A.K. Sarkar, J.
1. This is an application by the defendants for execution of a decree for owelty money being Rs. 4,315/- and interest at 6 per cent, per annum being As. 1593/-calculated from the date of decree i.e., 21st December, 1965 to 15th February, 1972 with further interest on the said sum of Rs. 4315/- until payment and for costs of the execution proceedings by appointment of a Receiver and sale of the property allotted to the plaintiff and charged for payment of the said owelty money with interest at 6 per cent, per annum under the said decree viz., the divided Western portion of premises No 4-B, Chowringhee Road, Calcutta described in the schedule set out in column 10 of the Tabular Statement. Costs of partition proceedings directed to be borne and paid by the parties in proportion to their respective shares have not been taxed by the parties.
2. By the Return of the Commissioner of Partition dated July 26, 1965, the properties were partitioned in Lot No. 1 and Lot No. 2. The properties in Lot No. 1 were allotted to the plaintiff and those in Lot No. 2 were allotted to the defendants jointly. The said Return was confirmed by a decree of this Court dated December 21, 1965.
3. Mr. S. Pal, Counsel appearing fosthe plaintiff contested the application on threegrounds:--
(1) the defendants are not entitled to interest wrongly calculated from the date or the confirmation of the Return of the Commissioner. The payment of interest being in the nature of penalty, the benefit of construction of Clause 13 of the Return should be given to the plaintiff:
(2) Charge on properties in Lot No. 1 In case of default of payment of owelty money is created by 'the decree. It is not a charge created by act of parties nor created by operation of law and therefore does not come within the provisions of Section 100 of the Transfer of Property Act. Therefore such charge cannot be enforced by sale of the property charged in execution of the decree. This can only be done by instituting a suit for sale in enforcement of the charge. The application therefore, for execution by sale of Western portion of premises No. 4-B, Chowringhee Road, Calcutta in Lot No. 1 is misconceived;
that the provisions for payment of owelty money ordinarily creates a lien by implication of law on the property taken on partition. Such charge remains implied and not because the same is expressed in the decree; and
(3) the costs of the partition proceedings have been directed to be borne and paid by the parties in proportion to their shares on partition. The costs have not yet been taxed. The plaintiff has one-third share and the defendants jointly have two-third share. The plaintiff having bad the carriage of proceedings find spent more than one-third of the costs and upon adjustment would be entitled to large sum from the defendants. If credit is given to the plaintiff for the sum to which he would be entitled upon taxation of costs in partition proceedings, the plaintiff is ready and willing to pay the balance if any, to the defendants.
4. Both Mr. P. K. Roy, Counsel appearing for the defendants-applicants and Mr. S. Pal, counsel for the plaintiff relied upon two cases in : AIR1957Cal204 and in : 1SCR775 .
5. With regard to the ground stated in paragraph (1) above, it is necessary to refer to the first sentence of Clause 13 of the Return of the Commissioner of Partition confirmed by the decree dated December 21, 1965.
6. Clause 13-
'I do further certify that the allottee of Lot No. 1 of the said premises No. 4-B, Chowringhee Road do pay to the allottees of Lot No. 2 Rs. 5,568/- as owelty money for the purpose of equalising partition and such payment is to be made within two years from the date of confirmation of this Return, in default the same will canny interest at 6% per annum and will form a first charge on Lot No. 1 until payment.'
7. It is admitted that the plaintiff did not pay owelty money within two years from the date of confirmation of the Return of the Commissioner, i.e., within 21st December, 1967. Upon construction of the said first sentence of Clause 13 of the Return that the owelty money will carry interest upon default of payment within two years from the date of confirmation of the Report, the Report being confirmed by a decree of this Court on 21st December, 1965, the default in my view took place on the expiry of 21st December, 1967 and the owelty money therefore will carry interests on and from 22nd December, 1967 and not from the said date of confirmation of the Report. The claim of the defendants in column 7 of the Tabular Statement for interest shall be reduced by full two years.
