The High Court
Case Details
- 1 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 577 OF 2016 (PAR) BETWEEN: 1. P NANDAKUMAR RAO S/O LATE P SUNDAR RAO, SINCE DECEASED REP. BY LEGAL REPRESENTATIVES Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA 1(A) SMT. P. SUNANDA RAO W/O LATE P. NANDA KUMAR RAO NEAR FANTASY APARTMENT, KARANGALPADY AGED ABOUT 83 YEARS #4-6 573 K.R. RAO ROAD MANGALORE KODIYALBAIL MANGALORE, DK. DISTRICT – 575 003 1(B) SMT. VEENA RAMESH W/O P B RAMESH D/O LATE NANDA KUMAR RAO AGED ABOUT 57 YEARS #211, F-2 S AND S DIAMOND APARTMENTS 2ND CROSS, 4TH MAIN, 4TH STAGE OPP: TO R R NAGAR POLICE STATION BEML LAYOUT, RAJARAJESHWARINAGAR BANGALORE SOUTH BANGALORE – 560 098 2. P VIJAYKUMAR RAO S/O LATE P NANDAKUMAR RAO, AGED ABOUT 44 YEARS, R/AT D.NO.4-6-573, KARANGALPADY ANAND PRASAD COMPOUND, - 2 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR MANGALORE - 575 003 D.K. DISTRICT (APPELLANT No.2 IS ALSO TREATED AS LEGAL REPRESENTATIVE OF DECEASED APPELLANT No.1 VIDE Court ORDER DATED 02.04.2019) (BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE) …APPELLANTS AND: 1. VINODKUMAR RAO S/O LATE P.SUNDAR RAO, AGED ABOUT 66 YEARS, R/AT NO. 153/1, 2ND MAIN, 9TH CROSS, BOVIPALYA, MAHALAXMI LAYOUT, BANGALORE - 560 086. (SINCE DECEASED BY LEGAL REPRESENTATIVES) 1(A) HARSHA KUMAR S/O LATE VINOD KUMAR AGED MAJOR 1(B) SUDHA RAO W/O LATE VINOD KUMAR AGED MAJOR BOTH ARE R/O No.11 8TH CROSS, BANU SCHOOL ROAD KENGERI, SATELLITE TOWN BENGALORE – 560 060 2. P RATHNAKAR RAO S/O LATE P SUNDAR RAO, AGED ABOUT 59 YEARS, R/AT NO. 153/1, 2ND MAIN, 9TH CROSS, BOVIPALYA, MAHALAXMI LAYOUT, BANGALORE - 560 086. 3. SMT. P. SHRIMATHI RAO W/O LATE SRIDHAR RAO - 3 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR AGED ABOUT 63 YEARS (SINCE DEAD, RESPONDENT Nos.4 & 5 ARE TREATED AS LEGAL REPRESENTATIVES OF RESPONDENT No.3 VIDE ORDER DATED 11.06.2024) 4. 5. 6. 7. P SATHISH RAO S/O LATE SHRIDHAR RAO, AGED ABOUT 45 YEARS, SMT. VANDANA SHAILESH BHAT D/O LATE SHRIDHAR RAO, AGED ABOUT 41 YEARS RESPONDENT Nos. 3 TO 5 ARE R/AT BADAGU MANE, KENJAR VILLAGE & POST VIA BAJPE, MANGALORE - 574 142. P JAYAPRAKASH RAO S/O LATE P. SUNDAR RAO, AGED ABOUT 69 YEARS, R/AT BADAGU MANE, KENJAR VILLAGE & POST VIA BAJPE, MANGALORE - 574 142. SNEHALATHA SHABARAYA W/O MURLIDHAR SHABARAYA, AGED ABOUT 53 YEARS, R/AT PARENKI VILLAGE, POST MADANTHYAR, BELTHANGADY TALUK, D.K.DISTRICT - 574 214. (SINCE DEAD BY LEGAL REPRESENTATIVES) 7(A) SHRINATH SHABORAYA S/O MURALIDHAR SHABARAYA AGED MAJOR, PEDYAR BAILU HOUSE PARENKEY VILLAGE MADANTHYAR POST BELTHANGADY TALUK D.K. DISTRICT – 574 224 - 4 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR
Legal Reasoning
7(B) SMT. SHOBINI K W/O K. RAVEESH RAO AGED MAJOR NEW DURGA CANTEEN OPP: TO CAMPCO CHOCOLATE FACTORY MARIL, KEMMINJE VILLAGE DARBE POST PUTTUR - 574 202 7(C) MRS. MAMATHA DEVI W/O SUBRAMANIAN G AGED MAJOR RC 72/178 (40/605) TPSRA 224, SREEVARAHAM MANACAUD POST THIRUVANANTHAPURAM – 695 009 7(D) MRS. SAVITHA P W/O PRAKASH AMMANNAYA PAVOOR MANE, CHENNAR KATTE CHEMBALTHILMAR ROAD BADIADKA POST PERDALA, KASARGOD – 671 551 8. A VANITHA RAO W/O ANANTHA PADMANABHA RAO, AGED ABOUT 62 YEARS, R/AT DOOR NO. 1162, 1ST MAIN, 3RD CROSS, VIJAYA NAGAR, BANGALORE - 560 040. (SINCE DEAD BY LEGAL REPRESENTATIVE) 8(A) SUNITHA ACHARYA W/O RANGANATH ACHARYA AGED ABOUT 45 YEARS R/AT No.2-52A SRI. KRUPA, AMBALPADY UDUPI – 576 103 9. PRAFULLA D/O LATE P SUNDAR RAO, - 5 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR AGED ABOUT 56 YEARS, R/AT BADAGU MANE, KENJAR VILLAGE & POST VIA BAJPE, MANGALORE TQ - 574 142. …RESPONDENTS [BY SRI. SANATHKUMAR SHETTY K., ADVOCATE FOR C/R2 SRI. ANANDARAMA & PRASHANTH, ADVOCATES FOR R1-R6 AND PROPOSED R1(A) TO R1(B) R7(A), R7(B), R7(D) & R8(A) & R9 ARE SERVED V/O DATED 21.04.2025 R7(C) IS D/W V/O DATED 11.06.2024, R4 & R5 ARE LR'S OF DECEASED R3)] THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.12.2015 PASSED IN RA.NO.4/2009 ON THE FILE OF THE Ist ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.10.2008 PASSED IN OS.NO.95/2003 ON THE FILE OF THE IInd ADDL. CIVIL JUDGE, (SR.DN) MANGALORE.D.K. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 15.12.2015, passed in R.A.No.4/2009 by the learned I Additional District and Sessions Judge, Mangaluru, D.K., and the - 6 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR judgment and decree dated 31.10.2008, passed in O.S.No.95/2003 by the learned II Additional Civil Judge (Sr. Dn.), Mangaluru, D.K. 2. For convenience, parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos.1 and 7, respondent Nos.1 and 2 were the plaintiffs and other respondents were the other defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition of plaint ‘A’ schedule property. It is the case of the plaintiffs that suit ‘A’ schedule property belonged to plaintiffs and defendants No.1 to 3, which was settled upon them by their grandfather, late Dr.Pejavar Anand Rao, as evidenced by the registered settlement deed dated 07.02.1941 executed by him. The plaintiffs do not have the original settlement deed. Each of the plaintiffs and - 7 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR defendants No.1 to 3 are entitled to an equal share i.e., 1/5th share in the suit schedule ‘A’ property. It is contended that defendant No.1 is the eldest among the plaintiffs and defendants No.2 and 3. The plaintiffs reside in Bangalore, and defendant No.1 was appropriating all the income from the said property. As the co-owners, the plaintiffs are in joint possession of ‘A’ schedule property. Since they no longer wish to continue jointly any longer, they issued a legal notice dated 08.01.1999, calling upon defendant No.1 to divide and partition the ‘A’ suit schedule property into 5 equal shares and hand over to the plaintiffs, their 2/5th share. The defendant No.1 refused to comply with plaintiffs’ legal demands and issued a reply raising untenable claims. All the attempts at an amicable settlement have failed. The plaintiffs have no alternative but to file a suit for partition and separate possession of their 2/5th share in the schedule ‘A’ property. It is contended that defendants Nos.4, 5 and 6 have no share in ‘A’ schedule property; they are made formal parties. It - 8 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR is contended that defendant No.1 collusively alleges that defendant No.7 is in possession of a part of the building in ‘A’ schedule property. Hence, defendant No.7 is made a party to the suit. Hence, prays to decree the suit. 3.1. In pursuance of suit summons defendant Nos.4 to 6 have not chosen to appear before the Court. Hence, they have been placed exparte. Defendant Nos.1 to 3 and 7 appeared before the Court through their counsel. 3.2. Defendant No.1 filed a written statement contending that Dr.Pejavar Anand Rao, by settlement deed dated 07.02.1941, settled the ‘A’ schedule property in favour of defendant No.1 and others, reserving the life interest in favour of defendant No.1’s father, P.Sundar Rao, without the right of alienation. Plaintiff No.1 mortgaged the suit schedule property under a registered deed of usufructuary mortgage dated 30.10.1961 for a sum of Rs.3,500/-. A suit for redemption of mortgage was filed and the said suit was decreed by the Munsiff Court, - 9 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR Mangalore, as per the judgment dated 27.08.1983 in O.S.No.945/1979 and the final decree was drawn on 20.09.1986 in FDP No.19/1985. It is contended that there is a specific clause in the settlement deed restraining the owners from alienating any portion of ‘A’ schedule property in any way, and further, the person who alienates the property, loses right. In view of the clause in the settlement deed, the present plaintiffs have forfeited all their rights over the schedule ‘A’ property, and their claim over the property is not maintainable. The suit filed by the plaintiffs is barred by limitation and is not maintainable. It is contended that defendant No.1 is in possession and enjoyment of the suit schedule ‘A’ property. The plaintiffs are not in possession and enjoyment of the schedule ‘A’ property. It is contended that defendant No.1 filed a suit in O.S.No.945/1979 for redemption against the mortgage and the said suit was ended in a decree on 20.09.1985 in RSA No.367/1985. Defendant No.1 filed a final decree proceedings in