VYRAPERUMAL MUDALIAR Vs. KALAGAPPA MANIAGARAR

JUDGEMENT

(1.) The question in this second appeal is whether a co-sharer who to prevent arrest for a decree against himself and another co-sharer for arrears of rent due by both under the Estates Land Act pays the whole rent and brings a suit for contribution is entitled to a first charge on the other co-sharer's portion of the holding.

(2.) The plaintiff and his cousin, 1 defendant's late husband, were jointly holders of ryoti land in the Ayakudi Zamin. They divided the holding among themselves in 1906 but as the patta remained joint in the Zamin accounts they were jointly sued for rent for faslis 1323, 1324 and 1325 (1914 to 1916) and a personal decree was obtained against them in the Revenue Court by the Zamindar. The plaintiff's cousin not having paid his share of the decree debt the plaintiff was on threat of arrest compelled to pay, in addition to his own share, the share of his cousin also on 2nd July, 1926. This suit was brought on 11 August, 1926, to enforce the plaintiff's right of contribution impleading the 1 defendant, the widow of the cousin, who had died and defendants 2 to 4 who are mortgagees of the cousin's share of the holding and defendants 5, 6 and 7, purchasers of portions of that share. The plaintiff claimed in addition to a decree against the widow (1st defendant) a charge against the property in priority to the interests of defendants 2 to 7. The Munsif granted a decree against the widow and also made the decree amount a charge on the property subject to the rights of the contesting defendants 2, 5 and 7. The defendants did not appeal. But the plaintiff appealed to the learned Subordinate Judge who declared that the plaintiff was entitled to a charge for his decree amount in preference to the defendant's interest, i.e., a first charge on the land.

(3.) The 2nd defendant a mortgagee appeals to this Court and the only point argued in the appeal is that though the plaintiff may be entitled to a charge, he is not entitled to a first charge, i.e., to priority over encumbrances existing on the property on the date of the payment by reason of which the plaintiff claims contribution.