Kunju Pillai Gopalakrishnan Pillai v. Parameswara Panicker and others

**C. R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944** **RSA NO. 762 OF 2014** **AGAINST THE JUDGMENT IN AS 42/2000 OF ADDITIONAL DISTRICT COURT (ADHOC),** # **MAVELIKKARA** **OS 2/1992 OF MUNSIFF COURT, HARIPAD** **-----** ## **APPELLANTS/APPELLANTS/DEFENDANTS 4 & 5:** 1 KUNJU PILLAI GOPALAKRISHNA PILLAI, SREENIKETHAN, FROM PONKOTTIL THEKKETHIL, VETTUVENI MURI, PALLIPPAD VILLAGE. ## **(DIED; LRS IMPLEADED AS ADDL. A3 & A4)** 2 PONNAMMA KOMALAVALLI AMMA, SREENIKETHAN, FROM PONKOTTIL THEKKETHIL, VETTUVENI MURI, PALLIPPAD VILLAGE. ## *** ADDL. APPELLANTS 3 & 4** ADDL. A3 MADHU G., AGED 42 YEARS, S/O. M.GOPALAKRISHNA PILLAI, SREENILAYAM, VETTUVENI, HARIPPAD P.O. ADD. A4 SINDHU K., AGED 56 YEARS, D/O.KOMALAVALLY AMMA, SREENILAYAM, VETTUVENI, HARIPPAD P.O. ***** [LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 AND 4 AS PER THE ORDER DATED 24.07.2017 IN IA 1735/2017] BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.GEORGE RAJU SMT.SURYA SASI ## **RSA NO. 762 OF 2014 -2-** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 3:** 1 PARAMESWARA PANICKER, NEELAKANDA PILLAI, PANDAVATHU VEETTIL, KODAMTHURUTHU MURI, KODAMTHURUTHU VILLAGE, CHERTHALA TALUK, FROM AMPEENPARAMPATHU PALLIPARAMPIL, PILAPPUZHA MURI, HARIPPAD VILLAGE. ## **[R1 IS RECORDED AS LEGAL REPRESENTATIVE OF DECEASED R2 AS PER ORDER DATED 11.04.2013 AS PER MEMO DATED 04.04.2013]** 2 KARTHYAYANI AMMA PONNAMMA, **(DIED; LRS RECORDED)** AMPEENPARAMPATHU PALLIPARAMPIL, PILAPPUZHA MURI, HARIPPAD VILLAGE. 3 PONNAMA PADMINI, TC NO.36/660, SREEVAS, PERUMTHANNI, THIRUVANANTHAPURAM. 4 MADAVA KURUP RADHAKRISHNAN, **[DELETED]** T.C. NO.28/58, CHANDRALAYATHIL, UPPALAM ROAD, THIRUVANANTHAPURAM. ## **[R4 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 18/06/2014 IN IA 1483/2014 AT THE RISK OF THE APPELLANTS]** BY ADVS. SRI.M.BALAGOVINDAN SRI.D.SOMASUNDARAM THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C. R.** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.762 of 2014** **= = = = = = = = = = = = = = = = = = Dated this the 19[th] day of October, 2022** ## **J U D G M E N T** Challenging the concurrent decree in a suit for partition and redemption of mortgage, defendants 4 and 5 are in appeal. Plaintiff and the first defendant are brother and sister. Defendants 2 and 3 are the children of the first defendant. Defendants 4 and 5 are assignees of plaint schedule item No.3 property from the second defendant. In this appeal, we are concerned only about plaint schedule item No.3 property. 2. The property-plaint schedule item No.3, belonged jointly to the plaintiff, his brother, late Madhavan Pillai and their mother Karthiyayani Amma as per Ext.A1 partition deed of the year 1953. The brother Madhavan Pillai died in the year 1957. His rights devolved on the mother. Thus the mother held 2/3 shares and the plaintiff held 1/3 shares over the property. In the year 1969, as per Ext.A2, the mother and the son-plaintiff, ## **R.S.A. No.762 of 2014** -: 2 :- mortgaged the property to one Padmajan. Subsequently, the second defendant obtained assignment of the rights from Padmajan. Thereafter on 26.11.1977, as per Ext.A4 sale deed, the mother-Karthiyayani Amma conveyed her rights over the property to the second defendant. In the year 1980, the second defendant, as per Ext.A3 sale deed, conveyed the property to defendants 4 and 5. The plaintiff has filed the suit for partition and redemption of his 1/3 shares over the property on payment of the proportionate mortgage money. 3. The courts concurrently decreed the suit. The same is assailed in this Regular Second Appeal. 4. Heard learned counsel Sri.George Varghese Perumpallikuttiyil on behalf of the appellantsdefendants 4 and 5 and Sri.M.Balagovindan, learned counsel for the contesting respondent-plaintiff on the following substantial question of law :- “ _Is the suit bad for partial redemption under Section_ _60 of the Transfer of Property Act ?”_ **R.S.A. No.762 of 2014** -: 3 :- 5. The rights of the mortgagee-Padmajan under Ext.A2 mortgage was obtained assignment of by the second defendant. The mother held 2/3 shares and the plaintiff held 1/3 shares of the equity of redemption. As per Ext.A4 the mother purported to convey her rights over the property in favour of the second defendant. In Ext.A4, it was described that she was holding 1/2 right over the property whereas, in fact, she held 2/3 shares. The argument of the learned counsel for the appellant is that, under Ext.A4, the mother has conveyed only 1/2 of the mortgagor's right (equity of redemption) and that the 1/3 out of the 2/3 remained with her. The plaintiff has sought for redemption of only his 1/3[rd] share. Without seeking for redemption of the entire outstanding mortgage, the suit is bad for partial redemption, is the contention. I am unable to agree with the said contention. 6. The relevant part of Section 60 of the Transfer of Property Act (hereinafter referred to as “the Act”) **R.S.A. No.762 of 2014** -: 4 :- reads thus:- _“_ _**60. xxxxx xxxxx xxxxx xxxxx**_ _**Redemption of portion of mortgaged property:-** Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except [only] where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.”