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PETITIONER: T.S. SWAMINATHAUDAYAR

       Vs.

RESPONDENT: THE OFFICIAL RECEIVER OF WEST TANJORE.

DATE OF JUDGMENT: 27/03/1957

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER SARKAR, A.K.

CITATION:  1957 AIR  577            1957 SCR  775

ACT: Partition  Suit--Decree  for  owelty  -Absence  of   express declaration  of  charge-Charge,  if  created  by   necessary implication-Priority.

HEADNOTE: Per  BHAGWATI and IMAM jj.  A decree for payment  of  owelty money by one co-sharer to another in a Partition Suit,  even where it does not expressly declare a charge, creates 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. Shahebzada Mohommed Kazim Shah v. R. S. Hill, I.L.R.  (1907) 35  Cal.  388  and Poovanalingam Servai  v.  Veerai,  A.I.R. (1926) Mad. 166, referred to. Consequently,  in  a  case  where  the  final  decree  in  a Partition  Suit passed by the High Court in appeal  provided for payment of owelty money by one co-sharer to another  and at  the instance of the Official Receiver in Insolvency,  in whom  the  estate  of  the former  had  vested,  instead  of expressly  declaring  a  charge authorised him  to  pay  the owelty  from out of the sale proceeds of the  property,  the judgment-creditor  of  the co-sharer liable  for  owelty  in respect of decrees previously obtained by him could claim no priority and the High Court, taking an erroneous view of the law and relying on a previous judgment of that Court  passed in the creditor’s appeals, set aside in a peals preferred by the  Official  Receiver  the orders 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. I44 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 final decree  had  or  had  not created 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 as he had  paid in  terms  thereof  on the ground that no  charge  had  been

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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 different footing from those of a creditor of the  insolvent and he could not, like the latter, be compelled to accept  a dividend on the distribution of the insolvent’s assets. 776

JUDGMENT: Civil APPFLLATE JURISDICTION  Civil Appeals Nos. 251 to  253 of 1953. Appeal  from the judgment and order dated February 8,  1950, of the Madras High Court in A. A. 0. 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. No. 15 of 1940 in 0. S. No. 22 of 1934 on the file of the Court of SubJudge, Kumbakonam. N.   S.  Chonpakesa  Aiyangar and S.  Subramanian,  for  the appellant. The respondent did not appear. 1957.  March 27.  The Judgment of the Court was delivered by BHAGwATI J.-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 parties to  that suit were defendants Nos. 3 and, 6, Balaguruawsmi Odayar and Swaminaths  Odayar respectively, the former of whom  is  the natural  father  of the latter, who went  by  adoption  into another branch of the family.  Defendant No. 6 was  entitled to  a  4/15th share and defendant No. 3 was  entitled  to  a 2/15th  share  in  the properties belonging  to,  the  joint family.   A preliminary decree for partition was  passed  on October25, 1924 The defendant No. 3 became insolvent  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 party to the suit on February 12, 1929.   The final  decree for partition was passed on September  26,1932 by  the  Subordinate Court at Kumbakonam.  Defendant  No.  6 carried 777 an appeal to the High Court of Judicature at Madras being A. S.  No.  60 of 1933 and the High Court ultimately  passed  a final decree on May 9, 1938. Under  the terms of this decree certain properties  fell  to the share of the 3rd Defendant’s branch and for the  purpose of  equalising  on partition the Official Receiver  of  West Tanjore, representing the 3rd Defendant’s branch was ordered to pay a sum of Rs., 24,257-0-8 to the Defendant No. 6. This amount  was to carry interest at 6 per cent. per annum  from September  26,  1932,  and there  were  various  adjustments ordered inter se.  It was further ordered that the  Official Receiver  of  West  Tanjore in whom the estate  of  the  3rd Defendant’s  branch was vested should sell such portions  of the  estate  as  were  not subject to  the  charge  for  the maintenance  of  the 9th Defendant in order to pay  off  the amounts decreed to be paid by the third Defendant and should make  payments  on behalf of the 3rd Defendant’s  branch  in

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accordance with thejudgment therein., The last direction was given by the High Court in C.M.P. No. 5697  of 1939 substituting the words " be. at liberty  "  in paragraph 4 (b) of the decree in A.S. No. 60 of 1933 by  the words " be directed " and in, corporating the words "  third Defendant’s Branch " wherever the words " third Defendant  " had  been  used  in that paragraph.  The  occasion  for  the giving of this direction was that after the final decree for partition had been passed by the High Court on May 9,  1938, the parties applied to the High Court to give directions for working  out their rights inter -se.  When these  directions came  to be given the Official Receiver of West Tanjore  was present  in  Court and stated to the Court that  he  had  no objection  to sell such portions of the estate as would  be, sufficient  to pay off the amount declared due by the  third Defendant’s  branch  to  the  Defendant No.  6.  It  was  in pursuance of such statement made by the Official Receiver of West Tanjore that the High Court did not declare a charge on the  properties which had fallen to the share of  the  third 100 778 Defendant’s branch (as it was originally contemplated in the judgment) for the amount of Rs. 24,257-0-8. The  Official Receiver of West Tanjore had in the  meanwhile sold on July 5, 1935, certain items Of properties which  had fallen  to  the  share of the  3rd  Defendant’s  branch  and realised  a  sum  of Rs. 8,250.  On January  25,  1940,  the Defendant  No.  6  who is the appellant before  us  filed  a petition under 0. 21 r. 11 Sub-r. (2) of the Civil Procedure Code  being  E.P.  No. 15 of 1940  praying  that  the  Court should’  direct  the  Official  Receiver  of  West   Tanjore representing  the  3rd Defendant’s  branch  (the  respondent before us) to pay to him or to deposit into court Rs.  8,250 for  the realization of Rs. 36,983-9-6 which was the  amount due  to him from the third Defendant’s branch inclusive  of, interest  as -per the decree of the High Court dated May  9, 1938, in A.S. No. 60 of 1933.  The respondent did not oppose this  claim  of  the appellant at  that  stage.   Two  other decree-holders,   one  Thinnappa  Chettiar  and  the   other Palaniappa  Chettiar had obtained decrees against  Defendant No.  3 and Defendant No. 4 on promissory notes  executed  by the  latter on date March 14, 1925, the decree in favour  of Thinnappa Chettiar being dated August 15, 1929, and that  in favour of Palaniappa Chettiar being dated July 17, 1928.  On July  3, 1955, Thinnappa Chettiar filed a petition under  0. 29.  r. 11(2) 54, 62, 66 of, the Civil Procedure Code  being E.  P.  No. 25 of 1935 praying for the  realisation  of  Rs. 35,224-2-6- by attachment and sale of immovable  -properties belonging  to  his  judgment-debtor.  On July  4,  1935,  he attached  the shares of the sons of the Defendant No. 3  and Defendant No’ 4 in these immovable properties but in so  far as  the attachment was not levied the sales effected by  the respondent on July 5, 1935, of the properties falling to the share  of  the  third Defendant’s branch  were  upheld.   On September 30, 1935, Thinnappa Chettiar filed an  application being  E. A. No. 376 of 1935 under section 151 of the  Civil Procedure  Code  praying that a sum of  Rs.  6,600  realised after  the order of attachment obtained by him as  aforesaid be sent for from the respondent and paid to him by means 779 of a cheque.  E. P. No. 25 of 1935 and E. A. No. 376 of 1935 were  dismissed  by the District Judge on August  14,  1937. Thinnappa  Chettiar  filed A. A. 0. Nos. 349 & 350  of  1937 against  these  orders  of the Dist.  Judge  and  on  August 10,1939,  the  High  Court holding that  the  leave  of  the

