Padmanabhan Sadasivan v. Padmanabhan Krishnankutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** **RSA NO. 932 OF 2003** **AGAINST THE DECREE AND JUDGMENT DATED 31.07.2002 IN AS 230/1994 OF III ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM AGAINST DECREE AND JUDGMENT DATED 02.03.1994 IN OS 829/1992 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM** ## **APPELLANTS/APPELLANT/PLAINTIFF:** 1 PADMANABHAN SADASIVAN, RESIDING AT SANTHOSH BHAVAN, T.C.36/1104, VALLAKKADAVU, THIRUVANANTHAPURAM FROM PULIYIL BUNGLOW, VELLAYANI, UPANIYOOR DESOM, NEMOM VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.M.R.ANANDAKUTTAN SRI.B.SATHIQ ## **RESPONDENT/RESPONDENT/DEFENDANT** 1 PADMANABHAN KRISHNANKUTTY, RESIDING AT KRISHNA VILASOM VEEDU, OOKKODE NEAR SCHOOL, OOKODE DESOM, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO. 932 OF 2003** **-2-** ## **JUDGMENT** The judgment dated 02.03.1994 passed by the Principal Munsiff's Court, Thiruvananthapuram, dismissing O.S.No.829/1992, which stands confirmed by the Additional District Court III, Thiruvananthapuram in A.S.No.230/1994 dated 31.07.2002, is under challenge in this Regular Second Appeal. 2. The plaintiff and defendant are siblings. The plaint schedule property originally belonged to Neelakantan Padmanabhan, the father of the plaintiff and defendant. Neelakandan Padmanabhan mortgaged the plaint schedule property to one Kochukutty Krishnan for 1400 phanams by executing a mortgage deed No.1717/1098 ME. The original mortgagee died intestate. The plaintiff redeemed the mortgage from the legal representatives of the original mortgagee, who executed a release deed No.7100 dated 27.12.1963 (Ext.A3) in favour of the **RSA NO. 932 OF 2003** **-3-** plaintiff. 3. The plaintiff claims he has been in exclusive possession and enjoyment of the plaint schedule property. According to the plaintiff, the defendant attempted to trespass upon the plaint schedule property, and hence he prayed for a permanent prohibitory injunction against the defendant. 4. The defendant resisted the claim of the plaintiff, contending that the plaintiff is only a co-owner of the plaint schedule property, over which he never got exclusive title or possession. The defendant also denied the allegation of trespass pleaded by the plaintiff. According to the defendant, the suit has been instituted to deny his co-ownership right and the joint possession and enjoyment of the property. 5. The trial Court dismissed the suit holding that the plaintiff and defendant are co-owners of the plaint schedule property and that the plaintiff **RSA NO. 932 OF 2003** **-4-** is not entitled to an injunction as prayed for. 6. The First Appellate Court confirmed the findings of the trial Court and held that the defendant is also in possession and enjoyment of the plaint schedule property from the date of execution of Ext.A3 release deed and that the plaintiff failed to plead and establish ouster against the defendant. On 08.01.2004, this Court admitted the Second Appeal and formulated the following substantial question of law: **==> picture [327 x 12] intentionally omitted <==** subrogated to the rights and privileges of the original mortgagee against the non-redeeming co-mortgager, respondent when he redeemed the plaint schedule property under Ext.A3”. 7. Heard Smt.M.A.Zohra, the learned counsel for the appellant. 8. The plaint schedule property originally belonged to Neelakandan Padmanabhan, the father of **RSA NO. 932 OF 2003** **-5-** the plaintiff and the defendant, who had mortgaged the same to one Kochukutty Krishnan by way of mortgage deed No.1717/1098 ME. The plaintiff redeemed the mortgage from the legal representatives of the original mortgagee by way of release deed No. 7100 of 1963 (Ext.A3). 9. Both the trial Court and the First Appellate Court held that the plaintiff and the defendant are in joint possession of the plaint schedule property after the execution of Ext.A3 release deed. **==> picture [395 x 13] intentionally omitted <==** consideration is whether the plaintiff, co- mortgager subrogated to the rights and privileges of the original mortgagee against the non-redeeming co-mortgager when he redeemed the plaint schedule property under Ext.A3. 11. Simply on account of paying off mortgage debt and obtaining release from a mortgagee, one of the co-mortgagers who had obtained such a release **RSA NO. 932 OF 2003** **-6-** does not step into the shoes of the mortgagee. 12. 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. Therefore, he who seeks equity must do equity. 13. 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 to reimburse himself. The subrogation to the rights of the mortgagee by the redeeming co-mortgagor is confined only to the extent necessary for his **RSA NO. 932 OF 2003** **-7-** 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 the right of contribution. 14. The Supreme Court in _**Variavan Saraswati v.**_ _**Eachaampi Thevi [1993 Supp (2) SCC 201]**_ has dealt with the contrast between two situations: (i) where a mortgagee assigns his interest in favour of another person (i.e. a stranger); and, (ii) where a comortgagor or any one on behalf of the mortgagor and authorized under law pays the amount and brings to an end the interest which the mortgagee had. It has been held that in the first case, the assignee becomes the 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 the equity of redemption, the mortgage comes to an end by operation of law. 15. Consequently, the relationship of **RSA NO. 932 OF 2003** **-8-** mortgagor and mortgagee cannot exist. A person paying off a debt to secure the property either with the consent of others or in 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. 16. The First Appellate Court held that Ext.A3 release deed was executed for and on behalf of the all the legal representatives of deceased Neelakandan Padmanabhan, including this plaintiff and defendant. Therefore, on the execution of Ext.A3 release deed, the mortgage ceased to exist. The plaintiff, along with other legal heirs, including the defendant, became the absolute title holders of the plaint schedule property. Both the Courts below concurrently found that they are in **RSA NO. 932 OF 2003** **-9-** joint possession and enjoyment of the property. Therefore, the Courts below rightly held that the plaintiff is not entitled to the prohibitory injunction as prayed for. In the result, the Second Appeal stands dismissed. **Sd/-** **K.BABU JUDGE** hmh