Medam Seshanna Chetty vs Medam Sankarnarayana Chetty

Umamaheswaram, J.—This appeal raises a simple, but an interesting question of Hindu Law. In order to appreciate the point it is necessary to set out the relevant facts.

A partition was entered into between the appellant and his two brothers, Venkayya Chetty and Venganna Chetty, in 1947. A large sum of thirty three thousand and odd was due by the appellant''s brothers-in-law. Uppala Narayana Chetty and Uppala Ramaswamy Chetty, to their joint family.

This outstanding was included in the list of outstandings marked as Ex. A-6, and allotted to the share of Venganna Chetty. While the case of the appellant was that the item was not barred, the plaintiff, the son of Venganna Chetty, stated that it was a barred debt which the Uppala brothers refused to pay.

After the death of Venganna Chetty the respondent herein instituted O. S. No. 65 of 1950 on the file of the Subordinate Judge, Kurnsol, for the recovery of one third share of the debt from each of his two uncles and the members of their respective branches. In paragraph 3 of his plaint, he pleaded that proportionate amounts were payable by the uncles not only under law, but by reason of an express agreement entered into by them to pay in the event of the debt not being recovered.

As the matter was settled between the first defendant and the plaintiff, the only contest was with the second defendant. According to the case of the second defendant-appellant herein, the debt was not barred by limitation and the remedy of the plaintiff was to recover the amount only from Uppala brothers. He further contended that there was no express agreement entered into by him to pay the one-third share in the event of the debt not being recovered. He also pleaded that the partition could not be reopened, and that he was not liable to pay the amount under Hindu Law or any principle of equity. The Subordinate Judge of Kurnool he that the plaintiff did not make out the express agreement pleaded by him. He, however, found that the suit was maintainable and that under the general principles of Hindu Law, the appellant herein was liable to make good the one-third of the debt pa(sic)able by Uppala brothers. The second defendants has consequently preferred the appeal to this Court.

Sri M. Krishna Rao, the learned Advocate for the respondent, contended that, the Subordinate Judge was wrong in negativing the express agreement pleaded by the respondent. The agreement that is pleaded in the plaint is that both the (sic) and second defendants agreed that in case the (sic) pala brothers refused to pay the amount, the per(sic) who got the debt to his share should be reimbur(sic) by the others to the extent of two-thirds.

But what is spoken to by the arbitrator, P. W is that it was only the second defendant that was pay the amount to Venganna Chetty. In his c(sic) examination it was elicited that the first defendant never said either at the time of partition or a(sic) time subsequently that he would bear one-third s(sic) of Uppala brothers'' debt. The agreement sp(sic) by him is not the same as pleaded by the respondent. Moreover, it is not that the second defendant agreed to pay the entire two-thirds share, therefore, hold that the Subordinate Judge''s fin(sic) on issue No. 1 is not wrong.

The important question that remains to considered is whether in law, the respondent entitled to recover one-third share of the debt(sic) the appellant herein. The case of the respondent that even though the debt due from Uppala brc(sic) was barred by limitation, it was included in the as all the brothers proceeded on a mistaken that the bar of limitation would not be raised be debtors and that they would pay the amount, contended that inasmuch as the Uppala brother repudiated their liability later and refused to p(sic) amount the respondent was entitled in law to (sic) the partition and claim to be reimbursed b(sic) uncles the proportionate shares of the debt.

In this connection it is necessary to note (sic) is not pleaded by the appellant and there is n(sic) dence that any barred or irrecoverable debt(sic) included in the lists that were allotted to the(sic) lant or the first defendant. It is clear that(sic) not agreed between the parties that Venganna(sic) should take outstandings of a lesser value o(sic) the risk of non-collection of the debt due fro(sic) pala brothers or that the other brothers should be larger outstandings. In the circumstances (sic) case an agreement might be implied or inferred the other brothers, i.e., defendants Nos. 1(sic) promised to make good the loss of non-co(sic) from Uppala brothers and equalise all their sh(sic)

Shri J. Srinivasa Rao, the learned Advocate of the appellant contended that a partition was entered into between the parties, is not liable reopened except on three grounds; viz., fra(sic) take and where a portion of a joint property included from partition. In support of this(sic) tion he relied upon Mulla''s Hindu Law, 11th (sic) page 444. He referred to the text of Manu(sic) with the effect of partition, and it is translation quoted in Mulla''s Hindu Law at page 445 as "Once is the partition of inheritance made, (sic)ee is a damsel given in marriage; and once does man say, ''I give''; these three are by good men one once for all and irrevocably." (sic)have, therefore, to consider in the light of texts (sic)d decided cases whether the three grounds men-(sic)flaed by him are exhaustive.

