Eachampi Thevi v. Variavan Saraswathi — 1980 DIGILAW 159 (KER)

JUDGMENT Chandrasekhara Menon,J. 1. Defendants 1 to 3 and 5 to 9 are the appellants in the second appeal arising out of a suit for redemption. The property concerned scheduled to the plaint is 1 acre and 1 cent of land. One acre 48 cents of land which takes in the plaint property belonged to Keezhmannadi tarwad. This was mortgaged by the tarwad as per Ext. P-1 mortgage deed of 10th Dhanu 1045 M.E. Two junior members of the tarwad obtained possession of the property as per Ext. P-2 which is termed as "Arthapattuseetti", dated 7th Midhunam 1061 M.E. executed by the mortgagee. Defendants 1 to 9 obtained right over 48 cents of land by inheritance and they are in possession. The 10th respondent obtained the right over 53 cents. 2. Plaintiffs sued for partial redemption of Ext. P-1 mortgage and for recovery of possession of the land in the possession of defendants 1 to 10. Their claim was based on the partition of the properties belonging to the mortgagor tarwad of which they are members. They obtained, according to them, equity of redemption as per Ext. P-1 and therefore they are entitled to redeem. Defendants 1 to 9 contested the suit. According to them, they are in possession of the property as full owners and the right to redeem Ext. P-1 mortgage was barred by limitation. Pending trial of the suit, the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) came into force. Defendants 1 to 9 raised the plea that by virtue of the provisions of Act 1 of 1964 as amended, they are tenants entitled to fixity of tenure and therefore the suit was liable to be dismissed. 3. Subsequently, an application for amendment was filed by the plaintiffs by which they sought to alter the prayer in the plaint as one for recovery of property on settlement of accounts. This application was dismissed on 3rd October 1973. The trial court passed a preliminary decree allowing plaintiffs to recover possession on payment of certain amounts to the defendants. On appeal by defendants 1 to 9 against the decree, the lower appellate court, namely the Sub Court of Attingal, confirmed the preliminary decree and dismissed the appeal. This has led to the filing of the second appeal. 4. The trial court passed a preliminary decree allowing plaintiffs to recover possession on payment of certain amounts to the defendants. On appeal by defendants 1 to 9 against the decree, the lower appellate court, namely the Sub Court of Attingal, confirmed the preliminary decree and dismissed the appeal. This has led to the filing of the second appeal. 4. Before we go into the plea raised is this appeal, it is necessary to look into how the courts below have disposed of the matter. The Munsiff had first passed a preliminary decree on 7th March 1970 allowing the plaintiffs to redeem 53 cents out of the plaint property in the possession of the 10th defendant and disallowing redemption as regards the 48 cents in the possession of defendants 1 to 9 on the ground that they have become deemed tenants by virtue of the provisions contained in S.4A(1) of Act 1 of 1964 as amended by Act 35 of 1969. An appeal was filed in the matter as A.S. No. 151 of 1970. In appeal, the decree of the Munsiff's Court disallowing the prayer of plaintiffs for redemption and recovery of possession of the portion of the plaint property in the possession of defendants 1 to 9 was set aside and the Munsiff's Court was directed to pass a fresh decree relating to that portion. It was made clear in the appellate judgment that the preliminary decree for redemption already passed with respect to the property in the possession of the 10th defendant is left in tact. The 10th defendant had earlier filed an application to set aside the decree which was passed against him, it was dismissed by the trial court as well as the appellate court and also in revision by this Court (in C.R.P. No. 5 of 1972). Thus the preliminary decree passed against the 10th defendant whose legal representatives are defendants 11 to 22 has become final. During the pendency of A.S. No. 151 of 1970, the 4th defendant died and defendants 1, 2, 3 and 5 to 9 were recovered as his legal representatives. 5. Thus the preliminary decree passed against the 10th defendant whose legal representatives are defendants 11 to 22 has become final. During the pendency of A.S. No. 151 of 1970, the 4th defendant died and defendants 1, 2, 3 and 5 to 9 were recovered as his legal representatives. 