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PETITIONER: VALLIAMMA CHAMPAKA PILLAI

       Vs.

RESPONDENT: SIVATHANU PILLAI AND ORS.

DATE OF JUDGMENT24/08/1979

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH SHINGAL, P.N. REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR 1937            1980 SCR  (1) 354  1979 SCC  (4) 429

ACT:      New plea-permissible  to be  taken in the final tier of the appeal in the Supreme Court.      "Acknowledgement"-What  constitutes   under  Limitation Act, 1908, explained.      Limitation-Time  limit   for  the   non-redeeming   co- mortgagor  to  file  his  suit  against  the  redeeming  co- mortgagor-Limitation  Act,   1908   (Travancore   Limitation Regulation) explained.      State decisis,  principle of-Value  of the  judgment of the former High Courts of Indian States after Reorganisation of the States-Practice and procedure.

HEADNOTE:      Between the  years 1881-1882  the two brothers Madhavan and Sivathanu  mortgaged with  possession items 31 to 42 and 44  of   the  suit   properties,  which   were  redeemed  by Padmanabhan,  father  of  defendants  1  to  3  (Respondents herein) between the years 1913 and 1918 by paying the entire redemption money  and he  alone obtained possession thereof. The redemption  was effected by obtaining release deeds from the       former        mortgagees-in-possession.        The appellant/plaintiff, the grand-daughter of the non-redeeming co-mortgagor, Madhavan,  instituted a  suit on July 15, 1946 for partition  and possession  of her  one-half of  the suit properties. In respect of items 34 to 36, 38, 39 and 44, she claimed possession  on contribution  of  her  share  of  the mortgage money  that had  been paid  by  the  redeeming  co- mortgagor to  the mortgagee.  It was  alleged in  the plaint that this  half share  of appellant’s father devolved on his widows on  his death,  without male issue, and subsequently, on the  death of  the widows  the same was inherited by her. The respondents/defendants resisted the suit, inter alia, on the ground  that appellant  would not be entitled to recover her half share in the plaint schedule, items 31 to 42 and 44 because the  period of  limitation for  redemption of  these mortgages, under the Travancore Limitation Regulation was 50 years which  had expired long before the filing of the suit. The Trial  Court held (a) that the right of the appellant to recover her  half share  of the plaint items 31 to 42 and 44 was  not  barred  by  limitation  (b)  that  the  period  of

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limitation  for  a  suit  by  a  non-redeeming  co-mortgagor against the  redeeming mortgagor  is 50  years under Article 136 of  the Travancore  Limitation Regulation (corresponding to Article  148  of  the  Limitation  Act,  1908);  (c)  the starting point  of limitation  is the  date of redemption by the redeeming comortgagor; and (d) the various release deeds by which  the mortgages  were  redeemed  by  the  father  of Respondents 1  to 3  amounted to  "acknowledgements"  giving fresh start of limitation.      In appeal,  the learned  single judge of the High Court held that  the suit  was barred  by limitation so far as the plaint items  31 to  42 and 44 were concerned in view of the fact that a non-redeeming mortgagor would have only a period 355 of 12  years limitation  under Article 144 of the Limitation Act, 1908,  and that  Article 148 of that Act (corresponding to Article  136 of  the Travancore Limitation Regulation) is not the  proper Article,  to be applied to such a suit where the Transfer of Property Act, as amended by the Amending Act of 1929, was not in force.      In the Letters Patent appeal by the appellant, the full Bench by  its majority  judgments 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 of  his share,  namely, within  50 years provided for by  the Travancore  Limitation Regulation, starting from the date  of  mortgage,  or,  if  that  period  has  already expired, within  12 years  of the  date of redemption by the redeeming co-mortgagor,  under Article 132 of the Travancore Limitation Regulation  corresponding to  Article 144  of the Indian Limitation Act, 1908. Hence the appeal by certificate by the appellant/plaintiff.      Dismissing the appeal, the Court. ^      HELD :  1. Supreme Court will not allow an appellant to turn round  and take  up a  plea which  he had  not agitated before the Courts below. [361B&H]      2. Under Section 18 of the Limitation Act, 1908, one of the essential  requirements for a valid "acknowledgement" is that the  writing concerned  must contain  an admission of a subsisting liability.  A mere  admission of a past liability is not  sufficient to  constitute such an "acknowledgement". Hence a  mere recital in a document as to the existence of a past liability,  coupled with a statement of discharge, does not constitute  an acknowledgement within section 18. Tested on this  touch-stone, the  release deeds,  Exhibits IV, XIV, XXI and  XXII pertaining  to items  31 to  36, 39, 40 and 44 executed by the original mortgagees stating, in effect, that the mortgages  had  been  extinguished  by  payment  of  the mortgage debts in entirety, by the redeeming co-mortgagor do not amount  to acknowledgement  of  a  subsisting  liability which could  give a fresh starting point of limitation. [362 D-G]      Raman Pillai  v. Arthan Pillai, 23 Tr. L.J. 947 Muthiah Nadar v. Ramaswamy Nadar, [1953] 8 DLR 563; Parameshwaran v. Narayanan, 8 DLR 562 differed from.      3. There  is nothing  in the States Reorganisation Act, 1956 or  any  other  law  which  exalts  the  ratio  of  the decisions of  the Travancore  High Court  to the status of a binding  law,   nor  could  the  ratio  decidendi  of  those decisions be  perpetuated by  invoking the doctrine of Stare decisis. At  best, they have a persuasive effect and not the force of binding precedents on the Madras High Court. [363A- B]      4. Even  where the  Transfer of Property Act was not in

