VALLIKAT THEKKEDATH VALAPPIL LAKSHMIKUTTY AMMA AND ORS. versus VALLIKAT THEKKEDATH VALAPPIL DEMODARA MENON AND ORS.

Citation: [1996] SUPP. 9 S.C.R. 387 · Decided: 29-11-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Dismissed

Judgment (excerpt)

VALLIKAT THEKKEDATH VALAPPIL 
LAKSHMIKUTTY AMMA AND ORS. 
v. 
VALLIKAT THEKKEDATH VALAPPIL 
DEMODARA MENON AND ORS. 
NOVEMBER 29, 1996 
[K. RAMASWAMY AND G.T. NANAVATI, JJ] 
Transfer of Property Act, 1882 : Section 92. 
Mortgaged property-Right of subrogatiorr-Suit for possession by Co-
mortgagor-Limitation period for-Possessory mortgage of property-Property 
redeemed by appellant-Thereafter suit filed for partition of plaint schedule 
prope1ty-The Trial Court and the District Cowt found that since the appel-
A 
B 
c 
lant had redeemed the property, he subrogated himself into the shoes of the D 
mortgagee-Since the respondents have not redeemed the mortgage within a 
period of 30 years from the date of execution of Mortgage deed, the appellant 
has become absolute owner of the property-As a result, the suit for partition 
in respect of the Plaint Schedule Property does not lie-High Court reversed 
the finding and held that property was partible-Appeal before Supreme 
Coult'-fleld, one of the co-owners or one of the co-mortgagers is entitled to 
redeem the mortgage and on redemption, he subrogates into the shoes of the 
mortgagees-To the extent of his liability for the mo1tgage,he gets discharge 
and to the extent of the shares of other co-mortgagers, he stands in the position 
of mo1tgagee vis-a-vis other co-mortgagers-Therefore, it would be open to the 
other mortgagers to sue for possession of the property, after paying their share 
within the period of limitation-12 years is a period of limitation for posses-
sion of the property-Since the appellant came into possession to the extent 
E 
F 
of the share of other co-owners, namely, their Karvans of the Tarwad as a 
mortgagee, they are entitled to pay to the extent of the respective shares of the 
mortgage amount and seek possession from the co-mortgagor, namely, appel-
G 
!ant within 12 yea1~ from the date of the redemption of the mortgage-Jn these 
circumstances, suit has been filed within limitation for a partition of property 
and preliminary decree shall follow subject to the payment of mortgage 
amount to the extent of their share to the appellant. 
Valliamma Champaka Pillai v. Sivathanu Pillai & Ors., [1979] 4 SCC H 
387 
388 
SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R. 
A 429, held inapplicable. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15610 of 
1996. 
From the Judgment and Order dated 22.7.95 of the Kerala High 
B Court in S.A. No. 616 of 1985. 
Sanjay Parikh for the appellants. 
M.P. Vinod for the Respondents. 
C 
The following Order of the Court was delivered : 
Leave granted. 
We have heard learned counsel on both sides. 
D 
This appeal by special leave arises against the judgment and decree 
of the Kerala High Court, made on 22.7.1993 in S.A. No. 616/85. 
The admitted facts are that item 6 of the Plaint Schedule Property 
belonged to the Tarawad. The Karanawan had executed the possessory 
E mortgage as per Exhibit B-1 for a sum of Rs.200. The appellant lthiridutty 
Appachi filed suit No. OS-114/70 in the Court of Munsiff, Pattambi for 
redemption of the mortgage, Exhibit B-1. The property was redeemed by 
the appellant. Thereafter, the present suit came to be filed for partition of 
the plaint schedule property in their respective shares. We are not con-
cerned in this case with other items. We are concerned only with respect 
F 
to item 6 of the mortgage property. Based on the contentions, it was found 
and accepted by the· trial Court and the District Court that since the 
appellant had redeemed the property, he subrogated himself into the shoes 
of the mortgages. Since the respondents have not redeemed the mortgage 
within a period of 30 years from the date of execution of Exhibit B-1, the 
G appellant has become absolute owner of the property. As a result, the suit 
for partition in respect of item No. 6 of the Plaint Schedule Property is not 
partible; it does not lie. The High Court in the above impugned judgment 
has reversed the finding and held that item 6 is also partible. 
The learned counsel appearing for the appellant relied on Valliamma 
H Champaka Pillai v. Sivathanu Pillai & Ors., [1979] 4 SCC 429; and con-
V.T. VLAPPILLAKSHMIKUJT\' AMMA '· V.T. VALAPPIL DEMO DARA MENON 
389 
tended that the respondent have failed to redeem the property within the A 
limitation and, therefore, they cannot file a suit for partition. It is difficult 
to accept the contention of the learned counsel. It is seen that in that case 
in the suit for redem

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