5. The lower appellate court in A.S. No. 151 of 1970 while setting aside the preliminary decree in so far as it relates to 48 cents in the possession of defendants 1 to 9 had directed the Munsiff's Court to pass a preliminary decree relating to the property in possession of defendants 1 to 9. Therefore the question that finally arose in the trial court again on the basis of the remand was whether the plaintiffs were entitled to redeem the land and to recovery of possession of 48 cents in the possession of defendants 1 to 9. The contention of defendants 1 to 9 that they are deemed tenants under the Kerala Land Reforms Act entitled to fixity of tenure on the basis of S.4A(1)(a) of Act 1 of 1964 was met by the plaintiffs with the argument that since the predecessors of defendants 1 to 9 obtained a release of the mortgage, their right is only to get the money and they are not entitled to claim fixity of tenure. In Para.3 of the plaint, the trial court pointed out, it is specifically alleged by the plaintiffs that after Ext. P-2 release in favour of two junior members of the jenmi tarwad, they were in possession under a special right available to a redeeming junior member. The court then said that junior members taking release of mortgages executed by tarwad cannot be equated to the position of assignees of mortgagees and that the right of the redeeming junior members is only to enjoy the property under a special right until their accounts are settled and paid off. Therefore, according to that court, it cannot be said that after Ext. P-2 release, Ext. P-1 mortgage is subsisting. Defendants 1 to 9 who are the successors of the two junior members who took release the mortgage cannot be deemed to be assignees of Ext. P-1 mortgage so as to attract the provisions of S.4A(1)(a) of the Kerala Land Reforms Act. P-2 release, Ext. P-1 mortgage is subsisting. Defendants 1 to 9 who are the successors of the two junior members who took release the mortgage cannot be deemed to be assignees of Ext. P-1 mortgage so as to attract the provisions of S.4A(1)(a) of the Kerala Land Reforms Act. In this view, the court held that the plaintiffs are entitled to recover possession of the plaint property on payment of the proportionate mortgage amount and value of improvements. A preliminary decree was passed by the court allowing the plaintiffs to recover possession of the plaint property from the defendants on deposit of Rs. 38.50 by way of proportionate mortgage amount and Rs. 856.15 by way of value of improvements. The earlier preliminary decree passed by the court on 7th March 1970 in so far as it relates to 53 cents in the possession of the 10th defendant was left in tact. 6. This decision was confirmed by the Subordinate Judge. That court would say that Ext. P-1 mortgage was given from the tarwad of the plaintiffs in the year 1042. Two junior members of the tarwad, namely, Ramankutty and Chinnan Krishnan obtained a release of that mortgage in their favour as per Ext. P-2 release deed in the year 1061. The plaint property forms part of Ext. P-1 property. So those two junior members got only a special right and they cannot be treated as assignees of Ext. P-1 mortgage. When recovery of the mortgaged property is sought for by the tarwad, the junior members cannot raise the plea of limitation also. Reliance was placed on the decision in Krishna Pillai v. Bharathi Amma 1957 KLT 732 where it is held:- "These observations seem to imply that junior members who have redeemed tarwad mortgages from strangers could still not be taken to be representatives of the tarwad in the matter. Our view is that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until his accounts are settled, and paid off. No question of limitation or adverse possession as against the tarwad could arise in this case. No question of limitation or adverse possession as against the tarwad could arise in this case. But it is unnecessary however to decide this question finally in this case." On this basis the learned Subordinate Judge pointed out that in the present case defendants 1 to 3 and 5 to 9 are holding the property in question as successors in interest of Ramankutti and Chinnan Krishnan. Therefore it is clear that they have got only a special right in the property and they cannot be treated as assignees of the mortgage. If they were assignees of the mortgage, of course they could have claimed the benefits under S.4A(1)(a) of Act 1 of 1964 as amended by Act 35 of 1969 or as kuzhikanam tenants under the said Act. But as they cannot be treated as assignees of the mortgage, they will not be entitled to get any benefit under Act 1 of 1964. 