MAHARAJA OF VIZIANAGARAM BY HIS GUARDIAN AND NEXT FRIEND, F W GILLMAN Vs. SRI RAJAH SETRUCHERLA SOMASEKHARARAZ BAHADUR AND RAMABHADRARAZ BAHADUR

JUDGEMENT

(1.) The Permanently Settled estate of Merangi in the district of Vizagapatam was registered in the Collector's office in the name of one Jagannatha Raz as its sole proprietor. A suit was brought for its partition by three of his co-parceners, including the present defendant, which was unsuccessfully resisted by Jagannatha Raz on the ground that it was an impartible estate. Both the Indian Courts and finally the Judicial Committee of the Privy Council by its decree in 1891, Sri Raja Satmcharla Jagannadha Razu V/s. Sri Raja Satrucharla Ramabhadra Razu I.L.R.R. 14 M. 237 , held that the estate was partible and directed its partition into four equal shares.

(2.) On the 23 October 1893, the late Maharajah of Viziana-garam, the testator under whom the plaintiff claims, purchased from Jagannatha Raz his undivided one-fourth share in the estate which purchase became absolute in the events that followed. There was no delivery of possession to the purchaser and on the 5 May 1894, the Collector in execution of the decree of the Privy Council effected a partition of Merangi, dividing it into four estates each separately assessed and registered, and the estate of Chinna Merangi was allotted to Jagannatha Raz's share which as aforesaid, had been sold to the late Maharajah of Vizianagaram. Out of the purchase money the vendee paid revenue due to Government up to the e October, 18,93 in respect of the entire estate which prior to the partition was in the sole possession of Jagannatha Raz. For subsequent arrears of revenue upon the entire estate until the date of partition, viz., the 5 May 1894, the Collector on 5 September 1894 attached the estate of Chinna Merangi only, which at that time was in the possession of jagannatha Raz, the other three shares having been on the 5 May 1894 delivered respectively to the plaintiffs in the partition suit. The arrears amounting to Rs. 13 273-2-5 for which the attachment was made having accrued upon the whole estate before it was divided and separately registered, it was competent to the Collector to realize such arrears by attachment of the whole or any portion of the estate and he selected Chinna Merangi which had fallen to the share of Jagannatha Raz Probably because he thought it was equitable to do so as Jagannatha Raz continued in possession of the whole estate until the date of partition. Instead of bringing Chinna Merangi to sale, the Collector under the provisions of the Madras Revenue Recovery Act (II of 1864) realized the arrears from the current income by continuing in the management of the etstate until the 19 January 1898, when the same was delivered to the plaintiff in execution of the decree in O.S. No. 34 of 1894 which had been brought by the late Maharajah of Vizianagaram against Jagannatha Raz and his sons to enforce the sale deed of 1893 by recovering possession of Chinna Merangi, which in the partition of May 1894 had fallen to the share of Jagannatha Raz, the vendor.

(3.) The present suit was brought on the 19 December 1899 to recover from the defendant by way of contribution the sum of Rs. 4,284-6-10, being his one-fourth share of the arrears which had been realized from the income of Chinna Merangi alone and the plaintiff seeks to recover the said amount beth personally from the defendant and by enforcing ft as a charge upon the defendant's share in the estate.