SINNANAN CHETTY Vs. SIVAKAMI AMMAL

JUDGEMENT

(1.) This case has been argued before us by both sides on the footing that it is a case of a co- mortgagor redeeming Ihe whole mortgage and remaining in possession thereof and the other co-mortgagor bringing a suit to recover his share of the mortgaged property on payment of his share of the mortgage debt there being no other expenses of redemption. We are therefore relieved from considering whether that is the correct position on the facts of the case.

(2.) Taking the case then as one by a mortgagor to recover from his co-mortgagor his share of the property mortgaged on payment of his share of the expenses of redemption it is clearly a case which falls under Section 95 of the Transfer of Property Act. That section gives a charge to the redeeming mortgagor against his co-mortgagor and nothing more.

(3.) The question that has been raised here for decision is one of limitation. Appellant wants us to apply Art. 148 to this suit but we think it is not possible on its wording to apply that article as this is not a suit to redeem a mortgage but one to recover possession of property on payment of the charge created by Section 95. This is the view taken in Vasudev V/s. Balaji (1920) I.L.R. 26 Bom. 500 which has been adopted in Munia Gounden V/s. Ramasami Chetly (1918) L.R. 41 Mad. 650: 34 M.L.J. 528 and Puma Chandrapal V/s. Barada Prosanna Bhattacharya (1918) I.L.R. 46 Cal. 111. It is true the Allahabad Court has taken a different view in Ashfag Ahmad V/s. Wazir Ali (1889) I.L.R. 14 All. 1 but even in that court there seems td be some difference of opinion, see Jai Kishen Joshi V/s. Budaanand Joshi (1915) I.L.R. 38 All. 138. With all respect we prefer to follow the view taken by the Calcutta, Bombay and Madras Courts.