Judgment : Plaintiff in O.S. No. 149 of 1979, on the file of the District Munsif’s Court, Thiruvaiyaru, is the appellant in this second appeal. .2. The material facts which are necessary for the purpose of disposing of this second appeal may be summarised as follows: Plaint A Schedule property originally belonged to Natesa Pillai, who is the father of the plaintiff and first defendant. Apart from these two sons, Natesa Pillai and two other sons also viz., Subramaniam and Srinivasan. Subramaniam died unmarried and issueless in 1947 and Srinivasan also died in 1970. At the time of his death, Natesa Pillai left his widow Bapu Ammal. She also died in the year 1966. 3. In the year 1943, to meet the marriage expenses of the first defendant and also to discharge certain debts, a mortgage was executed for Rs.400. Thereafter, on 11. 1958, another mortgage was executed by all the brothers and also the widow for Rs.1,000 in favour of one Abdul Hameed with a direction to redeem the earlier mortgage. It was said that the mortgage will be redeemed on or before 11. 1963. It is the case of the plaintiff that the other brothers were not in a position to discharge the debt and, there- fore, on 30.8.1962, he discharged the entire debt and redeemed the mortgage. It is also his case that the other brothers expressed their inability to contribute for redemption and when he undertook to redeem, the other brothers agreed that they will have no right over the property. It is said that an unregistered release deed was also executed by the brothers evidencing the same. After redemption, plaintiff was in exclusive possession of the entire property. While so, first defendant, with his wife and children, who are other defendants in the suit, came to the building and occupied the B Schedule portion. Plaintiff was under the impression that they had come as guests, and thereafter they refused to vacate. The suit was, therefore, filed for declaration that the B Schedule portion belonged to the plaintiff, and direct the defendants to deliver vacant possession of the property. In the written statement filed by the first defendant, he disputed the claim of the plaintiff that he is the owner and he also denied having executed. .4. The suit was, therefore, filed for declaration that the B Schedule portion belonged to the plaintiff, and direct the defendants to deliver vacant possession of the property. In the written statement filed by the first defendant, he disputed the claim of the plaintiff that he is the owner and he also denied having executed. .4. It is also his case that the redemption though stands in the name of the plaintiff, was with common funds. Plaintiff being more literate and local resident, was authorised by other sharers to redeem the property and, therefore, according to him, the redemption goes to the benefit of all the brothers. The allegation that he is in occupation of B Schedule was admitted, but it was said that it was in his own right and, therefore, he was not liable to be dispossessed. 5. On the above pleadings, the trial Court suggested issues and came to the conclusion that the mortgage was redeemed by the plaintiff. Ex.A-4 relied on by him cannot be admitted in evidence, being an unregistered document. Further, during that time, their mother was also alive. Since she has also not joined, Ex.A-4 will have no value, and, on the death of the mother, her right has devolved on the brothers. Further, the claim of the plaintiff that he is exclusive possession and has prescribed title was also found against. The trial court was of the view that even though when the plaintiff discharged the entire debt, the first defendant is in possession of the building as a co-owner and, therefore, it cannot be adverse to him. The suit was dismissed. 6. Aggrieved by the judgment, plaintiff preferred A.S. No.121 of 1980, on the file of Subordinate Judge’s Court, Thanjavur. The lower appellate court also dismissed the appeal. The concurrent judgment is challenged in this second appeal. .7. At the time of admission of the second appeal, the following substantial question of law was raised for consideration: .“Was not the lower appellate court in error in holding that Ex. A-4 cannot be used for collateral purpose?” 8. The lower appellate court also dismissed the appeal. The concurrent judgment is challenged in this second appeal. .7. At the time of admission of the second appeal, the following substantial question of law was raised for consideration: .“Was not the lower appellate court in error in holding that Ex. A-4 cannot be used for collateral purpose?” 8. Even though the substantial question of law raised is only regarding the validity of Ex.A-4, at the time of hearing, other questions also came for consideration, i.e., when there is a finding that the plaintiff has redeemed the entire mortgage, can he be treated as a co-owner along with the first defendant and what are the rights inter se between them. .9. In the written statement filed by the first defendant, he has a case that the redemption was taken in the name of the plaintiff by utilising common funds. Even though he has also spoken about the same as D.W.1, I feel that the circumstances are against him. Both the Courts below have also held that the plaintiff redeemed the mortgage. In his evidence as D.W.1, he has deposed that he was a peon drawing a salary of nearly Rs.75 during that time and he had to maintain a family. Even at the time of mortgage, he had borrowed amounts from others and decree was also obtained against him, which was small cause in nature. In fact, one of the reasons for executing the mortgage itself was to discharge that decree debt. The pecuniary circumstances show that the contention put forward by the first defendant cannot be true. If, in fact, the first defendant had also contributed his share, nothing prevented him for insisting that his name should also be entered in the deed of release. The finding of the Courts below that the plaintiff redeemed the mortgage has, therefore, to stand. 