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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 subrogated to  the rights  of the  mortgagee redeemed and to treat the non-redeeming co-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 security  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 his co-debtor’s share of the mortgage debt was 356 only that  of a  surety; and  when the surety had discharged the entire  mortgage debt,  he was entitled to be subrogated to the  securities 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. [364G-H, 365A-B]      5. Where the Transfer of property is not in force and a mortgage with  possession s made by two persons, one of whom only redeems  discharging the  whole of  the common mortgage debt, he will, in equity, have two distinct rights; Firstly, to be  subrogated to the rights of the mortgagee discharged, vis-a-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 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.  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. [365H, 366A-D]      Ganeshi  Lal   v.  Joti   Parshad  [1953]  S.C.R.  243, followed.      6. 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. [366 G-H]      7. In  the instant  case, the  original mortgages  were made during  the years  1881 to  1884. They were redeemed by the co-mortgagor  in Sivathanu’s line between the years 1913 to 1918  by paying  the  entire  common  mortgage  debt  and obtaining possession  of the entire hypotheca. The plaintiff who is  the successor-in-interest  of the  non-redeeming co- mortgagor, Madhavan,  filed the suit in 1946, for redemption of her  half share  on payment  of her  half  share  of  the mortgage amount  and expenses  to the defendant-respondents,

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successors in-interest of Sivathanu. The suit was thus filed more than  12 years  after  the  expiry  of  the  50  years’ limitation  prescribed  for  a  suit  for  redemption  under Article 136  of the  Travancore Regulation  and more than 28 years after the redemption, in 1918, of the last mortgage by the redeeming  co-mortgagor. This  being the  situation, the non-redeeming mortgagor’s suit for his share of the property on payment  of his proportionate share of the mortgage money would be  barred irrespective  of whether  the limitation is governed  by   the  provisions   of  Limitation   Regulation corresponding to  Article 132 or 144 or any other Article of the  Indian  Limitation  Act,  1908.  Since  the  Limitation started running  in 1913  or 1918,  the suit was time barred from every point of view. [367 C-F] 357

