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Maddipatla Agnihotra Deekshitalu and ors. Vs. Ramavarapu Venkataramayya and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1936Mad293
AppellantMaddipatla Agnihotra Deekshitalu and ors.
RespondentRamavarapu Venkataramayya and ors.
Cases ReferredPerumal Pillai v. Raman Chettiar
Excerpt:
- - it is a well settled principle that the owners of parts of the equity of redemption could not be deprived of their right to contribution under section 82 by the action of the mortgagee in releasing another portion of the mortgaged property:.....subject to a charge pays the amount due thereunder and seeks to recover from the rest of the charged properties, the proportionate share of the amount which they are liable to contribute. section 82, t.p. act, governs this case and is decisive of the matter. the obligation of defendants 1 to 4 can only be by virtue of possession of the property and the quantum of liability is proportionate to the extent of the property which has come into their possession. there is no independent obligation apart from that imposed by the decree ex. a, which is sought to be enforced. under section 82, t.p. act, it is only the properties charged that are liable to contribute rateably. as observed by their lordships of the privy council in ganeshi lal v. charan singh 1930 52 all 358 as the act.....
Judgment:

Venkataramana Rao, J.

1. The main question in this second appeal relates to a right of contribution. The facts necessary for its disposal may be briefly stated. One Dikshitalu senior had a son Dikshitalu junior who predeceased his father leaving, a widow Venkataratnamma. She brought a suit against her father-in-law Dikshitalu senior for maintenance and obtained: a decree Ex. A on 13th October 1884 in and by which the entire property in his hands which consisted of lands in several villages were charged for the payment of maintenance due and payable thereunder. Dikshitalu senior died subsequently leaving a widow Subbamma. She purported to adopt one Venkataramanayya. He made several alienations of the property of his alleged adoptive father. Subbamma died in 1906. Venkataramanayya died in 1915. In 1919 defendants 1 to 4 claiming to be the reversioners of Dikshitalu senior filed O.S. No. 13 of 1919 on the file of the Temporary Subordinate Judge's Court of Ellore for recovery of possession of the alienated properties challenging the adoption of Venkataramanayya. There was a compromise decree in that suit in and by which defendants 1 to 4 got certain items of property and almost all the alienations were confirmed. For arrears due between the period 1912 to 1920 Venkataratnamma took out execution and brought to sale-one of the items of property charged under the decree. The plaintiff as owner of the said item paid the amount and brought this suit for contribution impleading defendants 1 to 4 and all the alienees of the charged, property. The District Munsif of Narasapur who tried the suit gave a decree. On appeals by defendants 7 to 10 and 32 the learned Subordinate Judge who heard the appeal modified the decree of the District Munsif by directing defendants 1 to 4 to pay the entire amount claimed by the plaintiff. The main contention of the contesting defendants which prevailed in the lower Court may be thus stated:

Defendants 1 to 4 therefore as persons primarily liable to maintain the decree-holder are bound to pay arrears of maintenance and the alienees of the properties charged are entitled to have the properties alienated to them dealt with under the decree only if there are no other properties of the estate liable for the maintenance in the hands of the representatives of the estate.

3. The learned Subordinate Judge has entirely misconceived the scope of the plaintiff's claim. The plaintiff as owner of one of the several items of properties subject to a charge pays the amount due thereunder and seeks to recover from the rest of the charged properties, the proportionate share of the amount which they are liable to contribute. Section 82, T.P. Act, governs this case and is decisive of the matter. The obligation of defendants 1 to 4 can only be by virtue of possession of the property and the quantum of liability is proportionate to the extent of the property which has come into their possession. There is no independent obligation apart from that imposed by the decree Ex. A, which is sought to be enforced. Under Section 82, T.P. Act, it is only the properties charged that are liable to contribute rateably. As observed by their Lordships of the Privy Council in Ganeshi Lal v. Charan Singh 1930 52 All 358

as the Act prescribes conditions in which contribution is payable it is not proper to introduce into the matter any extrinsic principle to modify the statutory provisions.

4. The next contention which is peculiar to defendants 7 to 10 is that in or about 1910 there was an agreement entered into by them with Venkataratanamma under which the properties in their possession were freed from the liability to the charge and therefore as the charge on their properties became extinguished before the arrears in respect of which execution is sought accrued due, their properties are not liable to contribution. In my opinion this contention is wholly unsustainable. There is a valid charge in respect of a recurring maintenance liability. Further any release between Venkataratanamma and defendants 7 to 10 cannot affect the right of contribution which the other alienees on the charged property have under the law. It is a well settled principle that the owners of parts of the equity of redemption could not be deprived of their right to contribution under Section 82 by the action of the mortgagee in releasing another portion of the mortgaged property: vide Perumal Pillai v. Raman Chettiar 1918 40 Mad 968 . This second appeal must therefore be allowed and the decree of the lower appellate Court reversed and that of the District Munsif restored with costs here and in the lower appellate Court. The costs here to be borne proportionate to the amount payable by defendant 32 and defendants 7 to 10.


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