THAMMANNAGOWDA Vs. SHANKARAPPAGOWDA

JUDGEMENT

(1.) DURING the minority of respondent, a suit was filed on his behalf by his next friend for partition of the properties belonging to a joint family of which he was a member and for possession of his share. A preliminary decree was passed granting a share in certain properties with a direction for payment of mesne profits by the persons in possession of the properties up-to-date of delivery after determination of the same in execution proceedings. The suit was filed on 28-3-1945 and the properties due to plaintiff were delivered on 7-2-1941. Mesne profits were claimed lor the intervening two years. On a consideration of the evidence and the contentions of appellant, the learned Munsiff fixed the amount payable at a certain sum which on appeal by appellant is slightly reduced. There are thus concurrent findings about the amount which the appellant is liable to pay and we see no reason to disturb this. Sri Krishnamurthy on behalf of appellant argued that the claim with respect to one year prior to the date of the decree is untenable in view of the fact that severance of status in the case of a minor plaintiff can only be deemed to be effected from the date of the decree. '16 Mys LJ 406' and '16 Mys LJ 521' 'APPALASWAMI v. SURYANARA-YANAMURTT, AIR 1947 PC 189 cited by him lend support to this, though it may be observed that in 'KUISHNASWAMI v. KULUKURUPPA', 48 Mad 465, such severance was held to have been effected I from the date of suit. This is not a factor which is a conclusive test for the award of mesne profits. The appellant being in possession of the family properties cannot escape liability if by his conduct and acts others entitled to participate in the enjoyment thereof are shut out (See Mulla's Hindu Law, 10th Edn. page 302). The direction for ascertainment of mesne profits in execution proceedings is not correct as the enquiry according to '42 Mys 439' is a proceeding relating to the suit. This does not however affect the defendant's obligation since as held in 'BASAVAYYA v. GURAVAYYA', , AIR1951 Mad 938 , (1951 )2 MLJ176b "A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. If, as we think this is the true nature of the proceedings in a suit for partition, a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing in Order 20, Rule 18, C. P. C. interdicting such pro- cedure." 28 Mys. 257 relied upon is not of help to Appellant as it is a case in which mesne profits were allowed to a minor Pltff. for the period prior to the decree though for the purpose of fixing his share, the death of another plaintiff after suit was taken into ac count. The appeal fails and is dismissed with costs.

(2.) APPEAL dismissed.