In this case, the 1st defendant and the 2nd defendant jointly purchased the suit property, the 1st defendant paying Rs. 340, and the second defendant Rs. 60, the understanding being that each was to have half the property and the excess money paid by the 1st defendant was on behalf of the 2nd defendant and repayable by him. The 1st 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 2nd 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 1st 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 Partition 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 Co-tenancy 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 p. 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 Rajah of Vizianagram v. Rajah Setrucherla Somasehhararaz(1). There it was held that where a tenant paid the public revenue on the land, he was entitled to a charge for that amount against his co-owner. At p. 703, 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 enforced. 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 1st defendant is not entitled to interest on the Rs. 140. 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 not been allowed mesne profits, because the 1st defendant had paid whole of the money due on the usufructuary mortgage, but from the date the 1st defendant got into possession, the purchase money of Rs. 140 cannot bear interest; for she has, in lieu of interest, possession of the land. Until that date, the 1st defendant has certainly suffered damages in having had 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.
C. K.Decree varied: Appeal dismissed.