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2004 DIGILAW 542 (PNJ)

Daulat Ram v. Mohan Devi

2004-05-12

NIRMAL SINGH

body2004
Judgment Nirmal Singh, J. 1. This appeal has been filed by the defendant appellants against the judgment and decree passed by Additional District Judge, Ferozepur, dated 1.12.1982 whereby the judgment and decree of trial Court dated 7.1.1982, decreeing the suit of the plaintiff-respondents for separate possession by partition of one half share of the house described in the head note of the plaint, has been affirmed. 2. The facts are not in dispute in this case. 3. The plaintiff-respondents are admittedly co-mortgagors of the property in dispute. The appellants being co-mortgagors have got the property in dispute redeemed. 4. Now,the short question which comes up for consideration in this appeal is whether a co-mortgagor is entitled to recover the possession of his share of the mortgage property on the demand of proportionate amount of mortgage debt discharged by the redeeming mortgagor. This question has already been considered by a Division Bench of this Court in Jamiat Singh v. State of Punjab and Ors., A.I.R. 1984 Punjab and Haryana 351, wherein it has been held as under:- "A non-redeeming co-mortgagor has two distinct rights or remedies vis-a-vis the redeeming co-mortgagor i.e. (i) to get the property redeemed within the period of limitation prescribed by Article 148 of the Limitation Act (now 61 of the 1963 Act) and (ii) an equitable right to get possession of his share of the property on payment of his share of the mortgage money within twelve years from the date of the redemption of the hypotheca by the redeeming co-mortgagor. It is not a matter of dispute that the redeeming mortgagors could file a suit for contribution or recovery of the mortgage amount paid by them in excess of their share within twelve years from the date of the redemption of the original mortgage or taking possession of the land of the non-redeeming mortgagors. It then follows that non-redeeming mortgagors could also enforce, their right of securing possession of the land to the extent of their shares within that very period that is twelve years on payment of their share of the mortgage money. It then follows that non-redeeming mortgagors could also enforce, their right of securing possession of the land to the extent of their shares within that very period that is twelve years on payment of their share of the mortgage money. A non-redeeming mortgagors right to get his portion or share of the hypotheca on contribution to the redeeming co-mortgagor to the extent of his share of the mortgage debt is a correlated right which accrues to the former and survives or remains alive till the redeeming mortgagor has the right to recover the excess amount paid by him at the time of redeeming the mortgage. This right of the non-redeeming mortgagor cannot possibly be subject to the overall period prescribed for the redemption of a mortgage. Thus it must be held that in equity a redeeming co-mortgagor has a right of reimbursement from a non-redeeming mortgagor to the extent of the latters share in the mortgage money and the non-redeeming mortgagor can recover possession of his share of the huypotheca on payment to the redeeming co-mortgagor." 5. The Honble Apex Court in Vallikat Thekkedath Valappil Lakshmikutty Amma and Ors. v. Vallikat Thekkedath Valappil Demodara Menon and Ors.,2 A.I.R. 1997 Supreme Court 1909, while interpreting this proposition has held as under:- "It is now settled legal position that one of the co-owners or one of the co-mortgagors is entitled to redeem the mortgage and on redemption, he subrogates into the shoes of the mortgagees. To the extent of his liability for the mortgage, he gets discharge and to the extent of the share of other co-mortgagors, he stands in the position of mortgagee viz-z-viz other co-mortgagors. Therefore, it would be open to the other mortgagors to sue for possession of the property, after paying their share within the period of limitation. It is not in dispute that 12 years is a period of limitation for possession of the property since the appellant came into possession to the extent of the share of other co-owners, namely, their Karvans of the Tarwad as a mortgagee. They are entitled to pay to the extent of the respective shares of the mortgage amount and seek possession from the co-mortgagor, namely, appellant within 12 years from the date of the redemption of the mortgage. They are entitled to pay to the extent of the respective shares of the mortgage amount and seek possession from the co-mortgagor, namely, appellant within 12 years from the date of the redemption of the mortgage. Under these circumstances, suit has been filed within limitation for a partition of property and preliminary decree shall follow subject to the payment of mortgage amount to the extent of their shares to the appellant." 6. In the instant case, admittedly the suit has been filed within the period of limitation. Therefore, the plaintiff-respondents were entitled to get the possession of property on payment of proportionate amount of mortgage debt discharged by the redeeming mortgagor. 7. In view of the above discussion, there is no merit in the appeal and the same is, therefore, dismissed.