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Insolvency Court was not necessary before these  proceedings in  execution had been taken, remanded both E. P. No. 25  of 1935  and  E. A. No. 376 of 1935 to the District  Court  for disposal  according to law.  The learned District Judge,  in order   to   avoid  conflict  of  decisions  and   to   save difficulties  of  multiplicity of  proceedings  allowed  the appellant to be made a party in E. P. No. 25 of 1935 and  E. A.  No. 376 of 1935 and Thinnappa Chettiar was made a  party to  the  proceedings la E. P. No. 15 of 1940.   The  learned District  Judge  passed a comprehensive order in  all  these three  matters, viz., E.P. No. 25 of 1935, E.A. No.  376  of 1935  and  E.P.  No. 15 of 1940 which came  up  for  hearing before  him.   He held that even though the word  charge  as such  had not been used in the High Court’s decree in A.  S. No.60 of 1933 the directions given by the High Court to  the respondent,  under the circumstances of the case, created  a charge  on  the properties which fell to the  share  of  the third Defendant’s branch This was the basis of the  petition which  had been filed by the appellant being.  E. P. No.  15 of  1940  and the learned District Judge  observed,  "  This direction  must  be deemed to have been  certainly  made  in favour of the 6th Defendant in order to see that he is  paid the amount decreed in his favour by a Court Official who had the possession of the properties and with such guarantee the High  Court probably thought that it was quite  unnecessary, to expressly state that a charge has been created over these properties.  " The   learned  District  Judge  accordingly   directed   the respondent to deposit into Court to the credit of E. P.  No. 15  of 1940 the sale proceeds in question, viz., Rs.  8,250, minus his legitimate expenses for payment to the  appellant. E.  A.  No.  376 of 1935 was dismissed  with  costs  of  the respondent and E. P. No. 25 of 1935 was adjourned to January 21, 1942, for further pro. 780 ceedings with regard to other lots of properties.  Thinnappa Chettiar  filed appeals against these orders being  A.A.  0. Nos. 229, 429 and 483 of 1942 in the High Court. In  the  meanwhile,  on  January  9,  1942,  the  respondent deposited  a sum of Rs. 5,200 in Court to the credit of  the appellant’s  decree.   On  February  5,  1940,  the  learned District Judge made a further order allowing the  respondent to sell the properties which he was directed to sell by  the High  Court’s  order dated May 9, 1938, in A. S. No.  60  of 1933,  to pay the petitioner as directed by the  High  Court :notwithstanding the attachment as was ordered in E. P.  No. 25 of 1935 and free of that attachment.  On May, 11, 1942, a -sum  of  Rs,  5,500  being the  sale  proceeds  of  certain properties  belonging  to the share of the  3rd  Defendant’s branch  was  adjusted by the appellant and  on  January  23, 1940, the respondent paid to the appellant a further  amount of  Rs. 26,966 adjusting a further sum of Rs. 11  for  costs due by the appellant. The High Court disposed of the A. A. 0. Nos. 229, 429 &  483 of  1942  on November 5, 1943.  It held that  the  procedure adopted   by  the  learned  District  Judge  of   impleading strangers  as  parties  to the execution  petition  and  the execution applications before it could not be supported  and ordered that the appellant and Thinnappa Chettiar should  be deleted  from the array of parties in E.P. No. 25  of  1935, B.A. No. 376 of 1935 and E.P. No. 15 of 1940.  It also  held that no charge was created by the decree dated May 9,  1938, in  A.S.  No.  60  of 1933 in respect  of  the  sum  of  Rs. 24,257-0-8  awarded to the appellant under the  decree.   It