FDP - 10 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR No.19/1985 and final decree was drawn. Defendant No.1 spent more than 5 lakhs for the development and protection of schedule ‘A’ schedule property. It is contended that defendant No.1 is in continuous and peaceful possession and enjoyment of the suit schedule ‘A’ property within the knowledge of the plaintiffs openly for more than the statutory period. Hence, he has perfected his title by adverse possession. It is contended that the parties are Shivalli Brahmins governed by Hindu Mithakshara law. As per the settlement deed dated 07.02.1941, apart from the plaint schedule property, the other immovable properties situated in Kenjar, Thokuru and Kodialbail villages were allotted to the share of P.Sundar Rao and to some of his children and P.Sundar Rao left behind his immovable properties along with suit property. The plaintiffs have not included the other properties. Hence, the suit is bad for partial partition and prays to dismiss the suit against defendant No.1. - 11 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 3.3. Defendant Nos.2 and 3 filed a written statement admitting the plaint averments and contended that they are entitled to 1/5th share in the suit property. Hence, pray to decree the suit. 3.4. Plaintiff No.2 filed a rejoinder to the written statement filed by defendant No.1 admitting the filing of suit in O.S.No.945/1979, and ended in a decree on 20.09.1985 in RSA No.367/1985, and contended that the redemption of mortgage is for and on behalf of the plaintiffs and defendant Nos.1 and 3, hence, prays to decree the suit with costs. 3.5. The Trial Court, based on the pleadings of the parties, framed the following issues and additional issues: 1) Whether the plaintiffs prove that they are the suit schedule the co-owners of property along with the defendants? 2) Whether the plaintiffs have got 2/5th share each in the plaint schedule property? 3) Whether the plaintiffs are entitled for mesne-profits as claimed? - 12 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 4) Whether the 1st defendant proves that the plaintiffs claim is barred by terms of the registered dated 02.02.1941? settlement deed 5) Whether the 1st defendant proves that he the suit improvements in has made schedule property? 6) Whether the 1st defendant also proves that he has perfected his right, title and interest over the plaint schedule property by way of adverse possession? 7) Whether the defendant Nos.2 and 3 are also entitled to 1/5th share each in the plaint schedule property as claimed? 8) Whether the plaintiffs are entitled for a judgment and decree as prayed for? 9) To what order or decree? Additional Issue framed on 21.01.2006: 1. Whether the 1st defendant proves that the suit is barred by time? Additional Issue framed on 09.02.2007: 1. Whether the 1st defendant proves that suit is bad for partial partition? 3.6. The plaintiffs, to prove their case, plaintiff No.2 was examined as PW.1 and marked 26 documents as Exs.P1 and P26. In rebuttal, the defendant No.1 was - 13 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR examined as DW.1 and examined 5 witnesses as DWs.2 to 6 and marked 19 documents as Exs.D1 to 19. The trial Court, after recording the evidence, hearing on both sides and on assessing the oral and documentary evidence of the parties, answered issues Nos.1, 2, 7 and 8 in the affirmative, issue Nos.4 to 6, additional issue framed on 21.01.2006 and 09.02.2007 in the negative, and issue No.9 as per the final order. 3.7. The suit of the plaintiffs was decreed. It is ordered and declared that the plaintiffs are entitled to get their 2/5th share as a group in the suit schedule ‘A’ property and defendant Nos.1 to 3 are entitled to get their 1/5th share each in the suit schedule ‘A’ property. As regards, the mesne- profits and accounting of 2/5th share of the income therein a separate enquiry is ordered to be made under Order 20 Rule 12 of CPC in a final decree proceedings. - 14 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 3.8. Defendants No.1 and 7, aggrieved by the judgment and preliminary decree passed in O.S.No.95/2003, preferred an appeal in R.A.No.4/2009 on the file of learned I Additional District and Sessions Judge, D.K, Mangaluru. 