CASE NO.:
Appeal (civil) 13133 of 1996
PETITIONER:
Krishna Pillai Rajasekharan Nair (D) by Lrs.
RESPONDENT:
Padmanabha Pillai (D) by Lrs. & Ors.
DATE OF JUDGMENT: 15/12/2003
BENCH:
R.C. LAHOTI & ASHOK BHAN
JUDGMENT:
J U D G M E N T
R.C. LAHOTI, J.
The facts relating to the property which forms subject-matter of
suit are very many, spread over a period of almost a century by this
time and so is the number of persons who have dealt with the property
and amongst whom the property has changed hands. Shorn of
unnecessary details, we would concentrate on bare essential facts, to
the extent relevant for appreciating the legal issues arising for
decision. For the sake of convenience we would be referring to the
appellant and respondent no.1 respectively as the plaintiff and
defendant No.1 as they were arrayed before the trial court. They are
the principal contesting parties. Unfortunately, both of them have died
and their legal representatives are on record. For the sake of brevity
and convenience we are referring to original parties only.
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'.
The property in suit was subject to an usufructuary mortgage of
the year 1078 Malyalam Era. 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. On 7.12.1973, the trial court
decreed the suit upholding the plaintiff's entitlement to 9/12 shares in
the suit property but subject to payment of Rs.208/- to reimburse the
first defendant by way of contribution towards the amount spent by
him in redeeming the property. A preliminary decree determining the
share of the plaintiff and his entitlement to partition was passed. The
trial court's decree was upheld by the First Appellate Court dismissing
the appeal preferred by defendant No.1. Defendant No.1 preferred a
second appeal (No.1149 of 1976). Vide Judgment dated 10.2.1981,
the High Court allowed the appeal and set aside the decrees of the two
courts below. It was urged before the High Court on behalf of the
defendant No.1 that the property being subject to mortgage and
defendant No.1 having subrogated himself in place of original
mortgagee, the suit filed by the plaintiff barely for declaration,
partition and recovery of possession, was not maintainable and it was
necessary for the plaintiff to have sought for the relief of redemption.
Even if the relief of redemption of mortgage was not specifically sought
for, it was submitted on behalf of the defendant No.1 that the suit in
substance was one for redemption and construed so it was barred by
time under Article 148 of the Limitation Act, 1908. The High Court
formed an opinion that this aspect of the case did not appear to have
engaged the attention of the courts below and, therefore, the case
needed to be remanded for decision afresh. The High Court allowed
the appeal, set aside the decree under appeal and remanded the case
to the trial court with a direction to allow the parties an opportunity of
amending the pleadings, so that the plaintiff could seek the relief of
redemption and the defendant could raise the plea as to bar of
limitation. Pursuant to the order of remand, the pleadings were
amended. The suit was once again decreed by the trial court and the
First Appellate Court.
In the second appeal preferred by the defendant no.1, it is
interesting to note that the High Court has formed an opinion that
defendant No.1 had redeemed the property on behalf of the entire
family, and therefore, after the payment of mortgage money and
recovering back the possession from the mortgagee, nothing had
remained to be redeemed. The plaintiff was entitled to declaration of
title and other reliefs prayed for by him. The learned Judge of the
High Court entertained serious doubts about correctness of the view
taken by the learned single Judge in the earlier order of the High Court
remanding the case to the trial court but felt bound (and helpless) by
the observations and the directions made in the earlier judgment and
rightly so. The learned Judge noted the submission of the learned
counsel for the plaintiff that the question of limitation did not arise in
the case and all that to which the first defendant was entitled to was to
have reimbursement for whatever amount he might have spent on
redemption. Having said so the learned Judge observed desperately,
"I would have readily agreed with this submission of the learned
counsel for the plaintiff if I were free to do so. In fact according to
me, in this case, no question of further redemption of 1078 mortgage
arises at all". The learned Judge held that "the first defendant was not
required to claim the status of a redeeming co-mortgagor vis-`-vis the
other members of the family on the facts and in the circumstances of
the case. But, since I am bound by the earlier order of remand in S.A.
1194 of 1976, I am constrained to overrule the contention of the
learned counsel for the respondent that the claim of the plaintiff could
not be held to be barred by limitation." Consequently, the learned
single Judge by the judgment dated March 22, 1993 allowed the
appeal, set aside the judgments and decrees of the courts below and
directed the suit to be dismissed. Feeling aggrieved by the judgment
of the High Court the plaintiff has filed this appeal by special leave.
