area by Act 3 of 1951. It is therefore undisputed that, if the appellant plaintiffs can succeed only by redeeming the mortgage of 1887, their suit is out of time. 3. The Transfer of Property Act, 1882 was brought into force in the Travancore area in respect of agricultural land like the suit land only on 171955. It is therefore undisputed that, if the appellant plaintiffs can succeed only by redeeming the mortgage of 1887, their suit is out of time. 3. The Transfer of Property Act, 1882 was brought into force in the Travancore area in respect of agricultural land like the suit land only on 171955. Before that there was no statute in force in that area with regard to the matters covered by the Transfer of Property Act and cases had to be decided in accordance with the principles of equity, justice and good conscience. But, in their search for these principles, the courts almost invariably had recourse to the provisions of the Transfer of Property Act. I shall be content to do likewise, looking to the current Act, which in my view more successfully embodies those principles than the old pre-1929 Act, for guidance. 4. As a matter of mere common sense and common fairplay I do not see why a mortgagor who has slept over his right of redemption should derive any benefit from the circumstance that a co-mortgagor, who was awake to his, has exercised it in time. And I am glad to find that the law does not say otherwise. For, the redeeming co-mortgagor obtains redemption in his own independent right; he is in no sense a representative of his co-mortgagors even though, where the redemption is by suit, he has to make them parties; he does not avail himself in the least of their title; and he does not take advantage of his position as a co-mortgagor to their detriment. The case of a redeeming co-mortgagor suing his fellow mortgagor for money by way of contribution, where such a suit lies, is different he is only asking the latter to pay bis due share for the advantage obtained by him by his (the redeeming co-mortgagor's) vigilance and at his expense and it is fallacious to argue that, because time for such a suit begins to run only from the time of redemption, time for a non-redeeming co-mortgagor's suit for redeeming the redeeming co-mortgagor must likewise begin to run only from that date. For, a redeeming co-mortgagor is not an assignee of the mortgage debt, and his right to sue for money, arising as it does from his discharging a common burden, comes into being only when he redeems the mortgage. For, a redeeming co-mortgagor is not an assignee of the mortgage debt, and his right to sue for money, arising as it does from his discharging a common burden, comes into being only when he redeems the mortgage. It is an altogether new debt and not the mortgage debt, its basis being not the loan advanced under the mortgage but the benefit gained by the non-redeeming co-mortgagor at the expense of the redeeming co-mortgagor, although, shod as it is by subrogation with the mortgage security in the hunt for the money, it gets the benefit of the longer period of 12 years under Art.132 of the Limitation Act instead of the usual three years for a simple money debt. And S.95 of the Transfer of Property Act not inappropriately refers to the money due as mortgage money since its payment is secured by the mortgage. The point h that by effecting the redemption the redeeming co-mortgagor gains no advantage at the expense of the non-redeeming co-mortgagor; on the other hand the latter gains an advantage at the expense of the former by reason of the former paying the entire mortgage debt.' This advantage accrues only when the mortgage debt is paid and that creates the obligation which is enforced in a suit for money. The money sued for becomes due within the meaning of Art.132 only when the redeeming co-mortgagor pays the mortgage debt and therefore time can begin to run only from that date. But, the cause of action for redemption accrues to the non-redeeming co-mortgagor when it accrues against the original mortgagee. This is in no way affected by the redemption, and since, by redemption, the redeeming co-mortgagor only steps into the shoes of the mortgagee, occupying more or less the position of an assignee, the redemption furnishes no fresh cause of action and no fresh starting point for limitation. 5. When one of several mortgagors redeems the entire mortgage, the mortgage is extinguished by merger so far as his share of the mortgaged property is concerned and there is a pro tanto reduction of the mortgage debt. Where the mortgage is a possessory mortgage he enters into possession of the entire property as a result of the redemption. So far as his own share of the mortgaged property is concerned he is in possession as full owner free of the morgtage. Where the mortgage is a possessory mortgage he enters into possession of the entire property as a result of the redemption. So far as his own share of the mortgaged property is concerned he is in possession as full owner free of the morgtage. Under what title then does he hold so far as the shares of his fellow mortgagors are concerned? On this depends the answer to our question, for, if is not until he is divested of that title that his co-mortgagors can obtain possession of their shares, and I do not suppose any co-mortgagor would want to redeem unless he can get possession. Is he in possession as a co-owner, in which case time would not begin to run until there is actual ouster of the other co-owner, the non-redeeming co-mortgagor, I am thinking of a case where there are only two mortgagors and the question might arise whether, by the very act