SATINDRA NATH CHOUDHURY Vs. JATINDRANATH CHOUDHURY

JUDGEMENT

(1.) On 17 February 1915, one Rai Hari Charan Choudhury, a rich land-owner of Nakipur in the Presidency of Bengal, died leaving him surviving a widow Katyayani Debi, and two sons Rai Satindra Nath Choudhury and Rai Jatindra Nath Choudhury. For about six years the sons with their mother lived together amicably, and jointly managed and owned the estate left by the deceased. In March 1921, they effected a partition of the joint estate; and, while the immovable property was divided equally between the sons, the mother agreed to receive, in lieu of her share in the inheritance, an annuity of Rs.12,000 from each of her sons during her life-time. The deed of partition, which was executed and registered on 18 March 1921, contained, inter alia, a promise by the sons to pay the annuity in two installments, and interest thereon at 1 per cent per mensem, in the event of failure to pay the money on the due date. As a security for the regular payment of the money, each son created in favour of the mother a charge for the annuity on one of the properties allotted to him on partition and specified in the deed; and authorised her to realise the amount due to her from that property, if he committed as default in payment.

(2.) It appears that the elder son did not make any payment to the lady, with the result that in July 1922, he owed to her a large sum of money in respect of three installments and interest thereon. On 22 July, 1922, she transferred to the younger son her claim to recover the money, which amounted to Rs. 19,288, with "all the right, title, and interest" in respect of that debt, and with the right to recover interest thereon. The deed of transfer was registered on 26 July 1922; and it was on the strength of that document that the transferee commenced, on 13 June 1927, the action which has given rise to the present appeal. He claimed to recover from his elder brother the aforesaid sum and interest at 12 per cent per annum amounting to Rs. 10,596. He sought to enforce the claim against the property which was specifically charged with the payment of the annuity and to realise the deficiency, if any, from the other properties of the defendant. '

(3.) The trial Judge granted a preliminary decree for the entire sum, and awarded interest at the stipulated rate from the date of the institution of the suit to 27 July 1929, which was the date fixed by him for the payment of the amount found due on that date. Against this decree, the defendant appealed to the High Court, who concurred with the trial Judge on all the points raised by the appellant except that they set aside the clause in the decree allowing the plaintiff to apply for a personal decree against the defendant for the balance, "if the net proceeds of the sale of the property charged" are found to be insufficient for the payment of the amount due. The learned Judges however allowed the decree-holder to realise the balance, if any, from the other moveable and immovable properties of the judgment-debtor. The time fixed by the trial Court for the payment of the money had already expired, and the High Court, when asked by the appellant to extend the period granted further time up to 31 March 1933. The decree, which followed upon their judgment, directed him to pay the amount claimed in the plaint, with interest thereon at 12 per cent per annum from the date of the suit up to 31st March 1933. It was only after that date that interest was to run at 6 per cent per annum.