D CHAKRAVARTHI IYENGAR Vs. GANGADARA MUDALIAR
HIGH COURT OF MADRAS
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(1.) THE plaintiff is the appellant in this second appeal. The only question that falls to be decided in this second appeal, is, whether the title of the fourth defendant who claims the suit properties should prevail over the title of the plaintiff. The first and second defendants in the action are Brothers. The second defendant mortgaged his undivided half share in the family properties to his brother, the first defendant. As the second defendant did not pay the mortgage amount, the first defendant as plaintiff instituted a suit 'in forma pauperis' (O. S. D. Chakravarthi Iyengar vs. Gangadara Mudaliar and Ors. (06. 11. 1952 -MADHC) Page 3 of 6 No. 361 of 1948) on the file of the Chingleput District Munsif's Court for enforcing the mortgage. There was a compromise decree in that suit on 18th March, 1939. Under the compromise, the parties agreed to a decree for Rs. 1545 with sub-sequent interest to be paid by the first defendant to the plaintiff. As the suit was instituted in 'forma pauperis', the compromise provided also for the payment of the court-fee due to the Government. Under Clause (6) of the decree, it was provided that "the plaintiff do pay Rs. 41-3-9 and the defendant do pay Rs. 123-11-3 to the Government on account of court-fee due to them and that the respective shares of the parties in the suit properties do stand a charge for the Court-fee due to the Government. " The suit properties are described in two schedules which were attached to the plaint and also to the decree. The suit property was, according to the schedules, the undivided half share of the defendant in the survey numbers whose particulars wore given in the two schedules. Under this decree, however, the mortgagee's right to bring the properties to sale was restricted to a few items which are described in detail in schedule IV attached to the decree. The plaintiff in that action, i. e. , the present first defendant paid the court-fee due to the Government. But the present second defendant who was the sole defendant in that action did not pay his share of Rs. 123-11-3. The Government, therefore, brought to sale the interest of the present second defendant in 3 items of property which constituted items 4, 6 and 7 of the schedule II attached to the decree in O. S. No. 361 of 1938. The items sold were survey No. 238/2 (17 rents), Survey No. 213/2 (36 cents), Survey No. 214/1 (35 cents), in all 88 cents and the fourth defendant in the present suit purchased them on 22-31941. The sale by the Government was through court and was not a revenue sale. The mortgagee, i. e. , the present first defendant, executed his decree for sale and the hypotheca which was permitted to be sold under the compromise decree was purchased by the decree-holder himself on 26-11-1941. The present first defendant who was the decree-holder in his turn conveyed the property so purchased by him to the present plaintiff under Ex. P. 6 dated 10-5-1943. The first defendant who owned the other undivided half in all the properties in his turn sold away his interest in the properties on 6-10-1939 under Ex. D. 2 to the third defendant. The plaintiff who became the ultimate purchaser of the interest of the second defendant in the items which were directed to be sold under the compromise decree instituted the present suit for partition and separate possession of the properties impleading as parties to the action the two brothers the first and the second defendants, the mortgagee and the mortgagor and the third defendant who purchased the interest of the first defendant and the fourth defendant who purchased the three items in the sale brought about by the Government to recover the court-fee.
(2.) THE plaintiff obtained a decree for partition and separate possession of all the items except the three items which the fourth defendant purchased in the sale by the Government. The courts below held that the title of the fourth defendant to these three items should prevail over that of the plaintiff.
(3.) THE correctness of this decision was vigorously canvassed before us by Mr. Gopalaswami Aiyangar, the learned advocate for the appellant, on various grounds. In the first place, he raised the question that in view of the language of the decree in O. S. No. 361 of 1938 the charge in favour of the Government has no priority because the decree did not expressly state so. It is no doubt true that the decree is silent regarding the priority of the charge in favour of the Government. But under the Code, the charge in favour of the Government is declared to be the first charge on the subject matter of the suit. We must, therefore, take it that notwithstanding this omission in the decree, the charge in lavour of Government for the court-fee payable by the second defendant would undoubtedly be a first charge and would have a priority over the mortgage in favour of the first defendant. The language of the decree which refers to the respective shares of the parties in the suit properties and creates a charge for the amount apportioned between the two brothers no doubt creates some little difficulty because in the suit property which is only the undivided half share of the second defendant the present first defendant who was the plaintiff in the action had no share or interest. He was the owner of the other undivided half which was not the subject-matter of the suit. It was contended on behalf of the respondent that we should interpret the word "shares" as really meaning the "interest" of the respective parties in the hypotheca, i. e. , the interest of the plaintiff as mortgagee and the interest of the defendant as mortgagor. We think that it would be inapt to describe the intention of the mortgagee in the properties as a share in the property and therefore, it is difficult to accept the contention urged on behalf of the respondent. The intention under the decree which is a compromise decree is clearly to create a charge on the undivided half share of the defendant in all the items of properties described in the two schedules and that charge, in view of the language of Order 33 Rule 10 C. P. C. , would undoubtedly have priority over the mortgage in favour of the present first defendant.;
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