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1295 of 1969.      From the  Judgment and  Decree dated  26-3-1964 of  the Madras High Court in L. T. A. No. 18/61.      Miss Lily Thomas for the Appellant.      Vepa P. Sarathi and A. V. Rangam for the Respondents.      The Judgment of the Court was delivered by      SARKARIA, J.  This is  a  plaintiff’s  appeal  directed against a  judgment and decree, dated March 26, 1964, of the High Court of Madras, passed in Letters Patent Appeal No. 18 of 1961.  The relationship of the main contesting defendants will be apparent from the following geneological table :                       Thanuvan                                                            |      ---------------------------------------------      |                                           |   Madhavan                                   Sivathanu      |                                           |   Madhavan Thanuvan                      Padmanadhan Pillai      |                                  =Ammalu Ammal (D-4)   Valliamma                                      |   Chemapaka Pillai           ----------------------------   (Pltf)                     |             |            |                          Sivathanu      Easwara    Velayudha                          Pillai         Pillai     Pillai                          (Dfdt.1)       (Dfdt.2)   (Dfdt.3)    ---------------------------------------------------------      Valliamma, appellant  herein is the original plaintiff. She is the grand-daughter of Madavan. Respondents 1 to 3 are the original  defendants 1  to 3. They are the grand-sons of Sivathanu. The  properties in dispute are items 31 to 42 and 44 detailed in the plaint.      Between the  years 1881-1882, the two brothers Madhavan and  Sivathanu   mortgaged  these   properties  by   way  of usufructuary mortgages  which were  redeemed by Padmanabhan, father of  defendants 1,  2 and 3 between the years 1913 and 1918 by  paying the  entire redemption  money and  he  alone obtained possession  thereof. The redemption was effected by obtaining  release  deeds  from  the  former  mortgagees-in- possession. The particulars of these mortgages and the 358 release deeds  executed  in  favour  of  the  redeeming  co- mortgagor are as under:      (i) Exhibit  III, dated  September 29,  1059 (1884), is the mortgage  executed by  the two  brothers in  respect  of items 34  to  36,  38  and  39  and  44  in  favour  of  the

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grandfather of  D.W.2. Exhibit IV is the release deed, dated April 18, 1093 (1918), in favour of Padmanabhan.      (ii) Exhibit  IX is the mortgage, dated August 19, 1056 (1881), executed by the two brothers in favour of Cochi Ravi Pillai in  respect of  items 32  and 40.  Exhibit XIV, dated February 21,  1088 (1913),  is the release deed in favour of Padmanabhan.      (iii) Exhibit  XV is  the mortgage,  dated February 25, 1058 (1883),  in respect  of  plaint  item  41  by  the  two brothers in  favour of  Armugham  Narayana.  Exhibit  XVIII, dated August 31, 1088 (1913), is the release deed.      (iv) Exhibit XIX is the mortgage, dated August 14, 1058 (1883), in  respect of  items 31,33  and  37  in  favour  of Chinnakannu Pandaram.  Exhibit XX is the release deed, dated January 23, 1088 (1913).      (v) Besides  the above, the two brothers had executed a Vellaolai Othi  in  1043  (1868)  in  respect  of  item  42. Exhibits 21  and 22  dated August  21, 1088  (1913), are the release deeds.      The plaintiff,  the grand-daughter of the non-redeeming co-mortgagor, Madhavan, instituted the suit on July 15, 1946 for partition  and possession  of her  one-half share of the suit properties.  In respect  of items  34 to 36, 38, 39 and 44, she  claimed possession  on contribution of her share of the mortgage  money that  had been paid by the redeeming co- mortgagor to  the mortgagees.  It was  alleged in the plaint that this  half share  of the plaintiff’s father devolved on his  widow   on  his   death,  without   male   issue,   and subsequently, on  the death  of the  widows,  the  same  was inherited by the plaintiff.      Defendants 1  to 3 resisted the plaintiff’s suit, inter alia, on  the ground  that even  if the  courts come  to the conclusion that  the division  of the  joint  family  status alleged by  the plaintiff  was true, the plaintiff would not be  entitled  to  recover  her  half  share  in  the  plaint schedule, items  31 to  42 and  44, because  the  period  of limitation for  redemption of  these  mortgages,  under  the Travancore Limitation  Regulation was  50 years,  which  had expired long before the filing of the suit. 359      The suit  was tried by the Second Judge of the District Court,  Nagercoil,   who  on  February  16,  1948  passed  a preliminary decree in favour of the plaintiff, declaring her right over one-half share of the Schedule properties and her right to  recover the  same, together  with  mesne  profits, after division by a Commissioner appointed by the Court. The case was adjourned for final decree proceedings. By the same judgment, dated  February 16, 1948, the questions covered by issues 3  to 9  including that  of limitation, were left for decision in the final decree to be passed in the case.      Against that  preliminary decree,  defendants  1  to  3 preferred a  First  Appeal  in  the  Travancore-Cochin  High Court. The  High Court  dismissed the  appeal on October 19, 1953, and  affirmed the  preliminary decree  passed  by  the trial court. Thereafter, the plaintiff took out a commission to  divide   the  properties   by  metes   and  bounds.  The Commissioner  submitted   his  report,  lists  and  plan  of division.      Against  the  final  decree,  both  the  plaintiff  and defendants 1 to 3 preferred First Appeals 49 and 37 of 1955, respectively, to  the Travancore-Cochin  High  Court,  which allowed these  appeals and sent the matter back to the trial court for passing a fresh final decree.      The suit was thereafter transferred to the Court of the Subordinate Judge  of Padmanabhapuram,  who passed  a  final