7. This decision is strongly attacked by the learned counsel for the appellants. He would contend that the view of the learned Munsiff that even though the suit is framed as a suit for redumption, it is in effect a suit for recovery of possession on settlement of accounts is erroneous. The court failed to note that the petition for amendment of the plaint was dismissed. Defendants 1 to 9 are in possession as assignees of Ext. P-1 mortgage and the decision in 1957 KLT 732 will not be applicable. It is strongly urged that the courts below should have noted that whatever be the position of a junior member who redeems a mortgage granted by the tarwad, the plaintiffs are bound by the terms of Ext. P-4 partition deed. The right to claim the benefit of the release Ext. P-2 is the right of the tarwad. No such right has been claimed by the tarwad as is evident from Ext. P-4 which provided that the parties to whom the share of the equity of redemption over the plaint property is allotted have to redeem Ext. P-1 mortgage on payment of the amounts due thereunder. Therefore, according to Mr. P-2 is the right of the tarwad. No such right has been claimed by the tarwad as is evident from Ext. P-4 which provided that the parties to whom the share of the equity of redemption over the plaint property is allotted have to redeem Ext. P-1 mortgage on payment of the amounts due thereunder. Therefore, according to Mr. Sukumaran Nair, the appellants will squarely come within the ambit of the term deemed tenants under S.4A(1)(a) of Act 1 of 1964 since they and their predecessors in interest have been in possession of the suit property as mortgagees for more than fifty years prior to the commencement of Act 35 of 1969 and therefore entitled to fixity of tenure. It is also urged that the suit is barred by limitation. 8. In considering the question raised before this Court, it will be useful to examine some of the relevant documents in the case as well as the pleadings. The document executed by the then Karanavan and the senior Ananthiravan of the Keezhmannadi Tarwad on 15th Markazhi 1045 M.E. (Ext. P-1, Ext. P-1a being the Malayalam copy of the same) is styled as an Otti Adharam. It reads:- 9. The deed Ext. P-2 of 7th Mithunam 1061 by which two junior members of the tarwad of the mortgagor tarwad obtained possession is as stated earlier styled as a It states:- In the partition deed Ext-P4of the tarwad of the year 1964 this property and other properties are said to be in the possession of ottikkars. It is further stated : The preface to the present plaint states: - Para 3 of the plaint states: -- Paragraph 14 of the plaint slates that in spite of repeated demands, defendants 1 to 10 are not surrendering the property receiving the proportionate mortgage (otti) money and value of improvement. Para.15 of the plaint is to the effect that there is no bar of limitation for the suit as the mortgage liability has been acknowledged by the mortgagees and the jenmis on 7thMithunam 1061 and in the civil suit O.S. No. 471 of 1112. The cause of action for the suit is said to arise on the date of the mortgage, the date of 1061 document, the date of suit O.S. No. 471 of 1120 and the date of execution of the partition deed 22nd April 1964. The cause of action for the suit is said to arise on the date of the mortgage, the date of 1061 document, the date of suit O.S. No. 471 of 1120 and the date of execution of the partition deed 22nd April 1964. Prayer 'A' in the plaint reads as follows:- Plaint is clearly as in a suit for redemption. 10. As I have said in an earlier decision, in pristine Marumakkathayam law, what Mr. Justice Holloway said in A. S. No. 120 of 1862 that "a Malabar family speaks through its head and in all Courts of Justice, except in antagonism to its head, can speak in no other way is true. This remark is cited with approval in Vasudevan v. Sankaran (1896) ILR 20 Mad. 129 at 133. No doubt, each individual member of a tarward had a right, as recognised from early times, a separate right to see that the family property was not wasted by the karanavan as pointed by Justice Muthuswami lyer and Justice Branch differing from the other Judge of the Bench, Justice Kernan in Moidin Kutty v. Krishnan 1864 (2) MHCR 110. Before the legislations, each individual member had got a right to sue in the name of the tarwad for the purpose of conserving the property wrongfully alienated by the Karanavan. If the suit goes to trial and is decided on the merits, at any rate