Paya Matathil Appu vs Kovamel Amina

We think it is competent to the Court to add parties who ware defendants in. the Court of First Instance though not joined as respondents in the

Lower Appellate Court. In the case referred to Raman Nambiar v. Kapali S.A. 165 of 1894 unreported the party was not added by the Court,

but by the appellant himself. Section 5591 occurs in the chapter of the Code relating to appeals from original decrees, and it is by Section 537 that

this section is so far as may be made applicable to second appeals. We do not think it was intended to preclude the Court from adding in second

appeal persons who had been originally joined in the suit. We are unable to follow the decision in Chunni v. Lala Ram ILR 16 All. 5.

The Judge considers that a verumpattom tenant claiming under a lease executed by the ottidar is not in a position to redeem the prior kanom. He

observes that the lessee is not mentioned specifically in Section 91 of the Transfer of Property Act as belonging to the class of persons entitled to

redeem, and that under a lease, as defined in Section 105, he is not described as taking an interest in the property, but only a right to possession.

In our opinion the word ''interest'' is not necessarily confined to right of ownership, but is sufficiently large to include any minor interest such as

that of a tenant or a person having a charge.

No doubt there has been no precedent for this suit in Malabar; but that, circumstance is not conclusive. The general principle is laid down by

Fry L.J. in Tarn v. Turner ILR 39 Ch. D. 468. ""According to the general law of the land a person who claims as lessee under a mortgagor after the

mortgage, and has thereby derived an interest in the equity of redemption, has the right to redeem."" The Calcutta cases only illustrate the rule and

do not form any exception. So long as the plaintiff has an interest validly entitling him to possession, he is in a position to redeem.

We must, therefore, reverse the decree and remand the appeal for disposal. Respondents are to pay costs of this appeal. The other costs will

follow the result.

1.

Section 559: If it appear to the Court at the hearing that any person who was a party to

the suit in the Court against whose decree the appeal is made,

Power to adjourn hear- but who has not been made a party to the appeal, is interested

ing and direct persons ap- in the result pf the appeal, the Court may adjourn the hearing

pearing interested to be a future day to be fixed by the Court, and direct that such

made respondents. person be made a respondent.