CHIDAMBARA VADHYAR Vs. RAMASWAMY IYER

JUDGEMENT

(1.) THE second defendant has filed this revision petition against an order passed by the executing court in execution of a decree for partition.The plaintiff and defendants 1 to 3 were members of a Hindu joint family,the third defendant being the mother of the plaintiff and defendants 1 and 2.A preliminary decree for partition was passed on 29 -11 -1950.That decree left open the question relating to mesne profits for decision in the final decree proceedings.By that the second defendant was also made liable to render accounts of his management as mukthiar agent of the first defendant and also for collections of family income and funds made by him even after the termination of the mukthiar.A Commissioner was appointed to effect partition.He filed Exts.C1 to C3 report into court and the plaintiff applied for an interim final decree and allotment to the sharers the properties as in Exts.C1 to C3.On 8 -6 -1956 an interim final decree was accordingly passed in the following words: - "About the choice of shares there is no dispute.The respondents are agreeable to the shares as allotted by the Commissioner.There are only some minor disputes remaining.These will be considered at the final decree stage.Subject to those an interim final decree is passed giving shares as allotted by the Commissioner.Each sharer is entitled to take immediate possession of his share and the Receiver will hand over possession.The first defendant will cease to function as Receiver from this date." The partible properties which were in the possession of the second defendant had not been taken possession of in pursuance of the Receiver order.The properties allotted to the first defendant were in the possession of the second defendant.Subsequently a final decree was passed on 30 -9 -1963 settling all accounts of the family income and funds.One of the points posed for consideration at that stage was whether the parties or any of them are entitled to mesne profits and if so from whom and to what extent.This was answered in para 55 of the judgment Ext.A14 in the following terms: - "As the accounting between the parties inter se till the date of the final decree has already been gone into,there is no question of any more mesne profits due by one to another still remaining to be gone into. The reference to the accounting is to the accounting of the collections of income and other funds inter se between the plaintiff,defendant 1 and defendant 2 till the date of the interim final decree.Under that head the second defendant was found liable to the first defendant for a sum of Rs.10,533.96.In para 59(7)of the final judgment this was allowed to be recovered from him. 

(2.) IT appears the court in passing the final decree on 30 -9 -1963 was not unmindful of the collections,if any,after the interim final decree for in respect of them in para 9 while discussing the other points the court remarked as follows: - "We need not be concerned here with the collection made by the parties after the date of the interim final decree,as the adjustment and settlement of accounts,if any,to be made in respect thereof can properly arise only in execution proceedings." But in summarising the conclusions in the decreetal portion appropriate provision was omitted to be made.Though there was an appeal to this Court from the final decree as A.S.241 of 1964 this omission was not then noticed.In the meanwhile on 24 -10 -1964 the first defendant obtained delivery of the properties allotted to his share.This Court dismissed the appeal on 4 -2 -1970.

(3.) THE first point argued by the petitioner's counsel is that Clause.14 in the amended final decree does not enable the decree holder to claim recovery of mesne profits for the period subsequent to the interim final decree.Assuming it does,it is further contended that the decree holder can have only mesne profits for 3 years after the decree for possession as provided for in O.20 R.12 CPC.That O.20 R.12 does not apply to partition suits has been held by the Privy Council as early as 1886 in Pirthi Pal and Uman Parshad v.Jowahir Singh(ILR XIV Calcutta 493 ).The reason stated is that to apply R.12 the plaintiff must have specific interest in the properties and until he obtains a decree for partition he does not have that.In fact a member of a Hindu family suing for partition and for profits is really suing for account of the profits received by the manager or the person in possession so that the proceeds so received by the latter,which are also divisible property may be divided and his share therein also given to him.It may be that a defendant - as in this case - in a partition suit who is entitled to and claims a share is treated as a plaintiff but it is difficult to characterise that suit as a suit for possession within the scope of O.20 R.12 CPC.