http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

CASE NO.: Appeal (civil)  13133 of 1996

PETITIONER: Krishna Pillai Rajasekharan Nair (D) by Lrs.                     

RESPONDENT: Padmanabha Pillai (D) by Lrs. & Ors.                       

DATE OF JUDGMENT: 15/12/2003

BENCH: R.C. LAHOTI  & ASHOK BHAN

JUDGMENT: J U D G M E N T

R.C. LAHOTI,  J.

       The facts relating to the property  which forms subject-matter of    suit are very many, spread over a period of almost a century by this  time and so is the number of persons who have dealt with the property  and amongst whom the property has changed hands.  Shorn of  unnecessary details, we would concentrate on bare essential facts, to  the extent relevant for appreciating the legal issues arising for  decision.  For the sake of convenience we would be referring to the  appellant and respondent no.1 respectively as the plaintiff and  defendant No.1 as they were arrayed before the trial court.  They are   the principal contesting parties. Unfortunately, both of them have died  and their legal representatives are on record.  For the sake of brevity  and convenience we are referring to original parties only.

       There was a piece of land measuring 1.2 acres in area which  belonged to 18 members of a family of   Sripandarachetti Cult.  It was  mortgaged in 1902.  There was a partition amongst different groups.   The properties involved in partition were listed as Schedules ’A’, ’B’, ’C’  and ’D’.  The ’C’ Schedule comprised of 30 cents.  The property in  dispute herein is referable to this Schedule ’C’ land.  Hereinafter, it is  referred to as the ’property in suit’.

       The property in suit was subject to an usufructuary mortgage of  the year 1078 Malyalam Era. After the partition,  10 members  out of  the 18  to whom different portions of the mortgaged property were  allotted filed the suit, bearing O.S. No.464 of 1117 of Malalyalam Era,  for redemption.  The suit was decreed in 1950.  After the decree one  Chellapan Pillai (who died during the pendency of these proceedings  and in whose place defendant No.1 stands substituted) got the  property Schedule ’C’ redeemed by making full payment of mortgage  money.  He also entered into possession over the property in the year  1953.  The appellant-plaintiff is the assignee from certain non- redeeming co-mortgagors of a share in  ’C’ Schedule property.  His  share in the property is stated to be 9/12th in 25 cents of ’C’ Schedule  property.  In the year 1971, the plaintiff filed the present suit seeking  relief of declaration of title with recovery of possession, and in the  alternative, the relief of partition.  On 7.12.1973, the trial court  decreed the suit upholding the plaintiff’s entitlement to 9/12 shares in  the suit property but subject to payment of Rs.208/- to reimburse the  first defendant by way of contribution towards the amount spent by  him in redeeming the property.  A preliminary decree determining the  share of the plaintiff and his entitlement to partition was passed.  The  trial court’s decree was upheld by the First Appellate Court dismissing  the appeal preferred by defendant No.1.  Defendant No.1 preferred a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

second appeal (No.1149 of 1976).  Vide Judgment dated 10.2.1981,  the High Court allowed the appeal and set aside the decrees of the two  courts below.  It was urged before the High Court on behalf of the  defendant No.1 that the property being subject to mortgage and  defendant No.1 having subrogated himself in place of original  mortgagee, the suit filed by the plaintiff barely for declaration,  partition and recovery of possession, was not maintainable and it was  necessary for the plaintiff to have sought for the relief of redemption.   Even if the relief of redemption of mortgage was not specifically sought  for, it was submitted on behalf of the defendant No.1 that the suit in  substance was one for redemption and construed so it was barred by  time under Article 148 of the Limitation Act, 1908.  The High Court  formed an opinion that this aspect of the case did not appear to have  engaged the attention of the courts below and, therefore, the case  needed to be remanded for decision afresh.  The High Court allowed  the appeal, set aside the decree under appeal and remanded the case  to the trial court with a direction to allow the parties an opportunity of  amending the pleadings, so that the plaintiff could seek the relief of  redemption and the defendant could raise the plea as to bar of  limitation.  Pursuant to the order of remand, the pleadings were  amended.  The suit was once again decreed by the trial court and the  First Appellate Court.   