3.9. The First Appellate Court, after hearing the parties, has framed the following points for consideration: 1) Whether the defendant No.1 has established that he has subrogated to the rights of the mortgagee when he redeemed the mortgaged property? 2) Whether the suit is barred by limitation? 3) Whether the judgment of the Court below is perverse, arbitrary and capricious and needs any interference by this Court? 4) What order? 3.10. The First Appellate Court, after re-assessing the verbal and documentary evidence, answered point Nos.1 to 3 in the negative, point No.4 as per the final order. The appeal was dismissed with costs vide judgment dated 15.12.2015 and the judgment and preliminary - 15 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR decree passed in O.S.No.95/2003 dated 31.10.2008 on the file of II Additional Civil Judge (Sr.Dn.), Mangalore was confirmed. Defendants No.1 and 7, aggrieved by the impugned judgments, filed this regular second appeal. 4. Heard the arguments of the learned counsel Sri. Balakrishna Shastry for defendants No.1 and 7 and Sri. Sanath Kumar Shetty, learned counsel for the plaintiffs. 5. Learned counsel for defendants No.1 and 7 submits that there is a restriction in the settlement deed in regard to the alienation. He submits that the mortgage deed was executed, and defendant No.1 filed a suit for redemption of the mortgage in O.S.No.945/1979 and the said suit was decreed on 27.08.1983, and the said judgment was confirmed in RSA No.367/1985, and the final decree was drawn on 20.09.1986. Defendant No.1 spent more than Rs. 2 lakhs to redeem the property. He submits that defendant No.1 was put in possession of the - 16 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR suit ‘A’ schedule property. He submits that the first Appellate Court has erred in holding that there is no pleading in the written statement as regards subrogation, and therefore, there is no scope to raise a contention regarding the rights of defendant No.1 by the principles of subrogation. He submits that the first Appellate Court should have framed the points for consideration regarding the right of subrogation to which defendant No.1 is entitled. He also submits that the plaintiffs and defendants have led evidence after understanding the pleadings and defense of both sides. He submits that defendant No.1 has raised a specific ground regarding the rights of defendants No.1 and 7 under Section 92 of the Transfer of Property Act, 1882, (‘the T.P.Act’ for brevity) regarding subrogation. He submits that the plaintiffs are not entitled to maintain a suit for partition and separate possession, without bringing a suit against defendant No.1 for redemption or for contribution to the mortgage debt. - 17 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 6. He further submits that the plaintiffs are not pleading regarding the suit for redemption filed by defendant No.1. He submits that the plaintiffs have not contributed to redeem the mortgage. He submits that the suit is barred by law of limitation. 6.1. To buttress his arguments, he relied upon the judgments in the case of RAGHAVENDRACHARYA APPACHARYA KATTI AND OTHERS VS. VAMAN SHRINIWAS DESHPANDE AND OTHERS reported in AIR (30) 1943 BOMBAY 191, MUKH NARIAN SINGH AND OTHERS VS. RAMLOCHAN TIWARI AND OTHERS reported in AIR 1941 PATNA 147, VALLIAMMA CHAMPAKA VS. SIVATHANU PILLAI AND OTHERS reported in AIR 1964 MADRAS 269, SIS RAM VS. SUKH LAL AND OTHERS, reported in AIR 1982 PUNJAB AND HARYANA 185, MANGE AND OTHERS VS. DES RAJ AND OTHERS reported in AIR 1967 PUNJAB 270, VALLIAMMA CHAMPAKA PILLAI VS. SIVATHANU PILLAI AND OTHERS reported in AIR 1979 SC 1937, NANJUNDACHARI VS. THE CHAIRMAN, KARNATAKA ELECTRICITY BOARD, BANGALORE - 18 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR AND ANOTHER reported in 1999(2) KAR.L.J.548, NENDUNURI “KAMESWARAMMA” VS. SAMPATH SUBBA RAO reported in AIR 1963 SC 884, BHAGWATI PRASAD VS. CHANDRAMAUL reported in AIR 1966 SC 735 AND VALLIKAT THEKKEDATH VALAPPIL LAKSHMIKUTTY AMMA VS. VALLIKAT THEKKEDATH VALAPPIL DEMODARA MENNON reported in AIR 1997 SC 1909. Hence, on these grounds, he prays to allow the appeal. 