KRISHNA PILLAI RAJASEKHARAN NAIR (D) BY LRS.versusPADMANABHA PILLAI (D) BY LRS. AND ORS.

A         KRISHNA PILLAI RAJASEKHARAN NAIR (D) BY LRS.
                                         v.
              PADMANABHA PILLAI (D) BY LRS. AND ORS.

                              DECEMBER 15, 2003

B                  [R.C. LAHOTI AND ASHOK BHAN, JJ.]

        Transfer of Property Act, 1882; Section 92 I Contract Act, 1872 ;
  Section 69 I Limitation Act, 1963; Articles 120, 132 and 144-Subrogation-
   One of the co-mortgagors redeeming the property mortgaged by making
C full payment-Suit for declaration oftitle/partition by non-redeeming co-
   mortgagors-Tria l Court and First Appellate Court decreeing the suit-
  High Court holding that the suit without prayer of redemption is not
   maintainable and remanded back to trial court for amending the plead-
   ings-Trial court and First Appellate Court again decreeing the suit-High .
D Court holding that the suit is barred by limitation-Correctness of-Held,
   redeeming co-mortgagor cannot claim a right higher than the right ofnon-
   redeeming co-mortgagors-Non-redeeming co-mortgagors are entitled to
  partition of suit property on reimbursement of amount of their share to
   redeeming co-mortgagors-Suit was basically a suit for partition and
   hence the suit is not barred by limitation.
E
         Civil Procedure Code, 1908-Section 105(2)-0rder of remand
    made by the High Court-Held, Supreme Court in appeal against decree
    consequent upon order of remand can go into the question of its legality
    or validity of earlier order of remand-Constitution of India-Article 136.
F        The suit property of a Joint Hindu Family was subject to
   usufructuary mortgage. After the partition, some members of the
   family filed a suit for redemption of mortgage before the trial court.
   The suit was decreed. After the decree, C, one of the members, got the
   suit property redeemed by making full payment of m'ortgage money
.G and entered into possession over the suit property. Appellant-plaintiff
   filed a suit before trial court seeking relief of declaration of title of his
   9/12th share in the suit property with recovery of possession and in the
   alternative, the relief of partition. The trial court decreed the suit
   subject to payment towards reimbursemeqt of the amount spent in
 H redeeming the property to d~fendant no. 1, who is the legal heir of C.
                                        832
                       K.P.R. NAIR v. P. PILLAI                      833

The trial court's order was upheld by the first appellate court A
dismissing the appeal preferred by defendant no. I. Defendant no. I
filed second appeal before High Court contending that the appellant's
suit for declaration, partition and recovery of possession without a
prayer for redemption of the mortgage property was not maintainable
since defendant no. l had already subrogated himself in place of B
original mortgagee on making full payment of mortgage money; and
that even if the suit for redemption is filed, it is barred by time under
Article 148 of the Limitation Act, 1908. High Court allowed the appeal,
set aside the decree under appeal and remanded the case back to the
trial court with liberty to amend the pleadings to include prayer for C
redemption. 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. The second appeal by defendant no. 1 was
allowed by the High Court holding that the suit of the appellant was
barred by limitation. Hence this appeal.
                                                                           D
     The respondents contended that the suit of the appellant was
barred by time under Article 132 and 144 of the Limitation Act, 1961;
and 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           E
deemed to be on behalf of the family.

     Allowing the appeal, the Court

     HELD : 1.1. Subrogation rests upon the doctrine of equity and the
principles of natural justice and not on the privity of contract. A person, F
paying money which another is bound by law to pay is entitled to be
reimbursed by the other. This is a case of subrogation by the operation
oflaw and hence governed by the first para of Section 92 of the Traqsfer
of Property Act, 1882. The provision recognizes the same equity of
reimbursement as underlies Section 69 of the Indian Contract Act, 1872. G
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 redeeming co-mortgagor an..: also provides for the remedies of
redemption, foreclosure and sale being available to the substitutee as H
    834                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A they were available to the substituted. These rights he 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
B   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-co-mortgagor being made subject to the
C   exercise of the equitat,le right to claim contribution vesting in him by
    subrogation. [846-H, 847-B-E)

        Variavan Saraswathi & Anr. v. Eachomoi Thevi & Ors., [1993)
    Suppl. 2 SCC 201, relied on.

D         Ganeshi Lal v. Joti Pershad, [1953] SCR 243 and Valliama Champaka
    Pillai v. Sivathanu Pillai & Ors., [1979) I SCC 129, distinguished.

