Sir John Edge, C.J and Blennerhassett, J.:— The owners of a two-thirds undivided share of certain muafi land granted a usufructuary mortgage of their share to the plaintiff. The owner of the remaining one-third undivided share granted a usufructuary mortgage of his share to the defendant. The plaintiff brought this suit to have the two-thirds share mortgaged to has partitioned off from the one-third share mortgaged to the defendant. The suit was brought in the Civil Court. The Court of first instance dismissed the suit on the ground that it was one for the Court of Revenue. The Court of first appeal, holding the same view as the Court of first [477] instance, dismissed the plaintiff's appeal. The plaintiff has brought this second appeal.
It appears to us that neither a Civil Court nor a Court of Revenue could grant the partition asked for in the suit. The plaintiff and the defendant are respectively mortgagees. Each is bound to keep accounts as mortgagee. The plaintiff's mortgagors, if they seek to redeem, would be entitled to an account from the plaintiff of the profits of their two-thirds undivided share. Similarly the defendant's mortgagor, if be claimed to redeem, would be entitled to an account from the defendant of the profits of his one-third undivided share, i.e, of the profits of one-third of the whole. How the proxies to this suit could keen such accounts if their claim for partition is granted it is difficult to see. The mortgagors are not parties to this suit. They would not be bound by any partition which might be made in this suit. The effect of a partition between these mortgagees might possibly be that the profits of the two-thirds partitioned to the plaintiff might be more or less than the profits of the two-thirds of the whole. Further, there can be no doubt that if the partition were granted in this suit and the mortgagor subsequently sought partition of their undivided shares, the partition effected between the mortgagees in possession might seriously affect the rights of the mortgagors. Further, the defendant's mortgagor may redeem at any time the mortgage granted by him. The defendant's mortgagor would not be bound by any partition granted in this suit; the partition would cease to have effect. The defendant's mortgagor on redemption would be entitled to be put into possession of the one-third of the whole, but not of the one-third which his mortgagee might obtain on partition. We are quite clear that the suit cannot be maintained in the absence from it of the mortgagors of the plaintiff and the mortgagor of the defendant. Whether it could he maintained if they were parties to this suit as defendants we need not decide.
We dismiss this appeal with costs.
Appeal dismissed.