NARAYANA BHATTA Vs. SHANKARA NARAYANA BHATTA

JUDGEMENT

(1.) The facts of the case which has given rise to this second appeal are rather intricate, but, so far as the question argued in this second appeal is concerned, it is necessary to notice only the following facts: In the partition of the properties left by one Ganapathi Bhatta among his sons one of them, namely, defendant 1, was to get Rs. 5,000/- from two others for his share and he was not given any landed property. The persons who were to pay this amount were Keshava Bhatta and defendant 4, the former being liable to pay Rs. 2,100/- and the latter Rs. 2,900/-, and for the respective amounts payable by each a charge was created in favour of defendant 1 on the properties allotted to each. Some of his properties had been mortgaged by Ganapathi Bhatta himself during his lifetime and he had also taken them back on a lease from the mortgagee. Portions of these properties were allotted to the shares of Keshava Bhatta, defendant 4 and the plaintiff, and Keshava Bhatta was directed to discharge the mortgage amount as well as the rent. There was also a provision in the partition deed that if the persons who had been directed to make various payments defaulted to pay the amounts and any loss was thereby occasioned to the other sharers such loss could be recouped from the properties allotted to the share of the defaulter or defaulters. Keshava Bhatta defaulted to pay both the mortgage amount and the rent, and the plaintiff in this suit, who was also one of the sons of Ganapathi Bhatta, had to pay the mortgage amount and a part of the rent. On the strength of the indemnity clause in the partition deed referred to above plaintiff brought the present suit for recouping the amount he was thus obliged to pay, and the only question for decision in this second appeal is whether defendant 1 has a prior charge over the properties allotted to Keshava Bhattas share for the amount he has to get under the partition deed or whether the charge he has should be postponed to the charge which the plaintiff under the indemnity clause or both those charges should rank equally.

(2.) What defendant 1 has obtained for his share in the partition is not any property but a sum of Rs. 5,000/- for which he has a charge on the properties allotted to the shares of Keshava Bhatta and defendant 4. So what Keshava Bhatta and defendant 4 have really obtained for their shares in the partition is not all the properties that have been allotted to them but only those properties less the amount of Rs. 2,100/- which Keshava Bhatta has to pay to defendant 1 and Rs. 2,900/- which defendant 4 has to pay. The charge given by the indemnity clause in the partition deed is only over the share allotted to the defaulter or defaulters: that is to say, the right of indemnity which the other sons have over the share of Keshava Bhatta on account of his failure to discharge the mortgage amount and rent is only a charge over the balance rights in the properties included in Keshava Bhattas schedule subsisting after the charge for Rs. 2,100/- created in favour of defendant 1 on account of his share in the joint properties. If the charge which defendant 1 has over the properties allotted to Keshava Bhatta for the amount he has to get on account of his share is postponed to the charge which the other sons have over those properties for indemnity in respect of loss occasioned to them by Keshava Bhattas default, it would amount to a virtual denial of defendant 1s right to get any share in his fathers properties; and if the two charges are to rank equally that also would result in a substantial deduction of the share which he is entitled to get. Therefore I feel clear that the charge which the other sons have over the properties allotted to Keshava Bhatta and defendant 4 for indemnity in respect of defaults committed by them is subject to the charge which defendant 1 has over those properties for the money due to him on account on his share. So far as defendant 1s right to get a share in the fathers properties is concerned that right must rank equally with the rights of the other sons to get shares in those properties, and it is only after shares are given to all the sons that any of them can have a charge over the shares of others for the indemnity in respect of acts committed by any defaulter or defaulters among them.

(3.) The view that I have taken above is supported by the observations in the majority decision in T. S. Swaminatha v. Official Receiver ( AIR 1957 SC 577 ) wherein it has been said