         Rashbehary Ghose on Law of Mortgage, Seventh Edition 1997,
    referred to.
E
          1.2. The suit filed by the appellant is 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
F   of the Limitation Act, 1908. For a suit for f>artition, 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 rights 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 c.o-
G   mortgagor had discharged his duty to make contribution. This equi-
    table defence taken by the redeeming co-mortgagor in the written
    statement would not convert the suit into a suit for redemption filed
    by the non-redeeming co-mortgagor. [847-F-H, 848-A)

H         2. Whrn the matter reaches a forum, superior to the one which had
                      K.P.R. NAIR v. P. PILLAI                      835

made the order of remand earlier, it can go into the question of legality A
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. 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 reaso~ that no a·ppeal lies to this Court against an order of remand; B
an appeaf under Article 136 of the Constitution is ::;ily 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. In the
present appeal preferred against the judgment and decree passed by the
High Court an appeal arising from the proceedings held pursuant to the C
earlier order of remand, the correctness of the order of remand can be
examined and gone into by this Court. (848-F-H; 849-AJ

     Kshitish Chandra Bose v. Commissioner of Ranchi, (1981) 2 SCC
103 and Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., (1960)
3 SCR 590, referred to.                                               D
      3. 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- E
tenants or tenants-in-common. The suit filed by the appellant is held
as one within limitation. The plaintiff is held entitled to the preliminary
decree for partition. (849-C-DJ

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 13133 of p
1996.

     From the Judgment and Order dated 22.3.93 of the Kerala High Court
in S.A. No. 825 of 1986-F.

     B.V. Deepak, Ms. Malini Poduval and Ms. Lansinglu Rongmei for G
the Appellants.

     S. Balakrishnan, Abhay Kumar, R. Gopalakrishnan, Ms. Prachi
Vajpai, S. Prasad and M.K.D. Namboodiri for the Respondents.

     The Judgment of the Court was delivered by                           H
    836                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A         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
B   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. I respectively as the plaintiff and defendant No. I as they
    were arrayed before the trial court. They are the principal contesting
    parties. Unfortunately, both of them have died. Their legal representatives
C   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
D   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'.

E           The property in suit was subject to an us.ufructuary mortgage ofthe
    year I 078 Malyalam Era. After the partition, I 0 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
F   defendant No. I 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
G   cents of 'C' Schedule property. In the year 1971, the plaintiff filed' the
    present suit seeking relief of declaration of title with recovery of posses-
    sion, and in the alternative, the relief of partition. On 7.12.1973, the trial
    court decreed the suit upholding the plaintiffs ~ntitlement to 9/12 shares
    in the suit property but subject to payment of Rs. 208 to reimburse the first
H   defendant by way of contribution towards the amount spent by him in
                K.P.R. NAIR v. P. PILLAI [LAHOTI, J.]                  837

redeeming the property. A preliminary decree determining the share of the A
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. l. Defendant No. I preferred a 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 B
was urged before the High Court on behalfofthe riefondant No. l 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 merely
for declaration, partition and recovery of possession, was not maintainable
and it was necessary for the plaintiff to have sought for the relief of C
redemption. Even if the relief of redemption of mortgage was not
specifically sought for, it was submitted on behalf of the defendant No. I
that the suit in substance was one for redemption and construed so it was
barred by time under Article 148 of the Limitation Act, t 908. 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 D
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 E
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. I
had redeemed the property on behalf of the entire family, and therefore, F
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 correct-
ness of the view taken by the learned single Judge in the earlier order of G
the High Court remanding the case to the trial court but felt bound (and
helpless) by the observations and the directions made in the eariier
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 was to have H
    838                SUPREME COURT REPORTS[2003] SUPP. 6 S.C.R.

A 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 I 078 mortgage arises at all". The learned Judge
B held that "the first defendant was not required to claim the status of a·
   redeeming co-mortgagor vis-a-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
C 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.

D           At the very outset, it may be ·stated that the learned counsel for
    defendant No. I 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. I while
E   redeeming the property alone 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' property is concerned it was
F   subject to mortgage and the plaintiff and defendant No. I. 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. I 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
G   all having entitl~ment 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
H   commensurate with his share. We have to see what are the rights and
                K.P.R. NAIR v. P. PILLAI [LAHOTI, J.]                839

obligations of the parties qua each other and whether a suit for partition A
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
Prope1ty Act has been applicable to the suit property at all the times B
material.

