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Marakar Akath Kondarakayil Mamu Vs. Punjapatath Kuttu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Judge
Reported in(1882)ILR6Mad61
AppellantMarakar Akath Kondarakayil Mamu
RespondentPunjapatath Kuttu
Excerpt:
mortgage - suit to redeem land in possession of co-owner of equity of redemption--procedure. - .....mother of the minor sixth defendant, he has a share in the equity of redemption. to allow plaintiff to redeem the whole would enable him to get possession of the property to the exclusion of fifth defendant. now, as fifth defendant is already in possession as assignee of the mortgagee and has also a share in the right to redeem, he cannot be required to surrender possession of the whole against his consent until plaintiff has, by a proper suit for partition, ascertained definitely to what shares in the property he and fifth defendant are respectively entitled.2. we cannot therefore allow a decree for redemption of the whole. a decree for a redemption of a portion is equally impossible, for that would be to convert the suit into a suit for partition, which, without the consent of all the.....
Judgment:

Innes, Officiating C.J. and Muttusami Ayyar, J.

1. Fifth defendant, the appellant in this second appeal, represents the original mortgagee from whom he obtained an assignment. He is also in possession of the entire mortgaged property which it is sought to redeem. Further, by his purchase of the rights of the husband of the deceased Parichi, the sister of plaintiff and mother of the minor sixth defendant, he has a share in the equity of redemption. To allow plaintiff to redeem the whole would enable him to get possession of the property to the exclusion of fifth defendant. Now, as fifth defendant is already in possession as assignee of the mortgagee and has also a share in the right to redeem, he cannot be required to surrender possession of the whole against his consent until plaintiff has, by a proper suit for partition, ascertained definitely to what shares in the property he and fifth defendant are respectively entitled.

2. We cannot therefore allow a decree for redemption of the whole. A decree for a redemption of a portion is equally impossible, for that would be to convert the suit into a suit for partition, which, without the consent of all the parties, could not be permitted. Fifth defendant does not consent, and sixth defendant and his father are not before us.

3. We must therefore reverse the decrees of the Courts below, and dismiss plaintiff's suit with costs throughout.


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