KUNJUKRISHNAN CHANNAR Vs. RAMAKRISHNAN CHANNAR

JUDGEMENT

(1.) THE suit properties, 5 acres 38 cents in extent, belonged to Lakshmi Amma and were mortgaged by her to Alummottil tarwad. It is convenient to set out the relationship of the parties. THE plaintiffs who are the respondents are the children of Kesavan, a member of that tarwad. His sister Umminikunju had two sons Padmanabhan and the 10th defendant, the latter being the appellant in second appeal. Defendants 11 to 15 are the children of padmanabhan by his deceased wife, the 16th defendant is his widow, and defendants 17 to 19 are his children by her. THE second defendant is a cousin of Umminikunju and a member of the tarwad, and her lineal descendants are defendants 1 and 3 to 9. In the year 1098, Lakshmi Amma assigned the equity of redemption of the suit properties in the names of Kesavan, Umminikunju and the second defendant, but admittedly to the tavazhi of their common ancestress. A sum of Rs. 1675/-was reserved under the assignment, for payment to Lakshmi amma. In default of payment, Lakshmi Amma sued the assignees on record, in O. S. 70 of 1100, and obtained Ext. B decree against them personally and charged on the suit properties. Later, as a result of three partition deeds, Exts. A, C, and I, of the years 1103,1105 and 1108, respectively, padmanabhan became entitled to 1 acre 36 cents, defendants 1 to 9 to 2 acres 65 cents, and the 10th defendant to 1 acre 37 cents, in the suit properties. In the execution of Ext. B decree, Kesavan paid Travancore Sirkar Rs. 400/- on the 15th Meenom ,1106. Padmanabhan mortgaged his share of the properties with possession by Ext. E to Kesavan and the second defendant, the right under which, it was agreed, belonged to Kesavan only. On the 17th karkadakam, 1108, Kesavan made a payment of S. Rs. 254-13-0 in partial discharge of Ext. B and in the year 1120, in proceedings to set aside the sale in execution which had taken place in the year 1118, the second plaintiff deposited S. Rs. 977-Ch.-11-cs. 8, and succeeded in setting aside the sale. THE suit from which this appeal arises was instituted on the 20th Thulam ,1121 , for the realisation of the aggregate sum of Rs. 1631-Ch. 24-cs. 3 and interest thereon from the suit properties. THE 10th defendant contended inter alia, that his share of the properties can be made answerable only for the proportionate amount chargeable on it. THE court of first instance held that the suit properties are liable for the full amount, but in appeal the Subordinate judge found that the claim for S. Rs. 400/- paid in the year 1106 was barred by limitation and that the share of defendants 1 to 9 which had been released by lakshmi Amma in O. S. 70 of 1100 itself cannot be proceeded against, and decreed the suit for S. Rs. 1227-Ch-11-cs-8 charged on the share of the 10th defendant on the interest of defendants 11 to 19 in the properties, allotted to padmanabhan and mortgaged to Kesavan.

(2.) LEARNED counsel for the 10th defendant contended, that on the principle of contribution, the 10th defendant can be held liable only, for the proportionate amount chargeable on his share, viz. , 1 acre 37 cents, out of 5 acres 38 cents and that too in the sum of S. Rs. 977-Ch. 11-cs. 8, the payment of S. Rs. 254-13-0 being more than 12 years before the date of the suit. If the plaintiffs' claim falls to be adjudged only under S. 82 and 100 of the Transfer of Property Act, this is the correct position, but according to learned counsel for the plaintiffs they have been subrogated to Lakshmi Amma's rights with respect to the charge which the plaintiffs have paid off. In this connection, my attention was drawn on behalf of the 10th defendant to the decision of the Supreme Court in Ganeshilal v. Joti pershad AIR. 1953 SC. 1 in which it was held, that apart from the provisions of the Transfer of Property Act, a co-mortgagor, redeeming a mortgage over the property which belongs to himself and to others, is entitled only to receive from the other co-mortgagors their share in the amount actually paid by him & not in the full amount due on the mortgage redeemed. The present case too, is not governed by the Transfer of Property Act. The rights of a co-mortgagor who redeems more than his share in the mortgaged property are founded partly on the principle, that he is a principal debtor only as regards his share, but is a surety as regards the shares of the other co-mortgagors and partly on the principle that an owner cannot be a mortgagee of his own property. Two cases which have followed this view are, Mamundi Kaduvetti v. Somasundara Chetti AIR. 1959 Madras 555 and janardhan Bhagwan Dass v. Sham Lal Nand Lal AIR. 1959 Punjab 170.

(3.) LEAVE to appeal prayed for leave granted. Dismissed.