Velu Pillai, J.:— S.A 287 of 1959 arises out of O.S 83 of 1120, S.A 288 of 1959 arises out of O.S 1096 of 1120, S.A 289 of 1959 arises out of O.S 710 of 1121, and S.A 1216 of 1961 arises out of O.S 79 of 1120. One Kurumpa had two sons, Kesavau and Narayanan and four daughters, Kunchekki, Lekshmi, Parvathi and Nangeli. Lekshmi had a daughter Appili, who was the mother of plaintiffs 1 to 3 and the grandmother of the 4th plaintiff in O.S 1096 of 1120. Parvathi was the mother of the first plaintiff in O.S 83 of 1120, and of Unichekki. Kunchekki was the grandmother of the plaintiff in O.S 710 of 1121. Narayanan was the father of the plaintiff in O.S 79 of 1120. Kesavan had a son Kunju Pillai, who died leaving his widow the first defendant, and his children, defendants 2 to 4. Defendants 1 to 4 are common in the four suits. They are members of the Kammala community and are governed by Hindu Law as modified by custom. On the 6th Idavom, 1062, a mortgage Ext. C was executed by Kesavan, Narayanan, Kunchekki, Appili, Unichekki and Nangeli aforesaid, for a term of five years. On the 20th Medom, 1065, Kesavan who was the senior male member in the family gave three udampadies, Ext. B in favour of Kunchekki, Ext. D in favour of Appili and Ext. E in favour of Unichekki, each for an 1/6th share of the equity of redemption of the property, reciting that a partition had taken place between Kurumpa's children, and that the udampadies were executed by way of implementing it. After these three dispositions and a fourth which is not in evidence in favour of Nangeli, there remained a 2/6th share of the equity of redemption for Kesavan and Narayanan. In the year 1116, Kunju Pillai and his sons defendants 2 to 4 sued for the redemption of Ext. C and obtained Ext. H judgment, by which the plaintiffs were allowed to set off the mortgage amount, against arrears of michavarom payable by the mortgagee the recovery of which was already barred by limitation; this was after overruling the contention of the mortgagee that the plaintiffs were liable to him for arrears of rent of a building on the property which had been adjusted by him towards michavarom and that nothing was therefore payable as michavarom. It thus transpired, that after setting off the barred arrears of michavarom nothing was payable to the mortgagee towards the mortgage amount, and the property was recovered in the year 1119. O.S 79 of 1120 the suit by Narayanan's son, was for partition of a half share in the 2/6th part which remained for Kesavan and Narayanan after the four dispositions. O.S 83 of 1120, O.S 1096 of 1120 and O.S 710 of 1121 were respectively for declaration of title on the strength of Exts. E, D and B respectively, and for recovery of possession of 1/6th share of the property in each suit.

2. They were contested by defendants 1 to 4. According to them, Kesavan was incompetent to give the udampadies which were not therefore valid, the udampadies did not take effect, and the suits having been instituted more than 50 years after the expiry of the term of Ext. C were barred by limitation. The suits were tried jointly and were decreed by the court of first instance. Defendants 1 to 4 appealed to the Subordinate Judge against the decrees in O.S 83 and 1096 of 1120 and O.S 710 of 1121 but not against the decree in O.S 79 of 1120. He allowed the appeals, holding that the suits were barred under Article 136 of the Travancore Limitation Act, 1100 which corresponds to Article 148 of the Indian Limitation Act. Second appeals 287, 288 and 289 of 1959 have been preferred by the respective plaintiffs against the decrees of the Subordinate Judge dismissing their suits. After the decision of the Subordinate Judge in the three appeals, defendants 1 to 4 preferred appeal against the decree in the fourth suit O.S 79 of 1120. The District Judge who heard the appeal condoned the delay in presenting it, and allowed the same dismissing the suit as time-barred. S.A 1216 of 1961 has been preferred by the legal representative of the deceased plaintiff in O.S 79 of 1120. The plaintiffs in the four suits have taken the stand, that the udampadies Were valid and have taken effect, and so they were in the position of co-owners. It was on that footing, that the cases were disposed of in appeal as barred by limitation. The first question is whether the suits are governed by Article 136 aforesaid as contended by the defendants, or by Article 132 of the Travancore Act corresponding to Article 144 of the Indian Act as contended by the plaintiffs. The main argument of learned counsel for the plaintiffs was, that as nothing had to be paid to the mortgagee to recover possession or in other words the mortgage having been extinguished by the mortgage money being set off against arrears of michavarom, there was neither in fact nor in law a redemption of the mortgage but only recovery of possession of the property, that the legal representatives of Krishnan who recovered the property pursuant to Ext. H were in law entitled only to recover the share of Krishnan and not that of any of the co-mortgagors, that having recovered the whole property, the suits were governed by Article 132 and wert therefore not barred. It was also urged that even the right of a co-mortgagor who redeems a mortgage by payment, being only to reimburse himself to the extent of the mortgage money which he had to pay in excess of his own share, in the present case no payment having taken place, no question of reimbursement arises and the right of the other co-mortgagors is simply to recover property as from a person in wrongful possession.

