Owelty in partition decrees creates an implied charge, and payments made under a subsisting decree are not refundable as restitution.

A partition decree directing one co-sharer to pay owelty money creates, by necessary implication, a lien or charge on the property allotted to the co-sharer taking the larger share, even without express words. The co-sharer entitled to owelty may therefore enforce payment against the allotted property. Payments made in satisfaction of that subsisting decree are not recoverable as restitution under Section 144 CPC, because restitution arises only where the decree has been varied or reversed. The Supreme Court accordingly upheld the appellant's entitlement to retain and realise the decretal amounts and rejected the respondent's restitution claim.

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Issues: (i) whether the decree for partition and equalisation of shares created a lien or charge, express or implied, in favour of the co-sharer entitled to owelty money; (ii) whether the official receiver was entitled to restitution or refund of sums paid or deposited in execution of that decree.

Issue (i): Whether the decree for partition and equalisation of shares created a lien or charge, express or implied, in favour of the co-sharer entitled to owelty money.

Analysis: A provision directing payment of money to equalise unequal allotments in partition is an owelty provision. In partition jurisprudence, owelty ordinarily carries with it a lien or charge on the property allotted to the party taking the larger share, even if the decree does not in express terms create such a charge. The absence of express words does not defeat the equitable incident of the decree, because the allotment is taken subject to the obligation to make the equalising payment.

Conclusion: The decree created an enforceable lien or charge by necessary implication in favour of the appellant, and the appellant was entitled to realise the owelty amount out of the properties allotted to the respondent branch.

Issue (ii): Whether the official receiver was entitled to restitution or refund of sums paid or deposited in execution of that decree.

Analysis: Restitution under Section 144 of the Code of Civil Procedure applies where payments are made under a decree that is varied or reversed. Here, the decree requiring payment to the appellant remained operative and binding on the official receiver. The sums were paid or deposited in satisfaction of that subsisting decree, and the respondent could not avoid the obligation by denying the charge or by invoking insolvency administration.

Conclusion: The respondent was not entitled to restitution or refund, and the appellant was entitled to retain and receive the amounts paid or deposited.

Final Conclusion: The appeals succeeded, the respondent's applications for restitution failed, and the appellant's claim to the decretal amounts was upheld.

Ratio Decidendi: A decree for partition that directs one co-sharer to pay owelty to another creates, at least by necessary implication, a lien or charge on the allotted property, and payments made in satisfaction of such a subsisting decree are not recoverable as restitution.

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