KRISHNA PILLAI RAJASEKHARAN NAIR (D) BY LRS. versus PADMANABHA PILLAI (D) BY LRS. AND ORS.

Citation: [2003] SUPP. 6 S.C.R. 832 · Decided: 15-12-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
KRISHNA PILLAI RAJASEKHARAN NAIR (D) BY LRS. 
B 
v. 
PADMANABHA PILLAI (D) BY LRS. AND ORS. 
DECEMBER 15, 2003 
[R.C. LAHOTI AND ASHOK BHAN, JJ.] 
Transfer of Property Act, 1882; Section 92 I Contract Act, 1872 ; 
Section 69 I Limitation Act, 1963; Articles 120, 132 and 144-Subrogation-
One of the co-mortgagors redeeming the property mortgaged by making 
C full payment-Suit for declaration oftitle/partition by non-redeeming co-
mortgagors-Tria l Court and First Appellate Court decreeing the suit-
High Court holding that the suit without prayer of redemption is not 
maintainable and remanded back to trial court for amending the plead-
ings-Trial court and First Appellate Court again decreeing the suit-High . 
D Court holding that the suit is barred by limitation-Correctness of-Held, 
redeeming co-mortgagor cannot claim a right higher than the right of non-
redeeming co-mortgagors-Non-redeeming co-mortgagors are entitled to 
partition of suit property on reimbursement of amount of their share to 
redeeming co-mortgagors-Suit was basically a suit for partition and 
hence the suit is not barred by limitation. 
E 
F 
.G 
Civil Procedure Code, 1908-Section 105(2)-0rder of remand 
made by the High Court-Held, Supreme Court in appeal against decree 
consequent upon order of remand can go into the question of its legality 
or validity of earlier order of remand-Constitution of India-Article 136. 
The suit property of a Joint Hindu Family was subject to 
usufructuary mortgage. After the partition, some members of the 
family filed a suit for redemption of mortgage before the trial court. 
The suit was decreed. After the decree, C, one of the members, got the 
suit property redeemed by making full payment of m'ortgage money 
and entered into possession over the suit property. Appellant-plaintiff 
filed a suit before trial court seeking relief of declaration of title of his 
9/12th share in the suit property with recovery of possession and in the 
alternative, the relief of partition. The trial court decreed the suit 
subject to payment towards reimbursemeqt of the amount spent in 
H redeeming the property to d~fendant no. 1, who is the legal heir of C. 
832 
K.P.R. NAIR v. P. PILLAI 
833 
The trial court's order was upheld by the first appellate court A 
dismissing the appeal preferred by defendant no. I. Defendant no. I 
filed second appeal before High Court contending that the appellant's 
suit for declaration, partition and recovery of possession without a 
prayer for redemption of the mortgage property was not maintainable 
since defendant no. l had already subrogated himself in place of B 
original mortgagee on making full payment of mortgage money; and 
that even if the suit for redemption is filed, it is barred by time under 
Article 148 of the Limitation Act, 1908. High Court allowed the appeal, 
set aside the decree under appeal and remanded the case back to the 
trial court with liberty to amend the pleadings to include prayer for C 
redemption. 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. The second appeal by defendant no. 1 was 
allowed by the High Court holding that the suit of the appellant was 
barred by limitation. Hence this appeal. 
The respondents contended that the suit of the appellant was 
barred by time under Article 132 and 144 of the Limitation Act, 1961; 
and that on account of partition in the family the parties had ceased 
D 
to be co-tenants and were tenants-in-common qua each other and 
therefore the redemption by the respondent was not and cannot be E 
deemed to be on behalf of the family. 
Allowing the appeal, the Court 
HELD : 1.1. Subrogation rests upon the doctrine of equity and the 
principles of natural justice and not on the privity of contract. A person, F 
paying money which another is bound by law to pay is entitled to be 
reimbursed by the other. This is a case of subrogation by the operation 
oflaw and hence governed by the first para of Section 92 of the Traqsfer 
of Property Act, 1882. The provision recognizes the same equity of 
reimbursement as underlies Section 69 of the Indian Contract Act, 1872. G 
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 redeeming co-mortgagor an..: also provides for the remedies o

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