of redemption by which he gets possession as a co-owner, there can be an ouster, even if the redemption be to the knowledge of the other co-owner. In that case there would be no question of redemption of the mortgage in a suit brought by the non-redeeming co-mortgagor. It would be a simple suit for possession, and the redeeming co-mortgagor's right to reimbursement could only be under S.90 of the Trusts Act. Or, is he in possession as one who being subrogated to the rights of the mortgagee, has stepped into the latter's, shots, and, for the purpose of enforcing his right to contribution, can avail himself of the mortgage security. If that be so, the non-redeeming co-mortgagor's suit would be for redemption of his share of what I have called the original mortgage, and time will begin to run under Art.148 of the Limitation Act from the time when that mortgage became redeemable, not from the time when the redeeming co-mort-gagor redeemed it. Or, can it be that he is in possession by virtue of the charge which, according to the majority view in the Madras case already referred to, AIR. 1964 Mad. 269 (FB.), S.82 of the Transfer of Property Act gives in respect of the contribution due from the non-redeeming mortgagor? Or, can it be that he is in possession by virtue of the charge which, according to the majority view in the Madras case already referred to, AIR. 1964 Mad. 269 (FB.), S.82 of the Transfer of Property Act gives in respect of the contribution due from the non-redeeming mortgagor? In that case I suppose it would be Art.144 that applies if the non-redeeming co-mortgagor's suit is to be regarded as a mere suit for possession, or Art.120 if it is to be regarded as a suit for redemption of the charge since Art.148 does not apply to a mere charge, If the former, time will begin to run from the date the redeeming co-mortgagor's possession becomes adverse to the non-redeeming co-mortgagor; if the latter, from the date the charge came into being; and, with great respect I have been unable to follow the process of reasoning by which the majority came to the conclusion that, because Art.132 gives the redeeming co-mortgagor 12 years' time from the date of redemption to enforce payment of contribution, the non-redeeming co-mortgagor must have a like period for a suit for possession of his share of the property. Art.132, of course, does not apply to such a suit, and a comparison of that article with Art.148 is sufficient to show that time for recovery of money due as a charge upon property and time for redemption or for possession of the property are not necessarily coextensive. Can it be, as held by the minority in the Madras case, that, on a co-mortgagor redeeming the mortgage, it is as if a new mortgage for a smaller debt (being only the non-redeeming co-mortgagor's share of the mortgage debt) charged only on a portion, namely, the non-redeeming mortgagor's share, of the property comes into being giving the non-redeeming co-mortgagor 60 years' time under Art.148 from the date of redemption by the redeeming co-mortgagor? 6. I have no doubt that the true position is that the redeeming co-mortgagor is in possession, so far as the share of the non-redeeming co-mortgagor is concerned, under what (in view of the minority decision in the Madras case already referred to) I have chosen to call the original mortgage. 6. I have no doubt that the true position is that the redeeming co-mortgagor is in possession, so far as the share of the non-redeeming co-mortgagor is concerned, under what (in view of the minority decision in the Madras case already referred to) I have chosen to call the original mortgage. By subrogation he stands in the shoes of the original mortgagee, and, when it comes to the question of redemption, his rights are no more and no less than those of the original mortgagee for all practical purposes his position is that of an assign. Therefore, time begins to run under Art 148 when the right to redeem the original mortgage accures. 7. A co-mortgagor is no doubt a co-owner with his fellow mortgagor, but, when he redeems the entire mortgage, there is no question of his availing himself of his position as a co-owner so as to gain the advantage of obtaining possession of the property in derogation of the rights of his fellow mortgagor. He redeems in his own independent right; he does not in any way avail himself of the right or title of his non-redeeming co-owner; and he does not in any sense represent the latter. Whether it be S.60 or S.91 or S.92 of the Transfer of Property Act that declares the undoubted right of a co-mortgagor to redeem the entire property subject to the mortgage and I must confess that, from a reading of these sections, it is difficult to say which it is there can be no doubt that his right to redeem stands on the same footing as that of the other persons mentioned in S.91. Take, for example, a puisne mortgagee redeeming a prior mortgage. He redeems in his own independent right, not as representing the mortgagor or by making use of the mortgagor's title. Likewise, a redeeming co-mortgagor. He represents no one but himself and depends on nothing but his own independent title. There can therefore be no question of his being in possession as a co-owner when, as a result of redeeming a possessory mortgage, he obtains possession under S.60 of the Transfer of Property Act the mortgagee is, on redemption, bound to deliver possession and his act of redemption does not bring him within the mischief of S.90 of the Trusts Act. 8. 