In the second appeal preferred by the defendant no.1, it is  interesting to note that the High Court has formed an opinion that  defendant No.1 had redeemed the property on behalf of the entire  family, and therefore, after the payment of mortgage money and  recovering back the possession from the mortgagee, nothing had  remained to be redeemed.  The plaintiff was entitled to declaration of  title and other reliefs prayed for by him.  The learned Judge of the  High Court entertained serious doubts about correctness of the view  taken by the learned single Judge in the earlier order of the High Court  remanding the case to the trial court but felt bound (and helpless) by  the observations and the directions made in the earlier judgment and  rightly so.  The learned Judge noted the submission of the learned  counsel for the plaintiff that the question of limitation did not arise in  the case and all that to which the first defendant was entitled to was to  have reimbursement for whatever amount he might have spent on  redemption.  Having said so the learned Judge observed desperately,  "I would have readily agreed with this submission of the learned  counsel for the plaintiff if I were free to do so.  In fact according to  me, in this case, no question of further redemption of 1078 mortgage  arises at all".  The learned Judge held that "the first defendant was not  required to claim the status of a redeeming co-mortgagor vis-‘-vis the  other members of the family on the facts and in the circumstances of  the case.  But, since I am bound by the earlier order of remand in S.A.  1194 of 1976, I am constrained to overrule the contention of the  learned counsel for the respondent that the claim of the plaintiff could  not be held to be barred by limitation."   Consequently, the learned  single Judge by the judgment dated March 22, 1993 allowed the  appeal, set aside the judgments and decrees of the courts below and  directed the suit to be dismissed.  Feeling aggrieved by the judgment  of the High Court the plaintiff has filed this appeal by special leave.

       At the very outset, it may be stated that the learned counsel for  defendant No.1 submitted that the parties in this case were of  Sripandarachetti Cult of Kerala, governed by Hindu Mitakshra Law and  as there had been a partition in family before 1941, the year in which  the suit for redemption was filed, it cannot be said that defendant No.1  while redeeming alone the property was acting on behalf of the family  or the joint family funds were utilized for payment of mortgage money.   In our opinion, this controversy is wholly besides the point.  Whether  there was a partition in the family and whether Schedule ’C’ property  was also partitioned is not of any consequence for the present  controversy inasmuch as we find that so far as the Schedule ’C’

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

property is concerned it was subject to mortgage and the plaintiff and  defendant No.1 both had share therein.  They may be co-tenants or  tenants in common but that would not make any difference so far as  the status of the plaintiff and the defendant No.1 being co-mortgagors  qua the suit property is concerned.  We proceed on this factual  premise that out of the co-mortgagors, more than one, and all having  entitlement to a share each in the suit property, one of them had  redeemed the property by paying the entire mortgaged money and  had singularly entered into possession over the entire mortgaged  property.  Consequent upon redemption, it is the other co-owner of  the property i.e. the plaintiff, who is now asking for the partition of the  property commensurate with his share.  We have to see what are the  rights and obligations of the parties qua each other and whether a suit  for partition filed by the plaintiff was maintainable.  That would  determine the question of limitation as well.            The learned counsel for the parties are agreed that the Transfer  of Property Act has been applicable to the suit property at all the times  material.              The learned counsel for the respondent heavily relied on the  three-Judge Bench decision of this Court in   Valliama Champaka  Pillai Vs. Sivathanu Pillai and Ors. -  (1979) 4 SCC 429, in support  of his submission that a suit by a non-redeeming co-mortgagor against  the redeeming co-mortgagor laying claiming for his share in the  property, on payment of his proportionate share of the mortgage  money, would be governed by Article 132 or 144 of the Limitation Act,  1908.  Article 132 provided for a suit to enforce payment of money  charged upon  immovable property wherein the period of limitation  was 12 years calculated from the date when the money sued for  becomes due. Article 144 contemplated a suit for possession of  immovable property or any interest therein not otherwise specifically  provided for and the limitation was 12 years from the date when the  possession of the defendant became adverse to the plaintiff.  In either  case, the suit was barred by time, submitted the learned counsel for  the respondent.

