T. S. SWAMINATHAUDAYAR versus THE OFFICIAL RECEIVER OF WEST TANJORE.

Citation: [1957] 1 S.C.R. 775 · Decided: 27-03-1957 · Supreme Court of India · Bench: NATWARLAL HARILAL BHAGWATI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
775 
T. S. SWAMINATHAUDAYAR 
v. 
THE OFFICIAL RECEIVER OF WEST TANJORE. 
(BHAGWATI, jAFER IMAM and A. K. SARKAR JJ.) 
Partitior Suit-Decree for owelty-Absence 
of express declara-
tion of 
charge-Charge, if created 
by 
necessary 
implication-
Priority. 
Per 
BHAGWATI and IMAM JJ. A decree for paymmt of 
owelty money by one co-sharer to ancther in a Partition suit, 
even where it does not expressly declarf' a charge, create3 one by 
necessary implication in favour of the latter or the 
property 
allotted to the former and such' charge on lien has precedence 
over prior mortgagees of such property. 
Shaheb:::,ada Mohammed Kazim Shah v. R. S. Hill, I.L.R. ( 1907) 
35 Cal. 388 and Poovanalingam Servai v. Veerai, A.LR. ( 1926) 
Mad. 166, referred to. 
Consequently, in a case where the final d;:cree in a Partition 
Suit passed by the High Court in appeal provided for payment of 
owelty money by .one co-sharer to another an(l. at the instance of 
the Official Receiver in Insolvency, in whom the estate of the 
former had vested, instead of expressly declaring a charge autho-
rised him to pay the owelty from out of the oale proceeds of the 
p1operty, the judgment-credito1· of the co-sharer liable for owelty 
in 1espect of decrees previously obtained by him could claim no 
priority and the High Court, taking an etroneous view of the law 
and relying on a previous judgment of that Court passed in the 
<:reditor's appeals, set aside in appeals preferred by the Official 
Receiver the order$ of the District Judge refusing his applications 
for refund of sale-proceeds deposited in Court to the credit of the 
decree-holder co-sharer and for restitution under s. 144 of the 
Code of Civil Procedure of the monies actually paid to him under 
the partition decree, the orders of the High Court must be set 
aside. 
Per SARKAR J. Whether the fir.al decree had or had not 
crf'ated a charge over the insolvent's share for such sums as it 
directed the 
Receiver in insolvency to pay to the co-sharer that 
could not affect the Receiver's liability to pay thereunder and 
while the decree subsisted he was not entitled to claim restitution 
of such monies ai he had p:i.id in terms thereof on the ground 
that no charge had been created nor any other claim to priority 
existed. 
The rights of the co-sharer decree-holder who had obtained 
the decree against the Receiver himself stood on a diffuent 
footing from those of a creditor of the insolvent and he 
could 
not, like the latteF, be compelled to accept a dividend on the 
distribution of the insolvent's assets. 
1957 
March 27. 
1957 
T. S. Swaminatha~ 
udayar 
v. 
Th• Oj/idal 
Rtceiver of 
W ul T anjoT1 
Bhagwati]. 
SUPREME COURT REPORTS 
[1957] 
C1v1L APPELLATE JuRISDICTJON : Civil Apppeals 
Nos. 251 to 253 of 1953. 
Appeal from the judgment and order dated February 
8, 1950, of the Madras High Court in A.A.O. Nos. 
724 to 726 of 1945 preferred against the orders dated 
July 14, 1945, of the Court of the District Judge, West 
Tanjore in E.P. No. 35 of 1944 and E.A. Nos. 195 
and 182 
of 1944 respectively in E.P. 15 of 1940 
in O.S. No. 22 of 1934 cin the file of the Court of Sub-
Judge, Kumbakonam. 
N. S. 
Chonpakesa 
Aryangar and S. Subramanian,. 
for the appellant. 
The respondent did not appear. 
1957. March 27. The Judgment of the Court was 
delivered by 
BHAGWATI ].-These appeals with certificates of 
fitness under art. 
133 of the Constitution raise an 
interesting question as to the equities arising out of a 
partition between the erstwhile members of a joint 
family. 
A suit for partition of the properties belonging to a 
well known Odayar family in the ·West Tanjore District 
was filed in the Court of the Subordinate Judge of 
Kumbakonam (being Original Suit No. 22 of 1924). 
Amongst the par•ies to that suit were defendants Nos. 
3 and 6, Balaguruswami Odayar and Swaminatha 
Odayar respectively, the former of whom is tbe natural 
father of the latter, who went by adoptio1i into another 
branch of the family. 
Defendant No. 6 was entitled 
to a 4/ r 5th share and defendant No. 3 was entitled to 
a 2/15th share in the prope1 ties belonging to the.joint 
family. 
A preliminary decree for partition was passed 
on October 25, 1924. 
The defendant No. 3 became 
insoh·ent during the pendency of an appeal which was 
taken against that preliminary decree. 
The Official 
Receiver of West Tanjore who represented the branch 
of the 3rd Defendant was impleaded as a par

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