VALLIAMMA CHAMPAKA Vs. SIVATHANU PILLAI

JUDGEMENT

(1.) THIS appeal filed against the judgment of Ramakrishnan, J. has been referred to a Full. Bench, as it raises an important question regarding the period of limitation applicable to a suit for redemption filed by one mortgagor of his share of the mortgaged properties against another who redeemed and got possession of the same from the original mortgagee.

(2.) THE facts giving rise to this appeal are these. The properties forming the subject-matter of the litigation originally belonged to two brothers, Madhavan Pillai and Sivathanu Pillai. They are situate in Kanyakumari Dt. which, on the dates of the mortgage and the redemption thereof, formed part of the princely State of travancore, later they came within the territory of Travancore-Cochin State, and after the reorganisation of various States under the States Reorganisation Act of 1956, they with the rest of the Kanyakumari Dt. became part of the Madras State. The Transfer of Property Act, which contains inter alia the law relating to mortgages, would govern such transactions in the Madras State; but there was no similar enactment applying either in the former Travancore State or in the travancore-Cochin State till that Act was made applicable to those parts after the merger of that State with the Indian Union. It will be sufficient to state that on the dates material for the decision of the question involved in this appeal, the provisions of the Transfer of Property Act did not apply. The rights of the parties have, therefore, to be decided in accordance with the rules of justice, equity and good conscience. On these principles a co-mortgagor will be a person entitled to redeem a mortgage executed by him jointly with others. Where the mortgage is a possessory one, he will, by virtue of redemption, be entitled to obtain possession from the mortgagee of the entire property which belongs to him and others. Such possession being acquired by reason partly of his position as the redeeming comortgagor, it will be but plain justice that his otha co-mortgagors should be allowed to obtain from him their share of property on payment of a portion of the common debt paid off by the former. The question then is about the period within which such redemption by the co-mortgagor from the redeeming co-mortgagor can be enforced.

(3.) ARTICLE 148 of the Indian Limitation Act provides a period of 60 days from the time when the right to redeem or to recover possession of the property accrues. The Travancore State had its own statutory provision in , regard to limitation of suits. Regulation 6 of 1100 Malayalam Era {which was similar in several respects to the Indian Limitation Act,) provided by Article 136 a period of 50 years from the date when the right to redeem or to recover possession accrued for a suit for redemption. Article 132 therein which was the residuary provision was identical in terms with Article 144 of the Indian Limitation Act. Section 29 of the Regulation provided that: