1973 Supreme(Cal) 142

HIGH COURT OF CALCUTTA
A. K. Sinha, N. C. Mukherji
RAM KRISHNA TARAFDAR - Appellant
Versus
NEMAI KRISHNA TARAFDAR - Respondent
FMA 568  Of  1972
Decided On : MAY 21, 1973

Owelty money creates a lien or charge on the properties allotted to the other co-sharer, and the decree-holder is entitled to retain possession of the disputed property in default of payment.

Headnote:

PARTITION - Execution of decree based on an Award - Owelty money - Lien or charge - Resistance of delivery of possession - Limitation - Interest.

Fact of the Case:

The case involves three appeals arising from execution proceedings initiated by co-sharers for the enforcement of a final decree based on an Arbitrator's Award effecting partition of joint family properties. The Award provided for payment of owelty money by certain co-sharers to others. The disputes arose when some co-sharers sought delivery of possession of their allotted properties without paying the owelty money, while others resisted execution for realization of the owelty money on various grounds, including non-existence of a business allotted to them and limitation.

Finding of the Court:

1. Owelty money creates a lien or charge on the properties allotted to the other co-sharer, even if not expressly declared in the Award. 2. The co-sharer entitled to owelty money has a right to retain possession of the disputed property in default of payment, not merely a right to sell the property. 3. The Executing Court has no power to go behind the decree and determine questions relating to the non-existence of properties prior to the passing of the final decree, as such matters were conclusively determined by the parties and cannot be raised again in execution proceedings. 4. The Arbitrators had no power to award interest on owelty money, but the decree-holder is entitled to interest from the date of the final decree till realization on the unpaid owelty money. 5. The execution of the decree is not barred by limitation, as the decree-holder is entitled to the time taken for drawing up of the final decree, especially when the delay was not due to their fault.

Issues: 1. Whether owelty money creates a lien or charge on the properties allotted to the other co-sharer? 2. Whether the Executing Court has the power to determine questions relating to the non-existence of properties prior to the passing of the final decree? 3. Whether the Arbitrators had the power to award interest on owelty money? 4. Whether the decree-holder is entitled to interest from the date of the final decree till realization on the unpaid owelty money? 5. Whether the execution of the decree is barred by limitation?

Ratio Decidendi: 1. The Supreme Court decision in T. S. Swaminatha Odayar v. Official Receiver of West Tanjore established that owelty money ordinarily creates a lien or charge on the land taken under the partition, even if not expressly provided in the Award. 2. The Executing Court's power under Section 47 of the Civil Procedure Code to determine questions relating to the execution, discharge, or satisfaction of the decree does not extend to matters that were conclusively determined by the parties and incorporated into the final decree. 3. The Arbitrators' lack of power to award interest on owelty money does not invalidate the Award, as it merged into the final decree passed by the Court. 4. The decree-holder is entitled to interest from the date of the final decree till realization on the unpaid owelty money, considering the circumstances that led to the delay in drawing up the final decree. 5. The execution of the decree is not barred by limitation, as the decree-holder is entitled to the time taken for drawing up of the final decree, especially when the delay was not due to their fault.

Final Decision: 1. Appeal No. 331 of 1970 allowed; the appellants shall remain in possession of the disputed property until the owelty money and interest are paid or realized in execution. 2. Appeal No. 122 of 1970 allowed in part; the appellant shall pay interest on the owelty money from the date of the drawing up of the final decree. 3. Appeal No. 568 of 1972 allowed in part; the appellant shall pay interest on the owelty money from the date of the drawing up of the final decree.