Dama Seshadri Naidu, J.1. This writ petition throws open the issue whether a subsequent purchaser has a right to subrogate by redeeming the mortgaged property if his vendor defaults-so that he could save the property. The corollary to that issue is whether a writ petition can be taken recourse to for that purpose.

2. The petitioner is one of the seven persons, who purchased a piece of immovable property through Ext. P1 registered sale deed from the 5th respondent. The purchase was in the year 2007. Soon thereafter, the purchasers came across Ext. P2 notice issued by the third respondent Bank proposing to sell the property covered by Ext. P1 sale deed in the execution of an award it had obtained against the 5th respondent, the borrower and original title holder. Complaining that the respondent Bank is not allowing them to redeem the property and not returning the original title deeds, one of the purchasers has filed the writ petition.

3. The learned counsel for the petitioner has submitted that the petitioner and other purchasers initially did not know about the encumbrance of the property. He has further submitted that now the vendor, the 5th respondent, has no subsisting interest in the property.

4. The learned counsel has also contended that as the petitioner is an interested person, he has the locus to seek the redemption of the property. He contends that, in terms of Sections 60, 83 and 91 of the Transfer of Property Act, the petitioner has every right to redeem the property and have the documents returned to him.

5. Faced with a specific query whether one co-owner could sue for the redemption of the property or the return of the documents, the learned counsel has drawn my attention to paragraph 3 of the writ petition. The pleading is that the other co-purchasers of the property were not available "at present"-at the time of the petitioners filing the writ petition-to join him to sue.

6. The learned counsel has contended that the petitioner filed the writ petition not only on his behalf but also on behalf of the other co-purchasers under their authorisation. The learned counsel has further drawn my attention to the reliefs sought in the writ petition to hammer home his contention that the outcome should enure to the benefit of all the co-owners.

7. Shri Ashok Kumar, the learned counsel for the respondent Bank, on the other hand, has strenuously contested the petitioners claims. To begin with, he has submitted that the writ petition is not in a representative capacity; that is, it is not for and on behalf of the other co-owners. A person who represents just 1/7th part of interest in the property alone has come before this court; he has no absolute right of redemption.

8. The learned counsel has further contended that in Ext. P1 sale deed, there is a specific recital that the original title deeds had been handed over to the purchasers at the time of execution of Ext. P1. The said recital ex facie is incorrect. According to him, the very Ext. P1 sale deed further records that by the time of sale, two civil suits were pending against that property: O.S. Nos. 450 of 2011 and 457 of 2011 before Sub-Court, Palakkad. Thus contends the learned counsel that the petitioner and the other co-owners purchased the property lis pendens. To this day, the fate of those two suits referred to in Ext. P1, according to the learned counsel, is not known.

9. The learned counsel has strenuously contended, first, that there is no privity of contract between the subsequent purchasers of the mortgaged property and the respondent Bank. He has, second, also contended that since the Bank has contracted with the 5th respondent, absent any valid authorisation or consent letter from the said person, the respondent Bank cannot be compelled to return the documents to the petitioner. The learned counsel has drawn my attention to Section 60A of the Act. According to the learned counsel, any such precipitous step of returning the documents would further entangle the Bank in needless litigation.

10. It is also one of the specific contentions of the learned counsel that the petitioner has filed no appeal against the award in ARC No. 129 of 2011 based on which Ext. P2 sale notice was issued. He would contend that if at all the petitioner wanted to redeem the property, he ought to have taken recourse to Rule 82 of the Kerala Cooperative Societies Rules.

11. Summing up his submissions, the learned counsel for the respondent Bank has placed reliance on K.C. John v. Liquidator , 2006 (1) KLT 11 (F.B) as regards what is said to be the untenability of the petitioners claim.

12. Addressing the legal issues, the learned counsel for the respondent Bank has, however, submitted that Sections 60A and 92 of the Act govern the issue rather than Sections 60, 83, 91, and 92 of the Transfer of Property Act (TP Act), relied on by the petitioner.