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decree on  March 19,  1957. It is from this final decree and judgment that this appeal has arisen.      The learned  Subordinate Judge  held that  the right of the Plaintiff  to recover her half share of the plaint items 31 to  42 and  44 is  not barred  by limitation. Following a decision of  the Travancore-Cochin High Court, reported in 8 Dominion Law Reporter (T.C.) 562, he held that the period of limitation  for  a  suit  by  a  non-redeeming  co-mortgagor against the redeeming co-mortgagor is 50 years under Article 136 of  the Travancore  Limitation Regulation (corresponding to Article  148 of  the Limitation  Act, 1908)  and that the starting point  of limitation  is the  date of redemption by the redeeming  co-mortgagor. He reasoned that since the suit was instituted  within 50  years of that date, it was within time. He  further held  that the  various release  deeds  by which  the   mortgages  were   redeemed  by  the  father  of defendants 1  to 3,  amounted  to  acknowledgements,  giving fresh starts of limitation.      Against this  final decree  of the  Subordinate  Judge, defendants 1  to 3 preferred First Appeal 305 of 1957 in the High Court  of Judicature at Madras. The appeal was heard by a learned  Single Judge  (P. Ramakrishnan,  J.), who  by his judgment, dated December 23, 360 1960, held  that the suit was barred by limitation so far as plaint items  31 to  42 and  44 were concerned. In his view, the plaintiff, who is in the position of a non-redeeming co- mortgagor, would  have only  a period of 12 years limitation under Article  144 of  the Limitation  Act, 1908,  and  that Article 148 of that Act (corresponding to Article 136 of the Travancore Limitation  Regulation) is not the proper Article to be  applied to such a suit where the Transfer of Property Act, as  amended by  the Amending  Act of  1929, was  not in force. In  taking this  view, the  learned Judge declined to follow the decision of the Travancore Cochin High Court.      Aggrieved by  this judgment  and decree  of the learned Single Judge,  the  plaintiff  preferred  a  Letters  Patent Appeal. The  appeal was  ultimately heard by a Full Bench of three  learned  Judges.  S.  Ramachandra  Iyer,  C.  J.  and Jagadeesan, J.  in their  separate but  concurrent judgments 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 of his share, namely, within 50  years provided  for by  the Travancore Limitation Regulation, starting  from the  date of the mortgage, or, if that period has already expired, within 12 years of the date of redemption  by the  redeeming co-mortgagor, under Article 132 of the Travancore Limitation Regulation corresponding to Article 144  of the  Indian Limitation  Act, 1908.  On  this reasoning, the  majority held  that the plaintiff’s suit for recovery of  possession in  respect  of  all  the  aforesaid items, except  item 41,  was barred by limitation. The third learned Judge  in his  dissenting judgment,  held  that  the plaintiff would get a period of 50 years limitation starting from the  date of  the redemption  of her  share against the redeeming co-mortgagor. On this reasoning, he found the suit to be within time.      Hence this  appeal on  certificate issued  by the  High Court under Article 133 of the Constitution.      The first  contention advanced  by the  learned counsel appearing for  the appellants  is that  at the time when the two brothers,  Madhavan and  Sivathanu made the mortgages in question, they  were members of a joint Hindu family and the mortgages were  also made  of  the  joint  family  property; consequently, the  redemption by one of the co-mortgagors of