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observed that " It is clear from the language used that  the learned judges who disposed of A. S. No. 60 of 1933 did  not intend  to create a charge and the decree did not  have  the legal  effect  of creating a charge.  " In the  result,  the High  Court  ordered  that the name  of  Thinnappa  Chettiar should be struck out from the, array of parties in E.P.  No. 15  of 1940 and the name of the appellant should  be  struck out  from  the array of parties in E.P. No. 25 of  1935  and E.A. No. 376 of 1935 and further ordered that all the three 781 applications -be remanded to the lower Court for disposal on the merits in the light of the observations contained in the order. As  a result of the decision of the High  Court  negativeing the  appellant’s claim to priority, the respondent filed  on July  29, 1944, E.A. No. 182 of 1944 praying that the  Court do issue a cheque for Rs. 5,200 deposited-by him on  January 9,  1942.  On the 7th, August, 1944, the appellant,  in  his turn-,  filed  an Application being E.A. No.  195  -of  1944 praying  that  the Court do issue a cheque  for;  Rs.  5,200 deposited by the respondent as due to him under: the  decree dated  May 9, 1938.  While these applications were  pending, the  respondent filed a petition, being  Execution  Petition No.  35 of 1944, on September 27, 1944, under ss.  1414  and 151  and  0. 21 r. 1 1 and 37 of the  Civil  Procedure  Code praying that the Court do order payment by the appellant  to him  of (1) the sum of Rs. 5,200 deposited by him, in  Court on  January 8, 1942, and claimed by him in E.A. No.  182  of 1944;  (2)  sale  proceeds adjufsted, by  the  appellant  on Mayll,1942 together with interest thereon at 6 per cent. per annum from May II, 1942, aggregating to Rs. 6,283-12-0;  (3) the amount paid on June 23, 1942, by the appellant being Rs. 26,966  and  (4) the amount adjusted by the  respondent  for costs  due by him on June 23, 1942, being Rs.  I 1, items  3 and  4  aggregating  to Rs. 26,977  together  with  interest thereon  from June 23, 1942, up to date at 6 per  cent.  per annum amounting to Rs. 3,722-13-6.  Thus he claimed a sum of Rs. 42,183-9-6 in the aggregate from the appellant. All these matters-E.A. No. 182 of 1944 and E.A. No. 195,  of 1944  and  E.P. No. 35 of 1944 we’re heard by  the  District Judge  on  July  14,  1945.   The  learned  District   Judge understood  the  order of the High Court dated  November  5, 1943,  to ’mean that the claim of the appellant to  priority was  still to be adjudicated upon.  He stated that all  that had been held by the High Court was that the decree in  A.S. -No. 60 of 1933 did not have the legal effect of creating  a charge  in favour of the appellant and the question  whether the appellant was not entitled to priority in respect, of 782 his  claim  was  not concluded by that  decision,  since  it depended upon the circumstances and situation of parties  in the first litigation itself (i.e., O.S. No. 22 of 1924, Sub- Court,  Kumbakonam and A.S. No. 60 of 1933, High Court)  and the  reasons which then led the Official Receiver,  who  was present  when the order was made in A.S. No. 60 of  1933  to submit  that  "he  was prepared to sell such  parts  of  the estate  as  might  be necessary for  satisfying  the  decree passed  in favour of the appellant." On  scrutinizing  these facts,  the  learned District Judge came to  the  conclusion that  in respect of the sums due to him under the  partition decree,  directed to be paid from the estate -of  the  third Defendant’s  branch as equitable adjustment,  the  appellant had really a superior title and, assuming for a moment  that the  direction  related  instead  to  a  specific  item   of immovable  property, it was obvious that such an item  would

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not have formed part of the estate in insolvency at all.  In the result he held that the respondent was not entitled;  to restitution  in  respect  of  the  payments  made  and   the appellant was clearly entitled to such amounts, and also  to the  amount then in deposit since the estate  in  insolvency did  not  itself comprise these assets in the  strict  legal sense.   The applications E. P. No. 35 of 1944 and E.A.  No. 182 of 1944, were accordingly dismissed. E.  A.  No. 195  of 1944 was allowed and the appellant was declared entitled  to the amount deposited in Court. The  respondent  carried appeals to the High  Court  against these  orders of the District Judge being A.A.0.  Nos.  724, 725  and 726 of 1945.  The High Court appreciated the  force of  the  arguments  advanced  before it  on  behalf  of  the -appellant  but  felt itself bound by the  construction  put upon  the judgment and decree by the High Court on  November 5,  1953, observing that even if that construction were  not strictly  binding on it as a decision on a pure question  of law  in  the  nature  of a  judicial  precedent  by  another Division Bench of that Court would undoubtedly be, it  would feel  highly  loath to deny it the respect to which  it  was entitled at its hands in the interests of judicial comity, 783 whatever  be  the construction which it would  have  imposed upon  the same, had the question arisen for the  first  time before  it.   It,  therefore, held that  the  appellant  was debarred by the principles of constructive res-judicata from raising other grounds of priority or preference after remand which  had no relation to the decree which was the basis  of the E. P. No. 15 of 1940.  The High Court also expressed the opinion that even assuming there was no res-judicata in  his favour,  the  provisions of the  Provincial  Insolvency  Act being what they were, the appellant could claim no  priority if  his position as a secured creditor as defined in s.  (2) (e)  of the Act could not be sustained.  A further  argument was  advanced  before  the  High Court and  it  was  that  a provision  in a partition decree for a mere payment  by  one co-sharer  to another of a sum of money for equalisation  of shares per se  constituted a charge by operation of law over the share allotted to the sharer made liable for the payment without  any  creation  of charge by the  Court  by  express language  or necessary implication.  The High Court  refused to entertain that argument in view of the conclusion reached by  it as above and also negatived the contention which  was urged  on  behalf  of  the  appellant  before  it  that  the provision for such payment in the partition decree was an  " owelty  provision  " observing that all that was  meant  was equality and all that the expression " owelty provision"  in the  context  implied  was a  provision  for  adjustment  or equalization  of  shares  and  no  more.   The  High   Court accordingly  came to the conclusion that the respondent  was entitled  to the restitution sought by him and  allowed  the ;appeals  with costs before it and in the Court below.   The order of the learned District Judge was set aside, and E. P. No.  35 of 1944 and E. A.No. 182 -of 1944 were, allowed  and E. A. No. 195 of 1944 was dismissed. The  appellant applied for and obtained from the High  Court certificates  of fitness under Art. 133 of the  Constitution and that is how these appeals are before us.  The  principal question which arises for our  determination in these appeals is what was the nature of 784 the  rights  acquired  by the appellant  in  regard  to  the payment of Rs. 24.257-0-8 and interest by the respondent  as representing  the 3rd Defendant’s branch under the  term  of