13. Heard the learned counsel for the petitioner, the learned Government Pleader, and the learned counsel for the respondent Bank, apart from perusing the records. Issue:

"1. Can the petitioner, a co-owner, seek the relief concerning an immovable property held jointly without arraying the other co-owners as parties

2. Can the subsequent purchasers redeem the property without reference to the mortgagor-vendor and seek the return of the title deeds from the mortgagee bank"

Willingness:

14. At the outset, before addressing the issues on merits, this Court desires to address an issue of technicality: The petitioner has sought, as relief in the writ petition, the facility of instalments to redeem the property. I have, concerning the said prayer, pointed out to the learned counsel for the petitioner that it does not lie within the jurisdiction of this Court to compel the respondent to provide any instalments-the contract being commercial and non-statutory.

15. I have also put across to the learned counsel that if the petitioners claim for redemption is accepted, the statute, still, does not provide for instalments. On the contrary, the statutory scheme insists on the redemption by paying the debt in its entirety, to the satisfaction of the mortgagee.

16. In response, the learned counsel for the petitioner has submitted that the petitioner will pay the entire amount in a lump sum and redeem the property for and on behalf of all the purchasers of the property in Ext. P1.

Article 226: Civil Appeal

17. Before adjudicating the issues, I may address an issue on the adjudicatory justifiability: Can this Court invoke Article 226, a constitutional remedy in the manner of a summary procedure, to decide what is primarily a civil dispute having some of the trappings of a title dispute In other words, am I converting a constitutional court into a civil appellate court, thus equating Article 226 of the Constitution with Section 95 of the Code of Civil Procedure

18. First, there are no disputed questions of fact. Even the petitioners sale deed is not in question for the Bank has nothing to do with it beyond securing its debt. The vendor-borrower, despite service of notice, has not chosen to contest the matter. He alone could have objected to the proprietary claim of the petitioner and his co-purchasers over the property-or, at least, the right of redemption.

19. The entire adjudication, therefore, proceeds on admitted facts to decide a question of law-Can a subsequent purchaser of an encumbered property save it from alienation in the hands of the mortgagor, to protect his interest in the property

20. In my considered view, the salutary principle of not adjudicating the title disputes in writ proceedings will not apply here. The bank wants its money back; the petitioner wants the property to be preserved. If a summary procedure resolves this issue on admitted facts without driving the parties to resource draining, dilatory litigation, it is always good. Desirable, too.

Issue No. 1:

21. Admittedly, the petitioner is a co-owner of the property under mortgage to the respondent bank. He has filed the writ petition to have the property redeemed by paying the mortgage debt so the property could be saved from further alienation. Though he made the mortgagor and original owner of the property-his vendor-a party to the writ petition, he did not choose to appear or be represented. Presumably, the mortgagor has no subsisting interest in the property.

22. To begin with the petitioner has averred that the redemption is claimed for and on behalf of all the co-owners of the property. Revelling in hairsplitting technicalities and procedural trivialities, the respondent bank has mounted a heavy defence against the petitioners claims. It boggles my imagination why the respondent bank has displayed needless aggression and refused to realise its money-which is otherwise a herculean task. If it had wanted, it could have put the 5th respondent, its borrower and (erstwhile) owner of the property, on notice about the petitioners claim for the return of the documents. By receiving the money, it could have, in the alternative, put the auction on hold. The respondent Banks adopting the said course may have served the twin purposes: (1) The Bank could have easily realized its dues; (2) the petitioner and other co-owners could have remained content that the property was saved from the threat of alienation. Instead, the Bank has espoused the cause a defaulter, whose property it seems to have been determined to protect-even from the hands of the very purchasers.

23. The issue being the proprietary interest of a co-owner, the Apex Court, in the context of eviction proceedings at the behest one co-owner, has observed in Sri Ram Pasricha v. Jagannath , (1976) 4 SCC 184 [LQ/SC/1976/300] that jurisprudentially it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others, and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is unnecessary, according to their Lordships, to establish that the plaintiff is the sole owner of the property.

