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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

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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'

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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. \026 (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. \026 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.

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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

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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,

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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.

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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 \026 does a person who, in equity, gets

subrogated becomes mortgagee? their Lordships have held \026 "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

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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

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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.

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