when the other members are parties the tarwad is bound but the tarwad is not responsible for the default of the junior member. What is affected by the default is only his individual right. (Sundara Aiyar on Malabar and Aliyasanthana Low -- Page 84). It had been recognised that junior members can maintain a suit on behalf of the tarwad when the karanavan is submitting to an infringement of the tarwad right by a stranger. [Raja of Arakal v. Cheria Kunhi Kannan (1915) 29 MLJ 632.] Justice Sadasiva Iyer observed in [Cheria Pangi Achan v. Unnalachan (1916) 32 MLJ 323] that unless the karanavan himself is disabled from suing to recover possession of or obtain other relief regarding the tarwad property an anandravan cannot be allowed to sue on behalf of the tarwad. [Raja of Arakal v. Cheria Kunhi Kannan (1915) 29 MLJ 632.] Justice Sadasiva Iyer observed in [Cheria Pangi Achan v. Unnalachan (1916) 32 MLJ 323] that unless the karanavan himself is disabled from suing to recover possession of or obtain other relief regarding the tarwad property an anandravan cannot be allowed to sue on behalf of the tarwad. Sundara Aiyar in his well known treatise says that though it may be a sound rule that in all cases where the karanavan is disabled from suing the other members are entitled to sue to enforce the rights of the tarwad, the converse may not be true. He points out that S.91 of the Transfer of Property Act confers the right to redeem on all persons interested in the property. Before the Transfer of Property Act came into force, in Nambiatan Nambudiri v. Nambiatan Nambudiri (1864) ILR MHCR 110 junior members' right to file a suit for redemption of tarwad property was denied. Sundara Aiyar says that the ratio of the decision in Karaltole Edamana v. Unni Kannan (1903) ILR Mad. 649 (FB) where one of the joint trustees was held entitled to redeem independently of and without reference to the other trustees on the strength of S.91 of the Transfer of Property Act, would seem to be in favour of the recognition of the exception. But Spencer and Bakewell, JJ. in Soopi v. Mariyamma (1920) ILR 43 Mad. 393 held that redemption suits did not form exceptions to the general rule. The same view was also taken by the Travancore High Court in Padmanabhan Roman v. Raman Narayanan 1901 (18) TLR 31 (FB) but they recognise that the rule is not an absolute one and where the interests of the tarwad as a whole demanded the suit may be allowed. In Raman Krishnan v. Raman Ayyappan 3 TLJ 179 (FB) one of the exceptional circumstances recognised is collusion between the mortgagee and the karanavan. 11. In this connection it will be interesting to look into the decision of Gopala Menon v. Kalyani Amma 1964 KLT 166 rendered by Justice Mathew. In Raman Krishnan v. Raman Ayyappan 3 TLJ 179 (FB) one of the exceptional circumstances recognised is collusion between the mortgagee and the karanavan. 11. In this connection it will be interesting to look into the decision of Gopala Menon v. Kalyani Amma 1964 KLT 166 rendered by Justice Mathew. It is pointed out that the tarwad has got a legal personality apart from its members for certain purposes and for other purposes it is a group of persons, if the tarwad is capable of owning properties and owing debts and if decrees could be obtained against its properties it is certainly a right and duty-bearing unit and there is no difficulty in postulating a distinct legal personality for it. The karanavan is the representative of the tarwad. He is not the agent of the members of the tarwad as such but only the agent of the legal entity called tarwad. The property of that entity is liable for the acts of the karanavan within the scope of his authority both in contract and in tort. And when an action is laid against the tarwad, even in jurisdiction where it is necessary to implead all the members of the tarwad, the members are impleaded only to represent the entity, for otherwise why the decree order could not be enforced against the members but only against the property of the tarwad. Then his Lordship considers the question, if the tarwad has a corporate character, and a personality of its own, distinct from the members thereof for certain purposes, whether any member of the tarwad can institute a suit for redemption of a mortgage executed by the tarwad on tarwad property on the theory that even member is a part-owner of that property. Neither principle nor precedent would warrant the conclusion that a junior member can institute a suit for redemption, unless there are circumstances