10. If so, what is the consequence of redemption by the plaintiff when he has discharged the entire debt. It is true that he is a co-owner along with the first defendant. Ex.A-2 which is a mortgage dated 11. 1958, was executed by the plaintiff, first defendant and others. The debt incurred by more than one person, who are equally entitled, to the property, was solely discharged by the plaintiff. Plaintiff is a co-mortgagor along with the first defendant and others. Ex.A-2 which is a mortgage dated 11. 1958, was executed by the plaintiff, first defendant and others. The debt incurred by more than one person, who are equally entitled, to the property, was solely discharged by the plaintiff. Plaintiff is a co-mortgagor along with the first defendant and others. One co-mortgagor has now redeemed the entire property and has now come into possession. 11. In Ganeshi Lal v. Joti Pershad, A.I.R. 1953 S.C. 1. their Lordships considered a similar question in respect of a property where the Transfer of Property Act was not in force. But the principles of Transfer of Property Act were applied on the basis of justice, equity and good conscience. In that case their Lord- ships held thus: “The principles of justice, equity and good conscience apply to the Punjab where the provisions of the Transfer of Property Act are not made applicable. Where one of the co-mortgagors redeems a mortgage over the property which belongs jointly to himself and the rest, equity as embodied in the doctrine of subrogation confers on him right to reimburse himself for the amount spent in excess by him in the matter of redemption; he can call upon the co-mortgagors to contribute towards the excess he had paid over his own share. To compel the co-debtors or co-mortgagors to pay more than their share of what was paid to the creditor or mortgagee is to perpetrate an inequity or injustice, as it meant that the debtor who is in a position to pay and pays up can obtain an advantage for himself over the other joint debtors. Such a result will not be countenanced by equity. Hence, such a co-mortgagor stands in the mortgagee’s shoes only to the extent of getting reimbursed from the co-mortgagors for their shares in the amount actually paid by him, and not for the full amount due on the mortgage on the date of redemption..........” 12. A co-mortgagor redeems the property not on behalf of the other co-owners or co-mortgagors, but in his individual capacity. When he redeems the mortgage, he is not availing himself as a representative of the other co-mortgagors. He is representing himself alone. Under Sec.91 of the Transfer of Property Act, any person who has got a share in equity of redemption is entitled to redeem the whole property and not his share alone. So. When he redeems the mortgage, he is not availing himself as a representative of the other co-mortgagors. He is representing himself alone. Under Sec.91 of the Transfer of Property Act, any person who has got a share in equity of redemption is entitled to redeem the whole property and not his share alone. So. by virtue of his right as co-mortgagor, he redeems the entire property and there is no necessity for him to take advantage of his position either as a co-owner or co-mortgagor. 13. When one of the several co-mortgagors redeems the entire mortgage, the mortgage is extinguished by merger. So far as his share in the mortgage property is concerned, there is a pro tanto reduction in the mortgage debt. Where the mortgage is a possessory one be enters into possession of the entire property as a result of the redemption. So far as his own share of the mortgage property is concerned, he is in possession as full owned free of the mortgage. But with re-regard to the shares of the co-mortgagors, he stands in the shoes of the original mortgagee. In view of the decision reported in Ganeshi Lal v. Joti Pershad, A.I.R. 1953 S.C. I, he is entitled to remain in possession till his accounts are settled. The other co-mortgagors become his debtors and the property redeemed by him so far as their shares are concerned form security for the excess payment made by him. Even though he may not be treated as a mortgagee for all purpose, he is entitled to retain possession as a person holding a special right. 14. In Lakshmi Pillai Subhadra Amma v. Eswara Pillai Velayudhan Pillai, 1977 K.L.T. 464, a Full Bench of the kerala High Court has held thus: “Sec.92 does not provide that the redeeming co-mortgagor shall be deemed to be a mortgagee, or shall be substituted to the full rights of the mortgagee for all purpose. It is careful enough to provide that he shall have the same rights as the mortgagee redeemed, only for the limited purpose of redemption, foreclosure or sale. Mark the difference in language in the third clause of Sec.92, where subrogation is allowed,” to the rights of the mortgagee whose mortgage has been redeemed. It is careful enough to provide that he shall have the same rights as the mortgagee redeemed, only for the limited purpose of redemption, foreclosure or sale. Mark the difference in language in the third clause of Sec.92, where subrogation is allowed,” to the rights of the mortgagee whose mortgage has been redeemed. “ Mark again, the provision in Sec.95 