POORANALINGAM SERVAI Vs. VEERAYI

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) No English cases on the point have been cited, but I may refer to the case in Rajah of Vizianagram V/s. Rajah Setrucherla Somasekhararaz 26 M. 686 : 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.