8. Regarding the ground stated in paragraph (2) hereof, the charge is created by the same first sentence of Clause 13 of the Return in the decree. The case in : AIR1957Cal204 inter alia held.
'A charge created by a decree would be one by operation of law only where the decree merely embodies a charge which exists in law apart from the decree itself. If a decree embodies a charge which has no existence in law independently of the decree itself, the same would be outside the definition of Section 100 of the Transfer of Property Act.'
9. A Hindu widow's right to maintenance has been stated as not to be a charge which exists in law, it does not bind any part of her late husband's estate though she may have a right to be maintained out of that estate.
10. But the provision for payment of owelty money for equalising excessive allotment on partition of properties creates a charge on the properties by implication of law, therefore, in my view such charge exists in law independently of a decree. In the instant case the decree (in Clause 13 of the Return) has only expressed the said charge for payment of owelty money. Therefore the property in Lot No. 1 is by operation of law made security for the payment of owelty money with interest and all the provisions which apply to a simple mortgage shall, so far as may be, apply to such charge in terms of Section 100 of the Transfer of Property Act.
11. Support to the above view may be sought in the other case in : 1SCR775 . In para. 18 of the said report it is held,
'When an owelty is awarded to a member on partition for equalization of the shares on an excessive allotment of immovable properties to another member of the joint family, such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or charge may be created in express terms by the provisions of partition decree itself. There would thus be the creation of a legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf. The member to whom the excessive allotment of property has been made on such partition cannot claim to acquire properties falling to his share irrespective of or discharge from the obligation to pay owelty to the other members. What he gets for his share is therefore the properties allotted to him subject to his obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty out of the properties allotted to his share and a corresponding lien in favour of the members to whom such owelty is awarded on the properties which have fallen to his share.'
12. In paragraph 24 of the said report it has been held 'a charge expressly created in favour of the co-sharer who had been awarded owelty makes no difference in the position. The moment there is a provision for such owelty made in a partition decree, the member in whose favour that provision has been made is entitled to a Hen or a charge over the property which has fallen to the share of the member to whom property to a higher value has been allotted. If such a lien or charge is expressly declared, so far so pod but even if it is not so expressly declared, there is by necessary implication the creation of a lien or charge in his favour for the amount of such owelty.'
13. In my view the instant application for execution inter alia by sale of western portion of premises No. 4-B, Chowrinthee Road, Calcutta is not misconceived. The charge which exists in law or by implication of law and is further expressed in the decree herein is a charge created by operation of law and is within Section 100 of Transfer of Property Act. This disposes of ground taken by Mr. S. Pal, counsel appearing on behalf of the plaintiff in paragraph (2) above.
14. The ground taken by the learned Counsel for the plaintiff in paragraph (3) above is of no substance in the instant application. The costs of partition proceedings have not yet been taxed. On the basis that upon such taxation, the plaintiff having incurred large amount would be ultimately entitled to receive certain amount from the defendants because the same has to be borne and paid in proportion to the respective shares of the parties, cannot be taken into consideration at this stage.
15. In the result, there will be order appointing Official Receiver the Receiver of the divided western portion of the premises No. 4-B, Chowringhee Road, Calcutta, fully described in the Schedule set out in column 10 of the Tabular Statement. But the Official Receiver shall not take possession of the said portion of the said premises if the plaintiff pays to the defendants on or before the 28th February, 1973, the said owelty money of Rs. 4,315/- with interest at 6 per cent pep annum calculated from 22nd December, 1967, till the date of payment. Tn default the Official Receiver shall forthwith take possession of the said portion of the premises No. 4-B, Chowringhee Road, Calcutta and sell the same either by private treaty or by public auction and after retaining his own commission, costs, charges and expenses of such sale pay out of the balance thereof the claim of the defendants i.e., Rs. 4,315/- with interest at 6 per cent per annum calculated from 22nd December, 1967, till the date of payment and hold the net balance until further order of this Court.
16. There will be no order for costs of this application certified for counsel.