7. Per contra, learned counsel for the plaintiffs submits that the plaintiffs have also contributed to redeem the mortgage. He also submits that the restriction imposed in the settlement deed dated 07.02.1941, is contrary to Section 10 of the Transfer of Property Act and the said condition is void. He also submits that both the courts below have considered Section 92 of the T.P Act and passed the impugned judgments. To buttress his arguments, he has relied on the judgment of the Hon’ble Apex Court in the case of KRISHNA PILLAI RAJASEKHARAN NAIR (D) BY LRS. VS. PADMANABHA PILLAI (D) BY LRS. & - 19 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR OTHERS reported in (2004) 12 SCC 754. He also submits that non-framing of issue relating to defendant No.1 under Section 92 of the T.P Act is not a ground to set aside the judgment in view of the ratio laid down by this Court in the case of SMT.S.SUJATHA VS. SRI V.K.ANAND reported in ILR 2009 KAR 3897 and judgment of the Apex Court in the case of BACHHAJ NAHAR VS NILIMA MANDAL & OTHERS reported in AIR 2009 SC 1103. He also submits that parties having understood the pleadings and went for a trial. The defendant cannot raise a ground regarding the non-framing of issues. 7.1. If at all, if the courts below have not framed the appropriate issues, defendant No.1 could have filed an application for framing proper issues. Defendant No.1 has not made any application for framing proper issues regarding subrogation. Defendant No.1 is estopped from contending the issue relating to the right of defendant No.1 under Section 92 of the T.P.Act. Hence, on these grounds, he prays to dismiss the appeal. - 20 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 8. This Court, on 06.09.2016, admitted the appeal on the following substantial questions of law : 1) Whether the lower appellate Court has erred in law in holding that appellants are not entitled to plead rights under Section 92 of the Transfer of Property Act on the principles of subrogation, facts relating to stepping in to the shoes of the mortgagee having been stated in the written statement and the evidence having been laid as per Ex.D1, D2, D4 and D5? the 2) Whether the courts below have erred in not framing an issue relating to the right of the first defendant under Section 92 of the Transfer of Property Act, the necessary facts having been pleaded in the written statement? 3) Whether the courts below have erred in law in holding that plaintiffs are entitled to bring a suit for partition and separate possession without bringing a suit for redemption as against the first defendant, the first defendant having stepped into the shoes of mortgagee by virtue of Ex.D2, Ex.D4 and Ex.D5? 9. Perused the records and considered the submissions of learned counsel for the parties. - 21 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 10. REG. SUBSTANTIAL QUESTIONS OF LAW NOS.1 TO 3: Substantial questions of law Nos.1 to 3 are interlinked. Hence, they are discussed together to avoid repetition of facts. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW.1. He deposed that the plaint ‘A’ schedule property belonged to the plaintiffs and defendants No.1 to 3 jointly, and they had a 1/5th share each. The plaintiffs and defendants No.1 to 3 acquired the suit schedule ‘A’ property under a registered deed of settlement dated 07.02.1941. Defendant No.1 is in possession of ‘A’ schedule property. PW.1 and Plaintiff No.1 are residing in Bengaluru. Defendant No.1 is appropriating all the income from ‘A’ schedule property. The plaintiffs expressed their intention to divide the schedule ‘A’ property. They issued a legal notice on 08.01.1999 requesting defendant No.1 to effect partition. Defendant No.1 failed to comply with the demands made - 22 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR in the notice. Defendant No.1 has not effected any improvements in the plaint ‘A’ schedule property and defendant No.7 has no right in the plaint ‘A’ schedule property. Thus, the plaintiffs are entitled to a 2/5th share in the plaint ‘A’ schedule property. To prove