Prima facie, and on a first blush, the contention of the learned  counsel for the respondent looks unexceptionable and on the authority  of Valliama Champaka Pillai’s case it appears as if the High Court  has not erred in holding the suit barred by time and dismissing the  same.  However, as pointed out by the learned counsel for the  appellant, the case needs a deeper analysis.  Valliama Champaka  Pillai’s case refers to Ganeshi Lal Vs. Joti Pershad - 1953 SCR 243  and also places reliance thereon.  We have come across a yet later  decision of this Court in Variavan Saraswathi and Anr. Vs.  Eachampi Thevi and Ors. \026 (1993) Supple. 2 SCC 201 wherein both  the decisions, namely, Ganeshi Lal and Valliama Champaka Pillai  have been referred  to.  Unfortunately Variavan Saraswathi was not  cited at the Bar, but in our opinion that is the most relevant decision.   Any decision of this Court other than the three, referred to  hereinabove, has not come to our notice.  We would deal with all the  three decisions to find out and lay down the correct law.  Before doing  so it would be appropriate to notice Section 92 of the Transfer of  Property Act, 1882 which, as the learned counsel for the parties have  conceded, is applicable to the present case.  It  provides : "92. Subrogation. \026 Any of the persons  referred to in s 91 (other than the mortgagor) and  any co-mortgagor shall, on redeeming property  subject to the mortgage, have, so far as regards  redemption, foreclosure or sale of such property,  the same rights as the mortgagee whose mortgage  he redeems may have against the mortgagor or  any other mortgagor.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

The right conferred by this section is called  the right of subrogation, and a person acquiring the  same is said to be subrogated to the rights of the  mortgagee whose mortgage he redeems.

A person who has advanced to a mortgagor  money with which the mortgage has been  redeemed shall be subrogated to the rights of the  mortgagee whose mortgage has been redeemed, if  the mortgagor has by a registered instrument  agreed that such persons shall be so subrogated.

Nothing in this section shall be deemed to  confer a right of subrogation on any person unless  the mortgage in respect of which the right is  claimed has been redeemed in full."

A bare reading of the provision shows that the first part of this  Section deals with subrogation by operation of law.  Subrogation by  agreement is dealt with in third para.  The present one is not a case of  subrogation by agreement.  The relevant provision applicable would,  therefore, be as contained in para I of Section 92.  The provision  statutorily incorporates the long-standing and settled rule of equity  which has been held to be applicable even in such territories where the  Transfer of Property Act does not apply.

In Ganeshi Lal’s case two plaintiffs sued for partition and  possession of their two-fifths share in the suit properties alleging that  the first defendant was alone in possession of the same, having  redeemed the mortgage executed by the joint family of which the  plaintiffs and defendants were members.  On the date of the Trial  Court’s decree the two plaintiffs were held entitled to one-sixth share  each.  The findings of fact arrived at by the Trial Court and the High  Court were that the original mortgage was a mortgage transaction of  the joint family and that the defendant no.1 prima facie had redeemed  the mortgage on his own account and for his own benefit at a time  when there was no longer any joint family in existence.  The plaintiffs  were held entitled to their share in the property subject to payment of  their proportionate share of the amount paid by the defendant no.1 to  redeem the mortgage.  The contention of the defendant no.1 that a  suit for partition and possession was not maintainable without bringing  a suit  for redemption was repelled.  One of the pleas urged before this  Court was that the suit for partition without asking for redemption was  not maintainable.  This Court held that the original mortgagee had not   assigned his rights in the mortgage to the defendant no.1.  So long as  the question of limitation was not involved, there was no objection to a  claim for redemption and one for possession and partition being joined  together in the same suit.  The principal issue to which the Court  addressed was that though Ganeshi Lal, the defendant no.1 had  redeemed the prior mortgage and stood subrogated to the  mortgagee’s rights but the real question was about the extent of his  rights as subrogee.  