24. In India Umbrella Mfg. Co. v. Bhagabandei Agarwalla , (2004) 3 SCC 178 [LQ/SC/2004/4] , at page 183, the Apex Court has held, again in eviction, that with only one co-owner suing for relief, the doctrine of agency applies. The Court has held that the consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed despite their disagreement. Confining to the facts of the said case, their Lordships have also observed that one of the co-owners cannot withdraw his consent midway to the prejudice of the other co-owner.

25. It is now a settled legal position that one of the co-owners or one of the co-mortgagers is entitled, declares the Honble Supreme Court in V.T.V. Lakshmikutty Amma v. V.T.V. Demodara Mennon , AIR 1997 SC 1909 [LQ/SC/1996/2079] , to redeem the mortgage. And on such redemption, he steps into the shoes of the mortgagee. As to his share, the co-owner gets a discharge; for the shares of the other co-owners, he stands in the place of the mortgagee. Therefore, it would be open to the other co-owners to sue for possession of the property, after paying their share within the period of limitation.

26. Needless to burden the judgment with more precedents on this issue, which stands concluded and admits of no ambiguity as regards the entitlement of a co-owner to sue for and on behalf of all the co-owners if there is no material to hold that the said co-owner is acting adversely to the interest of the other co-owners. I, therefore, hold that the petitioner may eminently maintain the writ petition for all the co-purchasers of the property.

Issue No. II:

Common law, A word on:

27. From the days of blood feuds, ordeals by fire, trial by combat, the justice dispensation system has made great strides to the days of law lords and scales of justice-it is a one-thousand-year legal evolution.

28. In England, William the Conqueror, who ended the Anglo-Saxon Rule in the 9th century AD., ironically sowed the seeds of common law with the combination of Anglo-Saxon and Norman laws. For this, he had had his own motives, justice being perhaps the last of them. William II continued to build on what had been done by William I, by introducing the system of Eyre (Circuit)-the itinerary system of adjudication.

29. Next significant phase of development in common law came through Henry II, who is said to be the true harbinger of the common law system. With a central court at the Westminster, the Kings justices toured all parts of the country and decided the cases commonly albeit based on the local customs, too. On their coming back, the justices preserved the records of their decisions at the Westminster. Thus came into being the practice of precedent. The expression Common Law in no magical incantation; it simply was the law commonly, somewhat uniformly, administered across the country. It signifies the English Laws transformation from provincial dispensation to pan-England adjudication on the basis of precedent. It is, therefore, a judge made law governed by precedent, rather than statute, which was a subsequent phenomenon.

30. By the end of 13th century, the common law came to be administered by the Kings Bench, the Court of Common Pleas, and the Exchequer. In time, the common law became a prisoner of precedent. To put it differently, the common law, which is nothing but the accumulated wisdom of precedents, became a prisoner of its own being, the precedent-paradoxical as it may sound. With the rigidity of the common laws judicial dispensation, the distraught suitors began petitioning the King, who entrusted grievance redressal to his Chancellor, the Kings conscience keeper. The Chancellor, uninitiated into law, was initially guided by his own notions of what was good and what was bad-variably, the notions of equity and good conscience. The Chancellor was not bound by precedent, and his Court became a court of extraordinary jurisdiction.

31. As the time went by, by the reign of Henry VIII, the Chancery Court came to be a rival to the common law courts. If a conflict arises between the common law and equity, the latter came to prevail. It is a gloss on the common law. Equity, nevertheless, has never been provided on a platter: it is discretionary, and the beneficiary must meet certain preconditions, such as coming with clean hands (in the figurative sense), avoiding delayed approach, doing equity before seeking equity. At any rate, equity is aimed at assisting the law, but not creating it, much less destroying it.

