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SUPREME COURT OF INDIA
BHAGWATI, IMAM AND SARKAR, JJ.
T.S. Swaminatha Odayar Appellant
Versus
Official Receiver of West Tanjore, Respondent.
Civil Appeals Nos. 251 to 253 of 1953.
27th March 1957
Advocates appeared
Messrs. N.S. Champakesa Aiyangar and S. Subramanian, Advocates, for Appellant.
-the general principle is that the successful} party must be awarded costs, where a party successfully enforces a legal right, and in no way misconducts himself, he is entitled to costs as of right - Swaminathan v. Official Receiver, AIR 1957 SC 577; Kali Prasad v. Ram Prasad, AIR 1974 SC 148; Thungabhadra Industries Ltd. v. Government of A.P., AIR 1964 SC 1372 = (1965) 5 SCR 174.
-the party is not entitled to costs - Swaminathan v. Official Receiver, AIR 1957 SC 577; Thungabhadra Industries Ltd. v. Government of A.P., AIR 1964 SC 1372; Loknath v. B.N. Rangwani, AIR 1974 SC 150, or the grant of costs is not otherwise justified.
– while effecting partition of the properties belonging to the joint family, 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 smaller value to another and therefore there would have to be an adjustment of the values by proving for the payment by the former to the latter by way of equalization of their shares. This position has been recognized by law and a provision for such payment is termed “a provision for owelty or equality of partition” – See decision in T.S. SwaminathaOdayar v. Official Receiver of West Tanjore, AIR 1957 SC 577 = 1957 SCJ 501 = 1957(2) Mad LJ (SC) 53 = 1957 SCA 962.
Key Points: - The judgment discusses that a provision for owelty in partition may create a lien or charge on the property allotted, either expressly or by necessary implication, to secure equalization of shares. (!) (!) (!) - It holds that when owelty is awarded on partition for unequal allotment, the lien/charge commonly exists even if not expressly created, and may have precedence over prior mortgages or encumbrances in certain contexts. (!) (!) (!) - The case analyzes whether the Official Receiver’s payments under a partition decree must be refunded when the decree stands, independent of whether a formal charge existed; the Court ultimately held that the Official Receiver is bound to satisfy the decree and may not seek restitution of payments already made. (!) (!) - The High Court’s conclusions that no express charge was created did not necessarily resolve priority issues; the decree’s existence and obligations remain binding, affecting restitution rights and priority arguments. (!) (!) - The Supreme Court reversed the lower court, allowing the appeals and holding that the Official Receiver must honor the decree and that the appellant is entitled to retain payments made under the decree. (!) (!) (!)
Judgement
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.
2. 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, Balaguruswami Odayar and Swaminatha 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 25th October 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 third defendant was impleaded as a party to the suit on 12th February 1929. The final decree for partition was passed on 26th September 1932, by the Subordinate Court at Kumbakonam. The defendant No. 6 carried 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 9th May 1938.
3. Under the terms of this decree certain properties fell to the share of the third defendant s branch and for the purpose of equalising on partition the Official Receiver of West Tanjore, representing the third 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 26th September 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 third defendant s branch was vested should sell such portions of the estate as were not subject to the charge for the maintenance of the ninth defendant in order to pay off the amounts decreed to be paid by the third defendant and should make payments on behalf of the third defendant s branch in accordance with the judgment therein.
4. The last direction was given by the High Court in C.M.P. No. 5697 of 1939 substituting the words "be at liberty" in para. 4 (b) of the decree in A.S. No. 60 of 1933 by the words "be directed" and incorporating the words "third Defendant s Branch" wherever the "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 9th May 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 defendant s branch (as it was originally contemplated in the judgment) for the amount of Rs. 24, 257-0-8.
5. The Official Receiver of West Tanjore had in the meanwhile sold on 5th July 1935, certain items of properties which had fallen to the share of the third defendant s branch and realised a sum of Rs. 8,250. On 25th January 1940, the defendant No. 6 who is the appellant before us filed a petition under O. 21, R. 11, sub-r. (2), Civil P.C., being E.P. No. 15 of 1940 praying that the Court should direct the Official Receiver of West Tanjore representing the third defendant s branch (the respondent before us) to pay to him or to deposit into Court Rs. 8
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