that the plaintiffs and defendants No.1 to 3 are co-owners, plaintiffs have produced the documents. Ex.P1 is the original settlement deed dated 07.02.1941 executed by the grandfather of the plaintiffs and defendants No.1 to 6, i.e., Dr.P.Ananda Rao, regarding the suit schedule properties. Ex.P2 is the office copy of legal notice dated 08.01.1999 issued in favour of defendant No.1, by the plaintiffs to effect partition by dividing joint family properties by metes and bounds into 5 equal shares. Ex.P3 is the reply notice dated 25.02.2019 issued by defendant No.1 to the plaintiffs refusing to effect partition. Exs.P4 is the RTC extract standing in the name of defendant No.3. Ex.P5 is the ROR extract, jointly standing in the name of the plaintiffs and defendants No.1 to 6. Exs.P6 to P19 are - 23 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR the 13 inland letters issued to plaintiff No.2 by defendant No.1. Ex.P20 to P24 are 5 Bank counter foils, Ex.P25 are the copies of RTC extracts, Ex.P26 is the certified copy of the document No.1516 of 1948 dated 18.06.1948 between the family members of the plaintiffs and the defendants. 11. During the cross-examination of PW.1, it was not denied that the plaintiffs and defendants No.1 to 3 are the co-owners of the suit schedule ‘A’ property and it was suggested that there is a clause that bars alienating the schedule property, the said suggestion was denied by PW.1 and that the plaintiff No.1 has no right to claim a share in the suit property. 12. On the other hand, defendant No.1 was examined as DW.1, and he reiterated the written statement averments in the examination-in-chief and to prove the defense, produced the documents marked as Exs.D1 to D19 and also examined 5 witnesses as DWs.2 to DW.6. From the perusal of the entire evidence placed on - 24 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR record, the entire case is based on Ex.P1 i.e., settlement deed which discloses that there was a settlement between the family members and a clause was incorporated in the settlement deed that parties should not alienate the schedule property, since they are given a life interest. To consider the case on hand, it is necessary to consider Section 10 of the Transfer of Property Act, 1882 (for short ‘the T.P. Act), which invalidates absolute restraint on alienation. 10. Condition restraining alienation.— Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. - 25 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 13. Further, a transferee of an immovable property, from an absolute restrain, is placed on the right to deal with the property in capacity as an owner thereof. As per Section 10 of the T.P. Act, a condition restraining alienation would be void. The Section 10 applies to a case where the property is transferred subject to a condition of limitation absolutely restraining the transferee from parting with his interest in the property. For making such a condition invalid, the restrain must be an absolute restrain. It must be a restrain imposed while the property is being transferred to the transferee. Hence, P.Sundar Rao became the absolute owner of the suit property, and he created a mortgage. Thus, creating a mortgage in favour of the mortgagee does not invalidate the mortgage by virtue of Section 10 of the T.P.Act. 14. It is the case of defendant No.1 that he got redeemed the mortgage by filing a suit for redemption in O.S.No.945/1979, contending that he had paid the entire mortgage amount and he alone is entitled to the suit - 26 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR schedule ‘A’ property. To establish that the entire mortgage amount was paid by defendant No.1, defendant No.1 has not produced any material to establish that he had a separate source of income for paying the mortgage amount. Defendant No.1, as a co-mortgager, got redeemed, the other co-mortgagers’ right. Defendant No.1 merely, by redeeming the mortgage in its entirety, cannot claim a right higher than what he otherwise had faced with a claim for partition by the other co-owners. Defendant No.1 cannot defeat the legal claim for partition though he can insist on the exercise of such