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2011 DIGILAW 260 (KER)

Narayani Gowri v. Parvathy Padmavathy

2011-03-09

S.S.SATHEESACHANDRAN

body2011
JUDGMENT 1. Plaintiffs in O.S.No.137/91 on the file of the Munsiff’s Court, Paravoor, are the appellants. Suit was one for directing the defendant to execute a release deed after receiving contribution towards redemption price from the plaintiffs. The defendant for and behalf of the Thavazhi of the plaintiffs and defendant had redeemed the suit property, which was outstanding on mortgage, pursuant to the execution of a partition deed and the directions contained thereunder, which was entered into by the parties after a final decree had been passed in a suit for partition over the properties belonging to their family viz., Manikazhakam family. The defendant redeemed the property paying the mortgage price of Rs.500/-, and, later, she had executed a release deed over 4 cents of property in favour of the 8th plaintiff, receiving a sum of Rs.200/- as the contribution due from that plaintiff. The balance amount due to the defendant towards the sum paid by her to redeem the property is only Rs.300/-, and receiving such sum, she is bound to execute a release deed over the suit property, was the case of the plaintiffs. Plaintiffs also alleged that since they are in possession, the relief of recovery of possession is not sought for in the suit. 2. The defendant resisting the suit challenged the reliefs canvassed thereunder on various grounds including the maintainability of the suit as barred by limitation. The case of the plaintiffs that they are in possession and enjoyment of the suit property was also disputed by the defendant contending that after redemption she continued in exclusive possession and enjoyment of the property, and later she had executed a sale deed over the property in favour of her husband. Both the courts below, after evaluating the claim of the plaintiffs to get a release deed executed over the property by the defendant by accepting the contribution due towards the redemption price paid by her, concurrently held that such claim was barred by limitation upholding the contention so raised by the defendant. 3. Substantial questions of law formulated on which notice was ordered for hearing are thus: (i) Whether the co-owner paying the mortgage amount and is entitled to receive contributions from the other co-owners could resist a suit for executing a release deed to the other co-owners on payment of their contributions by contending that the suit is barred by limitation? 3. Substantial questions of law formulated on which notice was ordered for hearing are thus: (i) Whether the co-owner paying the mortgage amount and is entitled to receive contributions from the other co-owners could resist a suit for executing a release deed to the other co-owners on payment of their contributions by contending that the suit is barred by limitation? (ii) Whether conclusion of the lower courts that the defendant co-owner have paid the mortgage amount has got possession of the property could be legally justified and the decisions of the lower courts on the basis that the suit should have been for possession are legally sustainable? (iii) Would not the suit for getting a release deed executed on the basis that the possession is with the plaintiffs be maintainable and should not a decree have been passed as prayed for? 4. The trail court had considered all issues cast on the pleadings of the parties in the suit, but, the lower appellate court after raising all pertinent points germane for determination on the disputed questions involved in the first appeal, as seen from its judgment, proceeded to consider the question of limitation and the answer thereto being found agreeing with that of the trail court, negatived the challenge against the decree of dismissal rendered in the suit. So much so, the substantial questions of law formulated as Nos. 2 and 3 in the appeal over and above, as to whether the suit should have been one for possession and also the entitlement of the plaintiffs to get a release deed executed by the defendant on the case advanced that they are in possession of the suit property, would arise for consideration only if the concurrent finding entered over the bar of limitation to the suit by the two courts below is found to be not correct and liable to be interfered with. 5. Facts covered by the lis which are germane for determining the question of limitation are not at all in dispute. Plaintiffs and defendant are members of a family viz., Manikkazhakam family and there was a suit for division of the properties of that family as O.S.No.107/1121, in which a final decree was also passed. After such decree was passed, the parties reached an understanding and entered into Ext.A1 partition deed dated 27.8.1966. Plaintiffs and defendant are members of a family viz., Manikkazhakam family and there was a suit for division of the properties of that family as O.S.No.107/1121, in which a final decree was also passed. After such decree was passed, the parties reached an understanding and entered into Ext.A1 partition deed