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the decree dated May 9, 1938, in A.S. No. 60 of 1933. It must be remembered that the decree was one for  partition of the Properties belonging to the joint family of which the Defendant  No. 3 and the appellant were coparceners.   While effecting  such  a  partition it would not  be  possible  to divide  the properties by metes and bounds, there  being  of necessity  an  allocation of properties  of  unequal  values amongst  the members of the joint family.  Properties  of  a larger  value  might go to one member and  properties  of  a smaller value to another and, therefore, there would have to be an ,adjustment of the values by providing for the payment by the former, to the latter by way of equalisation of their shares.   This  position has been recognized in  law  and  a provision  for  such  payment is -termed  "a  provision  for owelty or , equality of partition".  The followings  passage from  Story on Equity (Third Edition) page 277,  para  6541, describes what happens’ on a partition:- In  regard to partitions,there was also another  distinct;., ground upon which the jurisdiction Of courts of equity,  was maintainable as it constituted a part of its appropriate and peculiar  remedial  justice.  It is, that courts  of  equity were  not  restrained, as ,courts of law were,  to  a  mere, partition  or allotment of the lands and ’other real  estate between the parties according to their respective  interests in  the same, and having regard to the true  value  thereof; but  courts  of  equity might, with a  view  to  the  more-, convenient  and  perfect,  partition  or  allotment  of  the premises,  decree  a pecuniary compensation to  one  of  the parties  for  owelty  or, equality of partition,  so  as  to prevent an injustice or avoidable inequality."  ’Lawrence  -on  Equity Jurisprudenoe (1929),  Vol.   I  pp. 1227, 1228, s. 1147, also contains the following passage:- ,The  ordinary method of partition is to decree  a  physical severance of the separate interests, no sale 785 being  authorised  unless  a fair,  partition  is  otherwise impossible, or at least prejudicial.  There was no power  of judicial  sale at common law.  The Court  ordering  physical partition may make its decree effective by compelling mutual conveyances  by the parties of their  respective  interests. Owelty of partition may be awarded to equalize the shares of the  parties,  and  may  be decreed to  be  a  lien  on  the excessive  allotment.  Though only when necessary to a  fair partition, and it should be employed as little as possible." This position has been summarized in Freeman’s Cotenancy and Partition  (1886  Edition) page 676, para.  507,  under  the caption of "Owelty":- "  Owelty":  " When an equal partition cannot  be  otherwise made, courts of equity may order that a certain ’sum be paid by  the party to whom the most valuable purpartly  has  been assigned.   The  sum thus directed to be paid  to  make  the partition  equal is called "owelty".  It is a lien  on  the’ purparty  on  account  of which it was  granted.   "The  law cannot contemplate the injustice of taking property from one person and giving it to another without an equivalent, or  a sufficient  security  for  it."  The  lien  for  owelty  has precedence  over  prior mortgages and other  liens  existing ’against the cotenant against whom the owelty was awarded." It is significant to note that this provision for owelty  is construed  as  a  lien which the co-sharer  who  is  awarded owelty  is  deemed to acquire on an excessive  allotment  of property  to  the other co-’sharer.  Owelty in  general  and lien  therefor are thus described in Corpus Juris  Secundum, Vol. 68, s. 15:"Section 15.  Owelty and Lien Therefor (a)  In General.

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(b) Liens. (a)  In General. The parties to a voluntary partition may agree to pay owelty to equalise the shares allotted. Owelty  is the. difference which is paid or secured  by  one coparcener  or  co-tenant  to another  for  the  purpose  of equalizing a partition.  The power to award 101 786 owelty  has,  from  the  earlier  times,  been  regarded  as necessary  to  the  act of partitioning  property;  and  the parties to a voluntary partition may agree to the payment of owelty in order to equalize the shares allotted; and,  where the   matter  of  making  the  partition  is  delegated   to commissioners,  they  have the power to award  owelty  as  a necessary incident to the partition. (b) Liens. An  agreement  for owelty in a voluntary partition  of  land ordinarily creates a lien or charge on the land. An agreement for owelty ordinarily creates a lien or  charge on  the  land taken under the partition, and this  lien  may exist  because of an express agreement between  the  parties providing for it or it may be implied in the absence of such express agreement." It  therefore  follows that when an owelty is awarded  to  a member  on  partition for equalization of the shares  on  an excessive  allotment  of  immovable  properties  to  another member  of  the  joint family such a,  provision  of  owelty ordinarily  creates  a lien or a charge on  the  land  taken under  the partition.  A lien or a charge may be created  in express  terms  by the provisions of  the  partition  decree itself.  There would thus be the creation of a legal  charge in favour of the member to whom such owelty is awarded.  If, however, no such charge is created in express terms, even so the  lien may exist because it is implied by the very  terms of  the partition in the absence of an express provision  in that  behalf.   The member to whom  excessive  allotment  of property  has  been made on such partition cannot  claim  to acquire properties falling to his share irrespective of or discharied from the obligation to pay owelty to the other members.  What he gets for his share is, therefore, the properties allotted to him subject to the obligation  to pay   such  owelty  and  there  is  imported  by   necessary implication  an obligation on his part to pay owelty out  of the  properties  allotted to his share and  a  corresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share. 787 "Not only is this the normal position on a partition  decree where there, is an unequal distribution of properties  among the   members  of  the  joint  family  but  even  where   an encumbrance has been created on a member’s share before  the partition is effected, the encumbrancer is postponed to  the member  to whom such owelty is awarded under  the  partition decree.  A lien or a charge created in favour of a member in regard to such owelty obtains precedence over an encumbrance and, there are authorities to show that such lien or  charge has priority over an earlier mortgage. The  following  passage  from  Mitra on  the  Law  of  Joint Property & Partition in British India, Second Edition,  page 414, enunciates the above position:  "  You  will  note that sums directed to be  paid  for  the purpose of equalizing the values of the shares are in  legal language  called  "  owelty."  The  Commissioners  have   no authority  without  express authorization by  the  Court  to