32. It is said of both the systems that "the two streams have met and now run in the same channel, but their waters do not mix"1 In India, the position was entirely different. To begin with, we did inherit the common law, but by then the equity was neither distinct nor different. It was inextricably mixed with the common law with no means of our separating them. Common law has always meant for us the best of both the aspects: They have complemented each other, instead of competing. The said complementing is by combining. Thus, the two streams, having met, run in the same channel with their waters mixed.

Mortgages & Equity Principles:

33. As we have been grappling with the issue of redemption of a mortgaged property, it pays to remember that the facet of redemption was initially more a matter of equity than a right: hence, the equity of redemption.

34. The Indian Courts, pre- and post-independence, have traced the origins of equity as far as India is concerned. Since the passing of the Transfer of Property Act, the distinction drawn in England between law and equity no longer applied to India, especially concerning the real property. In Bengal National Bank v. Janoki Nath, , (1927) 14 AIR Cal. 725 at p. 822 the Calcutta High Court has held that the Transfer of Property Act has left no room for such a distinction.

35. In Vithal Narayan v. Eajebahadur Shriram Savant, (1905) 29 Bom 391 the Bombay High Court has held that in India there is no equity of redemption in the lessee (mortgagor) and there being no distinction between his legal and equitable estate, his whole estate is not transferred by mortgage. Further, the Indian Courts, pre-independence, have consistently held that the distinction between law and equity has no place in India: Theechalan v. Eralpod Rajah (1918) 5 A.I.R Mad 425 and Fala Krista Pal v. Jagannath Marwari , (1932) 19 A I R Gal 775 are the two precedential instances.

36. Standard legal commentaries like Ghoses Law of Mortgage and Mullas Transfer of Property Act have asserted that the Act was a self-contained Code, by which alone the rights of mortgagor and mortgagee were to be ascertained and under which statutory but not equitable rights were brought into existence.

37. By referring to all the above aspects, In Ram Kinkar Banerjee v. Satya Charan Srimani , AIR 1939 PC 14 a five-judge Bench of the Privy Council observes that up to the time of the passing of the Transfer of Property Act, the rights of mortgagors and mortgagees of land in India were subject to much controversy; the law of England, subject to such modifications as justice, equity, and good conscience required, was recognized as the law of India also. But whether the English Rules of equity applied to such cases was not certain. Since the passing of the TP Act, however, the distinction drawn in England between law and equity in such cases does not exist in India.

38. Ram Kinkar Banerjee (supra) further observes that by Indian law the interest which remains in the mortgagor is a legal interest, and its retention may therefore prevent the whole of the mortgagors interest from passing to the mortgagee, a result which would not follow if an equitable interest only were retained. The Act itself, according to their Lordships, contains some suggestions: Section 54, which deals with the sale, speaks of a sale as a transfer of ownership as opposed to the transfer of interest spoken of in Section 58 (a) in the case of a mortgage. Further, though an interest may be absolute, the word, particularly when used in opposition to ownership, is more appropriate to a limited right.

39. Ram Kinkar Banerjee (supra) finally concludes thus:

"15. [I]n the first place, as has been pointed out, equitable estates do not exist in that country, and in the second, under the provisions of Section 54, T.P. Act, a contract for the sale of immovable property does not create any interest in or charge upon the land sold. Having this provision in view, it is difficult to see how a personal contract to reconvey can create any interest in the land itself. But to regard the mortgagors right of redemption as being merely contractual and as creating no interest in the land would make it impossible for him to assign his right of redemption or to create a second mortgage so as to bind the land. Such a state of things is, of course, theoretically possible, but it is inconsistent with the provisions of the Act (which in Sections 81, 82, 91 and 94 recognizes second mortgages) and with the possibility, well established in India, of transferring the right of redemption to a purchaser."