8. When a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, he is entitled to be reimbursed by the other. (S. 69 of the Contract Act). But, when he is also jointly with the other bound to pay, he cannot claim reimbursement of the entire amount but can only ask the other to contribute his proportionate share (S. 43 of the Contract Act and S.82 of the Transfer of Property Act). It is still a matter of reimbursement to the extent to which the payment relieved the other, and that is why the measure of contribution is the amount actually paid and not, where that is higher, the amount that was lawfully payable. (See Ganeshi Lal v. Joti Pershad AIR. 1953 S. C. 1). That much seems to be clear also from the language of S.43 of the Contract Act and S.82 of the Transfer of Property Act, for the former speaks of contribution to the performance of the promise, and the latter of contribution to the debt secured by the mortgage so that it is clear that the contribution is towards whatever has to be, and is, done for discharging the joint obligation. When the liability to contribute is a personal liability arising out of a joint promise, then S.43 says that, in the absence of a contract to the contrary, the joint promisors shall contribute equally. (The section, in terms, refers only to a contrary intention appearing from the contract creating the joint obligation, but I do not suppose it precludes the parties from adjusting their mutual rights and obligations by an independent contract). When the liability arises out of the several ownership of property subject to a mortgage, S.82 of the Transfer of Property Act makes special provision, overriding the general provision in S.43 of the Contract Act, that the different shares or parts of the property shall contribute in proportion to their value. Under S.43 of the Contract Act, the promisee may, in the absence of express agreement to the contrary, compel any one or more of the joint promisors to perform the whole of the promise, not merely his own share or part, so that the position of each joint promisor is virtually that of a guarantor so far as his fellow promisor's part of the promise is concerned. Where the promise is for the payment of money, in other words, creates a debt, each promisor is the principal debtor so far as his share of the debt is concerned and a surety so far as the shares of his fellow promisors are concerned. Therefore, when one of several joint debtors discharges the entire debt be is, under S.140 and 141 of the Contract Act, invested with all the rights which the creditor had against his co-debtors as regards their share of the debt and is entitled to the benefit of every security which the creditor had against them. In other words, he can recover contribution from them (limited, of course, to the extent to which his payment went to discharge their liability) in the same manner, and with the aid of the same securities, as the creditor could have recovered his debt from them. This then is the general principle of contribution and subrogation, which, in so far as mortgage debts are concerned, is embodied in S.82 and 92 of the Transfer of Property Act. At page 347 of Ghose's book on the Law of Mortgage in India (Vol. I, Fourth Edition) there appears the following statement derived from Sheldon, Pomeroy, Jones and other English authorities: "The right of one of several joint debtors to be subrogated to the security of the common creditor, so as to enable him to recover from his co-debtors by means of such security their proportionate shares of the indebtedness which has been discharged by him, rests upon the same equity as that of a surety. For each joint debtor is regarded as the principal debtor for that part of the debt which he ought to pay, and as a surety for his co-debtors as to the part which ought to be discharged by them." Mulla states the same rule (at page 534 of the 4th Edition of his book on the Transfer of Property Act) in the following words: "A co-mortgagor redeeming a mortgage is a simple case of subrogation, for a co-debtor is a principal debtor in respect of his own share and a surety in respect of his co-debtor's share, and, when a surety has paid the debt he is entitled to avail himself of all the creditor's securities." The earlier part of this proposition from which the latter naturally flows, namely, that a joint debtor "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" has been recognised by the Supreme Court in the decision already referred Ganeshi Lal v. Joti Pershad (AIR. 1953 S. C.1) see Para.9 of the report. 9. The right of subrogation of a redeeming co-mortgagor, now expressly embodied in S.92 of the Transfer of Property Act, can, I think, be deduced from S.82 itself as a necessary incident thereof and I very much doubt (despite the trend of authority) whether S.82, by saying that the different shares or parts of the property are liable to contribute rate ably to the debt secured by the mortgage, gives the redeeming co-mortgagor a charge within the meaning of S.100 of the Transfer of Property Act so as to enable him to sue for money by sale of the non-redeeming co-mortgagor's share of the property. (Some decisions indeed speak of S.100, and some of S.100 read with S.82, conferring a charge, but I fail to see how S.100 which only defines a charge and sets out its incidents can confer a charge. That must be by some other provision where the charge is by operation of law). No doubt if property is saddled "with an obligation then it is charged with that obligation in the ordinary sense of the word, "charge", but not necessarily in the technical sense of S.100 of the Transfer of Property Act. That must be by some other provision where the charge is by operation of law). No doubt if property is saddled "with