disabling the karanavan from filing the suit. His Lordship, among other cases, refers to the decision in Manavedan v. Veerayan AIR 1939 Mad. 751 where it was held by Venkatasubha Rao and Abdul Rahman, J. J. "Where a junior member seeks to redeem a kanom the Court would insist upon proof that the institution of the suit was for the benefit of the whole of the tarwad. His Lordship, among other cases, refers to the decision in Manavedan v. Veerayan AIR 1939 Mad. 751 where it was held by Venkatasubha Rao and Abdul Rahman, J. J. "Where a junior member seeks to redeem a kanom the Court would insist upon proof that the institution of the suit was for the benefit of the whole of the tarwad. But where it is sought to set aside an alienation all that the junior member need show is that the karanavan was approached but refused to take action. Though a mere formality, it is a part of the Customary Law of Malabar". 12. The decision of the Kerala High Court in Parukutty Nethiaramma v. Kesava Menon 1962 KLJ 688 was also referred to in the above case where it was said that a tarwad has been understood as a group of persons and not a juristic person different from the group. The rights of the tarwad are the rights of the members collectively; in other words, the rights of the tarwad inhere in every member of the tarwad in part as a part owner, he is entitled to exercise the rights of the tarwad in relation to tarwad properties demised to strangers, when the karanavan is not a competitor with him in the field. The learned Judge himself has said in that decision that for many purposes the tarwad is recognised as a legal entity. It is capable of owning properties and owing debts decrees can be obtained against tarwad, executable against its properties only. But the tarwad is not recognised as a corporation in the legal sense. The same view was again observed in Kunhammed v. Narayanan Namboodiri ILR 1963 (2) Ker. 487 where it is said that junior members of the tarwad have been described as copropritors of its properties having equal rights with all other members of the tarwad, subject of course to well known restrictions in the exercise of such rights in the common interest of all concerned. The tarwad or family properties are those that belong to the tarwad or family as a corporate body. 13. The tarwad or family properties are those that belong to the tarwad or family as a corporate body. 13. I have referred to these authorities not because they are as such applicable to this case but to understand whether a junior member can at all step into the shoes of the mortgagee in all force when he by his own funds purchases the mortgagee's rights or whether by such purchase his right can be taken to be that of a holder of a special interest only with the right to continue in possession until his accounts are settled and paid off. It might be noted here that at all times it had been the law that a junior member of the tarwad can have his self acquisition acquisitions which he is entitled to hold, encumber and dispose of during his lifetime. His tarwad during his lifetime does not get any right over the same. Philips and Holloway, J J. said in a judgment of the Madras Court of the year 1863 that- "Self acquisitions of land by a member of a tarwad are his separate property during his life and may be charged by him for his personal debts. After his death, they lapse into the tarwad property, but, if accepted by the members, they carry their obligations with them. (Quoted in Malabar Law and Custom-Lewis Moore-Third Edition-Page 175) The law was subsequently more fully laid down by the High Court (Scotland, C. J., and Holloway, J.) in Kallati Kunju Menon v. Palat Erracha Menon (quoted in the same page of the same book):- "It is unquestionably the law of Malabar that all acquisitions of any member of family, undisposed of at his death, form part of the family property, that they do not go to the nephews of the acquirer but fall, as all other property does, to the management of the eldest surviving male." "It is, however, as unquestionable law that the acquirer is fully entitled to hold, encumber and dispose during his life time of his self acquisitions. That doctrine, of the Soundness of which we entertain no doubt whatever, was laid down by this Court in a case, unfortunately not reported, and is unquestionably in accordance with usage, for in all the reckless litigation of Malabar, one member of the Court, with the judicial experience of several years, does not remember an instance of a Karanavan attempting to get into his own hands the self acquired property of a junior member. That a Karanavan, who is in possession of the family funds, will be supposed to have made all acquisitions with them, and for the benefit of the corporate body, is unquestionable. It is also clear that it lies upon those who assert such self acquisitions, to make them out by the most satisfactory evidence, so strong is the presumption in the case of a Karanavan against self acquisition. When once established, however, we are perfectly satisfied that an alienation, charge or other disposition to take effect at once made during his lifetime, will be perfectly valid." 