(italics supplied)

40. While discussing a redeeming co-mortgagors right to recover contribution from his co-debtor, in Ganeshi Lal v. Joti Parshad , AIR 1953 SC 1 [LQ/SC/1952/67] the Honble Supreme Court has held that Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it. In Valliamma Champaka Pillai v. Sivathanu Pillai , (1979) 4 SCC 429 [LQ/SC/1979/348] , noting this aspect, a learned Bench of three judges observes that Ganeshi Lal was a case from Punjab where the Transfer of Property Act was, then, not in force. The principles of justice, equity, and good conscience, therefore, were applied. In Valliamma, as reported in SCC, one of the headnotes reads to the effect that principles of equity are applicable where the act is inapplicable. First, I have found no such observation in the body of the judgment; second, the cause of action even in Valliamma, like Ganesh Lal, arose in the territory of Travancore-Cochin when the Transfer of Property Act had not applied.

41. The conclusion is that as regards the mortgages, apart from what has been mandated in Transfer of Property Act, separate equity principles, as in England, have no application.

Statutory Scheme:

42. Section 60 of the Transfer of the Property Act recognises the right of the mortgagor to redeem the property. After the principal money has become due, the mortgagor has a right, on payment of the mortgage-money, to require the mortgagee to deliver to him the mortgage-deed and all documents relating to the mortgaged property in the possession or power of the mortgagee. It shall be at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute, where the mortgage has been effected by a registered instrument, and to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.

43. Of course, the right to redeem shall be exercised before the said right gets extinguished by the act of parties or by decree of a court. Further, partial redemption cannot be insisted upon even by a co-owner for his share.

44. As per Section 60-A of the Act, where a mortgagor is entitled to redemption, he may require the mortgagee, instead of re-transferring the property, to transfer the mortgaged property to such third person as the mortgagor may direct. And the mortgagee shall be bound to assign and transfer accordingly on the mortgagors meeting the statutory requirements. This provision, however, does not apply with a mortgagee who is or has had the mortgaged property.

45. Further, Section 83 facilitates the depositing of money in a court of law by the mortgagor or any other person capable of suing for redemption. It shall be after the money payable on any mortgage has become due and before a suit for redemption of the mortgaged property is barred. The persons capable of suing as per Section 91 of the Act are as follows: (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage debt or any part thereof; or (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.

46. It is pertinent to observe that Section 92 of the Act recognises an equity principle: subrogation. Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.

47. In Bishundeo Narain Rai v. Anmol Devi , (1998) 7 SCC 498 [LQ/SC/1998/819] the Apex Court has held in para 11 that a combined reading of Sections 8 and 54 of the Act suggests that on a transfer of property, all the interests which the transferor has capable of being transferred, in the property with all the legal incidences thereof, pass on to the transferee unless a different intention is expressed or implied.

48. Liability is not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will. Where a man pays premiums on a policy of insurance belonging to another person to save that policy from lapsing, he will normally cannot claim on the policy monies. To this general rule, there are several exceptions. A lien will arise if the person making the payments made them out of his own moneys (i) under contract with the beneficial owner, either express or implied; (ii) as trustee; (iii) as mortgagee; (iv) in circumstances giving rise to a claim by subrogation; (v) where the property was in the hands of an official receiver or other officers of the court who knew that the payment were being made; or (vi) in the erroneous belief that the property was his, and the true owner, knowing he was the owner and knowing of the others belief, stood by and allowed him to make the payments, so creating a proprietary estoppel. (See Snellss Principles of Equity2) Subrogation:

49. Blacks Law Dictionary defines Subrogation as follows:

"The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor. For example, a surety who has paid a debt is, by subrogation, entitled to any security for the debt held by the creditor and the benefit of any judgment the creditor has against the debtor, and may proceed against the debtor as the creditor would. Subrogation most commonly arises in relation to insurance policies. 2. The equitable remedy by which such a substitution takes place. 3. The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy."

