Krishna Pillai Rajasekharan Nair Vs. Padmanabha
Pillai & Ors [2003] Insc 642 (15 December 2003)
R.C.
Lahoti & Ashok Bhan 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 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' 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 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 and also
places reliance thereon. We have come across a yet later Eachampi Thevi and
Ors. (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. 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.
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 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 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, 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.
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 does a person who, in equity, gets subrogated
becomes mortgagee? their 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 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 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 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
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 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.
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