Case Note & Summary
The dispute concerned item 6 of the plaint schedule property, which belonged to a Tarwad. The Karanawan had executed a possessory mortgage in Exhibit B-1 for Rs.200. One of the co-mortgagors, Ithiridutty Appachi, filed Suit No. OS-114/70 in the Munsiff Court, Pattambi, for redemption of that mortgage and redeemed the property. Thereafter, a suit for partition was filed by the other co-owners/co-mortgagors. The trial court and the District Court held that the redeeming co-mortgagor had become absolute owner because the non-redeeming co-mortgagors did not redeem within 30 years of the mortgage execution, so item 6 was not partible. The Kerala High Court reversed that finding and held item 6 partible. The Supreme Court considered whether a suit for partition by non-redeeming co-mortgagors was barred by limitation. It relied on Valliamma Champaka Pillai v. Sivathanu Pillai and reiterated that a redeeming co-mortgagor is subrogated to the mortgagee's rights and can hold the other co-mortgagors' shares as security for excess payment, but the non-redeeming co-mortgagors have an equitable right to redeem their shares by paying their proportionate amount. The Court clarified that the limitation for such a suit is 12 years from the date of redemption, not 30 years from mortgage execution. Since the partition suit was filed within that period, it was maintainable. The Court dismissed the appeal with modification, directing that a preliminary decree for partition shall follow subject to the respondents paying their share of the mortgage amount to the appellant, with no order as to costs.
Headnote
A) Transfer of Property - Mortgage Redemption and Subrogation - Redeeming Co-mortgagor's Rights - Transfer of Property Act, 1882 - Where one co-mortgagor redeems the entire mortgage debt, he is subrogated to the rights of the mortgagee and can hold the shares of non-redeeming co-mortgagors as security for the excess amount paid. The non-redeeming co-mortgagors have a corresponding equitable right to redeem their shares by paying their proportionate amount of the mortgage debt, and this right subsists as long as the redeeming co-mortgagor's right to contribution subsists. Held that the redeeming co-mortgagor stands in the position of mortgagee vis-a-vis the other co-mortgagors to the extent of their shares. B) Limitation - Suit for Partition by Non-redeeming Co-mortgagor - Limitation Period - Transfer of Property Act, 1882 - Non-redeeming co-mortgagors must sue for possession or partition of their share within 12 years from the date of redemption, not within 30 years from the date of mortgage execution. A suit for partition filed within this 12-year period is maintainable, and a preliminary decree shall follow subject to the non-redeeming co-mortgagors paying their proportionate share of the mortgage amount to the redeeming co-mortgagor. Held that the suit was filed within limitation and item 6 is partible.
Issue of Consideration
Whether a suit for partition by non-redeeming co-mortgagors is maintainable after one co-mortgagor redeemed the mortgage, and what is the limitation period for such suit.
Final Decision
Appeal dismissed with modification. Preliminary decree for partition shall follow subject to payment by respondents of their proportionate share of mortgage amount to appellant; no costs.
Law Points
- one co-owner or co-mortgagor entitled to redeem mortgage
- on redemption subrogates to mortgagee
- non-redeeming co-mortgagor can redeem share by paying proportionate amount
- 12-year limitation runs from date of redemption
- suit for partition maintainable subject to payment