In Mayne''s Hindu Law, 11th Edition, at page 567, the learned author refers to the Smriti-(sic)andrika citing the text of Katyayana to the effect (sic)it "property of which an unequal distribution has been made contrary to law should be (sic)redistributed." (sic)e text therefore postulates equal distribution as (sic) essence of a partition and provides for representation when the parties to the partition have not (sic)en the properties equally. Similarly in Strange''s hindu Law, 3rd Edition, at page 232, the priciple of Hindu Law is neatly set out as follows:

.... But, independent of concealment......forerever, from any cause not understood at the (sic)e, division proves to have been unequal, or in (sic)respect defective, it may be set to rights, not-(sic)hstanding the maxim that, "once is partition of (sic)sritance made;" - a position, that supposes it to (sic)e been fair, and made according to law.

The same view is stated in N. R. Raghava-(sic)riar''s Hindu Law, 3rd Edition at page 424. It therefore, clear that if the division proves to be equal it may be set right by separate proceedings repartition.

A similar question arose for decision before Bombay High Court in Maruti v. Rama ILR 21 (sic) 333 (A). In delivering the judgment of the (sic)ch, Justice Parsons adopted the passage already (sic) from Strange''s Hindu Law, and held that the (sic)tion could be reopened if there was a bona fide (sic)ake shared in by all the parties as to the owner-(sic)of a particular property. It is interesting to that the learned Judge quoted with approval (sic)ages from an earlier decision in Davloba v. (sic)igavda, (1883) Bom PJ 227 (B) laying down an table principle. The passages run as follows:

The learned Judges decided that in such a the parties were bound to bear that loss equal-They had divided under such a mlsapprehen-(sic)of the true state of the case that the Hindu (sic)like common equity, would correct the error (sic)listributing the existing but unknown burden (sic)ly where it was placed on one only of "the (sic)irs.

Following this decision we hold that apart (sic)the principle of Hindu Law, equity also re-(sic)s that all the parties to the partition should (sic)equally the loss arising from Uppala brothers'' (sic)being found irrecoverable.

The next decision that may be referred to is connection is the decision of the Allahabad High Court in Ganeshi Lal Vs. Babu Lal and Others, . It was found that (sic)h Lal and Babu Lal honesty believed them-(sic) to be the sole owners of the property in their (sic)sion when they entered into a partition among themselves. But when the property was lost as a (sic)of a litigation, it was held that the party who (sic)e property was entitled to proceed as against (sic)her; party to the partition and have the parti-(sic)iopned., Walsh J. stated the principle of Law at page 381 (of ILR All): (at p. 225 of AIR) as follows:

I agree with the decision in ILR 21 Bom 333 (A), but I think that there is danger in stating, as a general principle that proof of such matter entitles the party to re-partition. I do not think that it entities him to open up the previous decision except in so far as is necessary to apportion the loss which arises out of the new fact. The right is based simply upon this principle, that where parties arrive it a partition either by agreement, or by a decree (which after all is only a more solemn and binding form of agreement), there is an implied and mutual right of indemnity or contribution in respect of any paramount claim by a third person which throws the burden of a loss not contemplated in the partition proceedings unfairly upon one of the parties.

In Puttagunta Ramakotayya Vs. Puttagunta Sundararamayya and Others, a Bench of the Madras High Court approved the principles laid down in Ganeshi Lal Vs. Babu Lal and Others, as also in ILR 40 All 374 : (AIR 1918 All 223) (C). Following the Allahabad decision, we are inclined to hold that there was an implied contract between the parties to the partition that if the amount could not be recovered from Uppala brothers, the proportionate share of the loss would be paid by defendants Nos. 1 and 2 to the plaintiff''s branch.

We are also of the opinion that as the parties to the partition proceeded under a mistake of fact, namely, that no plea of limitation would be set up by Uppala brothers and that they would pay the entire amount due by them and as it turned out later that they refused to pay the amount, the plaintiff was entitled either to have the partition reopened or call upon his uncles to reimburse him the proportionate amount of the loss. On the facts of this particular case it is unnecessary for the entire partition to be reopened.

The only amount which was irrecoverable was the amount due from the Uppala brothers. The equities of the case could, therefore, be worked out by directing the appellant herein to pay one-third share of the amount as compensation. In the result, we agree with the decision of the Subordinate Judge and hold that the decree was rightly passed against the appellant. The appeal therefore fails and is dismissed with costs.