Having examined the issue from all possible angles and having  referred  to Sir Rashbehary Ghose on Law  of Mortgage in India,   Harris on Subrogation, Sheldon on Subrogation, Pomeroy on Equity  Jurisprudence and a few English and Indian authorities available on the  point, what their Lordships concluded in Ganeshi Lal’s case may be  summed up as under:-

1.      When the co-debtor or co-mortgagor pays more than  his share  to the creditor for the purpose of redeeming a mortgage, the  redeeming mortgagor is principal debtor to the extent of his  share of the debt and a surety to the extent of the share in the  debt of other co-mortgagors. The redeeming co-mortgagor

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

being only a surety for the other co-mortgagors, his right is,  strictly speaking, a right of reimbursement or contribution. 2.      The substitution of the redeeming co-mortgagor in place of the  mortgagee does not precisely place the new creditor (i.e. the  redeeming co-mortgagor) in place of the original mortgagee for  all purposes.  If, therefore, one of several mortgagors satisfies  the entire mortgage debt, though upon redemption he is  subrogated to the rights and remedies of the creditor, the  principle  has to be so administered as to attain the ends of  substantial justice regardless of form; in other words, the  fictitious cession in favour of the person who effects the  redemption, operates only to the extent to which it is necessary  to apply it for his indemnity and protection. (Digambar Das Vs.  Harendra Narayan Panday, 14 C.W.N. 617). 3.      The doctrine of subrogation must be applied along with other  rules of equity so that the person who discharges the mortgage  is amply protected and at the same time  there is no injustice  done to the other joint-debtors.  He who seeks equity must do  equity. 4.      There is a distinction between a third party who claims  subrogation and a co-mortgagor who claims the right.  The co- mortgagors stand in a fiduciary relationship qua each other.   The redeeming co-mortgagor can only claim the price which he  has actually paid together with incidental expenses.  Strictly  speaking, therefore, when one of several mortgagors redeems a  mortgage, he is entitled to be treated as an assignee on  the  security which he may enforce in the usual way for the purpose   of reimbursing himself.  The subrogation to the rights of the  mortgagee by the redeeming co-mortgagor is confined only to  the extent necessary for his own equitable protection.  The  redeeming co-mortgagor can, just as the surety would, ask to   indemnify for his loss and he can invoke the doctrine of  subrogation as an aid to right of contribution.

               Undoubtedly, their Lordships have made it clear in their  judgment that they were dealing with a case where Sections 92 and 95  of the Transfer of Property Act were inapplicable and the question was  to be decided on the principles of justice, equity and good conscience.   However, the judgment also makes it clear that even the applicability  of Section 92 would not make any substantial difference inasmuch as  the redeeming co-mortgagor who claims to be substituted in the  mortgagee’s place is only on the strength of general principles of  equity and justice, and therefore, it is  equally equitable that the other  co-mortgagors should not be called upon to pay more than the  redeeming  co-mortgagor paid in discharge of the encumbrance.

In Valliamma Champaka Pillai’s case the grand-daughter of  the non-redeeming co-mortgagor instituted a suit for partition and  possession of her one-half share of the suit property.  She claimed  possession on contribution of her share of the mortgage money that  had been paid by the redeeming co-mortgagor to the mortgagee.  The  matter was heard by a Full Bench of the High Court of Karnataka  which  held that a non-redeeming co-mortgagor has two periods of  limitation within which he may file his suit against the redeeming co- mortgagor for redemption for his share, namely, within 50 years  provided for by the Tranvancore Limitation Act, starting from the date  of the mortgage, or, if that period had already expired, within 12 years  of the date of redemption by the redeeming co-mortgagor, under   Article 132 of the Travancore Act corresponding to Article 144 of the  Indian Limitation Act, 1908.  The suit was held to be barred by time.  The plaintiff appealed to the Supreme Court which was dismissed.   