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the whole  property, could  only be on behalf of and for the benefit of  all the  members of  the joint family, including the plaintiffs.  In the  alternative, it  is submitted  that even if  it is  conceded that  some time after the mortgages but before the redemption, the 361 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 is argued, 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.      We are  afraid, the appellant cannot be allowed to turn round and  take up  this plea  which he  had  not  agitated, either before the learned Single Judge or the Letters Patent Bench of  the High  Court. In  this connection,  the learned Single Judge  has observed:  "Though there was an issue that these  two   branches  (of   Madhavan  and  Sivathanu)  were undivided in status, the finding of the Court below was that they were divided at all material times, and this finding is not the subject of controversy in this appeal."      Counsel points  out that the observation of the learned Single Judge  to the  effect, that  the "Court below" (trial court) had  found that  the two  branches of the family were divided in  status, was  wrong inasmuch  as he referred to a finding in  an earlier judgment of the trial court which had been set  aside in  appeal. It  is submitted  that after the remand such  a finding was not reiterated by the Subordinate Judge. Be  that as  it may,  the crucial part of the learned Judge’s observation, which has been underlined, is obviously correct. The  fact remains  that this  plea about the family being joint in statue at the material time, was not agitated before the  learned Single  Judge, nor pressed into argument before the  Full Bench  in Letters  Patent Appeal. The first and the  second appellate courts below, therefore, proceeded on the  assumption that  the two  brothers who  created  the mortgages in question, and their branches were, at all times material, not members of an undivided Hindu family, having a joint status.  Nor was  the alternative  plea, that  the two branches of  the family were holding these properties as co- owners, and  as such,  the possession  of the  redeeming co- mortgagor would  be deemed  to be  on  behalf  of  the  non- redeeming co-mortgagor also ever passed into argument before the courts  below. Moreover,  the material  on the record is too meagre  to furnish  adequate factual foundation for this contention  including  its  alternative  limb.  Indeed,  the counsel requested  that the  case should  be remanded to the trial court  for determining  this  plea  after  giving  the parties another opportunity to produce evidence thereon.      For  the   aforesaid  reasons  we  do  not  permit  the appellant to reagitate this plea which in any of its aspects was not pressed into argument in the courts below. 362      The second  contention of  the learned  counsel is that the release  deeds executed by the original mortgagees would amount  to   an  acknowledgement  of  the  liability  to  be redeemed, and thus furnished a fresh start of limitation for a suit  for redemption.  Reliance for this argument has been placed on  some decisions  of  the  Travancore  High  Court, namely :  Raman Pillai  v. Arthan  Pillai; Muthiah  Nadar v. Ramaswami  Nadar;   Parameshwaran  v.   Narayanan.   It   is emphasised that  at the  material time,  the suit properties were situated  in the  territory of the erstwhile Travancore State, and  in view  of the States Reorganisation Act, 1956,

