HARIHARAYYAR Vs. AHAMMADUNNI

JUDGEMENT

(1.) The question raised in this second appeal is whether a mortgagee of the share of a tenant-in-common is entitled to maintain a suit for partition. The plaintiffs claim to be the mortgagee under a deed of mortgage dated 12 April 1926 from one Kunhi Muhammad. By the said deed Kunhi Muhammad purported to mortgage all his rights in and to certain moveable and immovable properties which he obtained by purchase under a deed of sale dated 15 August 1919 from one Kadir Kunhi's son Ahmed and also his claim to certain chit moneys under a chit conducted by two stakeholders. The present action is for partition of certain items of property which Kunhi Muhammad obtained under the deed of sale. The properties comprised in the deed of sale related to a certain undivided share which the vendors Kadir Kunhi and his son were entitled to get in right of one Kochu Kathija in the estate of her father one Makkar. It is the case of the plaintiffs that the suit properties formed part of the estate of Makkar, father of defendants 1 and 2 and Kochu Kathija, that after the death of Makkar the property devolved on defendants 1 and 2, Kochu Kathija and Ayisumma, the widow of Makkar, that Kochu Kathija died on 17 December 1918 leaving her surviving her husband Kadir Kunhi's son Ahmed, defendant 21 in the suit, and her minor son Kunhi Makkar and her mother Ayisumma, that Ahmed as-signed the shares due to him and his minor son by the said deed dated 15 August 1919 to Kunhi Muhammad and that tha said right was mortgaged by the latter to the present plaintiffs by the deed of mortgage aforesaid, Ex. G. The main defence was that Kochu Kathija died before Makkar and she did not leave any male issue and that in law the plaintiffs as mortgagees are not entitled to sue for partition. The learned District Munsif found that Kochu Kathija predeceased Makkar and she did not leave any male issue and dismissed the suit. On appeal the learned Subordinate Judge came to a different conclusion. He held on the evidence that Kochu Kathija died after Makkar and she left a son one Kunhi Makkar. He however took the view that the plaintiffs as mortgagees are not entitled to sue for partition and therefore affirmed the decision of the learned District Munsif dismissing the suit. It is against this decision the plaintiffs have preferred this second appeal.

(2.) The only question for decision is whether the view taken by the learned Subordinate Judge is sound. At the outset, it may be stated that as a general principle of law it cannot be said that a mortgagee of an undivided share of property from a tenant, in-common is not entitled to sue for partition. An alienee from a tenant-in-common can sue his co-tenant for partition and delivery of the share which the alienor is entitled to. The alienation need not be of the entire interest of the tenant-in-common; it may also be of a limited interest. Thaeinterest may be that of a lessee or mortgagee but the tenant-in-common must be entitled to an estate in possession and not to a remainder or a reversion. These principles are well recognised in English law and Section 44, T.P. Act, only embodies those principles. The said Section, so far as it is relevant for the present discussion, runs thus: Where one of two or more co-owners of immovable property, legally competent in that behalf, transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.

(3.) It is thus clear that under this Section not only a transferee of a share but also of any interest therein can sue for partition but the Section imposes a limitation, namely, it must be necessary to give effect to the transfer : vide Muhammad Jafar Khan V/s. Mazharul Hasan (1906) 3 A.L.J. 474 and Ramasami Chetti V/s. Alagirisami Chetti (1904) 27 Mad. 361 at p. 367. In both the cases it will be seen that a lessee from a tenant-in-common of an undivided share was held entitled to sue for partition. The question therefore in this case is whether it is necessary to have a partition to give effect to the transfer, that is, the mortgage in favour of the plaintiffs. The mortgage in this case is not usufructuary and the plaintiffs are not entitled to possession of the mortgage property. Partition therefore is not necessary for giving possession to the mortgagee. The question again is, is it otherwise necessary to give effect to the mortgage to have a partition? The terms of the deed of mortgage do not disclose any ground for effecting a partition. No doubt the mortgage deed confers a right on the plaintiffs to sue for partition but that would not entitle them to sue for partition if in law they are not entitled to. The only interest which the plaintiffs get under the deed of mortgagees to have a sale of the property mortgaged to them. In fact, this is emphasized in the deed itself by the following covenant: I agree that the amounts due as above hereon, inclusive of the costs of such litigation may be recovered by sale of my right to items 1 to 76 of the schedule properties in pursuance of this hypothecation thereof to you.