A charge created by a decree of court is not within the purview of Section 100 of the Transfer of Property Act.

( 1 ) THIS appeal has been referred to a Full Bench by the order of Manohar Prasad and Raganadham Chctty JJ. because of conflicting judicial opinion on the interpretation of Section 100 of the Transfer of Property Act.

( 2 ) THE facts that have contributed to the litigation may be briefly given. The plaintiff, who is tile appellant, instituted a suit for the recovery of Rs. 32,394. 00 by way of contribution from the defendants in the following circumstances. One Bom-madevara Narasimha Naidu was the owner of considerable properties. He died in 1918 leaving he-hind him his two sons, the plaintiff and the 1st defendant and his second wife, Rajya Lakshmi Devamma. The 1st defendant and his sons filed O. S. No. 38 of 1919 in the Court of the Subordinate Judge, Eluru for partition of the family properties and for separate possession of their share. Their step-mother Rajya Lakshmi Devamma was1 impleaded as the second defendant in that suit as she was entitled to maintenance. The suit ended in a decree for partition in which the properties set out in schedules A and B annexed to the present plaint were allotted to the share of the plaintiff, The 2nd defendant was awarded maintenance, past and future, at the rate of Rs. 600. 00 per month to be paid by the plaintiff and the 1st defendant in two equal moieties and the maintenance was made a charge on the estate of the plaintiff and the 1st defendant, with the result that the A and B schedule properties were subject to a charge.

( 3 ) IN execution of decree obtained against the plaintiff, the A schedule properties were brought to sale and defendants 1 to 13 and 17 to 19 purchased them in court auction and the items set out in the A schedule passed into their hands. Some time latter, the plaintiff was adjudged an insolvent at the instance of one of his creditors. The insolvent filed a petition, C. M. P. No. 670 of 1943, suggesting a composition scheme. This scheme was accepted by the Court as the majority of the creditors were agreeable to it. The plaintiffs second wife guaranteed the payment of the amounts agreed to be paid to the several creditors "and also undertook the management of the estate so that she could reimburse herself the amount due to her in that regard. Since the maintenance claim of the 2nd defendant was not satisfied, the latter took out several executions and item 11 of the B schedule was put up for sale. In order to avert the sale and at the request of the plaintiff, his wife made several payments between 29/11/1943 and 22/07/1946 totaling Rs. 34,846-14-0.

( 4 ) THE plaintiff brought the present suit alleging that all the items of the A and B schedules were-liable to pay the amounts ratably since they were all charged for the maintenance of the 2nd defendant and apportioning it on the basis of the values of the various items charged as on the date when the charge was created, Several defenses were raised in the suit, the chief of them being that the properties in the possession of the defendants were not subject to contribution since the charge declared by the Court does not attract the incidents of a mortgage and that even otherwise, being bona fide purchasers for value without notice, they are protected. A number of issues were raised on the pleadings and almost all of them were held against the plaintiff. In the result, the suit was dismissed with costs.

( 5 ) THE aggrieved plaintiff has brought this appeal. It may be mentioned that pending this appeal the plaintiff and; the 1st defendant died while the 2nd defendant died pending suit and their legal representatives have been brought on record.

( 6 ) IT is urged by Sri Venkatesarn, Counsel for the appellant, that the view of the Subordinate Judge that the plaintiff could not have the benefit of contribution as the charge declared by the Court does not fall within the purview of Section 100, Transfer of Property Act, is erroneous and a charge-holder under a decree of a Court is also entitled to contr