MANICKAM PILLAI Vs. AUDINARAYANA PILLAI

JUDGEMENT

(1.) The question which arises for determination in this appeal is whether certain words in Clause 5 of exhibit "A create a charge within the meaning of Section 100 of the Transfer of Property Act. For the purpose of dealing with this question it is necessary to read the words which it is suggested create the charge by the light of the provisions of the deed as a whole. Now the deed in question is a partition deed entered into between two parties, one Sambasiva Pillai who is the first defendant in the present suit, and one. Manikkam Pillai who is the plaintiff in the present suit.

(2.) The first clause provides that properties mentioned in schedule A should be enjoyed by Sambasiva Pillai and that properties; mentioned in schedule B should be enjoyed by Manikkam Pillai. Then clause No. 2 provides that, as the value of the properties in schedule A, i.e., Sambasiva Pillai's schedule, is more than that of the properties in schedule B, Manikkam's schedule, a sum of Rs. 875 should be paid by Sambasiva Pillai to Manikkam, and the same clause also provides that as Manikkam has paid Government kist due from Sambasiva Pillai, Sambasiva Pillai should pay a further sum of Rs 725, making altogether Rs. 1,600. Then clause No. 3 refers to a debt incurred by the father of Sambasiva Pillai and Manikkam Pillai for which the father had executed a pro-note for, in round figures, Rs. 3,200. The deed provides that Sambasiva Pillai should pay and discharge his liability, that is half of Rs. 3,200, viz., Rs. 1,600, and the deed further provides that besides this Rs. 1,600; the half share due by Manikkam Pillai, should be paid and discharged by Sambasiva Pillai who already had to pay Rs. 1,600 to Manikkam Pillai as provided in clause No. 2.

(3.) There is no question that the effect of paragraph No. 3 is that Sambasiva Pillai made himself liable to pay, in all, Rs. 3,200.