legal right claimed by the other co-owners cum co-mortgagers being made subject to the exercise of equitable right to claim contribution vesting in him by subrogation. The Hon’ble Apex Court while dealing with Section 92 of the T.P.Act, it has held in VALLIAMMA CHAMPAKA PILLAI VS. SIVATHANU PILLAI AND OTHERS reported in (1979) 4 SCC 429, that, rights created in favour of a redeeming co-mortgagor as a result of discharge of debt are “so far as regards - 27 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems. Posing a question- does a person who, in its equity, gets subrogated become a mortgagee? Their Lordships have held in para No.7, which reads as follows: “A plain reading of the section does not warrant a construction that the subtitutee becomes a mortgagee. The expression is, 'right(s) as the mortgagee and not right(s) of mortgagee. The legislative purpose was statutory recognition of the equitable right to hold the property till the co- mortgagor was reimbursed. And not to create relationship of mortgagor and mortgagee. The section confers certain rights on co-mortgagor and provides for the manner of its exercise as well. The rights are of redemption, foreclosure and sale. And the manner of exercise is as mortgagee. The word "as', according to Black's Law Dictionary, means "in the manner prescribed. Thus a co-mortgagor in possession, of excess share redeemed by him, can enforce his claim against non-redeeming mortgagor by exercising rights of foreclosure or sale as is exercised by mortgagee under Section 67 of the Transfer of Property Act. But that does not make him mortgagee." - 28 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 15. It was further observed that the above said legal position does not alter either, because during partition, the equity of redemption in respect of property redeemed will transfer or because in the plaint, it was claimed that mortgage subsists. The Hon’ble Apex Court in the case of Krishna Pillai Rajasekharan Nair (D) BY LR's. vs. Padmanabha Pillai (D) by LR's and others reported in (2004) 12 SCC 754, held in para Nos.19, 20 and 21 which reads as follows: 19. In our opinion, the law as stated in Variavan Saraswathi case where Section 92 of the Transfer of Property Act has been specifically dealt with and which, as admitted at the Bar, applies to the mortgage in question, clinches the issue arising for decision in the present case. 20. Subrogation rests upon the doctrine of equity and the principles of natural justice and not on the privity of contract. One of the principles is that a person, paying money which another is bound by law to pay, is entitled to be reimbursed by the other. This principle is enacted in Section 69 of the Contract Act, 1872. Another principle is found in equity: "he who seeks equity must do equity", (See Rashbehary Ghose on Law of Mortgage in India, 7th Edn., 1997 at p. 461.) 21. The present one is a case of subrogation by the operation of law and hence governed by the first para of Section 92 of the Transfer of Property Act. The provision the same equity of reimbursement as recognises underlies Section 69 of the Indian Contract Act that "a - 29 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it is entitled to be reimbursed by the other". Such a payment made, carries with it, at times, an equitable charge. Section 92 of the Transfer of Property Act does not have the effect of a substitute becoming a mortgagee. The provision confers certain rights on the redeeming co-mortgagor and also provides for the remedy of redemption; foreclosure and sale being available to the substitute as they were available to the person substituted. These rights the subrogee exercises not as a mortgagee reincarnate but by way of rights akin to those vesting in the mortgagee. The co-mortgagor can be a co-owner too. A property subject to mortgage is available, as between co-mortgagors, for partition, of course, subject to adjustment for the burden on the property. One of the co-mortgagors, by redeeming the mortgage in its entirety, cannot claim a right higher than what he otherwise had, faced with a claim for partition by the other co-owner. He cannot defeat the legal claim for partition though he can insist on the exercise of such legal right claimed by the other co-owner-cum-co- mortgagor being made subject to the exercise of the equitable right to claim contribution vesting in him by subrogation. 