which elucidates the right of the redeeming co-mortgagor, to be only to add to the mortgage-money recoverable from the other co-mortgagors, such proportion of the expenses properly incurred in redemption of the mortgage, as is attributable to the share of the non-redeeming co-mortgagors. In the light of these provisions of the Transfer of Property Act, it appears that the position under the Transfer of Property Act is the same as expounded by the Supreme Court in Ganeshi Lal v. Joti Pershad, A.I.R. 1953 S.C. 1. [Italics supplied as in the original reports] 15. If this is the legal position between the redeeming co-mortgagor and a non-redeeming co-mortgagor the relationship of the plaintiff and the first defendant cannot be treated as co-owners only. As between co-owners, the law treats them as having equal rights. But the plaintiff is holding the property not only as co-owner but as a person having a special right and till that special right is extinguished, first defendant will not be entitled to be in possession of the property. So far as the ultimate ownership is concerned he may be a co-owner with the plaintiff, but when the plaintiff redeems as a co-mortgagor, he cannot be treated as a co-owner as has been done by the courts below. 16. The Courts below have held that Ex.A-4 is not valid and cannot be admitted in evidence. If the legal position of a co-mortgagor is as stated above, the validity of Ex.A-4 need not be considered. De hors Ex.A-4, plaintiff will be entitled to possession in respect of the entire property. That is a superior title as against the first defendant. 17. In this connection, it is also better to consider the scope of Sec.27 of the Indian Limitation Act. Sec.27 says thus: ”At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.“ 18. 17. In this connection, it is also better to consider the scope of Sec.27 of the Indian Limitation Act. Sec.27 says thus: ”At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.“ 18. It is not a case of adverse possession, but, failure to institute a suit in time will extinguish the right to property. The finding regarding adverse possession entered by the trial court, as confirmed by the lower appellate court, according to me, is unnecessary, in view of the applicability of Sec.27 of the Limitation Act. 19. If we take into consideration Sec.27 of the Indian Limitation Act, the question to be considered will be, whether the first defendant can claim any right over the property so long as he has not discharged the debt which is payable by him to the plaintiff. If the first defendant is not entitled to be in possession till he settles accounts with the plaintiff, naturally, it cannot be said that such a suit could be filed at any time. The only provision by which the period of limitation is excluded, is the suit relating to Trusts. In all other suits, a period of limitation is provided under the Limitation Act. In this case, I have already said that the plaintiff is availing himself only as a co-mortgagor and not as a Trustee. If so, the first defendant can claim right over the property only on payment of his share of the debt which the plaintiff has discharged. What is the period of limitation for such suits came for consideration in the decision reported in Valliamma v. Sivathanu, A.I.R. 1979 S.C. 1937: (1978)4 S.C.C. 429. If so, the first defendant can claim right over the property only on payment of his share of the debt which the plaintiff has discharged. What is the period of limitation for such suits came for consideration in the decision reported in Valliamma v. Sivathanu, A.I.R. 1979 S.C. 1937: (1978)4 S.C.C. 429. Following the said decision in Ganeshi Lal v. Joti Pershad, A.I.R. 1953 S.C. 1, their Lordships said in that case as follows: ”Steering clear of the tangled web of conflicting and confusing decisions rendered on an interpretation of the relevant provisions of the Transfer of Property Act, 1882, as they stood before the amendment of 1929, we may say at once state even where the Transfer of Property Act was not in force, a redeeming co-mortgagor discharging the entire mortgage debt, which was the joint and several liability of himself and his co-mortgagor was, in equity, entitled to be subrogaged to the rights of the mortgagee redeemed and to treat the no-redeeming co-mortgagor as his mortgagor to the extent of the letter’s portion of share in the hypotheca and to hold that portion or share as security for the excess payment for the excess payment made by him. This equitable right of the redeeming co-mortgagor stems from the doctrine that he was a principal debtor in respect of his own share only, and his liability in respect of his co-debtor’s share of the mortgage debt was only that of a surely; and when the surety had discharged the entire mortgage debt, he was entitled to be subrogaged to the securities held by the creditors, to the extent of getting himself reimbursed for the amount paid by him over and above his share to discharge the common mortgage debt. For the view we take, we derive support from certain observations of this Court in Ganeshi Lal v. Joti Pershad, A.I.R. 1953 S.C. 1, While discussing the nature and extent of a redeeming co-mortgagor’s right to recover contribution from his co-debtor, this Court speaking through Chandrasekara Aiyar, J., made these incident observations which for our purpose, are apposite: “Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognized that where there are several joint debtors, the person making the payment is the 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. Such being the legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of redemption, he can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share.... While it can be readily conceded that the joint debtor who pays up and discharges the mortgage stands in the shoes of the mortgagee... he will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection.....