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award this compensation. (See Rule 14, 0. XXVI, C. P. Code). Where  in  a  suit for partition the  decree  of  the  Court declares  that any sum of money should be paid as owelty  by one co-sharer to another the court may direct such sum to be a  charge on the share allotted.  In such a case should  the co-sharer  before  partition have created  any  mortgage  in respect  of his undivided ’interest prior to the  partition, the  charge  for the owelty will have  precedence  over  the mortgage.   Shahebzada  Mohammed Kazim Shah v.  R.  S.  Hill (1907) I.L.R. Cal. 388." To  the  same effect is the passage in Mulla’s  Transfer  of Property Act (4th Edition) at page 211 : "The  lien of a co-sharer for owelty money on  partition  is entitled  to  precedence over prior mortgagees  of  property allotted to the co-sharer who is liable to pay owelty ". Shahebzada Mohommed Kazim Shah v. R.S. Hill was a case where the  appellants had been awarded two sums of Rs. 37,000  and Rs. 9,500 by way of owelty on partition. At the date of  the partition there was (1)  I.L.R. (1907) 35 Cal. 388, 392, 393. 788 subsisting a mortgage on a portion of the property which  was the subject-matter of partition and the  question arose  whether  the  amounts awarded by  way  of  owelty  on partition were entitled to priority over the mortgagees.  It was observed by Maclean C. J. in hi judgment: "Then  arises the question of priority.  To  determine  that question  it  becomes necessary to ascertain  what  was  the substituted  property  which the mortgagor  took  under  the partition.   It is clear that all he took was the house  No. 52-2  Park Street, subject to the charges of Rs. 37,000  and Rs.  9,500 in favour of the appellants; and it can  only  be upon that, that the Roy mortgagees can rank as mortgagee s., that  is, upon No. 52-2 Park Street subject to  the  charges created by the decree." Stephen  J., who delivered a short but  concurring  judgment added: "  It is quite plain that the appellant’s claim, which is  a charge  upon the property, Constitutes a deduction from  the corpus  of the property and is not affected by any  dealings with the possession of the property on which the decision of the Judge of the Court of the first instance is based." There  was  no  doubt on the facts of  this  case  a  charge expressly  created in favour of the co-sharer who  had  been awarded  owelty  but that in our opinion does not  make  any difference to the position.  The moment there is a provision for  such owelty made in a partition decree, the  member  in whose  favour that provision has been made is entitled to  a lien  or a charge over the property which has fallen to  the share  of the member to whom property of a higher value  has been  allotted.   If such a lien or a. charge  is  expressly declared, so far so good but even if it is not so  expressly declared, there is by necessary implication the creation  of a  lien  or a charge in his favour for the  amount  of  such owelty. This  case was followed in Poovanalingam Servai  v.Veerai(1) where Phillips J. observed as follows: "  There  can  be  no doubt that in  a  partition  suit  all equities between the members of the coparcenary (1)  A.I.R. (1926) Madras 166. 789 should  be worked out allotting to each member the share  to which he is equitably entitled.  " After  quoting  the  passage  from  Freeman’s  Co-tenancy  & Partition set out above, the learned Judge further observed:

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" Even if there is nonlegal charge,in the present case,  yet on  equitable principles such a, charge can be enforced  and when. it comes to partitioning the property between two  co- tenants, this equity should in my opinion be enforced." The High Court in passing the order dated November 5,  1943, initially  went wrong in holding that no charge was  created in  favour of the, appellant under the terms of  the  decree dated  May  9, 1938, in A.S. No. 60 of 1933.  No  doubt  the legal  advisers of the appellants were responsible for  this result  in so far as they invited the Court to construe  the decree  as  creating  an express charge  in  favour  of  the appellant.  No such express charge could be spelt out of the terms of the decree and in so far as the High Court came  to the  conclusion that no such express charge was  created  in favour of ’the appellant, it was undoubtedly correct.   But, at  the  same time, the High Court  should  have  considered whether  by reason of the provision for owelty contained  in the   terms   of   that  decree,  there   was,   under   the circumstances,  by necessary implication a lien or a  charge created  in favour of the appellant for the payment  of  the sum  of  Rs, 24,257-0-8 and interest out of  the  properties falling  to the share of the third Defendant is  branch  and therein the High Court fell into an error. This error was gain repeated by the High Court while passing the orders under appeal in A. A. 0. Nos. 724, 725 and 726 of 1945.   The  question  which the High Court  ought  to  have addressed to itself was whether in spite of the fact that no express charge was created in favour of the appellant  under the  terms of the decree dated the 9th May’ 1938, in  A.  S. No.  60  of  1933  for the payment  of  Rs.  24,257-0-8  and interest  out of the properties falling to the share of  the 3rd Defendant’s branch, there was by necessary implication a hen or a charge created for payment of that sum by reason 790 of  the provision for owelty having been made in  favour  of the appellant by way of equalization on partition.  Even  if no express charge was created there was in equity a lien  or a  charge created on the Properties falling to the share  of the  third  Defendants  branch and he did  not  acquire  the properties  which  fell  to  his  share  on  such  partition irrespective  of or discharged from the obligation  to  make payment of such sum out of the same.  The appellant was,  in our opinion, entitled to payment of the sum of Rs. 24,257-0- 8 and interest out of the properties which fell to the share of the third Defendant’s -branch on partition and which came to  the  possession  of  the respondent  by  reason  of  the insolvency of Defendant No. 3. This position was rightly appreciated by tile learned  Dist. Judge  when he passed orders in favour of the  appellant  on July 14, 1945.  The following passage from his judgment,  in our  opinion,  truly reflects the position  as  it  obtained between the appellant and the respondent: "When   we  scrutinise  these  facts,  the   conclusion   is inevitable that the claim of the Respondent to the present amounts stands even higher than on the basis of ’the priority of a charge created in insolvency administration,  whether  by  virtue of a "  security  ",  a charge created by an act of Court or a " lien " arising from the  operation of any law or statute.  In fact, it Could  be contended  with, great force that the estate  in  insolvency which vested in the hands of the Official Receiver consisted of  certain immovable properties minus the. sum directed  to be  paid to the present Respondent by the sale of  available portions of the estate as undertaken by the Official Receive I  r himself.  This was because 0. S. No. 22 of 1924 on  the