A perusal of the abovesaid decision shows that there also  Section 92 of the Transfer of Property Act was not applicable and the  case was held to be determinable by general principles of equity,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

justice and good conscience.   However, the striking feature of the  case (and that will distinguish the case from the present one) is that  the Court has taken too strict a view of the pleadings and the manner  in which the case was contested by the parties.  This is noticeable from  the two facts.  Firstly, it was sought to be urged that the parties being  members of joint-Hindu family, the redemption by one of the co- mortgagors of the whole property could only be on behalf of and for  the benefit of all the joint family members including the plaintiffs.  In  the alternative, it was urged that even if  sometime after the  mortgage, but before the redemption, the family had divided in status  then also after the redemption the two branches of the family would  be deemed to be holding the property as tenants-in-common or co- owners in defined shares.  In either case, it was urged,  no question of  adverse possession or limitation would arise as the possession of the  redeeming co-mortgagor would in, law, be  the possession of the non- redeeming co-owners also.  This Court refused to entertain this plea  on the ground that such a plea was not agitated  either before the  learned Single Judge or  the Letters Patent Bench of the High Court.   Secondly, the suit though filed as a simple suit for partition it was  assumed that it was a claim for redemption with regard to the  properties which were under mortgage and had been redeemed in  entirety by one of the co-mortgagors.  In the courts below the claim  was treated to have been fought by the parties as if it were one for  redemption and this Court insisted on the suit being treated as one for  redemption of mortgage only and did not permit the plaintiff to urge  that it was a suit for partition.  The Court re-affirmed the view taken in  Ganeshi Lal’s case on the nature and extent of a redeeming co- mortgagor’s right to recover contribution from his co-debtor and  agreed  that the redeeming co-mortgagor’s status was only that of a  surety and when the surety had discharged the entire mortgage debt,   he was entitled to be subrogated to the security held by the creditor,  to the extent of getting himself reimbursed for the amount paid by him  over and above his share to discharge the common mortgage debt.   Having said so much this court went on to state that the redeeming  co-mortgagor having discharged the entire mortgage debt, which was  the joint and several liability of himself  and his co-mortgagor, was in  equity, entitled to be subrogated to the rights of the mortgagee  redeemed and to treat the non-redeeming  mortgagor as his  mortgagor to the extent of the latter’s portion or share in the  hypotheca and to hold that  portion or share as separate for the excess  payment made by him.  Thereafter, the Court proceeded on the  reasoning that the right of the non-redeeming co-mortgagor is to pay  his share of the liability and get possession of his property from the  redeeming co-mortgagor which right subsists only so long as the  latter’s right to contributions subsists.   This 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.

It is pertinent to note that their Lordships deciding Valliamma  Champaka Pillai’s case have elevated the status of the redeeming  co-mortagor’s right after redemption on payment of entire mortgage  debt, to the status of the original mortagee’s debts although there was  no assignment of the mortgage debt in his favour. This observation is  clearly beyond the law enunciated by this Court in Ganeshi Lal’s case  and followed in Valliamma Champaka Pillai’s case.  The only  reason for this, which we can apparently find, is because the plaintiff  in Valliamma Champaka Pillai’s case throughout treated the suit as  one for redemption and to which stand taken by the plaintiff, their  Lordships held, that  the plaintiff was bound and could not make a  departure, and therefore, held that the suit being one for redemption  the Article relevant to the suit for redemption of a mortgage would  apply.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

It is to be noted that 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; a suit filed by a co-owner-cum-co-mortgagor for  partition and separate possession against the redeeming co-mortgagor  and subject to payment of contribution would remain a suit  for  partition though the defendant in possession of the property would be  justified in insisting that property was not liable to be partitioned  unless the plaintiff contributed his share of the money paid for  redemption and incidental expenses.  To the latter case, wherein the  suit has been filed not by the party claiming contribution but the right  to claim partition was being set up only as defence in equity, the  limitation provided for filing a suit for contribution cannot apply.

In Variavan Saraswathi’s case the law has been set out with  precision and clarity and both the earlier decisions dealt with  hereinabove have been referred.  Their Lordships (vide para 6) have  dealt with the contrast in two situations : (i) when a mortgagee  assigns his interest in favour of another person (i.e. a stranger); and,  (ii) where a co-mortgagor or any one on behalf  of mortgagor  authorized under law pays the amount and brings to an end the  interest the mortagee had.  It has been held that in the first case the  assignee becomes holder of the same interest which the mortgagee  had, i.e., he steps into the shoes of the mortgagee.  In the latter case,  once the mortgage debt is discharged by a person beneficially  interested in equity of redemption the mortgage  comes to an end by  operation of law. Consequently, the relationship of mortgagor and  mortgagee cannot subsist.  A person paying off debt to secure the  property either with the consent of others or on his own volition  becomes, in law, the owner entitled to hold and possess the property.   But in equity the right is to hold the property till he is reimbursed.   Such right in equity either in favour of the person who discharges the  debt or the person whose debt has been discharged, does not result in  resumption  of relationship of mortgagor and mortgagee.