At the very outset, it may be stated that the learned counsel for
defendant No.1 submitted that the parties in this case were of
Sripandarachetti Cult of Kerala, governed by Hindu Mitakshra Law and
as there had been a partition in family before 1941, the year in which
the suit for redemption was filed, it cannot be said that defendant No.1
while redeeming alone the property was acting on behalf of the family
or the joint family funds were utilized for payment of mortgage money.
In our opinion, this controversy is wholly besides the point. Whether
there was a partition in the family and whether Schedule 'C' property
was also partitioned is not of any consequence for the present
controversy inasmuch as we find that so far as the Schedule 'C'
property is concerned it was subject to mortgage and the plaintiff and
defendant No.1 both had share therein. They may be co-tenants or
tenants in common but that would not make any difference so far as
the status of the plaintiff and the defendant No.1 being co-mortgagors
qua the suit property is concerned. We proceed on this factual
premise that out of the co-mortgagors, more than one, and all having
entitlement to a share each in the suit property, one of them had
redeemed the property by paying the entire mortgaged money and
had singularly entered into possession over the entire mortgaged
property. Consequent upon redemption, it is the other co-owner of
the property i.e. the plaintiff, who is now asking for the partition of the
property commensurate with his share. We have to see what are the
rights and obligations of the parties qua each other and whether a suit
for partition filed by the plaintiff was maintainable. That would
determine the question of limitation as well.
The learned counsel for the parties are agreed that the Transfer
of Property Act has been applicable to the suit property at all the times
material.
The learned counsel for the respondent heavily relied on the
three-Judge Bench decision of this Court in Valliama Champaka
Pillai Vs. Sivathanu Pillai and Ors. - (1979) 4 SCC 429, in support
of his submission that a suit by a non-redeeming co-mortgagor against
the redeeming co-mortgagor laying claiming for his share in the
property, on payment of his proportionate share of the mortgage
money, would be governed by Article 132 or 144 of the Limitation Act,
1908. Article 132 provided for a suit to enforce payment of money
charged upon immovable property wherein the period of limitation
was 12 years calculated from the date when the money sued for
becomes due. Article 144 contemplated a suit for possession of
immovable property or any interest therein not otherwise specifically
provided for and the limitation was 12 years from the date when the
possession of the defendant became adverse to the plaintiff. In either
case, the suit was barred by time, submitted the learned counsel for
the respondent.
Prima facie, and on a first blush, the contention of the learned
counsel for the respondent looks unexceptionable and on the authority
of Valliama Champaka Pillai's case it appears as if the High Court
has not erred in holding the suit barred by time and dismissing the
same. However, as pointed out by the learned counsel for the
appellant, the case needs a deeper analysis. Valliama Champaka
Pillai's case refers to Ganeshi Lal Vs. Joti Pershad - 1953 SCR 243
and also places reliance thereon. We have come across a yet later
decision of this Court in Variavan Saraswathi and Anr. Vs.
Eachampi Thevi and Ors. (1993) Supple. 2 SCC 201 wherein both
the decisions, namely, Ganeshi Lal and Valliama Champaka Pillai
have been referred to. Unfortunately Variavan Saraswathi was not
cited at the Bar, but in our opinion that is the most relevant decision.
Any decision of this Court other than the three, referred to
hereinabove, has not come to our notice. We would deal with all the
three decisions to find out and lay down the correct law. Before doing
so it would be appropriate to notice Section 92 of the Transfer of
Property Act, 1882 which, as the learned counsel for the parties have
conceded, is applicable to the present case. It provides :
"92. Subrogation. Any of the persons
referred to in s 91 (other than the mortgagor) and
any co-mortgagor shall, on redeeming property
subject to the mortgage, have, so far as regards
redemption, foreclosure or sale of such property,
the same rights as the mortgagee whose mortgage
he redeems may have against the mortgagor or
any other mortgagor.
The right conferred by this section is called
the right of subrogation, and a person acquiring the
same is said to be subrogated to the rights of the
mortgagee whose mortgage he redeems.
A person who has advanced to a mortgagor
money with which the mortgage has been
redeemed shall be subrogated to the rights of the
mortgagee whose mortgage has been redeemed, if
the mortgagor has by a registered instrument
agreed that such persons shall be so subrogated.
