JAMIAT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The short but significant question that arises for consideration in these three appeals--R. F. As. Nos. 1430 to 1432 of 1982--is as to what is the period of limitation for a suit by a non-redeeming co-mortgagor to recover possession of his share of the hypotheca on payment of the proportionate amount of the mortgage debt discharged by the redeeming co-mortgagor? In the absence of any statutory provision directly dealing with the question. the answer to the same to my mind, essentially depends on the answer to some of the ancillary questions, such as, does a co-mortgagor step into the shoes of the mortgagee whom he has paid off vis-a-vis the non-redeeming co-mortgagor? That is to say is the redeeming co-mortgagor's right merely one of subrogation to the rights of the mortgagee discharged? If so, to what extent? Further, what are the correlated rights of the non-redeeming co-mortgagor in the property after the entire mortgage has been redeemed by his co-debtor? Does he retain only the rights under the former mortgage? or does he acquire further right, consequent on redemption to get back his portion or share of the hypotheca from the redeeming mortgagor on payment of the proportionate amount of the common mortgage debt discharged by the latter? The factual aspect of the matter is not in dispute and is as follows.

(2.) The property in question was initially mortgaged by the predecessors-ininterest of the private parties to these appeals on June 6, 1922. On May 18, 1974 the appellants redeemed the entire mortgaged property including the share of the non-redeeming mortgagors through a decree of redemption. In pursuance of this decree the appellants secured possession of this property on July 25, 1974. A part of this property was notified for acquisition under Section 4 of the Land Acquisition Act. 1894 on June 23, 1976. Compensation payable for this acquired property was determined by the Collector, Land Acquisition, vide his award dt. Nov. 17, 1977. The redeeming mortgagor-appellants contested the right of the non-redeeming mortgagor-respondents to have any share in the compensation amount. This led to the making of a reference by the Land Acquisition Collector in terms of S. 30 of the Land Acquisition Act and the Land Acquisition Court (Additional District Judge), Hoshiarpur has upheld the claim of the non-redeeming mortgagors to have the compensation to the extent of their shares minus the amount payable to the redeeming mortgagor- appellants on the basis of the initial mortgage. It is this award of the land acquisition Court which is under challenge in these three appeals. The learned counsel are agreed that on account of the identity of the facts and the contentions raised these can conveniently be disposed of together.

(3.) The sole submission of the learned counsel for the appellants is that since by the date, i. e.. Nov. 17. 1977. compensation became payable for the acquired land the period of limitation for the redemption of the same by the respondent- mortgagors had expired. their interest or title in the property in question became extinct and the appellant-redeeming mortgagors having stood subrogated as mortgagees, they alone are entitled to the payment of compensation. This stand of the learned counsel is forcefully controverted by the non-redeeming mortgagors on the plea that in the cases in hand two remedies were open to them. i. e., (i) by filing a suit for redemption of the mortgaged property within the period of limitation prescribed by Art. 61 of the Limitation Act, 1963 or (ii) by filing a suit for possession of their share of the land against the appellants (redeeming mortgagors) within a period of twelve years from the date (May 18. 1974) the latter had redeemed the entire land. Since at the time of hearing of the matter by me in single Bench I had my doubt about the correctness of the ratio of a single Bench judgment of this Court in Sis Ram v. Sukh Lal, AIR 1982 Punj & Har 185. firmly relied upon by the counsel for the appellants. I referred the matter to a larger Bench for decision and that is how these appeals are before us now.