RAGHAVENDRACHARYA APPACHARYA KATTI Vs. VAMAN SHRINIWAS DESHPANDE

JUDGEMENT

(1.) IN this second appeal there is a question of limitation and also a question of the construction of s, 92 of the Transfer of Property Act.

(2.) THE property in dispute consists of certain fields at Hukeri which once belonged to a certain Govind Krishna. He mortgaged them as long ago as 1870 by a deed of possessory mortgage, exhibit44. It provided that the mortgagee was to enjoy the property in lieu of interest on the mortgage debt and until such time as the principal' of the debt Rs. 150 was paid off and the land redeemed. Govind died in 1881 and he was succeeded by his brother's widow Ramabai. She died in 1892 and the estate then passed to five distant cousins of Govind Krishna. One of these, Raghavendracharya, who is defendant No.3 the appellant before us, brought a suit in 1931 for accounts and redemption of the mortgage under the Dekkhan Agriculturists Relief Act. It was found on taking accounts that nothing was due on the mortgage and accordingly a decree was passed in 1932 directing the defendants in the suit, the heirs of the mortgagee, to deliver possession of the property free from the charge of the suit mortgage. Defendant No.3 accordingly got possession. Subsequently in 1933' and 1934 two of the other cousins of Govind interested in the mortgage along with defendant No.3 sold their rights to the plaintiffs, respondents Nos. 1 to4. Each of them purported to sell one-fourth of the property. In April, 1937, the plaintiffs brought a suit on the strength of these sale-deeds to recover a half share in the property.

(3.) THE view taken by the learned Assistant Judge is that the words "rights as regards redemption" cannot be interpreted to mean that a co-mortgagor should bring a suit for redemption against the redeeming co-mortgagor. Why he says that, however, we do not understand, because that is what the words plainly do mean. He also says that the right of redemption referred to in the section applies only to other mortgages on the property. But that again is inconsistent with the plain language of Section 92. "Subrogation" means neither more nor less than substitution. A person who is subrogated to the rights of the mortgagee has all the rights of the mortgagee, not merely some of the rights, and those rights must include rights in connection with the particular mortgage by redeeming which he gets the benefit of the section. It cannot be disputed that the mortgagee under a possessory mortgage like the one in suit is entitled to remain in possession of the property until a suit is brought for redemption of the mortgage. Nor we think can it be disputed' that by reason of Section 92 the subrogee has precisely the same right. We can see no grounds for qualifying or limiting the language of Section 92 in the way in which the learned Assistant Judge does. He has given the further reason for the view taken by him, viz. that when the original mortgage is extinguished by a decree of the Court Section 60 of the Transfer of Property Act is a bar to any further suit for redemption. But one of the implications of the doctrine of subrogation is that the subrogee keeps the mortgage alive for his own benefit. THE mortgage that is paid off is not extinguished but is treated as assigned to the subrogee. THE position is in our view correctly stated in the note in Sir Dinshah Mulla's Transfer of Property Act, at page 540. After referring to difficulties caused by the reference to the redeeming co-mortgagor's charge in the old Section 95, which have been removed since that section was amended in 1929, he says : THE redeeming mortgagor has not merely a charge, but the mortgage as to his share is extinguished, and as to the shares of the other mortgagors he stands in the shoes? of the mortgagee, and limitation to enforce his right of contribution against the co-mortgagor, and for the co-mortgagor's suit to redeem him, is the same as in a suit to enforce or to redeem the mortgage.