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the law  applicable to  the case is the law prevailing prior to 1st  November, 1956,  and not the law in the Madras State to which  the territory  from which the case has arisen, was added. The  point sought  to be  made out is that the Madras High  Court  was  legally  bound  to  apply  the  Travancore Limitation Regulation  as interpreted by the Travancore High Court, in  preference to the earlier decisions of the Madras High Court.  It is  urged that even on the doctrine of stare decisis, the  learned Judges of the High Court ought to have adhered to  the view  taken by  the Travancore  Court in the said cases.      This contention  was raised  before the appellate Bench of the  High Court,  also, and  was rightly  rejected. Under Sec. 18,  Limitation Act,  one of the essential requirements for a  valid ’acknowledgement’ is that the writing concerned must contain  an admission of a subsisting liability. A mere admission  of   a  past   liability  is  not  sufficient  to constitute such  an ’acknowledgement’.  Hence a mere recital in a  document as  to the  existence of  a  past  liability, coupled  with   a  statement  of  its  discharge,  does  not constitute an  ’acknowledgement’ within this section. Tested on this touchstone, the release-deeds, Exhibits IV, XIV, XXI and XXII  pertaining to  items 31  to 36,  39,  40  and  44, executed by the original mortgagees stating, in effect, that the mortgages  had  been  extinguished  by  payment  of  the mortgage debts  in entirety,  by the redeeming co-mortgagor, do not amount to acknowledgements of a subsisting liability, which could give a fresh starting point of limitation.      If we may say so, with due deference, the view taken by the  Travancore  (or  T.C.)  High  Court  in  the  aforesaid decisions did not proceed on a correct interpretation of the corresponding provisions  of the  Travancore Regulation.  We find ourselves in respectful agree- 363 ment with  the reasoning  and the  finding of the High Court (majority) on this point, in the judgment under appeal.      These  erroneous  decisions  of  the  Travancore  Court could, at  best, have  a persuasive effect and not the force of binding  precedents on  the Madras  High Court.  There is nothing in  the States  Reorganisation Act 1956 or any other law which  exalts the ratio of those decisions to the status of a  binding law,  nor could  the ratio  decidendi of those decisions be  perpetuated by  invoking the doctrine of stare decisis.      In short,  the plaintiffs  suit could not be saved from being timebarred in respect of items 31 to 36, 39, 40 and 44 on the ground that the release deeds relating thereto amount to  ’acknowledgements’   within  the  contemplation  of  the relevant Limitation Statute.      The case  of item  41, however,  (it is  common  ground before us)  stands on  a different footing. The High Court’s finding, that  in respect  of this  item the  suit is within time has not been challenged before us.      The last  and the most important question that falls to be determined  is: Which  Article of  Travancore  Limitation Regulation  will  govern  a  suit  by  a  non-redeeming  co- mortgagor  to   recover  possession  of  his  share  of  the hypotheca on  payment of  the proportionate  amount  of  the mortgage debt discharged by the redeeming co-mortgagor ?      The counsel  for the  appellant submits  that the  High Court was  wrong in  holding that limitation for such a suit (brought after  the expiry  of 50 years from the date of the original mortgages)  was governed  by  Article  132  of  the Travancore Limitation  Regulation corresponding  to  Article 144, Indian  Limitation  Act,  1908,  because  this  Article

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cannot apply  to a  suit for  redemption of  his share  by a nonredeeming  co-mortgagor   against   the   redeeming   co- mortgagor, and the latter’s possession cannot become adverse to the  plaintiff. It  is maintained that limitation for the suit will  be governed  by Article  136  of  the  Travancore Regulation  (corresponding   to  Art.   148  of  the  Indian Limitation Act,  1908), but the starting point of limitation will not  be the  date of  the old  mortgage but the date on which the  old mortgage  was redeemed  by the  redeeming co- mortgagor and in its place, a split-up mortgage in an abated form confined  to the  plaintiff’s share came into being. It is argued  that  in  this  new  situation  the  nonredeeming mortgagor’s "right to redeem and to recover possession" will accrue only  after the  redemption of the old mortgage, with the  result   that  under  Article  136  of  the  Travancore Regulation, the 364 plaintiff would  have a  period of  50 years commencing from the date  of the  redemption, to  recover possession  of his share from  the redeeming  co-mortgagor. In  short,  counsel have canvassed for the dissenting view taken by Venkataraman J. According to counsel, this was also the view taken by the former Travancore  High Court,  and the  same ought  to have been followed  on the  principle of  stare  decisis  by  the Madras High Court.      For  dealing   with  this   contention  in   the  right perspective, it is necessary to appreciate the true position of  a   co-mortgagor  redeeming   the  whole   hypotheca  by discharging the  entire  mortgage  debt.  Does  such  a  co- mortgagor step  into the  shoes of the mortgagee whom he has paid off,  vis-a-vis the non-redeeming co-mortgagor? That is to say,  is the redeeming co-mortgagor’s right merely one of subrogation to  the rights  of the mortgagee discharged ? If so, to what extent ? Further, what are the correlated rights of the  non-redeeming co-mortgagor in the property after the entire mortgage has been redeemed by his co-debtor ? Does he retain only  the rights under the former mortgage ? Or, does he acquire a further right, consequent on redemption, to get back  his  portion  or  share  of  the  hypotheca  from  the redeeming  co-mortgagor  on  payment  of  the  proportionate amount of  the common mortgage debt discharged by the latter ? These  are some of the preliminary questions which have to be answered  before ascertaining  the appropriate Article of the relevant  statute which  will govern  limitation in this case.      In that  connection, it  is important  to bear  in mind that both  at the  time of  making these mortgages and their redemption by  one of  the co-mortgagors,  the  Transfer  of Property Act  or any  like statute  was not  in force in the State of Travancore, wherein these properties were situated. The  questions  posed  are  therefore,  to  be  answered  in accordance with  the principles  of justice, equity and good conscience.      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 that 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 subrogated to  the rights  of the  mortgagee redeemed and to treat the non-redeeming co-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 security  for the excess