Nothing in this section shall be deemed to
confer a right of subrogation on any person unless
the mortgage in respect of which the right is
claimed has been redeemed in full."
A bare reading of the provision shows that the first part of this
Section deals with subrogation by operation of law. Subrogation by
agreement is dealt with in third para. The present one is not a case of
subrogation by agreement. The relevant provision applicable would,
therefore, be as contained in para I of Section 92. The provision
statutorily incorporates the long-standing and settled rule of equity
which has been held to be applicable even in such territories where the
Transfer of Property Act does not apply.
In Ganeshi Lal's case two plaintiffs sued for partition and
possession of their two-fifths share in the suit properties alleging that
the first defendant was alone in possession of the same, having
redeemed the mortgage executed by the joint family of which the
plaintiffs and defendants were members. On the date of the Trial
Court's decree the two plaintiffs were held entitled to one-sixth share
each. The findings of fact arrived at by the Trial Court and the High
Court were that the original mortgage was a mortgage transaction of
the joint family and that the defendant no.1 prima facie had redeemed
the mortgage on his own account and for his own benefit at a time
when there was no longer any joint family in existence. The plaintiffs
were held entitled to their share in the property subject to payment of
their proportionate share of the amount paid by the defendant no.1 to
redeem the mortgage. The contention of the defendant no.1 that a
suit for partition and possession was not maintainable without bringing
a suit for redemption was repelled. One of the pleas urged before this
Court was that the suit for partition without asking for redemption was
not maintainable. This Court held that the original mortgagee had not
assigned his rights in the mortgage to the defendant no.1. So long as
the question of limitation was not involved, there was no objection to a
claim for redemption and one for possession and partition being joined
together in the same suit. The principal issue to which the Court
addressed was that though Ganeshi Lal, the defendant no.1 had
redeemed the prior mortgage and stood subrogated to the
mortgagee's rights but the real question was about the extent of his
rights as subrogee.
Having examined the issue from all possible angles and having
referred to Sir Rashbehary Ghose on Law of Mortgage in India,
Harris on Subrogation, Sheldon on Subrogation, Pomeroy on Equity
Jurisprudence and a few English and Indian authorities available on the
point, what their Lordships concluded in Ganeshi Lal's case may be
summed up as under:-
1. When the co-debtor or co-mortgagor pays more than his share
to the creditor for the purpose of redeeming a mortgage, the
redeeming mortgagor is principal debtor to the extent of his
share of the debt and a surety to the extent of the share in the
debt of other co-mortgagors. The redeeming co-mortgagor
being only a surety for the other co-mortgagors, his right is,
strictly speaking, a right of reimbursement or contribution.
2. The substitution of the redeeming co-mortgagor in place of the
mortgagee does not precisely place the new creditor (i.e. the
redeeming co-mortgagor) in place of the original mortgagee for
all purposes. If, therefore, one of several mortgagors satisfies
the entire mortgage debt, though upon redemption he is
subrogated to the rights and remedies of the creditor, the
principle has to be so administered as to attain the ends of
substantial justice regardless of form; in other words, the
fictitious cession in favour of the person who effects the
redemption, operates only to the extent to which it is necessary
to apply it for his indemnity and protection. (Digambar Das Vs.
Harendra Narayan Panday, 14 C.W.N. 617).
3. The doctrine of subrogation must be applied along with other
rules of equity so that the person who discharges the mortgage
is amply protected and at the same time there is no injustice
done to the other joint-debtors. He who seeks equity must do
equity.
4. There is a distinction between a third party who claims
subrogation and a co-mortgagor who claims the right. The co-
mortgagors stand in a fiduciary relationship qua each other.
The redeeming co-mortgagor can only claim the price which he
has actually paid together with incidental expenses. Strictly
speaking, therefore, when one of several mortgagors redeems a
mortgage, he is entitled to be treated as an assignee on the
security which he may enforce in the usual way for the purpose
of reimbursing himself. The subrogation to the rights of the
mortgagee by the redeeming co-mortgagor is confined only to
the extent necessary for his own equitable protection. The
redeeming co-mortgagor can, just as the surety would, ask to
indemnify for his loss and he can invoke the doctrine of
subrogation as an aid to right of contribution.