‘so far as it is necessary to enforce his equity of reimbursement’... It is as regards the excess of the payment over his own share that the right can be said to exist. ....The redeeming co-mortgagor being only a surety for the other co-mortgagors his right, strictly speaking is a right of reimbursement of contribution.” It is noteworthy that Ganeshi Lal v. Joti Pershad, A.I.R. 1953 S.C. 1, was a case from Punjab where the Transfer of Property Act was not in force, and this Court had affirmed the judgment of the Punjab High Court determining the claim of the redeeming co-mortgagor for contribution against the non-redeeming co-mortgagors on principles of justice, equity and good conscience. From what has been said above, it is clear that where the Transfer of Property Act is not in force and a mortgage with possession is made by two persons, one of whom only redeems discharging the whole of the common mortgage debt, he will, in equity, have two distinct right: Firstly, to be subrogated to the rights of the mortgagee discharged, vis-à-vis the non-redeeming co-mortgagor, including the right to get into possession of the latter’s portion or share of the hypotheca. Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca which belonged not to him but to the other co-mortgagor. It follows that where one co-mortgagor gets the right to contribution against the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the ‘non-redeeming’ co-mortgagor, to pay his share of the liability and get possession of his property from the redeeming co-mortgagor, subsists as long as the letter’s right to contribution subsists. This right of the ‘non-redeeming’ co-mortgagor, as rightly pointed out by the learned Chief Justice of the High Court in his leading judgment, is purely an equitable right, which exists irrespective of whether the right of contribution which the redeeming co-mortgagor has as against the other co-mortgagor, amounts to a mortgage or not. The ground is now clear for ascertaining the appropriate provisions of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the ‘non-redeeming’ co-mortgagor against the redeeming co-mortgagor. Be it noted, that the suit, out of which this appeal has arisen, though, in form, a simple suit for partition raises, in substance, a claim for redemption with regard to items 31 to 42 and 44 which were under mortgage and had been redeemed in entirety by one of the co-mortgagors. Indeed in the courts below the claim in respect of these items has been fought by the parties as if it were one for redemption. Indeed in the courts below the claim in respect of these items has been fought by the parties as if it were one for redemption. Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagor’s property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non-redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor." (Paragraphs 28 to 34) 20. When this legal position was brought to the notice of the learned counsel for the respondents, he pleaded that this being a new point, taken for the first time in this second appeal, he must be given an opportunity to adduce evidence regarding the same. According to learned counsel, the question of limitation, though a question of law, depends on proved facts and, therefore, he must be given an opportunity to substantiate the same. 21. Since the courts below have not considered the suit filed by the plaintiff on the above legal principle, I feel it is better that the respondents should be given an opportunity to substantiate their case. At that time, learned counsel for the respondents also requested that he may have to amend the pleading. It is for the trial court to decide whether any such amendment should be allowed or not. Even though on the date of suit, the right of the first defendant to extinguish the right has not lapsed, as on this date, the position has changed. In the written statement, he has not offered to make any payment. He will be entitled to possession only when the deposit is made. If so, the question of limitation also may arise as to whether the first defendant is entitled to recover the property on payment of his share or to extinguish the right of the plaintiff. In that case, trial court also will have to take into consideration the rights of the parties as on the date of deposit. 22. If so, the question of limitation also may arise as to whether the first defendant is entitled to recover the property on payment of his share or to extinguish the right of the plaintiff. In that case, trial court also will have to take into consideration the rights of the parties as on the date of deposit. 22. If the trial court ultimately comes to the conclusion that the first defendant is not entitled to be in possession, in view of the inter se right of co-mortgagors, plaintiff will be entitled to a decree for recovery. These matters will have to be decided by the trial court on remand. 23. In the result, I set aside the judgments of both the courts below, and remand the suit to the trial court for fresh disposal on the basis of the observations made above. On remand, the trial court will consider the amendment application, if any, filed by the respondents, in accordance with law. The second appeal is allowed without any order as to costs. Parties shall appear before the trial court on 110. 1996.