      The learned counsel for the respondent heavily relied on the three-
Judge Bench decision of this Court in Valliamma Champaka Pillai v.
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- C
mortgagor laying claim for his share in the prope11y, 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 D
money sued for becomes due. Article 144 contemplated a suit for
possessicn 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 E
the respondent.

      Primafacie, and on a first blush, the contention of the learned counsel
for the respondent looks unexceptionable and on the authority of Valliamma
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 F
pointed out by the learned counsel for the appellant, the case needs a deeper
analysis. Valliamma Champaka Pillai's case .refers to Ganeshi Lal v. Joti
Pershad, (1953] SCR 243 and also places reliance thereon. We have come
across a later decision of this Cou11 ir. Variavan Saraswathi and Anr. v.
Eachampi Thevi and Ors., (1993] Supp. 2 sec 201 wherein both the G
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 H
    840                 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A 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. - Any of the persons referred to in s 91
             (othei· than the mortgagor) and any co-m011gagor shall, on
B            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.

c                 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
D
             which the mortgage has been redeemed shall be subrogated to the
             rigbts of the mortgagee whose mortgage has been redeemed, ifthe
             mortgagor has by a registered instrument agreed that such persons
             shall be so subrogated.

E                 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 para of this Section
F 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 first para of Section 92. The provision statutorily incorporates
    the long-standing and settled rule of equity which has been held to be
G   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
H   mortgage executed by the joint family of which the plaintiffs and defend-
                K.P.R. NAIR v. P. PILLAI [LAHOTI, J.]                 841

ants were members. On the date of the Trial Court's decree the two A
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. I prim a 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 B
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. I to redeem the mortgage. The contention of the defendant
no. l that a suit for partition and possession was not maintainable without
bringing a suit for redemption was repelled. One of the pleas urged before C
this Court was that the suit for partition without asking for redemption was
not maintainable. This Court held that the original mortgagee had not
assign-ed his rights in the mortgage to the defendant no. l. 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 D
that though Ganeshi Lal, the defendant no. l 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 E
referred to Sir Rashbehary Ghose on Law of Mortgage in India, Harris
on Subrogation, Sheldon on Subrogation, Pomeroy on Equity Jurispru-
dence and a few English and Indian authorities available on the point, what
their Lordships concluded in Ganeshi Lat's case may be summed up as
under:-
                                                                            F
         I.   When the co-debtor or co-mortgagor pays more than his
              share to the creditor for the purpose of redeeming a mort-
              gage, 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 G
              co-mortgagor being only a surety for the other co-mortga-
              gors, 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. H
    842               SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A                the redeeming co-mortgagor) in place of the original mort-
                 gagee for all purposes. If, therefore, one of several mort-
                 gagors satisfies the entire mortgage debt 1 though upon
                 redemption he is subrogated to the rights and remedies of the
                 creditor, the principle has to be so administered as to att;iin
                 the ends of substantial justice regardless of fonn; in other
B
                 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 v. Harendra Narayan Panday, 14 C.W.N.
                 617).
c
            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
D                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 r~lationship qua each
                 other. The redeeming co-mortgagor can only claim the price
E
                 which he has actually paid together with incidental expe!1ses.
                 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 forthe purpose ofreimbursing himself. The subrogation
F                to the rights of the mortgagee by the redeeming co-mortga-
                 gor is confined only to the extent ne9essary 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
G                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
H the principles of justice, equity and good conscience. However, the
                K.P.R. NAIR v. P. PILLAI [LAHOTI, J.]                  843

judgment also makes it clear that even the applicability of Section 92 would A
not make any substantial difference inasmuch as the redeeming co-
mortgagor who claims to be substituted in th.e 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 what the redeeming co-mortgagor paid in discharge B
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 C
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 bis suit
against the redeeming co-mortgagor for redemption of his share, namely,
within 50 years as provided by the Tranvancore Limitation Act, starting D
from the date of the mortgage, or, if that period had already expired, then
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 lndian Limitation Act, 1908. The suit was held to be barred by time.
The plaintiff appealed to the Supreme Court which was dismissed.              E
      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, 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 F
strict a view of the pleadings and the manner in which the case was
contested by the parties. This is noticeable from two facts. First, 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 bene~t of all the joint family members G
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 H