Undoubtedly, their Lordships have made it clear in their
judgment that they were dealing with a case where Sections 92 and 95
of the Transfer of Property Act were inapplicable and the question was
to be decided on the principles of justice, equity and good conscience.
However, the judgment also makes it clear that even the applicability
of Section 92 would not make any substantial difference inasmuch as
the redeeming co-mortgagor who claims to be substituted in the
mortgagee's place is only on the strength of general principles of
equity and justice, and therefore, it is equally equitable that the other
co-mortgagors should not be called upon to pay more than the
redeeming co-mortgagor paid in discharge of the encumbrance.
In Valliamma Champaka Pillai's case the grand-daughter of
the non-redeeming co-mortgagor instituted a suit for partition and
possession of her one-half share of the suit property. She claimed
possession on contribution of her share of the mortgage money that
had been paid by the redeeming co-mortgagor to the mortgagee. The
matter was heard by a Full Bench of the High Court of Karnataka
which held that a non-redeeming co-mortgagor has two periods of
limitation within which he may file his suit against the redeeming co-
mortgagor for redemption for his share, namely, within 50 years
provided for by the Tranvancore Limitation Act, starting from the date
of the mortgage, or, if that period had already expired, within 12 years
of the date of redemption by the redeeming co-mortgagor, under
Article 132 of the Travancore Act corresponding to Article 144 of the
Indian Limitation Act, 1908. The suit was held to be barred by time.
The plaintiff appealed to the Supreme Court which was dismissed.
A perusal of the abovesaid decision shows that there also
Section 92 of the Transfer of Property Act was not applicable and the
case was held to be determinable by general principles of equity,
justice and good conscience. However, the striking feature of the
case (and that will distinguish the case from the present one) is that
the Court has taken too strict a view of the pleadings and the manner
in which the case was contested by the parties. This is noticeable from
the two facts. Firstly, it was sought to be urged that the parties being
members of joint-Hindu family, the redemption by one of the co-
mortgagors of the whole property could only be on behalf of and for
the benefit of all the joint family members including the plaintiffs. In
the alternative, it was urged that even if sometime after the
mortgage, but before the redemption, the family had divided in status
then also after the redemption the two branches of the family would
be deemed to be holding the property as tenants-in-common or co-
owners in defined shares. In either case, it was urged, no question of
adverse possession or limitation would arise as the possession of the
redeeming co-mortgagor would in, law, be the possession of the non-
redeeming co-owners also. This Court refused to entertain this plea
on the ground that such a plea was not agitated either before the
learned Single Judge or the Letters Patent Bench of the High Court.
Secondly, the suit though filed as a simple suit for partition it was
assumed that it was a claim for redemption with regard to the
properties which were under mortgage and had been redeemed in
entirety by one of the co-mortgagors. In the courts below the claim
was treated to have been fought by the parties as if it were one for
redemption and this Court insisted on the suit being treated as one for
redemption of mortgage only and did not permit the plaintiff to urge
that it was a suit for partition. The Court re-affirmed the view taken in
Ganeshi Lal's case on the nature and extent of a redeeming co-
mortgagor's right to recover contribution from his co-debtor and
agreed that the redeeming co-mortgagor's status was only that of a
surety and when the surety had discharged the entire mortgage debt,
he was entitled to be subrogated to the security held by the creditor,
to the extent of getting himself reimbursed for the amount paid by him
over and above his share to discharge the common mortgage debt.
Having said so much this court went on to state that the redeeming
co-mortgagor having discharged the entire mortgage debt, which was
the joint and several liability of himself and his co-mortgagor, was in
equity, entitled to be subrogated to the rights of the mortgagee
redeemed and to treat the non-redeeming mortgagor as his
mortgagor to the extent of the latter's portion or share in the
hypotheca and to hold that portion or share as separate for the excess
payment made by him. Thereafter, the Court proceeded on the
reasoning that the right of the non-redeeming co-mortgagor is to pay
his share of the liability and get possession of his property from the
redeeming co-mortgagor which right subsists only so long as the
latter's right to contributions subsists. This right of the 'non-
redeeming' co-mortgagor is purely an equitable right, which exists
irrespective of whether the right of contribution which the redeeming
co-mortgagor has as against the other co-mortgagor, amounts to a
mortgage or not.