4. For examining the rights of a redeeming co-mortgagor it is not to Section 92 of the Transfer of Property Act as amended by the amending Act of 1929, that resort must be had; at the time of recovery of possession, the Transfer of Property Act was not in force in the Travancore area from which this case has arisen. The general principles of justice, equity and good conscience governed the case. Before the enactment of Section 92 of the Transfer of Property Act, there has been a cleavage of judicial opinion between the Allahabad High Court and the High Courts of Bombay and Calcutta as regards the right of a redeeming co-mortgagor and the nature of his possession. But the Travancore High Court had declared the law for the area concerned in this case, by a Full Bench in Cheriyan Mathevan v. Vedamanikom Samuel (10 T.L.J 468 at page 486) in these terms:

“Where any person entitled to the equity of redemption in a portion of the mortgaged property redeems the mortgage on the whole of such property, he becomes in the eye of the law an assignee of the mortgagee with respect to the interests of other persons entitled to the rest of the equity of redemption.”

5. Section 95 of the Transfer of Property Act as it was before the amendment of 1929, provided that the redeeming co-mortgagor would have a charge on the share of each of the other co-mortgagors for the expenses of redemption. With reference to this, Rash Behary Ghose said as follows in the Law of Mortgage in India, 4th edition. Volume I, at pp. 371 and 372:

“I should here mention that I had used the word ‘charge’ in a popular sense of a burden on the land. But, though this term is commonly used, I must repeat that, strictly speaking, the plaintiff in such cases occupies the position of an assignee of the original security, the character of which is not altered when the debt is discharged.”

6. The Full Bench in the case cited referred to this passage and at page 487 observed:

“I am of opinion that, having regard to the weighty views of that eminent Jurist, Sir Rash Behary Ghose, quoted above, and to the preponderance of judicial authority in support of his views, a mortgage, redeemed by one of two co-mortgagors, does not become metamorphosed into a charge as defined in the Transfer of Property Act, in so far as it affects the interests of the other co-mortgagor who does not take part in the redemption and that the nature of the original security remains unchanged and the legal incidents thereof are left unimpaired, whatever be the terminology used to describe the security after such redemption.”

7. The statement of the law by the Full Bench for the erstwhile State of Travancore, is categorical, that on redemption by a co-mortgagor the mortgagee becomes as assignee as it were of the original security so far as the other co-mortgagors are concerned. This decision was followed by the Travancore-Cochin High Court in Mathevan Nadar Muthiah Nadar v. Kochan Nadar Ramaswamy Nadar (I.L.R 1953 T.C 48) in which the rule was stated thus:

“A co-mortgagor who redeems the share of the other co-mortgagors in the property should be treated as having stepped into the shoes of the mortgagee qua that portion of the mortgaged property which represented the interest of the other co-mortgagors. The case of a co-mortgagor reedeeming the shares of the other co-mortgagors, is merely an instance of a subrogation and he stands in the shoes of the original mortgagee, in respect of the shares of the other co-mortgagors.”

8. The law as enacted in Section 92 of the Transfer of Propery Act by the amending Act of 1929 is also more or less the same, whatever may have been the state of the antecedent law. For this reason, Raghavendracharya Appacharya Katti v. Vaman Shrinivas Deshpande (A.I.R 1943 Bombay 191) decided by a Division Bench of the Bombay High Court, though under section 92 as amended, is particular helpful and it answers almost all points raised by counsel. It was held that subrogation under section 92 means “neither more nor less than substitution” and that “a person who is subrogated to the rights of the mortgagee has all the rights of the mortgagee, not merely some of the rights, and those rights must include rights in connection with the particular mortgage by redeeming which he gets the benefit of the section. It cannot be disputed that the mortgagee under a possessory mortgage like the one in suit is entitled to remain in possession of the property until a suit is brought for redemption of the mortgage”. It was contended that no question of subrogation arose, because under the Dekkhan Agriculturists' Relief Act, the debt had been satisfied and therefore there was no redemption. The court said:

“He argues that redemption implies payment of the mortgage debt, and if there is no mortgage debt to pay, there is no redemption. In our view this is not a correct statement of the position. No doubt the mortgagor cannot redeem without paying or tendering whatever amount may be due. But that does not mean that there is no such thing as redemption if in the circumstances it turns out that there is nothing to pay……………. Apart from that, however, the suit brought by defendant 3 was undoubtedly a suit for redemption and the decree,…………….was nothing less than or different from a decree for redemption.”