Dealing with Section 92 of the Transfer of Property Act it has  been held, in Variavan Sarswathi’s case that the rights  created in  favour of a redeeming co-mortgagor as a result of discharge of debt  are "so far as regards  redemption, foreclosure or  sale of such  property, the same rights as the mortgagee whose mortgage he  redeems". Posing a question \026 does a person who, in equity, gets  subrogated becomes mortgagee? their Lordships have held \026 "A plain  reading of the section does not warrant a construction that the  substitutee becomes a mortgagee.  The expression is, ’right(s) as the  mortgagee’ and not ’right(s) of mortgagee’.  The legislative purpose  was statutory recognition of the equitable right to hold the property till  the co-mortgagor was reimbursed and not to create relationship of  mortgagor and mortgagee.  The section confers certain rights on co- mortgagor and provides for the manner of its exercise as well.  The  rights are of redemption, foreclosure and sale.  And  the manner of  exercise is as if a mortgagee.  The word ’as’ according  to  Black’s Law  Dictionary means ’in the manner prescribed’.  Thus a co-mortgager in  possession of excess share redeemed by him, can enforce his claim  against non-redeeming mortgagor by exercising rights of foreclosure  or sale as is exercised by mortgagee under Section 67 of the Transfer  of Property Act.  But that does not make him mortgagee."  It was  further observed that the abovesaid legal position does not alter either  because during partition equity of redemption in respect of property  redeemed was transferred or because in the plaint it was claimed that  mortgage subsisted.

In our opinion, the law as stated in Variavan Saraswathi and  Anr.’s case where Section 92 of the Transfer of Property Act has been  specifically dealt with and which, as admitted at the Bar, applies to the  mortgage in question, clinches the issue arising for decision in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

present case.

A subrogation rests upon the doctrine of equity and the  principles of natural justice and not on the privity of contract.  One of  these principles is that a person, paying money which another is bound  by law to pay, is entitled to be reimbursed by the other.  This principle  is enacted in Section 69 of the Contract Act, 1872.  Another principle is  found in equity: "he who seeks equity must do equity".  (See  Rashbehary Ghose on Law of Mortgage, Seventh Edition, 1997, at  p.461).

The present one is a case of subrogation by the operation of law  and hence governed by the first para of Section 92 of the Transfer of  Property Act.  The provision recognizes the same equity of  reimbursement as underlies Section 69 of the Indian Contract Act that  "a person who is interested in the payment of money, which another is  bound by law to pay, and who therefore pays it, is entitled to be  reimbursed by the other".  Such a payment made, carries with it, at  times, an equitable charge.  Section 92 of the Transfer of Property Act  does not have the effect of a substitutee becoming a mortgagee. The  provision confers certain rights on the re-deeming co-mortgagor and  also provides for the remedies of redemption, foreclosure and sale  being available to the substitutee as they were available to the  substituted.  These rights the subrogee exercises not as a mortgagee  reincarnate but by way of rights akin to those vesting in the  mortgagee.  The co-mortgagor can be a co-owner too.  A property  subject to mortgage is available as between co-mortgagors for  partition, of course, subject to adjustment for the burden on the  property.  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.

In our opinion, the suit filed in the present case being a suit for  partition primarily and predominantly and the  relief of redemption  having been sought for only pursuant to the direction made by the  High Court in its order of remand, the limitation for the suit would be  governed by Article 120 of Limitation Act, 1908.  For a suit for  partition the starting point of limitation is - when the right to sue  accrues, that is, when the plaintiff has notice of his entitlement to  partition being denied.  In such a suit, the right of the redeeming co- mortgagor would be to resist the claim of non-redeeming co- mortgagor by pleading his right of contribution and not to part with the  property unless the non-redeeming co-mortgagor had discharged his  duty to  make contribution.  This equitable defence taken by the  redeeming co-mortgagor in the written statement would not convert  the suit into a suit for contribution filed by the non-redeeming co- mortgagor.