an obligation then it is charged with that obligation in the ordinary sense of the word, "charge", but not necessarily in the technical sense of S.100 of the Transfer of Property Act. The obligation saddled on property subject to a mortgage is to satisfy that mortgage, and, if different shares in that property are liable to contribute rate-ably to the debt secured by the mortgage, I should think that all that that implies is that they are liable to contribute in the same way as they were liable to secure the mortgage debt. The liability to contribute, whether it be of a property or a person, can only be to the performance of the original promise. It cannot include anything which the original promise could not have compelled. Thus, if the mortgage redeemed is a usufructuary mortgage pure and simple, (he redeeming co-mortgagor's right of contribution can be enforced only by his retaining possession of the entire property redeemed, including the non-redeeming co-mortgagor's share, until the latter has paid the contribution due from him. It cannot extend to his suing to recover money by sale of the property since that is something which could not have been done under the mortgage and therefore would not be contribution to the debt secured by the mortgage. If, on the other hand, the mortgage redeemed were a simple mortgage, the redeeming co-mortgagor can sue for money by sale of the share of the non-redeeming co-mortgagor, but he cannot ask for possession of that share because that was not how the property was to secure the mortgage debt. In so far as any right is to be enforced against the mortgaged property, it can be enforced only in the same manner as the redeemed mortgage debt could have been enforced against it. In other words, as against the property, the remedy is nothing more or less than subrogation. Contribution is the substantive right and subrogation the redemy. In so far as any right is to be enforced against the mortgaged property, it can be enforced only in the same manner as the redeemed mortgage debt could have been enforced against it. In other words, as against the property, the remedy is nothing more or less than subrogation. Contribution is the substantive right and subrogation the redemy. If that were not so, and if' S.82 of the Transfer of Property Act gave a charge within the meaning of S.100, it is difficult to understand why the old S.95 of the Act expressly provided for a charge the old S.82 was in much the same terms as the present section for the redeeming co-mortgagor's right of reimbursement thus (in conjunction with the failure of the old S.74 and 75 to mention a co-mortgagor among the persons entitled to subrogation) negativing, according to some decisions, the right of subrogation which, I think, is necessarily implied in the right to contribution, and making a suit for possession of his share by the non-redeeming co-mortgagor (where, the mortgage redeemed being possessory, the redeeming co-mortgagor gets possession) a simple suit for possession governed by Art.144 and not a suit for redemption and possession governed by Art.148. I may, in this connection, refer to Ghose (Vol. I page 371). When speaking of the rights of a plaintiff in an action for contribution he says that the plaintiff can claim a charge on the property which was subject to the common burden, but hastens to add: "I should here mention that I have used the word "charge' in a popular sense as a burden on the land. But though this term is commonly used, I must repeat that strictly speaking the plaintiff in such causes occupies the position of an assignee of the original security, the character of which is not altered when the debt is discharged. Thus, suppose the mortgage was a mortgage by way of conditional sale, why should the plaintiff be entitled to a decree for sale? or suppose the original mortgage was an English mortgage, is there any reason why the plaintiff should be precluded from foreclosing it? Thus, suppose the mortgage was a mortgage by way of conditional sale, why should the plaintiff be entitled to a decree for sale? or suppose the original mortgage was an English mortgage, is there any reason why the plaintiff should be precluded from foreclosing it? I must, however, admit that in all the reported cases on the question, the statutory charge which is given to a co-mortgagor who redeems the mortgage (namely the charge given by the old S.95 of the Transfer of Property Act but not by the new section) has been extended by analogy to cases under S.82 of the Transfer of Property Act. I may, however, be permitted to doubt whether this is quite a legitimate process." 10. The following passage appearing at page 372 is also relevant to the question we have to decide: "xx xx xx the better opinion seems to be that a person who is bound only to pay apart of the mortgage-debt, acquires on redemption two distinct rights. He may sue simply for reimbursement, if the defendant is personally liable, within the period prescribed for such suits by the Statute of limitations. He may also sue to enforce the right of the mortgagee to follow the mortgaged property, but in such case he would occupy the same position as the mortgagee, supposing he had not been redeemed, and was the plaintiff in the suit. The period of limitation will not be either longer or shorter." I would add that, in a suit brought against him, the redeeming co-mortgagor, would occupy the same position as the mortgagee supposing he had not been redeemed and was the defendant in the 'suit. The period of limitation will not be either longer or shorter. 