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file of the Kumbakonam Sub-Court was a suit of partition  in which  the  present Respondent was a  sharer  and  partner,, exactly  as the 3rd Defendant’s branch  represented  another share.  In decreeing the suit, equities arose for adjustment as  between the several sharers, and it was found  that  the 3rd Defendant’s branch was liable to the present  Respondent in  respect  of  certain overdrawals of  the  3rd  Defendant during 791 the  minority  of  the Respondent,  and  for  certain  lease amounts  due.   The Official Receiver  represented  the  3rd Defendant’s branch in the: appeal, since the insolvency  had supervened.   The  matter-would  at  once  be  cleared  from difficulty  if  we assume -that the decree  had  dealt  with actual  sums of money instead. of immovable properties.   It will be, obvious, in such a case that the estate which would have  vested in the Official Receiver after the A  appellate decree,  for  administration  in Insolvency,  would  be  the amount or amounts assigned to the branches of the 3rd Defen- dant  and  plaintiff  at  partition,  as  &hares,  deducting amounts  payable to other co-sharers including  the  present Respondent.   Merely because the estates actually  consisted of immovable properties while the claim of a co-sharer  like the present Respondent to an adjustment on grounds of equity was recognized in the form of a direction to pay, by sale of a  necessary portion of the estate. the central fact of  the situation  is  not  changed.  In other  words,  the  present respondent  cannot  be really classed as a creditor  of  the insolvent’s  branch at all.  In respect of the sums  due  to him under the partition decree, directed to be paid from the estates  of  the Plaintiff and 3rd Defendant’  as  equitable adjustment, he has really superior title, and, assuming  for a  moment that the direction related instead to a  specific. item of immovable property, it is obvious. that such an item would  not-have formed part of the estate in  insolvancy  at all.   As  Mr.  T. S Krishnamurthi Ayyar  for  the  official Receiver has frankly conceded, it is a well-known  principle that  in suits for partition the shares are  first  assigned upon  the  "simple  basis  of  division  for  administrative convenience,  claims inter se being worked out  by  specific directions for payment.  Nevertheless, in a law and in fact, the  shares actually derived by the parties to the suit  are those  subject  to or qualified by the  directions  made  in adjustment." If this was the true position as it obtained, and we are  of the  opinion  that  it was, then, the  orders  under  appeal passed  by the High Court were clearly wrong.  There was  no justification for the respondent to ask 792 for  a  withdrawal  of the sum of Rs.  5,200  which  he  had earlier deposited into Court on January 9, 1942, or for  the restitution of the sums of Rs. 5,500 and Rs. 26,966 and  Rs. 11 together with interest thereon as claimed.  These  monies had  been  paid  by  the  respondent  in  pursuance  of  the directions contained in the decree dated May 9, 1938, in  A. S. No. 60 of 1933 and they had been rightly paid by him  and they’  could  never be the subject-matter of  any  execution proceedings  as initiated by him.  Apart from  the  question whether a. 144 read with s. 151 of the Civil, Procedure Code was at all applicable in the circumstances of this case,  we are of the opinion that the claim made by the respondent for the  aforesaid  sums  was absolutely  unjustified.   We  are accordingly  of  the opinion that the orders passed  by  the High  Court in A. A. 0. Nos. 724, 725, add 726 of 1945  were wrong and should be reversed.

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The respondent wrote on November 21, 1953, to the  Registrar of  this  Court to say that none of the creditors  had  come forward  to  finance  the defence of  the  appeals  and  the Insolvency  Court, i.e., the Sub-Court, Tanjore had  ordered that the matters might be left undefended, as the’ funds  in the  estate were insufficient to’ defend the appeals at  the cost of the estate.  He,, therefore, requested that when the appeals  were’ heard and decided a direction might be  given by  this  Court  that there should be  no  Order  for  costs against  him.   We  do  not, gee, how  we  can  absolve  the respondent  from  liability  to pay  the  costs  which  must normally follow the event. We  accordingly order that the appeals will be allowed;  the E.  P. No. 35 of 1944 and E. A. No. 182 of 1944  will  stand dismissed;  E. A. No. 195 of 1944 will be allowed;  and  the respondent   will  pay  the  appellants’  costs   of   these proceedings  throughout  in  this Court as well  as  in  the courts below. This separate Judgment of the Court was delivered by 793 SARKAR J.-These appeals arise out of ajudgment of the High Court at Madras setting aside ajudgment of the District Judge of West Tanjore bywhich the learned  District  Judge disposed of three  applications  in certain  execution proceedings.  The facts leading to  these applications were as stated hereunder. There  was a suit for the partition of properties  belonging to  a family of Odayars.  The suit was numbered Suit No.  22 of 1924 of the court of the Subordinate Judge of Kumbakonam. There was a number of parties to this suit, but of these  we are  only concerned with two, namely, Balagurusami, who  was defendant No. 3 and Swaminathaudayar, who was defendant  No. 6. Swaminathaudayar is the appellant before us.  On  October 25,  1924, a preliminary decree for partition was passed  in this  suit  by the learned Subordinate Judge.   One  of  the parties  to the suit appealed from that decree to  the  High Court at Madras.  While this appeal was pending in the  High Court, Balagurusami was adjudicated insolvent and  thereupon his assets including his share in the properties which  were the  subject matter of the partition suit became  vested  in the Official Receiver, West Tanjore (hereinafter referred to as  the  Official Receiver).  The Official Receiver  is  the respondent in the appeals before us.  On February 12,  1929, an  order was made by the High Court in the  appeal  pending before  it  adding  the Official Receiver  a  party  to  the partition  suit.  In due course the appeal was disposed  of. The appeals before us are not concerned with the preliminary decree and no further reference to it will be necessary. On  September  26, 1932, a final decree  for  partition  was passed  by the learned Subordinate Judge to whom the  matter had  come  back after the disposal of the  appeal  from  the preliminary  decree.   The  appellant  before  us  was   not satisfied  with the final decree and he preferred an  appeal from it to the High Court at Madras.  That Appeal was marked A.S. No. 60 of 1933.  The High Court passed its judgment and decree in that appeal on May 9, 1938, varying the decree  of the  lower court.  It is necessary to refer to  portions  of this decree 102 794 of  the High Court because the question in this appeal  will turn  on  them.  The decree made  the  following  provisions among others: (1)The Official Receiver of West Tanjore as representing the branch of Balagurusami, the 3rd defendant do pay Rs. 24,257-