50. P. Ramanatha Aiyars Major Law Lexicon3 defines subrogation as substitution of another person in the place of a creditor, so the person in whose favour it is exercised succeeds to the rights of the creditor in relation to the debt. The doctrine is one of equity and benevolence, and like contribution and other similar equitable rights was adopted from the civil law, and its basis is doing complete, essential, and perfect justice between all the parties without regard to form, and its object is the prevention of injustice. The right does not rest on contract or privity, but upon principles of natural equity, and does not depend upon the act of the creditor, but may be independent of him and also of the debtor.

51. The Apex Court in Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai , (2004) 12 SCC 754 [LQ/SC/2003/1279] at 767 observes that 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 may be reimbursed by the other.

52. From the scheme of the T.P. Act, we can discern that a person, other than the mortgagor, can discharge the mortgage debt (a) in its entirety; (b) to protect his interest in the property; (c) though he is not primarily liable. A voluntary payment with no right or interest in the property does not result in subrogation; nor does any payment even in compliance with the above (a), (b), and (c) conditions affect the rights of a subsequent mortgagees who secured their debts with the mortgage of the property prior to the said third party acquires his interest in the property.

53. What is required by Section 91 is that the person seeking to redeem has a proprietary interest in the mortgaged property. He need not be the original mortgagor or any person claiming through or under him. (Vide Ganesh Raghunath Deshpande v. Rajaram Laxman Deshpande , AIR 1934 BOM 32 [LQ/BomHC/1933/89] .)

54. In Mirza Yadalli Beg v. Tukaram , AIR 1921 PC 125, it was held that even the smallest interest in the mortgaged property will entitle a person to redeem the mortgage.

55. In Nasiruddin v. Ahmad Husain, , AIR 1926 PC 109 [LQ/PC/1926/46] though the Privy Council has held the sale to be invalid, it permitted the purchaser who discharged mortgages on the property to stand in the shoes of the mortgagee whom he paid off.

56. Gaviya v. Lingiah , AIR 1957 MYS 65 is an unusual case. The lis is on behalf of a person who is a purchaser of the mortgaged property from one who had no right to the same. He seeks reimbursement of amounts paid by him in the discharge of the mortgages.

57. The properties admittedly belonged to a person who borrowed monies first from one creditor and later another by mortgaging the property. After his death, both the creditors sued. The daughter and a putative adopted son of the deceased borrower suffered decrees. The putative son sold the property. With the sale consideration paid by the purchaser, he cleared the mortgage debts. Later, the sons of the deceased debtors daughter sued the putative son that he is not the adopted son of the debtor and that they alone are entitled to the properties. They succeeded.

58. In the above backdrop, the purchaser claimed the right of subrogation. The plea against him was that he being a purchaser from a person with no title to the property must be a volunteer not entitled to reimbursement.

59. The Court, in the above backdrop, has held that apart from clearing of the encumbrances and preventing the sale of the properties, the payments were not intended to serve any purpose. Failure to pay would have amounted to default compelling the decree-holders to bring the properties to a sale. And by allowing it, the purchaser would have lost not only the properties but also the amount already paid by him to the ostensible owner towards the price. Delay in payment would have increased the debt by the accumulation of interest, too.

60. In that context, it is further observed:

"It seems repugnant to Justice and equity that those who get or want to retain the advantage resulting from payments made by others should be immune from the obligation of making good the same and that bona fide alienees who clear off encumbrances binding nature of which is not open to doubt, should be denied reimbursement because of the alienation being attacked later on and being found to be defective or ineffective."

61. It is interesting to note that even Section 69 of the Indian Contract Act proceeds on the similar lines, short of subrogation though, holding that a person interested in the payment of money, which another is bound by law to pay, and accordingly pays it, may be reimbursed by the other.

A Word About K.C. John (supra):

62. The facts of K.C. John, admirably outlined in the very judgment, are that the petitioners, for house construction, took loans from the second respondent, a primary housing Co-operative Society, by depositing their title deeds as security. As it emerges, initially, the second respondent obtained finance from the third respondent, the Apex Co-operative Housing Federation, and, out of that amount, it extended the loans to the petitioners. For refinance, the second respondent, in turn, handed over the title deeds of several loanees, including the petitioners, to the third respondent.

63. The petitioners in K.C. John have repaid the entire loan amount to the second respondent, and demanded the return of the title deeds, as well as the closure of the loan accounts. The second respondent is, however, facing liquidation. It has not cleared the liability to the 3rd respondent so far; as a result, the third respondent has withheld all the title deeds deposited as security for the payment of the amount due from the second respondent. Therefore, the second respondent could not accede to the petitioners request. Under these circumstances, the petitioners have approached the Court.

64. A learned Full Bench of this Court has held, referring to the facts, that the petitioners cannot plead ignorance of a sub-mortgage of their properties in favour of the third respondent. When the petitioners know the sub-mortgage, they cannot contend that the third respondent is unconnected with the transaction and the retention of the title deeds by the third respondent is unauthorised.

65. Further, on the maintainability of the writ petition, their Lordships have held thus: Even where facts are admitted, the jurisdiction will not be exercised unless the respondent authority owes a public duty or a statutory duty to act in a particular manner towards the person who asks for such a writ.

66. It is pertinent to observe that what weighed with the Court in K.C. John is remedy provided under Section 69 of the Act: resolution of disputes between a person and a Co-operative society. It includes a dispute between a member of the primary society and the Apex Society to which the primary society is a member as per Cl.(e) of S.69(1) of the Act. The conclusion is emphatic that the alternative remedy is fair and efficacious.

67. I am afraid, K.C. John has no manner of relevance to the facts. The petitioner herein is an outsider who cannot take recourse to section 69 of the Act. All he wants is his right-indisputable, at that- of subrogation. The result: The bank realises its money; the gullible purchaser saves the property. Nothing more.

Conclusion:

68. In the present instance, the petitioner, with other co-owners, has a registered sale deed, which has not been denied by the vendor despite an opportunity. In terms of Section 91 of the Transfer of Property Act, an alienee is entitled to subrogation. The petitioner will clear the entire mortgage loan, and the respondent bank, if not for its perceived problems, will get its money back.

69. In return, what is that the respondent bank must do It has to close the mortgage loan and return the deposited title deeds to the petitioner, who clears the mortgage. The bank contends that it has no privity of contract with the petitioner. And, tomorrow, the original borrower may sue it for the documents.

70. The original borrower, the 5th respondent, has not responded to the sale notice, though property is about to be brought for sale; the purchaser has come forward. He filed the writ petition arraying the vendor-borrower as a party, who, despite service of notice, has blissfully ignored the issue and refused to respond.

71. It is a case of subrogation by operation of law not requiring any written agreement as in conventional subrogation. Further, we may, for a while, presume that the sale in favour of the petitioner and others is invalid. What follows The petitioner and his co-purchasers, on their clearing the loan, only get the right of subrogation and charge over the property, which they have saved from an invidious sale.

72. If at all the bank apprehends an unlikely trouble from the defaulting creditor on the count of the original title deeds, it is always open for it to obtain an indemnity from the petitioner that he will indemnify the bank from the claims of the borrower-vendor.

In the facts and circumstances, this Court disposes of the writ petition with these directions:

"(a) The petitioner shall pay the entire loan amount to the respondent Bank within one month from the date of receipt of a copy of this judgment;

(b) On such payment, the respondent Bank, apart from closing the loan account, shall hand over the title deeds to the petitioner;

(c) While the petitioner receives the title deeds to the mortgaged property, he along with the other co-purchasers should execute an indemnity bond, as per the banking practice;

(d) Notwithstanding the petitioners claim that he with others purchased the property, by redeeming it, what he gets is a right only in terms of Section 91 and 92 of the Transfer of Property Act: Subrogation."

In the manner stated above, the writ petition is disposed of. No order on costs.

1Ashburners Principles of Equity (2nd Edition 1933) p. 18. 228th Ed., Pp.460-61. 34th Ed. Lexis Nexis