(1.) An interesting question is raised in this revision and that is whether a redeeming comortgagor is entitled to claim that in regard to that portion of the property to which title is in the other comortgagors he has stepped into the shoes of the mortgagee for all purposes so much so he could set up a plea that he is entitled as a mortgagee to claim the benefit of S 4A of Act 1 of 1964. The question arose in final decree proceedings in a redemption suit. An application for passing a final decree has been dismissed by the court below and that is the subject of revision.
(2.) The short and relevant facts are: The plaint schedule properties which belonged to Nedumbilli Tarwad of defendants 1 to 3 were set apart to the tavazhi of defendants 1 to 3 as also to the tavazhi of one Karthiyayani Amma. Distinct portions of the properties were so set apart to the two tavazhies. This was in the partition deed executed in the tarwad in the year 1096. At that time the properties were outstanding under a mortgage from the tarwad of the year 1081. The partition deed authorised redemption by the two tavazhies jointly or redemption of the entire property by anyone of the tavazhies In the latter event the redeeming tavazhi was to hold possession of the proper ties of the other tavazhi subject to the obligation to surrender possession on reimbursement of the expenses met in so redeeming the property of the other tavazhi. The tavazhi of defendants 1 to 3 redeemed the properties. Subsequently the right of the tavazhi of defendants 1 to 3 was obtained by the 5th defendant on whose death it has devolved on the 9th defendant. Redemption was sought by the plaintiff who had obtained an assignment of the rights of Karthiyayani Amma's tavazhi in regard to the portion of the property set apart for the said tavazhi. A preliminary decree was granted and the property to be redeemed was referred to as the blue marked portion in the commissioner's plan. After the preliminary decree a contention was set up by the 9th defendant that he was a tenant to be deemed as such by reason of the provisions of S.4A of Act 1 of 1964.
(3.) The question of applying this section would arise only if the 9th defendant is a mortgagee. If he is a mortgagee he can claim to be a lessee by reason of the application of S.4A. But if he is not one such there is no basis for such a claim. S.4A reads:
"4A. Certain mortgagees and lessees of mortgagees to be deemed tenants: (1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if -
(a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately proceeding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or
(b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement:
Provided that a mortgagee or lessee falling under this clause shall not be deemed to be a tenant if he, or, where he is a member of a family, such family was holding any other land exceeding two acres in extent on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette, or
(c) the land comprised in the mortgagee was waste land at the time of mortgage or land to which the Madras Preservation of Private Forests Act, 1949 would have applied if that Act had been in force at the time of mortgage, and
(i) the mortgagee or lessee was holding such land for a continuous period of not less than thirty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969, and
(ii) the mortgagee or lessee has effected substantial improvements on such land before such commencement".
According to the 9th defendant he is a mortgagee since by redeeming the earlier mortgage his predecessor in interest had stepped into the shoes of the mortgagee and he was therefore entitled to claim that he is holding as mortgagee in regard to that portion of the property of which he did not own the equity of redemption. According to him the rule of subrogation entitles him to claim that he had all the rights of a mortgagee. The answer to this urged at the hearing is that the right of subrogation does not place the redeeming comortgagor in the position of the mortgagee for all purposes but only confers on him the right to hold possession of the property subject to Reimbursement of whatever amount has been spent by him for redeeming that portion of the mortgaged property that belongs to the other comortgagees. The question which, therefore, calls for consideration is as to the character of a person who, along with another, is entitled to redeem a mortgage but redeems it himself and holds possession of the property. We think we cannot do better in this context than referring to the decision of the Supreme Court in Ganeshi Lal v. Joti Pershad 1953 (4) SCR 243 . That was a case where the first defendant in the suit was in possession of the entire mortgage holding having redeemed a mortgage executed by the joint family of which the plaintiffs and defendants were members. The case of the first defendant was that though he redeemed the mortgage it was not on behalf of the joint family but on his own account as there had been, a disruption of the joint family status much earlier and therefore before the plaintiffs redeemed him they were bound to pay him not only the proportionate share in the sum of Rs. 5800/- which he paid to the mortgagee for redemption, but irrespective of any such payment made by him, the amount due as their share in the original mortgage debt of Rs. 11200/-. In other words, his case was that the plaintiffs were not entitled to the benefit of any arrangement reached by him with the mortgagees, but that he would be entitled to claim what the mortgagees themselves would have been entitled to claim as against the plaintiffs. Dealing with this the Supreme Court said:
"If we remember that the doctrine of subrogation which means substitution of one person in place of another and giving him the rights of the latter is essentially an equitable doctrine in its origin and application, and if we examine the reason behind it, the answer to the question which we have to decide in this appeal is not difficult".
The Supreme Court went on to state thus:
"Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognised that where there are several joint debtors, the person making the payment is a principal debtor as regards the part of the liability he is to discharge and a surety in respect of the shares of the rest of the debtors. Such being the legal position as among the comortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity, confers on him a right to reimburse himself for the amount spent in excess by him in the matter of redemption; he can call upon the comortgagors to contribute towards the excess which he has paid over his own share. This proposition is postulated in several authorities. In the early case of Hodgson v. Shaw, Lord Brougham said: "This rule is undoubted, and it is one founded on the plainest principles of natural reason and justice, that the surety paying off a debt shall stand in the place of the creditor, and have all the rights which he has, for the purpose of obtaining his reimbursement".
The learned Judges concluded -
"The redeeming comortgagor being only a surety for the other comortgagors, his right is, strictly speaking, a right of reimbursement or contribution, and in law, when we have regard to the principles of equity and justice, there should be no difference between a case where the discharges an unsecured debt and a case where he discharges a secured debt. It is unnecessary for us to decide in this appeal whether S.92 of the Transfer of Property Act was intended to strike a departure from this position when it states that the comortgagor shall have the same rights as the mortgagee whose mortgage he redeems, and whether it was intended to abrogate the rule of equity as between codebtors, and provide for the enforcement of the liability on the basis of the amount due under the mortgage; and this is because, as has been already stated, we are governed not by the statute but by general principles of equity and justice. If it is equitable that the redeeming comortgagor should be substituted in the mortgagee's place, it is equally equitable that the other comortgagors should not be called upon to pay more than he paid in discharge of the encumbrance".
The case before us, we may notice, is one to which the provisions of the Transfer of Property Act would not apply, for, the suit arose in the year 1120 corresponding to 1945 in the area of the erstwhile Travancore State where the Transfer of Property Act was not in force. The redemption by the tavazhi of defendants 1 to 3 was in the year 1108. Therefore S.92 of the Transfer of Property Act did not apply. Questions relating to transfer of property were decided in the concerned area, when the matter was not covered by rules of common law, on general rules of justice, equity and good conscience.;