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0-8  to the appellant, the 6th defendant with interest at  6 per cent. per annum from September 26, 1932. (2)The  Official  Receiver of West Tanjore in whom  the  3rd defendant’s estate is vested be directed to sell portions of it in order to pay off the amounts decreed to be paid by the 3rd defendant’s branch and shall make payments on behalf  of the  3rd defendant’s branch in accordance with the  judgment herein. Sometime  prior  to the passing of the final decree  by  the High Court on May 9, 1938, one Thinnappa, a creditor of  the 3rd defendant, Balagurusami, who had obtained a money decree against him in 1929, applied in execution of that decree for attachment  and  sale of the shares of the sons of  the  3rd defendant in the joint family properties.  This  application had  been  made on July 3, 1935, and marked E.P. No.  25  of 1935.   An order for attachment was duly made in  favour  of Thinnappa  and  the  attachment was levied on  some  of  the properties on July 6, 1935.  In the meantime, on July  5,  1935, the Official Receiver had sold some  of  the properties  of Balaguruswami’s branch in the course  of  the administration  in insolvency and had received Rs. 2,100  on July  5,  1935, and a further sum of Rs. 6,150 on  July  18, 1935.  On September 30, 1935, Thinnappa made an marked  E.A. No.  376  of 1935 for an order on the Official  Receiver  to bring  into court for payment to him a sum of Rs. 6,600  out of  the sale proceeds received by the Official  Receiver  as earlier mentioned.  These two applications were dismissed by the learned District Judge, West Tanjore who heard them,  on the  ground  that  no leave had  been  obtained  to  proceed against  the Official Receiver from the court in  charge  of the  insolvency proceedings.  Thinnappa appealed  from  this order of dismissal to the High Court at Madras and the  High Court set aside the order of dismissal and directed that the applications be heard on their 795 merits as it was of opinion that no leave to proceed against the Official Receiver was necessary as execution was  sought against  the sons of the insolvent.  This order of the  High Court  was  made  on  August  10,  1939.   Before  the   two applications,  however,  could  again be  taken  up  by  the District  Judge of West Tanjore for hearing,  the  appellant before  us on January 25, 1940, applied for an order on  the Official Receiver to deposit into court the sum of Rs. 8,250 being  the  entire sale proceeds of some of  the  properties belonging  to  Balagurusami’s  branch  received  by  him  as earlier mentioned.  This application was marked E.P. No.- 15 of 1940.  The learned District Judge of West Tanjore to whom the  application had been made felt that the three  applica- tions,  two by Thinnappa being E.P. No. 25 of 1935 and  E.A. No.  376 of 1935 and one by the appellant being E.P. No.  15 of  1940,  were  best heard together  and  he  thereupon  on September  13,  1941,  made  -certain  orders  whereby   the appellant  was  made  a party to  the  two  applications  by Thinnappa and Thinnappa was made a party to the  application by the appellant. The  three  applications  thereafter  came  up  for  hearing together and were disposed of by one judgment passed by  the learned District Judge of West Tanjore on December 23, 1941. It  appears  to  have  been  contended  before  the  learned District  Judge  on  behalf of the  appellant  that  he  was entitled  to  the whole of the sale proceeds  as  the  final partition decree of May 9, 1938, had created a charge in his favour on the properties which had been allotted under it to the Official Receiver as representing Balagurusami’s  branch while  it  appears  to  have been  contended  on  behalf  of

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Thinnappa  that he had the first right to the sale  proceeds by  virtue  of his attachment.  The learned  District  Judge came  to  the  conclusion that the decree of  May  9,  1938, created a charge in favour of the appellant and in that view of  the  matter,  he made an order  directing  the  Official Receiver  who was a party to all the three applications,  to deposit  into court to the credit of the appellant the  said sale  proceeds  amounting  to  Rs.  8,250  after   deducting thereout his expenses of the sale and dismissing Thinnappa’s application 796 E.  A.  No. 376 of 1935 for an order on  the Official  Receiver to bring into court for payment to him  a sum of Rs. 6,600 out of the said sale proceeds.  With regard to  Thinnappa’s  application  E.  P.  No.  25  of  1935,  he adjourned it till January 21, 1942, for further  proceedings with  regard to other properties.  As a result of  the  said judgment  of  the  learned District Judge  the  position  on December 23, 1941, was that the appellant was held to have a charge  on the properties allotted to the Official  Receiver as   representing  Balagurusami’s  branch  for  the   amount directed to be paid to him by the decree of May 9, 1938.  In view  of  this  the Official Receiver on  January  9,  1942, deposited  in Court to the credit of the appellant a sum  of Rs. 5,200 out of the said sale proceeds, being the  proceeds of  the sale of the properties over which the appellant  had been  held to have a charge.  Basing himself upon  the  said finding  of  a charge in his favour the  appellant  made  an application on March 19, 1942, which was marked E. A. No. 34 of  1942, for an order on the Official Receiver to sell  the properties  belonging  to  the branch  of  Balagurusami  the insolvent for the purpose of paying off the said charge.  On February  5,  1942, an order was made  on  this  application giving leave to the Official Receiver to sell the properties and to pay the appellant his decretal amount out of the sale proceeds.  It appears that thereafter in May and June, 1942, the Official Receiver paid various sums to the appellant  in respect of the amount due to him under the decree either  in cash or by adjustment, aggregating Rs. 32,477. Thinnappa  however  was disatisfied with the  order  of  the learned District Judge of December 23, 1941, and he appealed from  it  to the High Court at Madras. There  were  in  fact three  appeals  filed  by him as  the  order  covered  three applications.   These appeals were marked A.A.0.  Nos.  229, 429  and 483 of 1942.  On November 5, 1943, the  High  Court delivered  judgment allowing these appeals.  The High  Court held  that  the procedure adopted by  the  learned  District Judge  in  making the appellant a party to  Thinnappa’s  two applications E. P. No. 25 of 1935 and E. A. No. 376 of  1935 and Thinnappa a, party to the appellant’s appli- 797 cation E.P. No. 15 of 1940 could not be supported.  The High Court  further held that the decree of May 9, 1938, did  not create any charge on the properties of Balagurusami’s branch in favour of the appellant.  In this view of the matter  the High Court made an order striking out the name of  Thinnappa from E.P. No. 15 of 1940 and the name of the appellant  from E. P. No. 25 of 1935 and E.A. No. 376 of 1935, and remanding all  the three applications to the lower court for  disposal on the merits in the light of the observations contained  in the order. In view of the aforesaid finding of the High Court that  the appellant  did  not  have the charge  claimed  by  him,  the Official  Receiver felt that he was entitled to  restitution from  the appellant of the sum of Rs. 32,477 paid to him  as earlier mentioned as a result of the finding of the  learned District Judge of December 23, 1941, of the existence of the

