RAJAH MOMMADEVARA NAGANNA NAIDU BAHADUR JAMINDAR GARU DIED AND Vs. RAO JANARDHANA KRISHNA RANGARAO BAHADUR JAMINDAR GARU

JUDGEMENT

(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.