SUBBAKKA Vs. APPAYYA RAI

JUDGEMENT

(1.) Defendants 3 to 14 in OS.No.106 of 1951 on the file of the Civil Judge, Mangalore are the appellants in this appeal. In the said suit a preliminary decree for partition was passed on 30-11-1953. Under the said decree parties who were in possession of properties in excess of their share in the family properties were directed to pay mesne profits to parties who were not in possession of any of the family properties or who were in possession of the properties less than the shares they were entitled to. The record before us discloses, among other things, that defendants 1 and 2 were in, possession of properties in excess of their legitimate share. Defendant 2 died on 1-10-1957. Defendants 34 to 40, who were the children and the widow of defendant 2, were brought on record as legal representatives of 2nd defendant on an application filed by them. But later on defendants 3 to 14 who are the appellants in this appeal, filed an application before the Court below Stating that they were entitled to the estate 'which had fallen to the share of defendant 2, and therefore, they should get the share allotted to the 2nd defendant. The said application was allowed. Thereafter the trial Court proceeded to pass a final decree on 30-11-1960. Under the filial decree the trial Court created a charge on the shares which were allotted to defendants 1 and 2 in respect of the amount of mesne profits which defendants 1 and 2 were liable to pay to the other parties who were entitled to recover the same After the passing of the final decree proceedings were instituted against defendants 3 to 14, the appellants herein by defendant 33 for recovery of mesne profits from out of the estate which had fallen to the share of defendant 2. The trial -Court rejected the above claim. Aggrieved by the said order defendant 33 filed an appeal in this Court in EFA. No. 14 of 1964. That appeal was allowed by this Court on the ground that defendants 3 to 14 who were parties to the decree had been impleaded as parties to the suit by the time the final decree was passed and had suffered a decree in the form in which it was passed and therefore they having not impeached that decree were not entitled to urge on the execution side that the share of 2nd defnt. was not liable to be proceeded against for the mesne profits payable to the 3Srd defendant. On the above ground the order of the trial Court was reversed and it was held that defendant 33 could bring the properties, which had fallen to the share of the 2nd defendant and on his death had devolved on defendants 3 to 14, to sale In enforcement of the charge created by the decree for recovery of the mesne profits payable in respect of the period prior to the death of the 2nd defendant also.

(2.) The controversy involved in this case relates to the liability of defendants 3 to 14 to pay the mesne profits or value of moveables payable by defendant 1 from out of his share of the family properties

(3.) It may be mentioned here that the first defendant died in July, 1962 after the final decree was passed in the suit. It is true that in the final decree a charge has been created on the share allotted to defendant 1 for payment of the mesne profits payable by him to other parties who were entitled to it Defendants 3 to 14 became entitled to the share allotted to defendant 1 on has death in view of the provisions of S.36 of the Madras Aliyasanthana Act, 1949 (which will be hereinafter referred to as the Act'). Defendant 15 made an application REP. No.84 of 1966 on 1-10-1966 after the judgment was delivered by this Court in Ex.F.A. No.14 of 1964, claiming that he was entitled to get mesne profits and the value of moveables which were payable by defendant 1 from out of the property which had fallen to the share of defendant 1 and which had devolved on defendants 3 to 14 on the death of the 1st defendant. Defendants 3 to 14 denied the said claim. They inter alia pleaded that in view of the provisions of S.36 of the Act, defendant 15 was not entitled to proceed against the properties which had been allotted to defendant 1 and which had later on devolved on defendants 3 to 14 in enforcement of the charge created under the final decree. In other-words their case was that the charge created by the final decree on the property which was allotted to the share of the first defendant ceased to be operative on his death and that defendants 3 to 14 acquired interest in the said share free from the said charge. The Court below directed the execution application to be proceeded with after negativing the contentions raised by defendants 3 to 14. Aggrieved by the said order the defendants 3 to 14 have filed this appeal.