THE OFFICIAL RECEIVER, REPRESENTING THE ESTATE OF TADI BULLI GANGIREDDI OF RAJAHMUNDRY Vs. TADI MURALI MOHAN REDDI AND ORS.

JUDGEMENT

(1.) THE appellant's suit for contribution under Section 82 of the Transfer of Property Act was dismissed by the Subordinate Judge of Coconada on the ground of non -joinder. One Tadi Bulli Gangireddi was adjudged insolvent on the 13th of November, 1931, in I.A. No. 12 of 1931 which was filed on 17th March, 1931, in the Court of the Subordinate Judge of Coconada. Nine days before the order of adjudication Gangireddi's son who is the first respondent in this appeal and who was the first defendant in the Court below filed O.S. No. 250 of 1931 in the Court of the District Munsiff of Ramachandrapur against his father for partition of the family properties. This resulted in a preliminary decree on the 16th of November, 1931. The Official Receiver was impleaded in the suit on the 16th of February, 1932. Another son was born to Gangireddi in 1934. He is referred to throughout the record by the curious description of" an unnamed boy." Gangireddi died on the 17th of January, 1934. The second son was impleaded in the partition suit on the 26th of November, 1934, and by the final decree passed in that suit on the 6th of April, 1935, the properties as per list B attached to the decree were allotted to the elder son. Nothing was said about the remaining properties. There can be no doubt that the properties in list B and the other properties were of equal value. Respondents 2 and 3 who were defendants 2 and 3 in the Court below obtained a decree in O.S. No. 2 of 1935 on the file of the Court of the Subor -dinate Judge of Coconada against the interests of the sons of Gangireddi, and some -time in August, 1935, had attached the said interests before judgment. respondents 4 and 5 (defendants 4 and 5) obtained a money decree in similar terms in O.S. No. 26 of 1937 on the file of the Court of the Subordinate Judge of Coconada. Defendants 2 to 5 were impleaded for obtaining a direction that the plaintiff's claim for contribution is entitled to priority over the decrees obtained by those defendants, and that the amount due to the plaintiff should be a first charge on the properties described in the plaint schedule which were among the properties allotted to the first defendant by the final partition decree.

(2.) ON 9th February, 1931, Gangireddi for himself and as guardian of his then minor undivided son, the first defendant, together with one Karri Gavarayya executed a deed of simple mortgage in favour of the Imperial Bank of India for Rs. 37,116 -3 -0. It is stated in the mortgage that Rs. 19,336 -6 -0 out of this was the extent of the indebtedness of Gangireddi while the balance of Rs. 17,779 -13 -0 was due from Gavarayya. The properties belonging to both were mortgaged, those belonging to the Tadi family being described in Schedule A attached to the deed and those belonging to Karri Gavarayya, in Schedule B. It is, inter alia, provided in the mortgage that,

(3.) THE objection as to the non -joinder of Gangireddi's second son may be shortly dealt with. He was not a party to the mortgage decree. On a strict reading of the pleading, therefore, the objection does not extend to his non -joinder. Still the Court below went into the question and we too permitted the matter to be discussed. It is undeniable, and in fact, it has not been denied, that the second son of Gangireddi who was born long after his father's adjudication as insolvent is not entitled to any share in the properties. It was however contended in the lower Court, and it has been contended before us that as between defendants 2 and 3 and the plaintiff the suit must proceed on the footing that the first defendant is entitled to a half share, the Official Receiver to a one -fourth share and the second son of Gangireddi, to the remaining one -fourth share in the family properties by reason of an order passed in E.A. Nos. 770 and 802 of 1944 on the 22nd of November, 1944. Those were two claim petitions filed by the Official Receiver. It is admitted that no suit was filed to set aside the claim order within one year thereafter so that the conclusion cannot be resisted that for the purpose of the present suit as between the plaintiff on the one hand and defendants 2 and 3 on the other it must be assumed that Gangireddi's second son is entitled to a one -fourth share, though no such assumption need or can be made at the instance of defendants 1, 4 and 5.