9. A Full Bench of the Allahabad High Court also held in Ashfed Ahmed v. Wasir Ali (I.L.R 14 Allahabad 1) that where one co-mortgagor redeems the Whole mortgage he thereby puts himself into the position of the mortgagee as regards that portion of the mortgaged property which represents the interests of the other co-mortgagors and the period of limitation applicable to a suit for redemption by the other co-mortgagors is that provided for by Article 148 of the Indian Limitation Act.

10. As against these, learned counsel for the plaintiffs referred me to Gobardhan v. Sujan (I.L.R 16 Allahabad 254), a case of usufructuary mortgage, the amount of which was wholly satisfied out of the usufruct, in which the court observed that

“Where the amount of the mortgage is satisfied out of the usufruct, the mortgage becomes extinct and the parties are relegated to the position in which they were before the mortgage. In such a case one of the mortgagors can only claim from the mortgagee whose mortgage has been satisfied out of the usufruct his own individual share, and he acquires no right to take possession of the shares of his co-mortgagors”.

11. In the Bombay case cited above, the learned Judges doubted whether this can be regarded as good law under the Transfer of Property Act, presumably under Section 92. They considered, that the language of Section 92 would cover even a mortgage of that kind; this doubt might well arise under the rule in Cheriyan Mathevan v. Vedamanikom Samuel (10 T.L.J 468) also. However, for the decision of this case it is not necessary to resolve the doubt. Moreover, in a “self-redeeming” or usufructuary mortgage, the mortgage debt is antomatically wiped out and possibly there is no necessity for its redemption, all that remains being to recover possession of the property. This may attract the rule laid down by the Supreme Court in Prithi Nath Singh v. Suraj Abir (A.I.R 1963 S.C 1041) where the mortgage was discharged by payment previously and the mortgagee still continued possession. The rule was stated thus:

“If the mortgage money has been paid and then the mortgagor goes to Court to enforce his demands, that would not be to enforce his right of redemption which was really his right to make those demands on payment of the mortgage money. The right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money.”

12. It was contended that pursuant to Ext. H, there was no redemption as such, because nothing had to be paid actually when the property was recovered. It is hardly open to doubt on a reading of Ext. H, that the suit as framed was for redemption; there was a specific prayer in the suit for redemption on setting off the barred arrears of michavarom against the mortgage amount. The mortgagee raised a plea in defence and the court adjudged the dispute and allowed set off. In my opinion, this is not similar to the case in Gobardhan v. Sujan (I.L.R 16 Allahabad 254) or to the case before the Supreme Court in Prithi Nath Sing v. Suraj Ahir (A.I.R 1963 S.C 1041). In the former there was an automatic liquidation of the mortgage debt by appropriation of rents and profits, pursuant to the stipulations in the mortgage document and in the latter there was a complete discharge by payment of the mortgage debt, all that remained in both being a re-transfer of the property. The fact that the michavarom which was set off was payable to all the co-mortgagors, does not affect or alter the capacity in which the plaintiffs in Ext. H instituted the suit. That a common fund was set off towards the mortgagors would be relevant in determing the extent to which reimbursement, if any, can be claimed. Applying the rule in Cheriyan Mathevan v. Vedamanikom Samuel (10 T.L.J 468) and in Mathevan Nadar Muthiah Nadar v. Kochan Nadar Ramaswamy Nadar (I.L.R 1953 T.C 48), I am led to hold, that the suits are governed by Article 136 of the Travancore Limitation Act and have been rightly dismissed as barred by limitation. The question whether the udampadies have taken effect or not does not arise, for the suits are not framed on the footing that the udampadies are not operative or valid and that the property belongs to the joint family. The second appeals are accordingly dismissed with costs to defendants 1 to 4—respondents in each case.

14. Learned counsel prayed for leave to appeal. Leave granted.