dated 27.8.1966. The suit property involved in the present case allotted to the thavazhi of the plaintiffs and defendant and Ext.A1 deed provided that the members of the thavazhi can redeem their share in that property paying the mortgage price due thereof, and if the mortgage is not so extinguished, any member of the thavazhi on paying the mortgage price in full can get release of the mortgage and in that event, the other sharers paying the contribution due can obtain release of their share in the suit property from the sharer who had got release of the mortgage. The defendant admittedly obtained release of the mortgage paying the redemption price Rs.500/- under Ext.A2 deed. Ext.A2 is dated 3.3.1969. She had later executed Ext.A6 dated 8.8.1969 releasing 4 cents out of the property redeemed under Ext.A2, to the 8th plaintiff receiving a sum of Rs.200/- as contribution. 6. The learned counsel for the appellants urged before me that the release of the mortgage obtained by the defendant under Ext.A2 was release in faovur of the thavazhi. After the partition (Ext.A1) and allotment of the suit property to the thavazhi of the parties, all of them are tenants in common over the property and the defendant if only entitled to have the contribution of the amount due from the respective sharers towards the redemption price paid, according to the counsel. She cannot claim any right of subrogation on redeeming the mortgage, but only the right to receive contribution from the co-owners, according to the counsel. She cannot claim any right of subrogation on redeeming the mortgage, but only the right to receive contribution from the co-owners, according to the counsel. A decree for possession not being warranted in the case, as all members of thavazhi are in possession along with the defendant on her redeeming the mortgaged property as a member of thavazhi, the execution of release deed paying the contribution due on the redemption price, strictly speaking is not governed by any period of limitation, and at best the contribution due towards the redemption price paid by the defendant would continue as a charge over the property so long as her right to claim the contribution from the plaintiffs, other co-owners, subsisted, is the further submission of the counsel. 7. The trail court and also the lower appellate court relied on the decision rendered by the Apex Court in Valliamma Chembaka v. Sivathanu Pillai & Ors. {AIR 1979 Supreme Court 1937} in which the rights and liabilities of redeeming co-mortgagor and non-redeeming co-mortgagor and also the question of limitation with respect to a suit by a non-redeeming co-mortgagor for possession on payment of contribution to the redeeming co-mortgagor was considered, held that the reliefs sought for in the suit by the plaintiffs were barred by limitation. The Apex Court, in the above referred decision, has expressed the view that a redeeming co-mortgagor discharging the entire mortgage debt in equity is entitled to be subrogated to the rights of the mortgage redeemed and to treat non-redeeming co-mortgagor as his mortgagor to the extent of the share in the hypotheca and to hold that as a security for the excess payment made by him. In forming such conclusion, a previous decision rendered in Ganeshi Lal v. Joti Pershad {1953 SCR 243} was quoted with approval. In Ganeshi Lal’s case, the Apex Court has expressed the rights and liabilities as between a redeeming co-mortgagor and non-redeeming co-mortgagor thus: “Where one co-mortgagor gets the right to contribution against the other co-mortgagor by paying off 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 latter’s right to contribution subsists. The right of the ‘non-redeeming’ co-mortgagor 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.” 8. Analyzing the views expressed in the aforesaid two cases, Valliamma Chembaka Pillai’s case {AIR 1979 Supreme Court 1937} and Ganeshi Lal’s case {1953 SCR 243} with reference to the facts involved in such cases, along with a later decision rendered, in which also identical question was involved, viz., Variayan Saraswathi & Anr. V. Eachampi Thevi & Ors {(1993) Suppl. 2 SCC 201} the Apex Court in Krishna Pillai v. Padmanabha Pillai {2004 (2) KLT 61 (SC)} has held, the limitation for a suit for contribution would become relevant only when the redeeming co-mortgagor sues the non-redeeming co-mortgagor for enforcing the latter’s obligation to make contribution. Having a critical analysis over the question of limitation and also whether a redeeming co-mortgagor as against the non-redeeming co-mortgagor could claim the right of subrogation in respect of the mortgage already redeemed the Apex Court in Krishna Pillai’s has pointed out that the observations made in Ganesh Lal’s case which had been quoted above, were applied in Valliamma Chembaka Pillai’s case to sustain its conclusion that the redeeming co-mortgagor has a right of subrogation as against the non-redeeming co-mortgagor, without noticing that such a view was not taken in Ganesh Lal’s case. In both the above cases (Ganesh Lal’s case and Valliamma Chembaka Pillai’s case), it has been further