It is pertinent to note that their Lordships deciding Valliamma
Champaka Pillai's case have elevated the status of the redeeming
co-mortagor's right after redemption on payment of entire mortgage
debt, to the status of the original mortagee's debts although there was
no assignment of the mortgage debt in his favour. This observation is
clearly beyond the law enunciated by this Court in Ganeshi Lal's case
and followed in Valliamma Champaka Pillai's case. The only
reason for this, which we can apparently find, is because the plaintiff
in Valliamma Champaka Pillai's case throughout treated the suit as
one for redemption and to which stand taken by the plaintiff, their
Lordships held, that the plaintiff was bound and could not make a
departure, and therefore, held that the suit being one for redemption
the Article relevant to the suit for redemption of a mortgage would
apply.
It is to be noted that the limitation for a suit for contribution
would become relevant only when the redeeming co-mortgagor sues
the non-redeeming co-mortgagor for enforcing the latter's obligation
to make contribution; a suit filed by a co-owner-cum-co-mortgagor for
partition and separate possession against the redeeming co-mortgagor
and subject to payment of contribution would remain a suit for
partition though the defendant in possession of the property would be
justified in insisting that property was not liable to be partitioned
unless the plaintiff contributed his share of the money paid for
redemption and incidental expenses. To the latter case, wherein the
suit has been filed not by the party claiming contribution but the right
to claim partition was being set up only as defence in equity, the
limitation provided for filing a suit for contribution cannot apply.
In Variavan Saraswathi's case the law has been set out with
precision and clarity and both the earlier decisions dealt with
hereinabove have been referred. Their Lordships (vide para 6) have
dealt with the contrast in two situations : (i) when a mortgagee
assigns his interest in favour of another person (i.e. a stranger); and,
(ii) where a co-mortgagor or any one on behalf of mortgagor
authorized under law pays the amount and brings to an end the
interest the mortagee had. It has been held that in the first case the
assignee becomes holder of the same interest which the mortgagee
had, i.e., he steps into the shoes of the mortgagee. In the latter case,
once the mortgage debt is discharged by a person beneficially
interested in equity of redemption the mortgage comes to an end by
operation of law. Consequently, the relationship of mortgagor and
mortgagee cannot subsist. A person paying off debt to secure the
property either with the consent of others or on his own volition
becomes, in law, the owner entitled to hold and possess the property.
But in equity the right is to hold the property till he is reimbursed.
Such right in equity either in favour of the person who discharges the
debt or the person whose debt has been discharged, does not result in
resumption of relationship of mortgagor and mortgagee.
Dealing with Section 92 of the Transfer of Property Act it has
been held, in Variavan Sarswathi's case that the rights created in
favour of a redeeming co-mortgagor as a result of discharge of debt
are "so far as regards redemption, foreclosure or sale of such
property, the same rights as the mortgagee whose mortgage he
redeems". Posing a question does a person who, in equity, gets
subrogated becomes mortgagee? their Lordships have held "A plain
reading of the section does not warrant a construction that the
substitutee becomes a mortgagee. The expression is, 'right(s) as the
mortgagee' and not 'right(s) of mortgagee'. The legislative purpose
was statutory recognition of the equitable right to hold the property till
the co-mortgagor was reimbursed and not to create relationship of
mortgagor and mortgagee. The section confers certain rights on co-
mortgagor and provides for the manner of its exercise as well. The
rights are of redemption, foreclosure and sale. And the manner of
exercise is as if a mortgagee. The word 'as' according to Black's Law
Dictionary means 'in the manner prescribed'. Thus a co-mortgager in
possession of excess share redeemed by him, can enforce his claim
against non-redeeming mortgagor by exercising rights of foreclosure
or sale as is exercised by mortgagee under Section 67 of the Transfer
of Property Act. But that does not make him mortgagee." It was
further observed that the abovesaid legal position does not alter either
because during partition equity of redemption in respect of property
redeemed was transferred or because in the plaint it was claimed that
mortgage subsisted.
In our opinion, the law as stated in Variavan Saraswathi and
Anr.'s case where Section 92 of the Transfer of Property Act has been
specifically dealt with and which, as admitted at the Bar, applies to the
mortgage in question, clinches the issue arising for decision in the
present case.
