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PETITIONER: T.S. SWAMINATHAUDAYAR
Vs.
RESPONDENT: THE OFFICIAL RECEIVER OF WEST TANJORE.
DATE OF JUDGMENT: 27/03/1957
BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER SARKAR, A.K.
CITATION: 1957 AIR 577 1957 SCR 775
ACT: Partition Suit--Decree for owelty -Absence of express declaration of charge-Charge, if created by necessary implication-Priority.
HEADNOTE: Per BHAGWATI and IMAM jj. A decree for payment of owelty money by one co-sharer to another in a Partition Suit, even where it does not expressly declare a charge, creates one by necessary implication in favour of the latter or the property allotted to the former and such charge on lien has precedence over prior mortgagees of such property. Shahebzada Mohommed Kazim Shah v. R. S. Hill, I.L.R. (1907) 35 Cal. 388 and Poovanalingam Servai v. Veerai, A.I.R. (1926) Mad. 166, referred to. Consequently, in a case where the final decree in a Partition Suit passed by the High Court in appeal provided for payment of owelty money by one co-sharer to another and at the instance of the Official Receiver in Insolvency, in whom the estate of the former had vested, instead of expressly declaring a charge authorised him to pay the owelty from out of the sale proceeds of the property, the judgment-creditor of the co-sharer liable for owelty in respect of de...