14. Though the earlier part of the above observations that on the death of the member, his self acquisitions will devolve only on the tarwad and not to his tavazhi has come up for severe criticism as being not in harmony with the sentiments of the people who are governed by Marumakkathayam Law. See the decision of the Madras Court in Govindan Nair v. Sankaran Nair ILR 32 Mad. 351 and of the Travancore High Court in Sakthi Kerulan v. Sakthi Sakthi 24 ILR 102 the latter part of the observations are not questioned. If that be so I do not understand why a junior member purchasing the mortgagee's right should not step into the shoes of the mortgagee in respect of all his rights. That a junior member can be a mortgagee of the tarwad in his own right is recognised by the decisions of the Travancore High Court in Govindan v. Parvathy 1 TLJ 66 and Ponnan Erayimman v. Kauliambi 6 TLJ 89. 15. It is true that a Division Bench of this Court after reference to the above two decisions of the Travancore High Court held in Krishna Pillai v. Bharathi Amma 1957 KLT 732 that a redeeming junior member cannot be equated to the position of an assignee of the mortgagee but is rather to be taken as the holder of a special interest in. tarwad property with right to continue in possession until his accounts are settled and paid off but as the learned Judges observed therein it was unnecessary to decide that question finally in that case. 16. It will be interesting to note that one of the Judges, T. K. Joseph, J., who was a party to the above decision said in Krishna Pillai v. Sankara Pillai 1958 KLT 97 that there is nothing in law-either customary or statutory applicable to Marumakathayees which prohibits a junior member of a tarwad from obtaining a decree or executing the same against the tarwad. The decision in Nalla Pillai Parvathi Pillai v. Kanakku Mathevan Ramakrishnan and others 7 TLR App. 46 was approvingly referred to where it had been held that a junior member could obtain an assignment of a decree obtained against the tarwad and execute the same. The decision in 1957 KLT 732 was distinguished stating that the junior member who redeems a mortgage of tarwad properties does so only on behalf of the tarwad and is in the position of one discharging the debt of the tarwad. Such a member is given the benefit of the security which the creditor had. The reference here as if the position is the same in all cases of a junior member purchasing the mortgagee's right is to put the law rather widely. As pointed out in Ayyappan Pillai v. Krishnan ILR 1977 (1) Ker. 464 it cannot be accepted that the decision lays down irrespective of the facts and circumstances disclosed that a junior member of the tarwad redeeming a mortgage of the tarwad be understood as getting only the right of a creditor and nothing else. 17. It is no doubt true that where one or several comortgagors redeems a mortgage over the property which belonged jointly to himself and the other comortgagors, the equitable doctrine of subrogation confers on him a right to reimburse himself for the amount spent in excess of his share in redeeming the mortgage, and he can call upon the comortgagors to contribute towards the excess paid by him. The redeeming comortgagor steps into the mortgagee's shoes, only to the limited extent of getting himself reimbursed from the comortgagors to the extent of their shares of the amount actually paid by him and for the entire amount due on the mortgage. The redeeming comortgagor steps into the mortgagee's shoes, only to the limited extent of getting himself reimbursed from the comortgagors to the extent of their shares of the amount actually paid by him and for the entire amount due on the mortgage. (See in this connection the decisions in Geneshi Lal v. Joti Prasad AIR 1953 SC 1 and Bhaskara Menon v. Madhavan 1975 KLT 38 and Subhadra Amma v. Velayudhan Pillai 1977 KLT 