Declaration and possession in alternative for partition – Property Mortgaged – Partitioned among co sharers – some of them filed redemption suit – one co sharer paid entire amount and redeem the property – whether the redemptor is liable to give share in the redeemed property – since the plaintiff is an assignee from certain non-redeeming co-mortgagors of a share in 'C' Schedule property. Is entitled for partition and for separate possession of his share -2015 SC(2003) MSK LAW REPORTS 8


There was a piece of land measuring 1.2 acres in area which
belonged to 18 members of a family of   Sripandarachetti Cult.  It was
mortgaged in 1902. 
There was a partition amongst different groups. 
The properties involved in partition were listed as Schedules 'A', 'B', 'C'
and 'D'. 
The 'C' Schedule comprised of 30 cents. 
The property in
dispute herein is referable to this Schedule 'C' land. 
Hereinafter, it is referred to as the 'property in suit'.
After the partition,  10 members  out of
the 18  to whom different portions of the mortgaged property were
allotted filed the suit, bearing O.S. No.464 of 1117 of Malalyalam Era,
for redemption.  The suit was decreed in 1950.  After the decree one
Chellapan Pillai (who died during the pendency of these proceedings
and in whose place defendant No.1 stands substituted) got the
property Schedule 'C' redeemed by making full payment of mortgage
money.  He also entered into possession over the property in the year
1953.  =
The appellant-plaintiff is the assignee from certain non-
redeeming co-mortgagors of a share in  'C' Schedule property.  His
share in the property is stated to be 9/12th in 25 cents of 'C' Schedule
property.  In the year 1971, the plaintiff filed the present suit seeking
relief of declaration of title with recovery of possession, and in the
alternative, the relief of partition. =
The present one is a case of subrogation by the operation of law
and hence governed by the first para of Section 92 of the Transfer of
Property Act.  The provision recognizes the same equity of
reimbursement as underlies Section 69 of the Indian Contract Act that
"a person who is interested in the payment of money, which another is
bound by law to pay, and who therefore pays it, is entitled to be
reimbursed by the other".  Such a payment made, carries with it, at
times, an equitable charge.  Section 92 of the Transfer of Property Act
does not have the effect of a substitutee becoming a mortgagee. The
provision confers certain rights on the re-deeming co-mortgagor and
also provides for the remedies of redemption, foreclosure and sale
being available to the substitutee as they were available to the
substituted.  These rights the subrogee exercises not as a mortgagee
reincarnate but by way of rights akin to those vesting in the
mortgagee.  The co-mortgagor can be a co-owner too.  A property
subject to mortgage is available as between co-mortgagors for
partition, of course, subject to adjustment for the burden on the
property.  One of the co-mortgagors, by redeeming the mortgage in its
entirety, cannot claim a right higher than what he otherwise had,
faced with a claim for partition by the other co-owner.  He cannot
defeat the legal claim for partition though he can insist on the exercise
of such legal right claimed by the other co-owner-cum-mortgagor
being made subject to the exercise of the equitable right vesting in
him by subrogation.

Whether joint-tenants or tenants-in-common the
fact remains that the status of the plaintiff and defendant was that of
co-mortgagors, one being a non-redeeming co-mortgagor and the
other being a redeeming co-mortgagor. 
The law would remain the
same and its applicability would not change whether the parties are
treated as co-tenants or tenants-in-common.
For the foregoing reasons, the appeal is held liable to be
allowed. 
The suit filed by the appellant is held as one within limitation. 

The plaintiff is held entitled to the preliminary decree for partition. -2015 SC(2003) MSK LAW REPORTS 8

Popular posts from this blog

Court fee - Sec.34 of A.P.C.F & S.V.Act - partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it did not insist on payment of ad-valorem Court-fee, on such items. It, however, took a different view, as regards the movable properties. Neither from the plaint, nor from the endorsement made by the trial Court, it is found that there is any distinction, as to the nature of rights claimed, in respect of Plaint-A Schedule properties, on the one hand, and Plaint-B schedule properties, on the other hand. In fact, the nature and incidence of possession, of an immovable property, gives rise to, relatively greater consequences of law, than the possession of an item of movable property. The possession of an item of immovable property can be said to be more assertive, firm and lasting, than the one, of movable property. The endorsement made by the trial Court cannot be sustained, either on law, or on facts. 2015 A.P.(2006)MSKLAWREPORTS

Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent.-2015 A.P.(2004) MSKLAWREPORTS

Sec.482 Cr.P.C. - Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 - Part B question Paper was missed ( said to be distributed to A1 along with other students by A2 an invigilator ) - Charge - she was negligent in performing the invigilation duties. - Their Lordships held that Mere negligence in performing invigilation duties, does not attract the offence set-forth in the Act. Therefore, in absence of any allegation that the petitioner herein has committed the offence set out in Section 5 of the Act, she cannot be subjected to prosecution for which the penalty has been provided under Section 8 of the Act.- Quashed the criminal proceedings - 2015 Telganga & A.P. msklawreports