Richard Garth, C.J.
1. This suit was brought by the plaintiff for a partition of a large estate of which he purchased an eight annas share in the year 1878, under the following circumstances:
The estate in question was part of a much larger property situate partly in Calcutta, and partly in the Mofussil, which belonged jointly to the defendant and one Monmotho Nath Dey, in equal shares.
3. By a mortgage made in the English form, dated the 12th of March 1869, Monmotho Nath Dey mortgaged to the defendant his half share in the estate in question, subject to the usual proviso for redemption.
4. Default having been made in payment of the mortgage money, a suit was brought in this Court by the present defendant in the year 1873 against the mortgagor for the recovery of the principal sum and interest and for other relief.
5. On the 7th of July of the same year the High Court made a decree by consent of the parties, by which an account was to be taken in the usual way, to ascertain the amount due for principal and interest; and it was further ordered, that if the mortgagor failed to pay that amount by a certain day, the mortgaged estate should be put up for sale by public auction.
6. Under this decree the account was taken, and the sum found due to the defendant was not paid by the mortgagor; and consequently the estate was put up for sale by auction, and purchased by the present plaintiff on the 24th of June 1878.
7. The plaintiff has since obtained possession, and he then, on the 11th of July 1881, brought this suit against the defendant for a partition.
8. The defendant's answer was, that in the year 1869 he brought a suit in this Court, against Monmotho Nath Dey for a partition of all the properties which belonged to them jointly, and amongst others of the estate in question; that a decree was made in that suit for partition on the 21st of January 1870; and that a Commissioner was appointed under that decree, who has commenced, but only partially carried out, the partition.
9. The defendant, therefore, contends that as the estate in question was purchased by the plaintiff pending the partition proceedings, it is still subject to the former decree, and the plaintiff has no right to bring this suit to obtain a separate partition of it.
10. The lower Court holds that as the decree in the former suit directed this property to be partitioned, and as it has not been shown that the former suit has come to an end, the plaintiff's suit should be dismissed.
11. On appeal it has been contended that the lower Court is wrong upon the ground, that as the mortgage of 1869 was made previously to the partition suit in that year, and as by the proceedings in the mortgage suit any interest which Monmotho Nath Dey might have had is at an end, the property in question is no longer the subject of the former suit, and consequently there is no reason why a decree for partition in this suit should not be made.
12. We think that there is much reason in this contention. We have ascertained by a reference to the records of this Court that the mortgage by Monmotho Nath Dey to the present defendant in 1869 was made previously to the suit for a partition; and it therefore only remains to consider, whether, at the time when this suit was brought, the property in question, or any interest in it, was liable to be partitioned in the former suit.
13. The mortgage of 1869 being in the English form, the legal estate in the property passed to the mortgagee, and all that remained to the mortgagor at the time when the partition suit was brought in 1869, was an equity of redemption; or the bare right to redeem the property on payment of the mortgage money and interest.
14. It is possible that this right, if it had continued in the mortgagor, might have been made the subject of partition in the former suit; but we consider by the act of the defendant himself that the right has long ceased to exist. The decree which the defendant obtained in the mortgage suit in the year 1873 put an end to Monmotho Nath's right to redeem, unless he paid the amount found to be due on the day named in the decree; and therefore at the time when the property was sold to the plaintiff, Monmotho Nath's interest in it had ceased to exist. It follows, therefore, that at the time when this suit was brought, that property was no longer subject to partition under the former suit, and the defence which the defendant has set up to this suit cannot avail him.
15. This result is certainly a fortunate one in the interests of justice; because it clearly appears, from the facts before us, that nothing has been done in the former partition suit for many years past and nothing more is likely to be done. One out of the two Commissioners appointed is dead; Monmotho Nath himself is dead also; and as the latter sold or squandered away all his property before he died, it seems improbable that any one will administer to his estate. So that had this defence been available to the defendant, the plaintiff might have had extreme difficulty in obtaining a partition of the property.
16. A decree will be made for a partition on the usual terms, and as the defendant has set up a defence which turns out to be unfounded, we think that he should pay the plaintiff's costs in both Courts, but not of course the costs of the partition.