GHULAM SAFDAR SHAH, J.--This second appeal is directed against the judgment of the Senior Civil Judge, Kohat, with appellate powers, and has been referred to the Full Bench to determine the following question:- "Whether a suit against a co-mortgagor who has redeemed a mortgage, and is, therefore subrogated to the position of the mortgagee, brought by the other mortgagors for redemption was governed by Article 148, or Article 144 of the Limitation Act?"
2. The background of the case is that the suit land, of which late Azad was the owner, was mortgaged by him with one Kishan Diyal since before 1903-4. On the death of Azad some time in 1937 the equity of redemption fn the property was inherited bar his three sons, Sattar, Rafiq and Shafiq, to the exclusion of their sisters, vide mutation No. 2645 attested on 26-8-1937. On 7-4-1942 the three brothers redeemed the mortgage from Diwan Chand and other heirs of Kishan Diyal vide mutation No. 3188. And the record shows that in the consolidation proceedings, which took place some time later, they were allotted 114 kanals 3 marlas of land in khasra Nos., amongst others, 622/922 and 623/594, out of which some land was exchanged by Shafiq with one Amir Khan vide mutation No. 5533 attested on 24-12-1962.
On 19-4-1966, Mst. Zamo, one of the daughters of late Azad, instituted suit against her brothers for the possession of her 1/9 Mohammadan law, share in the suit land. Her case was that she had been enjoying the produce of her share of the land through--out, but when the same was denied her in the Kharif crop of 1965, she inspected the revenue record and discovered that the entire suit land had been wrongly mutated in the name of her brothers. The suit, which was tried in the Courts below as one for redemption, was contested only by the three brothers, whereas the remaining two daughters of Azad and Amir to whom a part of the land had been transferred by way of exchange by Shafiq did not contest the suit and were proceeded against ex parte.
3. Upon the pleadings of parties, the trial Court framed seven issues in the suit, including an issue whether the suit was within time, but on the strength of a judgment of the Bombay High Court in the case of Raghavendracharya Appacharva Katti and others v. Vaman Shiriniwas Deshpanda and others (AIR 1943 Bom. 191) dismissed the suit only on the issue of limitation. The trial Court was of the view that the suit of Mst. Zamo being one for redemption was governed by Article 148 of the Limitation Act, but since it was filed after 60 years of the date when the land had been initially mortgaged with Kishan Diyal it was barred by limitation. Mst. Zamo went in appeal against this judgment and the appellate Court, relying on two judgments Mt. Radha v. Ajudhia Parshad and others (AIR 1933 Lah. 91) and Behram Khan v. Khawas (PLD 1964 Pesh. 154) allowed the appeal, holding that the suit was within time and remanded the case to the trial Court for disposal on merits. Being aggrieved of the judgment the three brothers came in appeal to this Court and during its hearing Qaisar Khan, J. Took the view that the judgment of the trial Court, based on the above Bombay decision, manifested the correct legal position and the contrary judgment of the appellate Court was illegal, for in the two judgments of Lahore and Peshawar High Court, which it had followed, no notice way taken of the Amendment Act XX of 1929, by which sections 92 and 95 of the Transfer of Property Act (hereinafter called the Act) had been amended. However since his Lordship could not differ with the views taken in these judgments he directed that the case be placed before the learned Chief Justice for referring it to the Full Bench for the decision of the above question.
4. It may be mentioned that the Act as such is not applicable to North-West Frontier Province. But by virtue of section 28 of the N. W. F. P. Law and Justice Regulation VII of 1901, its principles have been applied to all case; coming before Courts as a matter of justice, equity and good conscience s Seth Chela Rain v. Messrs Gopi Chand Singh Jivan Dass and others (AIR 1942 Pesh. 88), L. Roshan Lal v. L. Arjan Dev and another (AIR 1942 Pesh. 68).
Now the legal position, which even under the unamended provisions of sections 92 and 95 of the Act was the same, is that any one of the co-mortgagors is entitled to redeem a mortgage executed by him jointly with others, but in such a case the other mortgagors also would have the right to recover from him their share of the property by paying him their liability of the common debt which he had paid to the mortgagee. The fact that in view of N. W. F. P. Regulation VII of 1971, tae present case would have to be decided in the light of these principles as a matter of equity, justice arid conscience, the question then is as tea what would be the period of limitation within which the co-mortgagor should file a suit against the redeeming co-mortgagor for the recovery of his share in the property.
5. Prior to the amendment of section 92 of the Act, by Act XX of 1929, there was divergence of opinion amongst the various High Courts of Indian Sub-Continent on this point inasmuch as the view taken by some of the High Courts was that in a case of the present type the suit of mortgagor to recover his share of the property from the redeeming co-mortgagor was governed by Article 144, whereas according to the other view the Article applicable to such a suit was Article 148 of the Limitation Act. The main reason which appears to have contributed to this cleavage in the opinion of the various High Courts was the unhappy language of sections 74 and 75 of the Act, in which the right of subrogation was recognised, but it gave no indication if a redeeming co-mortgagor would be entitled to this right. This confusion was high-lighted by the then section 95 of the Act in which it was stated that "where one of several co-mortgagors redeems the mortgaged property and obtains possession thereof tae has a charge on the share of each of the other co-mortgagors in the property for his proportion of the expenses properly incurred in redemption". The use of the words "charge" in this section, which obviously related to the recovery of the proportionate share of the expenses incurred by the redeeming co-mortgagor, persuaded some of the High Courts to hold that notwithstanding the recognition of the right of subrogation by sections 74 and 75 of the Act, a redeeming mortgagor could not claim to have been subrogated to the rights of the mortgagee and consequently a suit by the other co-mortgagor to redeem this share of the property from him was governed by Article 144 of the Limitation Act. The decisions in which this view was preferred are reported in Ramchandra Khasserao v. Ganesh Balwant (I L R 57 Bom. 134), Purnachandra Pal v. Bandra Prasanna (I L R 46 Cal. III), Jai Kishen Joshi v. Bhundand Joshi (I L R 38 All. 138) and Ramnarayan v. Ramdevi (6 Pat. L J 680).
