VITHAL DASS Vs. RUP CHAND

JUDGEMENT

(1.) These appeals are brought by certificate on behalf of the defendant from the judgment of the High Court of Madhya Pradesh, Indore Bench, dated November 20, 1962 in First Appeals Nos. 19 and 23 of 1957.

(2.) The plaintiffs, Rup Chand and Hukam Chand instituted Civil Suit No. 8 of S. 1999 in the Court of District Judge, Ujjain against the defendant Vithal Das and three others, for partition of houses and for rendition of accounts. Two of the defendants, Bheronlal and Indermal died in the course of the suit and the suit was continued against Vithal Das. The plaintiffs alleged that the immovable property constituting Blocks Nos. 206 and 207 in Freeganj, Ujjain was purchased with the capital of the partnership firm in which the plaintiffs and the defendant were, at one time, partners and by two documents, dated July 2, 1937 and July 16, 1937, the properties continued to remain in the ownership of the partnership firm, though the firm had been dissolved in the year 1937. The plaintiffs claimed that the properties were managed by the defendant on behalf of the plaintiffs and the defendant realised rents from the tenants on their behalf and plaintiffs were, therefore, entitled to receive half the amount realised as rent and the defendant was liable to render accounts thereof. The plaintiffs also claimed partition of the joint properties, or in the alternative, the sale of the property by auction and after deducting the cost of auction half of the sale proceeds. The defendant contested the suit on the ground that at the time of the execution of the document, dated July 2, 1937 there were only three blocks in partnership which were at that time open land. The defendant claimed that Block No. 206 and the building constructed thereon was not a partnership property. It was further alleged that the defendant had invested Rs. 10,000 in the three blocks of land which were held in partnership for constructing a building. The trial Court accepted the plaintiffs' case and granted a decree for partition of the blocks and for an account of income realised in respect of the property situated on block No. 207. As regards block No. 206 and the property standing thereon the trial Court directed the defendant either to remove the construction or accept his share of money spent by the defendant over it and created a charge over the property in respect of the amount so held payable. Both the parties preferred appeals in the High Court of Madhya Pradesh against the judgment of the trial Court which partially allowed the appeals and remanded the case to the trial Court. The High Court held that the plaintiffs were entitled to claim half share in both the properties built on blocks Nos. 206 and 207 and the defendant was liable to account for the income of the properties on block No. 207 from the date of dissolution, i.e., from July 2, 1937 and of block No. 206 from the year 1939. The High Court also held that the plaintiffs were liable to pay half the costs spent by the defendant in constructing the building on block No. 206. After the order of remand the trial Court appointed a Commissioner for examining the accounts of rent realised by the defendant. After considering the report of the Commissioner, the trial Court determined the total amount of rent of both the blocks Nos. 206 and 207 at Rs. 41,829-3-7 and the half share of the plaintiffs was determined at Rs. 20,914-4-9. The trial Court also awarded interest to the plaintiffs on the half share of the income to the extent of Rs. 6,676-7-3 calculated upto April 11, 1957. The total amount thus due to the plaintiffs was determined at Rupees 27,591-1-0. Out of this amount the trial Court allowed a sum of Rs. 9,755-7-3 on account of the half costs of construction and interest thereon and expenses incurred for house-tax, water-tax, legal expenses and repairs. The net amount thus awarded to the plaintiffs was Rs. 17,670-9-9. As regards the partition of blocks Nos 206 and 207, the trial Court held that in view of the method of construction of the blocks it was not possible to make partition in equal shares and therefore the trial Court directed that the two blocks should be auctioned in separate lots and the parties should be at liberty to bid at the auction and the parties would have equal rights to the amount of the auction. Aggrieved by the judgment of the trial Court both the parties preferred appeals to the High Court of Madhya Pradesh, namely, First Appeals Nos. 19 and 23 of 1957. The defendant's appeal was registered as Civil First Appeal No. 19 of 1957 and the plaintiffs' appeal was registered as Civil First Appeal No. 23 of 1957. Both the appeals were heard and disposed of by a common judgment by the High Court which modified the trial Court's finding as to the income of blocks Nos. 206 and 207 to the extent of Rs. 803-5-3 by reducing the income of the two blocks by that figure. The total income was thus reduced from Rs. 41,829-3-7 to Rs. 41,015-14-4 with the corresponding reduction in the amount of interest. The High Court affirmed the finding of the trial Court that the defendant was liable to pay interest on the half share of the rental income on the ground that the relationship between the parties was in the nature of a trust under S. 90 of the Trusts Act (Act II of 1882). The plaintiffs' appeal No. 23 of 1957 was allowed to the extent of Rs. 4,942-9-0 and after adjustment, the plaintiffs' claim was decreed for Rs. 22,103.

(3.) The first question for consideration in these appeals is whether the High Court was right in granting interest to the plaintiffs on their share of rental income to the extent of Rs. 6,676-7-3 for the period prior to the institution of the suit. It was argued by the Solicitor-General on behalf of the appellant that the High Court was in error in holding that the relationship between the parties was governed by S 90 of the Trusts Act and the plaintiffs were therefore entitled to interest on their share of rent under the provisions of S. 23 of that Act. In our opinion, the contention put forward by the Solicitor-General is well founded and must be accepted as correct.