Declaration and possession in alternative for partition – Property Mortgaged – Partitioned among co sharers – some of them filed redemption suit – one co sharer paid entire amount and redeem the property – whether the redemptor is liable to give share in the redeemed property – since the plaintiff is an assignee from certain non-redeeming co-mortgagors of a share in 'C' Schedule property. Is entitled for partition and for separate possession of his share -2015 SC(2003) MSK LAW REPORTS 8

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'.

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. =

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.

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. -2015 SC(2003) MSK LAW REPORTS 8