As against this the view taken by the other High Courts was that by the conjoint effect of Sections 74, 75 and 95 ref the Act, a redeeming co-mortgagor would stand subrogated to the rights of the mortgagee and therefore Article 148 of the Limitation Act would apply to the suit of the other co- mortgagor for the recovery of his share in the redeemed property. The decisions in which this view has been taken are reported in Wazir Ali v. Ali Islam (I L R 40 All. 683), Mukh Narain Singh v.
Ramlochan Tiwari (I L R 19 Pat. 938), Raghavendracharya v. Vaman Shriniwas and Kishengopal v.
Abdul Latif Khan (I L R 15 Luck. 175).
However there is no scope for any such controversy now because of the amendment of sections 92 and 95 of the Act by Act XX of 1929. Section 92 of the Act, as it now stands, says that "a co- mortgagor shall, on redeeming property, have so far as regards redemption, foreclosure and sale, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor" whereas section 95, from which the word "charge" has been omitted, provides that "where one of several mortgagors redeems the mortgaged property, he shall in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage money a proportionate share of his expenses properly incurred in redemption". From this it is clear that the right of subrogation of a redeeming co-mortgagor to all the rights of the mortgagee, which even before the amendment of sections 92 and 95 of the Act were recognised by the above decisions of Allahabad, Patna, Bombay and Oudh High Courts, cannot now be disputed. And the result would be that a suit filed by the other co-mortgagors for the recovery of their share of the property from the redeeming mortgagor would be governed by Article 148 of the Limitation Act. The period of limitation prescribed by this Article for the filing of such a suit is 60 years from the date when the property was initially mortgaged by all the mortgagors and considering that a redeeming co- mortgagor would now stand substituted to all the rights of the mortgagees the other co- mortgagors could not possibly claim that by the act of redemption they were entitled to the fresh period of 60 years.
However this does not mean to be the end of the matter because of certain other provisions of the Act of which no notice was taken in any of the above decisions and which have important bearing in regard to the question which has been referred for the decision of this Bench.
6. Now it cannot be disputed that a redeeming co-mortgagor cannot claim any new rights in respect of the property except that as between him and the non-redeeming mortgagors be entitled to recover from them the amount paid him in excess of his liability. This right, which is known as the right of contribu--tion, is recognised by section 82 of the Act, is enforceable by filing a suit to which Article 132 of the Limitation Act is applicable and the period prescribed thereunder is 12 years from the date when the property is redeemed by a co-Mortgagor. The principles underlying section 82 of the Act appear to be based on equity, justice and good conscience as otherwise in a case, in which the property had been redeemed by a co-mortgagor at the fag end of 60 years prescribed under Article 149 of the Limitation Act, he would be unable to enforce his right of contribution against the other co-mortgagors with the result that the right secured to him by section 82 would become illusory. It would therefore follow that if a redeeming co-mortgagor would be entitled to file a suit within 12 years of the date he redeems the property, then there must be a corresponding right in the other co-mortgagors to file a suit against him for the recovery of their share of the property within the same period. If this be so then it is clear that for such a suit the co-mortgagors would be entitled to two periods of limitation, one under Article 148 of the Limitation Act provided the period of 60 years prescribed thereunder from the date when the property was originally mortgaged by all the mortgagors had not expired, and the second within 12 years from the date when the property was redeemed by the co-mortgagor as provided under Article 132 of the Limitation Act.
Mian Muhammad Younas Shah, the learned counsel brought to oar notice a Full Bench judgment of the Madras High Court in the case of Vallizainma Champaka v. Sivathanu Pillai and others (AIR 1964 Mad. 269) in which the same conclusion was reached by their Lordships in view of section 82 of the Act and Article 132 of the Limitation Act. We respectfully agree with the views expressed in this judgment and feel that the question does not need any further discussion.
7. Now the two judgments relied upon by the appellate Court in the present case had taken no notice of section 92 of the Act, as it stands presently, and consequently they cannot be said to have laid down the correct law. The two judgments in question had followed the earlier four judgments of the Lahore High Court out of which three were delivered before the Amend--ment Act XX of 1929 and the fourth, although delivered subsequent to the said Amendment Act, had no discussion of the amended provision of sections 92 and 95 of the Act. These decisions therefore cannot be said to be an authority for the preposition that fn a case of the present type Article 144 of the Limitation Act would apply to suit by a co-mortgagor against the redeeming mortgagor for the recovery of his share in the property.
In view of this discussion our answer to the question referred to us for decision is that a suit against a co-mortgagor, who has redeemed a mortgage and is thus subrogated to the rights of the mortgagee by the non-redeeming mortgagor for redemption, would be governed by Article 148 of the Limitation Act, provided the period of 60 years prescribed thereunder has not expired from the date when the property was mortgaged by all of them. In case the said period has expired then the co-mortgagor would still be able to recover his share of the property by filling suit within 12 years under Article 132 of the Limitation Act and for this Purpose the period of limitation would commence from the date when the property was redeemed by the co-mortgagor.
Having answered the reference thus we direct that this appeal would now be laid before a learned Single Judge for decision according to law.