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payment made  by him.  This equitable right of the redeeming co-mortgagor stems from the doctrine that he was a principal debtor 365 in respect  of his  own share  only, and  his  liability  in respect his  codebtor’s share  of the mortgage debt was only that of  a surety:  and when  the surety  had discharged the entire mortgage  debt, he  was entitled  to be subrogated to the securities  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.      For the  view we  take, we  derive support from certain observations of  this Court  in Ganeshi Lal v. Joti Parshad. While discussing  the nature  and extent  of a redeeming co- mortgagors right to recover contribution from his co-debtor, this Court  speaking through  Chandrashekhara Aiyar J., made these incidental  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 discharged 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 or contribution".      It is  note-worthy that  Ganeshi Lal  v.  Joti  Parshad (supra) 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 or 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 366 made by  two persons,  one of  whom only redeems discharging the whole  of the  common mortgage debt, he will, in equity, have two  distinct rights:  Firstly, to be subrogated to the rights of  the  mortgagee  discharged,  vis-a-vis  the  non- redeeming co-mortgagor,  including the  right  to  get  into possession of the latters 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  other  co-mortgagor  by paying off the entire mortgage debt, a correlated right also

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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.  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 provision  of the relevant statute of limitation which prescribes  limitation for  a  suit  to  enforce  this correlated  right   of  the   ’non-redeeming’  co-mortgagors 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.      Since subrogation  of the  redeeming co-mortgagor would give him  the right  under the original mortgage to hold the non-redeeming co-mortgagors  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. 367      Article 136  of the  Travancore  Limitation  Regulation (which correspond  to Article  148 of  Indian Limitation Act 1908) reads as under: ------------------------------------------------------------ Description of suit           Period of   Time from                               Limitation  begins to run ------------------------------------------------------------ Art. 136 Against a mortgagee to redeem Fifty years When the right to or to recover possession of               redeem or to immovable property mortgaged              recover possession                                           accrues ------------------------------------------------------------      The original  mortgages were made during the years 1881 to  1884.   They  were   redeemed  by  the  co-mortgagor  in Sivathanu’s line  between the  years 1913  to 1918 by paying the entire  common mortgage debt and obtaining possession of the entire hypotheca. The plaintiff who is the successor-in- interest of  the non-redeeming co-mortgagor, Madhavan, filed the suit in 1946, (which was renumbered as O.S. 135 of 1956) for redemption  of her  half share  on payment  of her  half share of  the mortgage amount and expenses to the defendant- respondents successors-in-interest  of Sivathanu.  The  suit was thus filed more than 12 years after the expiry of the 50 years’ limitation prescribed for a suit for redemption under Article 136  of the  Travancore Regulation, and more than 28 years after  the redemption in 1918, of the last mortgage by

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the redeeming  co-mortgagor. This  being the  situation, the non-redeeming mortgagor’s suit for his share of the property on payment  of his proportionate share of the mortgage money would be  barred irrespective  of whether  the limitation is governed  by   the  provisions   of  Limitation   Regulation corresponding to  Article 132 or 144 or any other Article of the Indian  Limitation Act,  1908. Therefore,  as at present advised, we do not feel the necessity of laying down the law with regard to this aspect of the case. Since the limitation started running  in 1913  or 1918,  the suit was time-barred from every point of view.      For all  the fore-going  reasons, we uphold the finding of the  High Court  that the  plaintiff’s claim in regard to suit items  31 to  40, 42 and 44 was time barred and dismiss the appeal.  In the  peculiar circumstances of the case, the parties are  left to  pay and  bear their  own costs in this Court. S.R.                                       Appeal dismissed. 368