pointed out that no question over the applicability of Section 92 of the Transfer of Property Act (for short ‘the Act’) was involved and that in a case of subrogation by the operation of law, which is governed by the aforesaid Section of the Act, it is not correct to say that a redeeming co-mortgagor on paying the whole debt over a mortgage can claim a right of subrogation as against the non-redeeming co-mortgagor, but only right to be reimbursed by the other of the excess payment, and till such payment is made, an equitable charge over the redeemed mortgaged property. The Apex Court, analyzing the issue further in Krishna Pillai’s case referred to above, has expressed thus: “One of the co-mortgagors, by redeeming the mortgage in its entirety, cannot claim a right higher than what he otherwise had faced with a claim for partition by the other co-owner. He cannot defeat the legal claim for partition though he can insist on the exercise of such legal right claimed by the other co-owner-cum-mortgagor being made subject to the exercise of the equitable right vesting in him by subrogation.” The above right is a right in equity of reimbursement, governed by the 1st para of Section 92 of the act is the conclusion formed and also the principle applicable in a case of such nature is the view expressed by the Apex Court. In case of subrogation by the operation of law and hence governed by the 1st part of Section 92 of the Act where the subrogation rests by the doctrine of equity and the principles of justice, and not on the privity of contract, the redeeming co-mortgagor cannot defeat the legal claim for partition, but he can only insist that the exercise of such legal right by the other non-redeeming co-mortgagors be only subject to the contributing to the excess payment made by him for redeeming the mortgage. The present case, no doubt, is one where subrogation by the operation of law governed by Section 92 of the act is applicable. That being the fact situation, both the courts below have gone wrong in holding that the right subrogation of the defendant, the redeeming co-mortgagor, was that of the mortgagee, and, so much so, the suit should have been filed within 12 years from the date of redeeming the mortgage or within the period of limitation, by which the mortgage subsisting over the property ought to have been redeemed. The question of limitation over the suit evidently was considered without taking note of the legal principles applicable and more particularly that the redeeming co-mortgagor at the most is only entitled to contribution of excess payment as a right in equity as against the non-redeeming co-mortgagors and that he can claim the right of subrogation only as under the first para of Section 92 of the Act. 9. 9. The conclusion reached as above that the courts below had gone wrong in examining the question of limitation set forth as a challenge by the defendant, which on acceptance had resulted in non-suiting the plaintiff, I find, in the given facts of the case does not assists the plaintiffs in any manner as they have not sued for partition of the property. The defendant had redeemed the mortgage paying off the debt due to the mortgagee and thus obtained possession and enjoyment of such property. The suit had been laid seeking a decree for execution of release deed accepting the contribution payable to the defendant. Such a suit, which was in the nature of a mandatory injunction compelling the defendant to accept the contribution towards the excess payment made by her for redeeming a mortgage and release the share of the plaintiffs in the property without seeking the relief of partition and separate possession was clearly not maintainable, when the defendant continued in possession and enjoyment of the property on redemption of the mortgage exclusively with a right of subrogation of the mortgagee in equity, to claim the contribution for excess payment from the other non-redeeming co-mortgagors. The case set up by the plaintiffs, and the argument projected by their counsel that the non-redeeming co-mortgagors have obtained possession by virtue of the release of the mortgage by the defendant from the mortgagee cannot be accepted at all. Suit property outstanding on mortgage was got released by the defendant under Ext.A1 dated 27.8.1966. Suit was filed on 24.10.1983 with no case or claim for partition and possession over the property, but only for execution of release deed on accepting the contribution paid towards the excess payment. The defendant had released 4 cents in favour of the 8th plaintiff under Ext.A6 soon after Ext.A1, would no way assist the plaintiffs in seeking a similar relief to compel the defendants to execute such release deed in their the facts and circumstances involved and also the question of law applicable, having been found to be not maintainable, the decree of dismissal rendered concurrently by both the courts below, though on a different ground as barred by limitation, which has been found to be incorrect, does not warrant any interference, and it is only to be upheld. The appeal is dismissed, directing both sides to suffer their costs.