Case: T.S. Swaminathaudayar Vs. The Official Receiver Of West Tanjore

Bhagwati, J. 1. 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 defendants branch and for the purpose of equalising on partition the Official Receiver of West Tanjore, representing the third defendants 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 defendants 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 defendants 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 Defendants 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 defendants 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 defendants 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 defendants 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 defendants 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 defendants branch inclusive of interest as per the decree of the High Court dated 9th May 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 14th March 1925, the decree in favour of Thinnappa Chettiar being dated 15th August 1929, and that in favour of Palaniappa Chettiar being dated 17th July 1928. On 3rd July 1935, Thinnappa Chettiar filed a petition under O. 21, Rr.11 (2), 54, 62, 66, Civil P.C., 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 4th July 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 5th July 1935, of the properties falling to the share of the third defendants branch were upheld. On 30th September 1935, Thinnappa Chettiar filed an application being E.A. No. 376 of 1935 under S. 151 of the Civil P.C., 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 of a cheque. E.P. No. 25 of 1935 and E.A. No. 376 of 1935 were dismissed by the District Judge on 14th August 1937. Thinnappa Chettiar filed A. A. O. Nos. 349 and 350 of 1937 against these orders of the District Judge and on 10th August 1939, the High Court holding that the leave of the 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 in 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 Courts 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 defendants 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 sixth 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 land 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. 6. 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 21st January 1942, for further proceedings with regard to other lots of properties. Thinnappa Chettiar filed appeals against these orders being A.A.O. Nos. 229, 429 and 483 of 1942 in the High Court. 7. In the meanwhile, on 9th January 1942, the respondent deposited a sum of Rs. 5,200 in Court to the credit of the appellants decree. On 5th February 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 Courts order dated 9th May 1938 in A.S. No.60 of 1933, to pay the petitioner so directed by the High Court notwithstanding the attachment as was ordered in E.P. No. 25 of 1935 and free of that attachment. On 11th May 1942, a sum of Rs. 5, 500 being the sale proceeds of certain properties belonging to the share of the third defendants branch was adjusted by the appellant and on 23rd January 1940, the respondent paid to the appellant a further amount of Rs. 26,966 adjusting a further sum of Rs. 1l for costs due by the appellant. 8. The high Court disposed of the A.A.O. Nos. 229, 429 and 483 of 1942 on 5th November 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, E.A. No. 376 of 1935 and E.P. No. 15 of 1940. It also held that no charge was created by the decree dated 9th May 1938, in A.S. No. 60 of 1933 in respect of the sum of Rs. 24, 237-0-8 awarded to the appellant under the decree. It 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 applications be remanded to the lower Court for disposal on the merits in the light of the observations contained in the order. 9. As a result of the decision of the High Court negativing the appellants claim to priority, the respondent filed on 29th July 1944, E.A. No. 182 of 1944 praying that the Court do issue a cheque for Rs. 5, 200 deposited by him on 9th January 1942. On 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 9th May 1938. While these applications were pending, the respondent filed a petition being Execution Petition No. 35 of 1944 on 27th September 1944, under Ss. 144, and 151 and O. 21, Rr. 11 and 37, Civil P.C. 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 8th January 1942, and claimed by him in E.A. No. 182 of 1944; (2) sale proceeds adjusted by the appellant on 11th May 1942, together with interest thereon at 6 per cent. per annum from 11th May 1942, aggregating to Rs. 6, 283-12-0; (3) the amount paid on 23rd June 1942, by the appellant being Rs. 26, 966 and (4) the amount adjusted by the respondent for costs due by him on 23rd June 1942, being Rs. 11, items 3 and 4 aggregating to Rs. 26,977 together with interest thereon from 23rd June 1942, up to date at 6 per cent. per annum amounting to Rs. 3,722-13-6. Thus he claimed a sum of Rupees 42,183-9-6 in the aggregate from the appellant. 10. All these matters - E.A. No. 182 of 1944 and E A . No. 195 of 1944 and EP. No. 35 of 1944 were heard by the District Judge on 14th July 1945. The learned District Judge understood the order of the High Court dated 5th November 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 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 reason 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 defendants 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 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. 11. The respondent carried appeals to the High Court against these orders of the District Judge being A.A.O. 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 5th November 1943, 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 committee, 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 of 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 cosharer 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 negetived 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. 12. 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. 13. The principal question which arises for our determination in these appeals is what was the nature of 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 third defendants branch under the terms of the decree dated May, 9,1938, in A.S. No. 60 of 1933. 14. 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 prodding 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 following passage from Story on Equity (Third Edition) page 277, para. 654 describes what happens on a partition: In regard to petitions, 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 of a more convenient and perfect partition or allotment of the premises, decree or pecuniary compensation to one of the parties for owelty or equality of partition, so as to prevent any injustice or avoidable inequality. 