A subrogation rests upon the doctrine of equity and the
principles of natural justice and not on the privity of contract. One of
these principles is that a person, paying money which another is bound
by law to pay, is entitled to be reimbursed by the other. This principle
is enacted in Section 69 of the Contract Act, 1872. Another principle is
found in equity: "he who seeks equity must do equity". (See
Rashbehary Ghose on Law of Mortgage, Seventh Edition, 1997, at
p.461).
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.
In our opinion, the suit filed in the present case being a suit for
partition primarily and predominantly and the relief of redemption
having been sought for only pursuant to the direction made by the
High Court in its order of remand, the limitation for the suit would be
governed by Article 120 of Limitation Act, 1908. For a suit for
partition the starting point of limitation is - when the right to sue
accrues, that is, when the plaintiff has notice of his entitlement to
partition being denied. In such a suit, the right of the redeeming co-
mortgagor would be to resist the claim of non-redeeming co-
mortgagor by pleading his right of contribution and not to part with the
property unless the non-redeeming co-mortgagor had discharged his
duty to make contribution. This equitable defence taken by the
redeeming co-mortgagor in the written statement would not convert
the suit into a suit for contribution filed by the non-redeeming co-
mortgagor.
It was submitted that the earlier order of remand dated
10.2.1981 made by the High Court whereby the High Court had held
that the suit filed by the plaintiff ought to have contained a prayer for
redemption of the mortgage property and even if it did not contain
such a prayer, it ought to be construed as a suit for redemption and
the limitation for filing the suit should be calculated accordingly, has
achieved a finality in view of not having been appealed against and,
therefore, it is not any more open for the plaintiff to contend now that
his suit was not a suit for redemption but only for declaration of title,
partition and possession. We cannot agree.
Sub-Section(2) of Section 105 of the Civil Procedure Code, 1908
provides that where any party aggrieved by an order of remand from
which an appeal lies does not appeal therefrom, he shall thereafter be
precluded from disputing its correctness. The provision is not without
exceptions and limitation. First is, when the order of remand is illegal,
and more so, if it is without jurisdiction (See Kshitish Chandra Bose
Vs. Commissioner of Ranchi, (1981) 2 SCC 103. The High Court
had in exercise of second appellate jurisdiction illegally reversed the
concurrent findings of fact and ordered remand. It was held that in an
appeal to Supreme Court from the final order of the High Court after
remand, challenge even to the first order of the High Court making
remand, and, all the proceedings taken thereafter as a result of the
illegal order of remand, was available to be laid. When the matter
reaches a forum, superior to one which had made the order of remand
earlier, it can go into the question of legality or validity of the order of
remand. The bar enacted by Section 105(2) applies upto the level of
that forum which had remanded the matter earlier. Secondly, Section
105(2) has no applicability to the jurisdiction exercisable by this court
by reference to Article 136 of the Constitution. This is for the reason
that no appeal lies to this Court against an order of remand; an appeal
under Article 136 of the Constitution is only by special leave granted
by this Court. It is settled law that Section 105(2) has no applicability
to the Privy Council and to the Supreme Court. (Satyadhyan Ghosal
& Ors. Vs. Smt. Deorajin Debi & Anr., (1960) 3 SCR 590. In the
present appeal preferred against the judgment and decree passed by
the High Court in the proceedings held pursuant to the earlier order of
remand dated 10.2.1981 the correctness of the order of remand can
be examined and gone into by this Court.
It was also submitted by the learned counsel for the respondent
that it would make a difference if the family to which the parties
belong was joint at the time of mortgage and at the time of
redemption. The learned counsel submitted that on account of
partition in the family the parties had ceased to be co-tenants and
were tenants-in-common qua each other and therefore the redemption
by the respondent was not and cannot be deemed to be on behalf of
the family. In our opinion, it is not necessary to deal with this
submission at all. 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.
It was stated at the Bar that even during the pendency of this
litigation the property has changed hands and substantial construction
has come up on the property which is likely to create insurmountable
difficulties in dividing the property by metes and bounds consistently
with the entitlement of the parties. That aspect need not detain us at
this stage. We have stated the correct position of law which should
govern the suit and the parties. In spite of the preliminary decree
having been passed it will be open for the court, at the state of
passing a final decree, to see how the law and the equities are to be
adjusted and whether instead of actually dividing the property it would
be more appropriate to adopt some other mode of satisfying the
claims of the parties as per their entitlement.
The appeal is allowed. The judgment of the High Court is set
aside. The judgment and decree of the trial court are restored. No
order as to the costs.