_ It incorporates the rule against partial redemption. A person holding a share only of the equity of redemption is not entitled to seek for redemption of his share alone, but, has to seek for redemption of the entire mortgage. This is the rule against partial redemption. The principle behind the rule is that, if there are several persons interested in the mortgage and each of them files separate suits for redemption of their share of the mortgage, the mortgagee would be put to difficulties. In _**Nilakant Banerji v. Suresh Chunder Mullick ILR**_ **R.S.A. No.762 of 2014** ## -: 5 :- ## _**(1886) 12 Cal. 414**_ , the Privy Council held :- _“11. It is quite a new thing to hold that the purchaser of a single fragment of the equity of redemption may come, without bringing the other purchasers before the Court, and have an account as between himself and the mortgagee alone, so that the mortgagee may be paid off piecemeal. Such a law would result in great injustice to the mortgagee. It would put him to a separate suit against each purchaser of a fragment of the equity of redemption though purchasing without his consent, and he would have separate suits against each of them, and suits in which no one of the parties would be bound by anything which took place in a suit against another. Different proportions of value might be struck in the different suits, and the utmost confusion and embarrassment would be created.”_ ## 7. In _**Durga Prasad and Anr. v. Chunni and Ors. [AIR 1940**_ _**Allahabad 528]**_ , the Allahabad High Court held that the rule against partial redemption is one in favour of the mortgagee. The relevant observations read thus:- **R.S.A. No.762 of 2014** -: 6 :- _“The integrity of a mortgage is necessary for the benefit of the mortgagee alone and where the integrity has been broken by the purchase of the shares of some of the mortgagors by the mortgagee, the only right which each mortgagor has is to redeem his own share. There is no equity in favour of one of the mortgagors to redeem the remaining property, although the same is more than his own legitimate share.”_ However, the Madras High Court has in _**Parukutti Amma and Ors. v. C.Balameenakshi Amma and Ors. [AIR 1954 Mad. 818]**_ , held that the rule of indivisibility of the mortgage is not for the benefit of the mortgagee's alone, but also for the mortgagor. Be that as it may, the Rule of indivisibility of mortgage applies only till the integrity of the mortgage is broken. When the mortgagee acquires a share of the mortgagor's right, there is a merger or coalescence of the mortgagor's right with the mortgagee's right in so far as that share is concerned. Such merger results in redemption of mortgage to the extent of the said share. Thus there occurs a division ## **R.S.A. No.762 of 2014** -: 7 :- or splitting of the integrity of the mortgage. Once the integrity of the mortgage is broken, then the prohibition under Section 60 of the Act regarding partial redemption does not apply. This is because there has already occurred partial redemption and breaking of the integrity of mortgage. Once the integrity of the mortgage is broken, each mortgagor is entitled to redeem his own share. Here it would be relevant to refer to illustration to Section 60 given by Mulla in his commentaries on the Transfer of Property Act (12[th] Ed.). The same reads thus :- “ _(2) A mortgages property to B. A then sells one-third of the property to C, one-third to D, and one-third to the mortgagee_ _B. The integrity of the mortgage is broken, and C may redeem his one-third share for one-third of the debt.”_ In _**Varghese Cherian v. Ouseph Korathu [1960 KLT 1080]**_ , this Court held thus :- _“..... Where the equity of redemption over a share or a_ _portion of the mortgage holding has been obtained by a_ **R.S.A. No.762 of 2014** **==> picture [34 x 9] intentionally omitted <==** _mortgagee the law is clear that the mortgage has become divided thereby and thereafter the mortgagor can maintain a suit for partial redemption in respect of the mortgage. …..”_ Thus, it is evident that, once the integrity of the mortgage is broken, the rule against partial redemption does not survive, and a co-mortgagor is entitled to redeem his share alone. 8. In the case at hand, the second defendant having acquired a share out of the equity of redemption under Ext.A4, there has been a merger/coalescence in respect of such share resulting in breaking of the integrity of the mortgage. Therefore, whether the conveyance under Ext.A4 was only in respect of 1/2 shares out of the 2/3 shares held by the mother is, under the circumstances, irrelevant. Integrity of the mortgage having been broken consequent on Ext.A4, the plaintiff is entitled to redeem his share of the mortgage, and the rule against partial redemption does not apply. ## **R.S.A. No.762 of 2014** -: 9 :- 9. On the finding as above, it is not necessary to consider regarding the extent of right/quantum of share transferred under Ext.A4 sale deed, whether it was the entire rights held by the mother or only a portion thereof. 10. Thus, the courts below were right in having granted a decree in favour of the plaintiff. There is no merit in the appeal. The appeal fails and is accordingly dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge