Pooranalingam Servai vs Veerayi and Others

Phillips, J.—In this case the first; defendant and second defendant jointly purchased the suit property, the first defendant paying Rs. 34(J,

and the second defendant Rs. 60, the understanding being that each was to have half the property and the excess money paid by the first defendant

was on behalf of the second defendant and re-payable by him. The first defendant subsequently redeemed a usufructuary mortgage on the land and

paid the whole of the mortgage-money and took possession. Just prior to this redemption, the plaintiff bought the second defendant''s share in the

property and now brings this suit for redemption of his share of the usufructuary mortgage and for partition, and for delivery of possession of his

separate share.

The second appeal has been argued at very great length on the assumption that this is a pure redemption suit, but this overlooks the fact that it is

in effect and in name a partition suit, for the plaintiff seeks to recover a demarcated half share of the suit property. The lower Courts have ordered

the plaintiff before getting possession of his half share to pay to the first defendant Rs. 140 the purchase-money paid by her on behalf of the

second, defendant. There can be no doubt that in a partition suit all equities between the members of the co-parcenary should be worked out

allotting to each member the share to which he is equitably entitled.- It is argued for the appellant that this principle is only applicable to the Hindu

Law of'' partitions and that under any other law these equities cannot be enforced but no reasons are assigned for drawing such a distinction. We

certainly have the authority, of an American Writer (Freeman on Cotenancy and Partition) that such equities should be adjusted. This seems to be

only reasonable and in accordance with what is right and proper. Freeman at page 675 mentions the very same equity as is in dispute here. The

passage runs:

If one of the co-tenants...has advanced more than his proportion of the purchase-money, the Court may decree that payment of the excess be

made to him, and in default of such payment, that the moiety of the tenant in default may be sold to satisfy the amount equitably due from it.

No English cases on the point have been cited, but I may refer to the case in Rajah of Vizianagram v. Rajah Setrucherla Somasekhararaz 13

M.L.J. 83. There it was held that where a tenant paid the public revenue on the land, he was entitled to a change for that amount against his co-

owner. At page 703 Page of 20 M.--[Ed.], there is the following passage:

But when once the right of contribution is established, as in the present case, it certainly cannot be an inequitable or violent stretch of such right to

make it a charge against the co-owner''s share"". Even if there is no legal charge in the present case, yet on equitable principles such a charge can

be enforced and when it comes to partitioning the property between two co-tenants this equity should, in my opinion, be-en-, forced. On this

ground alone, I think the second appeal must fail and, therefore, I do not propose to discuss the various arguments put forward on the footing that

this is a mere suit for redemption.

Another point has Been raised, namely, that the first defendant is not entitled to interest on the Rs. 110. The lower Courts have awarded interest

from the date of payment until the date of the decree. This, I think, is wrong. The plaintiff has mot been allowed mesne profits, because the first

defendant had paid the whole of, the money due on the usufructuary mortgage, but from the date the first defendant got into possession, the

purchase-money of Rs. 140 cannot bear interest; for she has; in lieu of interest, had possession of the land. Until that date the first defendant has

certainly suffered damages in having tad to pay the excess amount of the purchase-money and on that ground, I think, she is entitled to interest.

The interest from 22nd July 1918 to 16th June 1920 is, therefore, disallowed. Subject to this modification, the second appeal is dismissed with

costs.