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charge  and also to withdraw the sum of Rs. 5,200  deposited in  court  to  the  credit  of  the  appellant  in   similar circumstances.   He,  thereupon, on July 29, 1944,  made  an application, marked E.A. No. 182 of 1944, for an order  that the sum of Rs. 5,200 deposited by him in court on January 9, 1942, to the credit of the appellant may be paid back to him and on September 27, 1944, made another ,application, marked E.P.  No. 35 of 1944, for an order on the Appellant  to  pay back to him the said sum of Rs. 32,477 paid to the appellant in  cash  and  by way of  adjustment  as  earlier  mentioned together with interest thereon amounting in the aggregate to Rs.   36,983/9/6.   The  appellant  in  his  turn  made   an application on August 7, 1944, marked E.A. No. 195 of  1944, for payment to him of the said sum of Rs. 5,200 deposited by the  Official Receiver in court on January 9, 1942,  to  his credit.   These three applications were disposed of  by  the learned District Judge of West Tanjore by one judgment dated July  14, 1945.  The learned District Judge was of the  view that  all  that was held by the High Court in  its  judgment dated  November 5, 1943, in the appeals marked  A.A.0.  Nos. 229,  42  429 and 483 of 1942 was that the  final  partition decree  of  May 9, 1938, did not have the  legal  effect  of creating 798 a  charge in favour of the appellant but that  the  question whether  the  appellant  was not  entitled  to  priority  in respect of his claim was not concluded by that judgment.  In this  view  of  the  matter he went  into  the  question  of priority  and  found  that the estate  in  insolvency  which vested  in the Official Receiver under the decree of May  9, 1938,  consisted of certain immovable properties  minus  the sums directed to be paid under it and the Official  Receiver was  not, therefore,. entitled to restitution in respect  of the  payments made by him to the appellant or to the  amount in deposit in court, since the  estate in insolvency did not comprise  these  monies  in the  strict  legal  sense.   He, thereupon, dismissed the Official Receiver’s application for refund  from the appellant, being E.P. NO. 35 of  1944,  and his application to be repaid the monies deposited in  court, being  E.A.  No. 182 of 1944, and  allowed  the  appellant’s application  for  payment  to him of the sum  of  Rs.  5,266 deposited in court, being E.A. No. 195 of 1944.  The appeals to us arise out of these applications. The  Official Receiver appealed from the said judgment  July 14, 1944, to the High Court at Madras and these appeals were marked A.A.0. Nos. 724, 725 and 726 of 1944.  These  appeals were  decided  by  the  High Court  by  its  judgment  dated February  8, 1950.  The High Court held that the finding  in the judgment dated November 5, 1943, that the appellant  had no  charge  over the properties allotted to  the  branch  of Balagurusami, might not be binding as a judicial  precedent, but  it  had  to  be given effect to  in  the  interests  of judicial  comity-and  that  it  had  to  be  held  that  the appellant was not entitled to a charge.  The High Court also held  that  the judgment dated Novem. ber 5, 1943,  did  not leave  it open to the appellant to urge any other  claim  of priority  as he had not done so on the earlier  occasion  in his application, being E. P. No. 15 of 1940.  Therefore, the High Court came to the conclusion that the appellant was not entitled to any priority.  The High Court further held  that in view of the provisions of the Provincial Insolvency  Act, the  Appellant  could claim no priority if his  claim  to  a charge under the decree of May 9, 1938, failed 799 and  that such claim failed as it bad been rejected  by  the

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earlier  judgment of the High Court dated November 5,  1943, which  judgment  had  to be  accepted  for  reasons  already stated.   Lastly, the High Court held that the reasoning  of the  District Judge of West Tanjore that what vested in  the Official  Receiver were certain immovable properties of  the insolvent  minus the sums directed by the decree of  May  9, 1938,   to  be  paid  was  much  too  artificial   and   was unsustainable.   It  held  that the  Official  Receiver  was entitled to refund from the appellant and to be paid out the monies  deposited  in court and that the appellant  was  not entitled to the latter sum.  In view of these findings,  the High Court allowed the appeals marked A. A. 0. Nos. 724, 725 and 726 of 1945.  From this judgment the appellant  appealed to  this Court and these are the appeals now before  us  for hearing. In my view these appeals must be allowed.  The decree of the High Court of May 9, 1938, directed the Official Receiver to pay monies to the Appellant.  That decree is binding on  the Official  Receiver.  The Official Receiver has to  carry  it out.  He has carried it out and paid monies under it to  the Appellant and deposited to his credit in court a sum of  Rs. 5,200.   The Official Receiver cannot be heard to  say  that the  monies should be refunded to him because no charge  had been created over the insolvent’s estate in respect of  them or  because  the appellant was not entitled  for  any  other reason to a priority in payment.  Whether a charge had  been created  or  not, or a right to priority exists or  not,  is irrelevant.  It is enough that there is a decree against the Official Receiver to pay the monies.  In making the  payment the Official Receiver has carried out his obligations  under the  decree.   The decree stands and he has,  therefore,  no right  to recover the payments made.  The Official  Receiver asked  for the order for refund under s. 144 of the Code  of Civil  Procedure.  But that section only applies where  pay- ments  have  been  made under a decree which  is  varied  or reversed.   That  is not the case here.  Here  the  payments have  been  made  in satisfaction of a  decree  which  still stands and indeed is one which has never been attacked. It  is  again  not a case where it could be  said  that  the appellant  is entitled only to a dividend in respect of  the decretal  claim  in  the  distribution  of  the  insolvent’s estate.   That  might have happened if the appellant  was  a creditor of the insolvent.  Here, however, he is a  creditor of  the Official Receiver himself.  The  Official  Receiver, therefore,  cannot  claim either that the  appellant  should refund the payments made to him, so that the monies refunded along  with other available assets of the insolvent  may  be distributed  pro rata among the creditors of the  insolvent, including the appellant. The  finding by the High Court in its judgment  of  November 5,1943, that the appellant was not entitled to a charge  and the  acceptance of that finding by the judgment  from  which these appeals arise make no difference, for the right of the appellant  to receive the monies or to retain what has  been paid to him does not depend on the existence of a charge  in his  favour but on the existence of the decree.  It  is  not necessary  to decide the question whether the appellant  has such  a  charge and I do not feel called ’Upon to  make  any observation with regard to it.  I wish, however, to say that the decision of November 5, 1943, has no operation by way of resjudicata  in  favour  of the appellant  and  against  the Official Receiver.  That decision was between Thinnappa  and the appellant.  Though the Official Receiver was a party  to the proceeding in which the decision was given, the issue as to whether there was a charge in favour of the appellant  or

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not  was  not  between  him  and  either  the  appellant  or Thinnappa,  nor was it necessary to decide an issue  between the Official Receiver and the appellant as to the  existence of  the charge in order to give Thinnappa or  the  appellant the reliefs they respectively claimed. The  appeals  should,  therefore,  be  allowed  with   costs throughout, and I order accordingly. Appeals allowed. 801