OFFICIAL RECEIVER, REPRESENTING THE ESTATE OF TADI BULLI GANGIREDDI OF RAJAHMUNDRY Vs. TADI MURALI MOHAN REDDI

JUDGEMENT

(1.) The appellant's suit for contribution under Section 82 of the Transfer of Property Act was dismissed by the Subordinate Judge of Coconada on the ground of non-joinder. One Tadi Bulli Gangireddi was adjudged insolvent on the 13 of November, 1931, in I.A. No. 12 of 1931 which was filed on 17 March, 1931, in the Court of the Subordinate Judge of Coconada. Nine days before the order of adjudication Gangireddi's son who is the first respondent in this appeal and who was the first defendant in the Court below filed O.S. No. 250 of 1931 in the Court of the District Munsiff of Ramachandrapur against his father for partition of the family properties. This resulted in a preliminary decree on the 16 of November, 1931. The Official Receiver was impleaded in the suit on the 16 of February, 1932. Another son was born to Gangireddi in 1934. He is referred to throughout the record by the curious description of" an unnamed boy." Gangireddi died on the 17 of January, 1934. The second son was impleaded in the partition suit on the 26 of November, 1934, and by the final decree passed in that suit on the 6 of April, 1935, the properties as per list B attached to the decree were allotted to the elder son. Nothing was said about the remaining properties. There can be no doubt that the properties in list B and the other properties were of equal value. Respondents 2 and 3 who were defendants 2 and 3 in the Court below obtained a decree in O.S. No. 2 of 1935 on the file of the Court of the Subor-dinate Judge of Coconada against the interests of the sons of Gangireddi, and some-time in August, 1935, had attached the said interests before judgment. respondents 4 and 5 (defendants 4 and 5) obtained a money decree in similar terms in O.S. No. 26 of 1937 on the file of the Court of the Subordinate Judge of Coconada. Defendants 2 to 5 were impleaded for obtaining a direction that the plaintiff's claim for contribution is entitled to priority over the decrees obtained by those defendants, and that the amount due to the plaintiff should be a first charge on the properties described in the plaint schedule which were among the properties allotted to the first defendant by the final partition decree.

(2.) On 9 February, 1931, Gangireddi for himself and as guardian of his then minor undivided son, the first defendant, together with one Karri Gavarayya executed a deed of simple mortgage in favour of the Imperial Bank of India for Rs. 37,116-3-0. It is stated in the mortgage that Rs. 19,336-6-0 out of this was the extent of the indebtedness of Gangireddi while the balance of Rs. 17,779-13-0 was due from Gavarayya. The properties belonging to both were mortgaged, those belonging to the Tadi family being described in Schedule A attached to the deed and those belonging to Karri Gavarayya, in Schedule B. It is, inter alia, provided in the mortgage that, You (meaning the Imperial Bank of India) should recover the entire debt due under this mortgaged property, first from the property described in Schedule A and from other moveable and immoveable properties belonging to the joint family of Bulli Gangireddi and that in case the said debt is not completely paid to you by means of the properties, you should recover the remaining debt by means of the properties described in Schedule B, by means of other moveable and immoveable properties of Karri Gavarayya and on the personal liability of Gavarayya and Bulli Gangireddi. The mortgage debt was not repaid, and the Imperial Bank obtained a decree on foot of the deed in O.S. No. 87 of 1931 in the Court of the Subordinate Judge of Coconada. In due course of execution the bank realised Rs. 62,939-5-4 in full satisfaction of the decree, the last of the amounts which went to make up that figure being Rs. 5,359-1-0 drawn by the bank by a cheque dated 24 of November, 1937. Meanwhile the adjudication of Gangireddi was annulled on the 26 of October, 1937, under Section 43 of the Provincial Insolvency Act; but his properties were vested in the plaintiff, the Official Receiver of East Godavari, under Section 37 of the same Act. The amount realised by the sale of the plaintiff's properties being Rs. 35,745, the plaintiff claimed that the amount realised from him in excess of his half share which would be Rs. 31,469-10-9 should be recovered from the properties of the first defendant. The suit was therefore laid for Rs. 4,275-5-3 with interest thereon at six per cent. per annum from 24th November, 1937.

(3.) Several issues were raised in the Court below, and they were all found in favour of the plaintiff, except issue (11) on which the learned Subordinate Judge held that the suit was bad for non-joinder of Karri Gavarayya and the second son of Gangireddi. The first defendant filed no written statement. Defendants 2 and 3 however took the objection that the suit was bad for non-joinder of the several parties to the mortgage decree.