Co-mortgagor redemption and partition rights: equitable subrogation does not create mortgagee status or bar partition claims.

A non-redeeming co-mortgagor's suit for declaration, partition and possession remained a partition claim, so the limitation period applicable to partition applied and the suit was not barred as one for redemption or contribution. The redeeming co-mortgagor's plea of contribution operated only as an equitable defence and did not alter the character of the action. Under Section 92 of the Transfer of Property Act, a redeeming co-mortgagor acquires only equitable subrogation and reimbursement rights, not the status of a mortgagee in the strict sense. The other co-owner's right to seek partition therefore survived, and the plaintiff's claim was maintainable and in time.

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Issues: (i) whether a suit by a non-redeeming co-mortgagor for declaration, partition and possession, filed against the redeeming co-mortgagor, is to be treated as a suit for redemption so as to attract the shorter limitation applicable to redemption or contribution; (ii) whether a co-mortgagor who redeems the common mortgage becomes the mortgagee in the strict sense or only acquires equitable rights of reimbursement and subrogation.

Issue (i): whether a suit by a non-redeeming co-mortgagor for declaration, partition and possession, filed against the redeeming co-mortgagor, is to be treated as a suit for redemption so as to attract the shorter limitation applicable to redemption or contribution.

Analysis: The nature of the suit was primarily one for partition and separate possession of the plaintiff's share in the property. The plea of contribution raised by the redeeming co-mortgagor was only an equitable defence to the claim for partition and did not convert the plaintiff's suit into one for contribution or redemption. A partition claim between co-mortgagors is governed by the limitation applicable to partition, namely the period beginning when the right to partition is denied, and not by the limitation applicable to redemption or contribution merely because the defendant had paid off the mortgage.

Conclusion: The suit was within limitation as a partition suit and was not barred as a suit for redemption or contribution.

Issue (ii): whether a co-mortgagor who redeems the common mortgage becomes the mortgagee in the strict sense or only acquires equitable rights of reimbursement and subrogation.

Analysis: Section 92 of the Transfer of Property Act, 1882 recognises statutory subrogation for a redeeming co-mortgagor, but it does not create a fresh mortgage relationship or make the redeeming co-mortgagor a mortgagee in the full legal sense. The right acquired is one of reimbursement and equitable protection, exercisable in the manner of a mortgagee for securing repayment of the excess paid, while the other co-owner's substantive right to seek partition remains intact. Section 69 of the Indian Contract Act, 1872 reflects the same reimbursement principle, and the previous remand order could not prevent examination of the correct legal position in appeal.

Conclusion: The redeeming co-mortgagor acquired only a right of subrogation and reimbursement, not the status of an assignee mortgagee so as to defeat partition.

Final Conclusion: The plaintiff's claim for partition was maintainable and in time, the High Court's dismissal could not stand, and the trial court's decree was restored.

Ratio Decidendi: A redeeming co-mortgagor under Section 92 of the Transfer of Property Act, 1882 acquires only an equitable right of subrogation and reimbursement, not the status of mortgagee, and a suit by the non-redeeming co-mortgagor for partition remains governed by the limitation applicable to partition rather than by the limitation for redemption or contribution.

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