11. S.60 of the Transfer of Property Act says that a mortgagor redeeming a possessory mortgage is entitled to get possession of the mortgaged property. When a co-mortgagor or any of the other persons mentioned in S.91, redeems a possessory mortgage he also gets possession of the mortgaged property. In what right does the redeeming co-mortgagor get and hold possession? So far as his own share is concerned doubtless as the owner, but, so far as the share of the non-redeeming co-mortgagor is concerned, only (like, for example, a redeeming puisne mortgagee) as a person who is subrogated to the rights of the original mortgagee. In what right does the redeeming co-mortgagor get and hold possession? So far as his own share is concerned doubtless as the owner, but, so far as the share of the non-redeeming co-mortgagor is concerned, only (like, for example, a redeeming puisne mortgagee) as a person who is subrogated to the rights of the original mortgagee. There is perhaps no specific provision in the Transfer of Property Act that expressly states this, but I think it is necessarily implied by S.92. For, that section places the redeeming co-mortgagor in the same position as any of the persons referred to in S.91 so far as their rights on redemption are concerned. There can be no doubt that a puisne mortgagee redeeming a prior possessory mortgage is in possession only as a person subrogated to the rights of the original mortgagee, and the position of a redeeming co-mortgagor is no different so far as the share of the non-redeeming co-mortgagor is concerned. In terms of S.92, he has, so far as redemption, foreclosure or sale of the property, the same rights as the redeemed mortgagee may have against the mortgagor or any other mortgagee. "So far as regards redemption" is a wide phrase, and the section goes farther than saying that the redeeming co-mortgagor has the same rights of redemption as the original mortgagee. It means that, whether he is redeeming he might be redeeming an earlier mortgage or being redeemed, he has the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. This, it seems to me, is necessarily based on the assumption that, if the mortgage redeemed is a possessory mortgage, he is in possession as a person subrogated to the rights of the redeemed mortgagee. He can remain in possession until he is paid the money due to him. 12. It follows that, like the other persons mentioned in S.91, a redeeming co-mortgagor only steps into the shoes of the redeemed mortgagee and that there is no more a renewal of the mortgage (albeit the sum secured is the lower sum due by way of contribution and the property which is the security is the smaller property representing the share of the non-redeeming co-mortgagor) than there is a renewal when, for example, a puisne mortgagee redeems a first mortgage. Time begins to run, as in the case of a redeeming puisne mortgagee or an assign, from the date when the original mortgage became redeemable. 13. Even if it be that S.82 of the Transfer of Property Act gives the redeeming co-mortgagor a charge (within the meaning of S.100) on the share of the non-redeeming co-mortgagor for the contribution due to him, it is obvious that the charge cannot give him a right to possession. He can get possession only when the mortgage redeemed is a possessory mortgage, and he gets and keeps possession so far as the share of the non-redeeming co-mortgagor is concerned, not as a charge-holder, but as a person who has stepped into the shoes of the original mortgagee. It is of this then that he must be shorn before the non redeeming, co-mortgagor can get possession of his share a charge, by itself cannot confer possession, and the discharge of a charged debt cannot of itself found a claim to possession and this can be done only by redeeming the original mortgage within the period allowed for its redemption. When that period has determined the majority view in the Madras case (AIR. 1964 Madras 269 (F. B.) ) accepts that time under Art.148 begins to run from the date the original mortgage becomes redeemable the non-redeeming co-mortgagor loses all right and title to the property by the operation of S.28 of the Limitation Act and there can no longer be any question of a charge on his share in favour of the redeeming co-mortgagor even if there was any before, On the extinguishment of the non-redeeming co-mortgagor's rights, the redeeming co-mortgagor becomes a full owner, and, assuming there was a charge and that the redemption of that charge would give a right to possession, that charge would be extinguished since a man cannot hold a charge over his own property. That, it seems to me would be the logical conclusion, not to find a charge and then because Art.132 gives 12 years' time from the date of redemption for the enforcement of this charge assume that the charge is kept alive notwithstanding the expiry of the period limited by Art.148 thus spelling out the continuance of the non-redeeming co-mortgagor's title and therefore of his right to redeem. 14. 14. For these reasons I am with great respect, unable to subscribe to either the majority or the minority view in the Madras Full Bench case (AIR. 1964 Madras 269 (F. B.)) and I prefer to follow the decisions in Ashfaq Ahmad v. Wazir Ali (ILR.11 Allahabad 423 reported also in ILR.14 Allahabd 1 (F. B.) ), Mathevan v. Samuel (10 TLJ. 468 (F. B.) ), Muthia Nadar v. Ramaswamy Nadar (ILR.1953 T.C. 48) and Karthyayani Amma v. Karthyayani (1964 KLT. 214) which, if I may say so, with great respect, were in my view correctly decided. 15. In the result I would dismiss this appeal with costs. Govindan Nair, J. I agree I have nothing to add. Appeal dismissed with costs. Dismissed.