464 . I was a party to the latest of these decisions. The right of subrogation having been given to a comortgagor, as pointed out Asansab v. Vamana Row, ILR 2 Mad. 223 it had long been the recognised doctrine of courts of equity in England that the owner of the equity of redemption of a part of an estate under mortgage is entitled to redeem the whole of the mortgaged estate if the mortgagee as in that case insisted upon his right to have it so redeemed. When the former elects to pay the entire mortgage debt, he thereby puts himself in the place of the mortgagee redeemed and acquires a right to treat the original mortgagor as his mortgagor and to hold that portion of the estate in which he would have no interest but for the payment as a security for any surplus for payment he might have made. And as Mulla says in his Transfer of Property Act, 6th Edition at page 587 (quoted in 1977 KLT 464 at 468): "Where a comortgagor redeems:- A comortgagor redeeming a mortgage is a simple case of subrogation (a), for a codebtor is a principal debtor in respect of his own share and a surety in respect of his own share and a surety in respect of his codebtor's shares, and when a surety has paid the debt he is entitled to avail himself of all the creditor's securities (b) ......" The principle has been clearly stated by the Supreme Court in Ganeshi Lal v. Joti Prasad AIR 1953 SC 1 in the following manner: "The redeeming comortgagor being only a surety for the other comortgagors, 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 to us to decide in this appeal whether S.92 of the Transfer of Property Act was intended to strike a departure from this position when it states that the comortgagor shall have the same rights as the mortgagee whose mortgage he redeems, and whether it was intended to abrogate the rule of equity as between codebtors 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 comortgagor should be substituted in the mortgagee's place, it is equally equitable that the other comortgagors should not be called upon to pay more than he paid in discharge of the encumbrance." 18. But, here we are not concerned with a comortgagor redeeming the mortgage. Here this is a case of two junior members of the tarwad getting the rights of the mortgagee from the tarwad. The document no doubt is terms as. This word as well as the words of transfer in Ext. P-2 namely is ambiguous and equivocal. But, then in the partition deed Ext. P-4, the tarwad which took in both the parties in the suit now had said that the properties continued in possession (of the persons then in possession) on the basis of the original mortgage. The tarwad did not consider this a case of redemption by the junior members, but assignment of the mortgage right in favour of the junior members. Otherwise it would not have been mentioned that the property continues under the original otti. Even in the plaint it is stated : It might be noted that at the time of Ext. P-2 the junior members had only a right of maintenance in the tarwad. They could not insist on a partition. They could not have alienated their share of the tarwad property. They took the mortgagee's right in the circumstances as individuals, distinct from their position as members of the tarwad having right in the mortgaged property. 19. Therefore I think the courts below have gone wrong. The defendants are entitled to claim right as mortgagees on the basis of Ext. P-1 mortgage. They took the mortgagee's right in the circumstances as individuals, distinct from their position as members of the tarwad having right in the mortgaged property. 19. Therefore I think the courts below have gone wrong. The defendants are entitled to claim right as mortgagees on the basis of Ext. P-1 mortgage. It might be a hard case for the plaintiffs but as has been often said hard case cannot make bad law. And it will be absolutely wrong on the part of the court to go against the pleadings of the plaintiffs themselves. I would therefore set aside the judgment and decree of the courts below. The lower appellate court had rightly observed that defendants 1 to 3 and 5 to 9-the appellants herein could have claimed the benefits under S.4A(1)(a) of Act 1 of 1964 as amended by Act 35 of 1969, if they were assignees of the mortgage. In view of the conclusion that I have arrived at they are entitled to such right and hence fixity of tenure. The suit for redemption has only to be dismissed. I do so. Second Appeal is disposed of as above. Parties are directed to suffer their costs throughout.