15. Lawrence on Equity Jurisprudence (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 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 equalise 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. 16. This position has been summarized in Freemans 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 equilty may order that a certain sum be paid by the party to whom the most valuable property has been assigned. The sum thus directed to be paid to make the partition equal is called Owelty. It is a lien on the properly 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 on owelty has precedence over prior mortgages and other liens existing against the cotenant against whom the owelty was awarded. 17. 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 cosharer. 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. (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 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 partitions of land ordinary 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. 18. 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 failing to his share irrespective of or discharged 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 lion in favour of the members to whom such owelty is awarded on the properties which have fallen to his share. 19. 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 members 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 of charge has priority over an earlier mortgage. 20. The following passage from Mitra on the Law of Joint Property and 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 authority without express authorization by the Court to award this compensation. (See Role 14, Order 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, Shahebzadah Mohammed Kazim Shah v. R.S. Hill, I.L.R. 35 Cal. 388(A). 21. To the same effect is the passage in Mullas 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. 22. I.L.R. 35 Cal. 388 (A) 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 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 his judgment: Then arises the question of priority. To determine that question it becomes necessary to ascertain what was toe 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 Ray mortgagees can rank as mortgagees, that is upon No. 52-2 Park Street subject to the charges created by the decree. 23. Stephen, J. who delivered a short but concurring judgment added: It is quite plain that appellants 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. 24. 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. 25. This case was followed in Poovanalingam Servai v. Veerayi, A.I.R. 1926 Mad. 186 (B) where Phillips, J. observed as follows: There can be no doubt that in a partition suit all equities between the members of the Co-Parcenary should be worked out allotting to each member the share to which he is equitably entitled. 26. After quoting the passage from Freemans Co-tenancy and Partition set out above, the learned Judge further observed: Even if there is no legal 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. 27. 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 appellant 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 defendants branch and therein the High Court fell into an error. 28. This error was again repeated by the High Court while passing the orders under appeal in A.A.O. 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 May 9, 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 third defendants branch, there was by necessary implication a lien or a charge created for payment of that sum by reason 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 defendants branch on partition and which came to the possession of the respondent by reason of the insolvency of the defendant No. 3. 29. This position was rightly appreciated by the learned District 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 scrutinize 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 Receiver himself. This was because O.S. No. 22 of 1924 on the 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 Defendants branch represented another share. In decreeing the suit, equities arose for adjustment as between the several shares, and it was found that the 3rd Defendants branch was liable to the present Respondent in respect of certain overdrawals of the 3rd defendant during the minority of the Respondent, and for certain lease amounts due. The Official Receiver represented the 3rd Defendants 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 dealth with actual sums of money instead of immovable properties. It will he obvious, in such a case that the estate which would have vested in the Official Receiver after the Appellate decree, for administration in Insolvency, would be the amount or amounts assigned to the branches of the 3rd Defendant and plaintiff at partition, as shares, 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 insolvents 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 equittable 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 insolvency 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 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 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 S. 144 read with S. 151 of the Civil Procedure Code was at all applicable in the circumstances of the 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.O. Nos. 724, 725 and 726 of 1945 were wrong and should be reversed. 30. 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 he no order for costs against him, We do not see how, we can absolve the respondent from liability to pay the costs which must normally follow the event.

Decision reasoning: 1[ds]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 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 S. 144 read with S. 151 of the Civil Procedure Code was at all applicable in the circumstances of the 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.O. Nos. 724, 725 and 726 of 1945 were wrong and should be reversed30. 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 he no order for costs against him, We do not see how, we can absolve the respondent from liability to pay the costs which must normally follow the event5. From this judgment the appellant appealed to this Court and these are the appeals now before us for hearing