16. The plaintiffs along with defendant Nos.1 to 3 step into the shoes of a mortgagee. The issue involved in the present case is squarely covered by the judgment of the Hon’ble Apex Court in KRISHNA PILLAI RAJASHEKARAN NAIR (referred to supra). The judgment passed by the Hon’ble Apex Court in the aforesaid cases, are aptly applicable to the case on hand. - 30 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR 17. From the perusal of the written statement, the defendant did not raise the question of subrogation and it was raised for the first time before the first Appellate Court. The first Appellate Court has recorded its finding regarding the question of subrogation of the rights of mortgage in para Nos.33 and 34 of the impugned judgment. Defendant No.1, without raising a plea of subrogation has no right to raise the question of subrogation for the 1st time before the first Appellate Court, though, it is a legal issue, that can be raised at any stage. 18. Defendant No.1 claim that he acquired the title by way of adverse possession. Admittedly, the defendant No.1, has not admitted the title of the plaintiff over the suit property. Hence, he cannot claim a plea of adverse possession. This Court, in the case of PAKEERA (MALERA) JINDA SAB AND OTHERS VS. KHAJI MOHAMMAD HUSSAIN SAB (D) BY LR'S, passed in RSA No.855/2007 decided on 12.03.2024, made it very clear that the defendant taking a - 31 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR plea of adverse possession has to admit the title of the plaintiff and further dealt with the essential ingredients of an adverse possession. 19. The learned counsel for defendant No.1 submits that the first Appellate Court should have framed a point of consideration regarding the right of subrogation. Though, the first Appellate Court has framed as many as 4 points for consideration, point No.1 framed by the first Appellate Court, which reads as follows: “i. Whether the defendant No.1 has established that he has subrogated to the rights of the mortgage when he redeemed mortgage property?” 20. The first Appellate Court has already framed point for consideration regarding subrogation of rights and also answered point No.1 in the negative, after taking into consideration of Section 92 of the T.P. Act. He also submits that the trial Court has not framed an issue relating to Section 92 of the T.P. Act. The Hon’ble Apex - 32 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR Court in BACHHAJ NAHAR VS. NILIMA MANDAL AND OTHERS reported in AIR 2009 SC 1103 held that “when the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case”. If at all appropriate issues were not framed, defendant No.1 could have made an application for framing of proper issues regarding subrogation. Hence, defendant No.1 is estopped to contend the issue relating to defendant No.1 under Section 92 of T.P.Act is fatal. Both the courts below have concurrently recorded findings of fact against defendant No.1 and considered Section 92 of T.P.Act, and passed the impugned judgments. In view of the above discussion, I do not find any error in the impugned judgments. 21. The learned counsel for defendant No.1 relied upon the judgments referred above. The said judgments were also relied on before the first Appellate Court. The first Appellate Court, considered the judgments relied - 33 - NC: 2025:KHC:19692 RSA No. 577 of 2016 HC-KAR upon by defendant No.1, passed the impugned judgment. Hence, again the question of considering the very same judgments, does not arise for consideration. In view of the above discussion, I answer substantial questions of law Nos.1 to 3 in the negative. 22. Accordingly, I proceed to pass the following:
Decision
ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the courts below are hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, pending I.A, does not survive for consideration and is accordingly disposed of. SKS Sd/- (ASHOK S.KINAGI) JUDGE