                                         r
    844                 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A   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 Couti. Secondly, the suit
B   though filed as a simple suit for pa1iition 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 orie for redemption and this Court insisted on the suit being
    treated as one for redemption of mortgage only and did not permit the
C   plaintiff to urge that it was a suit for patiition. 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
D   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
E   and his co-m01igagor, 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
F   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,
G   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 red.eeming co-
    mortagor' s right after, redemption on payment of entire mortgage debt, to
H   that of the original mo1iagee although there wa~ no assignment of .the
                K.P.R. NAIR v. P. PILLAI [LAHOTI, J.)                  845

mortgage debt in his favour. This observation is clearly beyond the law A
enunciated by this Court in Ganeshi Lal '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 depa1iure, and therefore, held B
that the suit being one for redemption the Article relevant to the suit for
redemption of a mortgage would apply.

      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-mo1igagor for enforcing the latter's obligation to make C
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 patiitioned unless the plaintiff contributed his D
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 contribution was being set up only as
defence in equity, the limitation provided for filing a suit for contribution
cannot apply.                                                                  E
      In Variavan Saraswathi 's case the Jaw 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
between two situations : (i) where a mortgagee assigns his interest in favour F
of another person (i.e. a stranger); and, (ii) where a co-mortgagor or any
one on behalf of mortgagor and authorized under law pays the amount
and brings to an end the inter.est which 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 m011gagee. In the
latter case, once the m;:irtgage debt is discharged by a person beneficially G
interested in equity of redemption the mortgage comes to an end by
operation oflaw. 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 H
    846                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A 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 ofrelationship of mortgagor and
    mortgagee.

B          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 rnoitgage he redeems". Posing a question does
    a person who, in equity, gets subrogated becomes mortgagee? their
C   Lordships have held "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
D   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
E   excess share redeemed by him, can enforce his claim against non-
    redeeming mortgagor by exercising ri~hts 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
F   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 Jaw 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
G   question, clinches the issue arising for decision in the present case.

          Subrogation rests upon the doctrine of equity and the principles of
    natural justice and not on the privity of contract. One of the principles is
    that a person, paying ~oney which another· is bound by law to pay, is
H   entitled to be reimbursed by the other. This principle is enacted in Section
                 K.P.R. NAIR v. P. PILLAI [LAHOTI, J.]                  847

· 69 of the Contract Act, 1872. Another principle is found in equity: "he A
  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 B
 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 C
 becoming a mortgagee. The provision confers certain rights on the
 redei;ming co-mortgagor and also provides for the remedies of redemption,
 foreClosure and sale being available to the substitutee as they were
 available to the person substituted. These rights the subrogee exercises not
 as a mortgagee reincarnate but by way of rights akin to those vesting in D
 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 E
 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-co-mortgagor being made subject to the exerci:.~ of the
 equitable right to claim contribution vesting in him by subrogation.

       In our opinion, the suit filed in the present case being a suit for F
 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 G
 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 dis-
 charged his duty to make contribution. This equitable defence taken by H
    848                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A the redeeming co-mortgagor in the written statement would not convert the
    suit into a suit for redemption filed by the non-redeeming co-mortgagor.

          It was submitted that the earlier order of remand dated 10.2.1981
    made by the High Cou1t whereby the High Court had held that the suit filed
B   by the plaintiff ought to have contained a prayer for redemption of the
    mo1tgage 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
C   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 ofremand from which
    an appeal lies does not appeal therefrom, he shall thereafter be precluded
D   from disputing its correctness. The provision is not without exceptions and
    limitations. First is, when the order of remand is illegal, and more so, if
    it is without jurisdiction (See Kshitish Chandra Bose v. 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
E   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 oflegality or validity of the order
F   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 Comt against an order ofremand; an appeal under Article
G   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. v. Smt. Deorajin
    Debi & Anr., [1960] 3 SCR 590). In the present appeal, preferred against
    the judgment and decree passed by the High Court in on appeal arising
H   from the proceedings held pursuant to the earlier order of remand dated
                 K.P.R. NAIR v. P. PILLAI [LAHOTI, J.]                  849

10.2.1981, the correctness of the order of remand can be examined and           A
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 B
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 C
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.
                                                                                D
      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 ~onstruction has come up E
on the property which is likely to create insurmountable difficulties in
dividing the property by metes and bounds consistently with tht> entitle-
ment 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 F
open for the court, at the stage of passing the 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.
                                                                                G
       The appeal is allowed. The judgment and decree of the High Court
are set aside. The judgment and decree of the trial court are restored. No
order as to the costs.

B.S.                                                       Appeal allowed.