It was submitted that the earlier order of remand dated  10.2.1981 made by the High Court whereby the High Court had held  that the suit filed by the plaintiff ought to have contained a prayer for  redemption of the mortgage property and even if it did not contain  such a prayer, it ought to be construed as a suit for redemption and  the limitation for filing the suit should be calculated accordingly, has  achieved a finality in view of not having been appealed against and,  therefore, it is not any more open for the plaintiff to contend now that  his suit was not a suit for redemption but only for declaration of title,  partition and possession.  We cannot agree.

Sub-Section(2) of Section 105 of the Civil Procedure Code, 1908  provides that where any party aggrieved by an order of remand from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

which an appeal lies does not appeal therefrom, he shall thereafter be  precluded from disputing its correctness.  The provision is not without  exceptions and limitation.  First is, when the order of remand is illegal,  and more so, if it is without jurisdiction (See Kshitish Chandra Bose  Vs. Commissioner of Ranchi, (1981) 2 SCC 103.  The High Court  had in exercise of second appellate jurisdiction illegally reversed the  concurrent findings of fact and ordered remand.  It was held that in an  appeal to Supreme Court from the final order of the High Court after  remand, challenge even to the first order of the High Court making  remand, and, all the proceedings taken thereafter as a result of the  illegal order of remand, was available to be laid.  When the matter  reaches a forum, superior to one which had made the order of remand  earlier, it can go into the question of legality or validity of the order of  remand.  The bar enacted by Section 105(2) applies upto the level of  that forum which had remanded the matter earlier.   Secondly, Section  105(2) has no applicability to the jurisdiction exercisable by this court  by reference to Article 136 of the Constitution.  This is for the reason  that no appeal lies to this Court against an order of remand; an appeal  under Article 136 of the Constitution is only by special leave granted  by this Court.  It is settled law that Section 105(2) has no applicability  to the Privy Council and to the Supreme Court.  (Satyadhyan Ghosal  & Ors. Vs. Smt. Deorajin Debi & Anr., (1960) 3 SCR 590.  In the  present appeal preferred against the judgment and decree passed by  the High Court in the proceedings held pursuant to the earlier order of  remand dated 10.2.1981 the correctness of the order of remand can  be examined and gone into by this Court.

It was also submitted by the learned counsel for the respondent  that it would make a difference if the family to which the parties  belong was joint at the time of mortgage and at the time of  redemption.  The learned counsel submitted that on account of  partition in the family the parties had ceased to be co-tenants and  were tenants-in-common qua each other and therefore the redemption  by the respondent was not and cannot be deemed to be on behalf of  the family.  In our opinion, it is not necessary to deal with this  submission at all.  Whether joint-tenants or tenants-in-common the  fact remains that the status of the plaintiff and defendant was that of  co-mortgagors, one being a non-redeeming co-mortgagor and the  other being a redeeming co-mortgagor.  The law would remain the  same and its applicability would not change whether the parties are  treated as co-tenants or tenants-in-common.

For the foregoing reasons, the appeal is held liable to be  allowed.  The suit filed by the appellant is held as one within limitation.   The plaintiff is held entitled to the preliminary decree for partition.

It was stated at the Bar that even during the pendency of this  litigation the property has changed hands and substantial construction  has come up on the property which is likely to create insurmountable  difficulties in dividing the property by metes and bounds consistently  with the entitlement of the parties.  That aspect need not detain us at  this stage.  We have stated the correct position of law which should  govern the suit and the parties.  In spite of the preliminary decree  having been passed it will be open for the court, at the state of  passing a final decree, to see how the law and the equities are to be  adjusted and whether instead of actually dividing the property it would  be more appropriate to adopt some other mode of satisfying the  claims of the parties as per their entitlement.

The appeal is allowed.  The judgment of the High Court is set  aside.  The judgment and decree of the trial court are restored.  No  order as to the costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10