DINAKER Vs. VAMANA SHETTY

JUDGEMENT

(1.) S. A. 482 of 1960 by the defendant and S. A. 939 of 1960 by the eight plaintiffs, arise in a suit by the latter for arrears of rent for the site of a building, and in the alternative for compensation for use and occupation thereof. The site in question was part of the properties of the joint family of the plaintiffs. The first plaintiff's wife Leelavathi, constructed a building thereon and was in occupation of it, when it was purchased in execution of a decree, by Purushothama Shetty; from him, Moorthi rao the father of the - defendant, purchased the building in the year 1931. In execution of the decree in O. S. 21 of 1927, Moorthi Rao also purchased the undivided share of the first plaintiff in the family properties, and took delivery of symbolical possession. Afterwards, he sued the first plaintiff and the other members of the joint family in O. S. 18 of 1934 for partition That suit was decreed under Ext. B3 judgment and Ext. B7 decree, dated the 1st april, 1935, but no further steps towards the passing of the final decree for partition appear to have been taken. The plaintiffs commenced this suit on the 20th February, 1956, alleging that the site has been leased in the year 1940. That allegation has been found against concurrently by the courts below; but while the first court also held the claim for compensation for use and occupation to be unsustainable, the defendant being a co-sharer with the plaintiffs, and dismissed the suit, in appeal the Subordinate Judge found such compensation to be Rs. 40/- per annum & deducting the first plaintiff's 1/24 share thereof which had passed to the, defendant, decreed the balance for the period of three years immediately preceding the date of suit. It is from this decree, that the defendant has preferred Second Appeal 482 of 1960, and it is against the deduction of the first plaintiff's share, that the plaintiffs have preferred Second Appeal 939 of 1960.

(2.) LEARNED counsel for the defendant contended, that with the passing of Ext. B7, the decree for partition, there has been a severance of the joint status of the family and thereupon the defendant became a co-tenant with the plaintiffs and that therefore no compensation for use and occupation could be decreed. After hearing learned counsel for the parties who have fully argued the case, I think, the defendant has-to succeed in his contention. It was not contended for him, that by the mere purchase of the first plaintiff's undivided share, he became a co-tenant with the plaintiffs; the law is, that once there is a partition decree defining the shares of the parties there is a severance of the joint status, disruption of the joint family. In Malik Harkishan singh v. Malik Partap Singh (AIR. 1938 P. C. 189) the Privy Council laid down that, "the parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined, and thenceforth the parties hold it as tenants-in-common. " It was however argued for the plaintiffs, that by Ext. B7 there was only a severance of interest so far as the defendant was concerned. The relevant portion of Ext. B3, the judgment, is in the following terms: "there will be a decree declaring the shares of the various parties to be as follows: 1st defendant and his son 9th defendant, 3rd defendant and his son 10th defendant are each entitled to 1/24th share in the plaint property, defendants 2 & 4 to 1/ 12th share each, defendants 5 and his sons, 7, 8,11,12 & 13 to 1/18th share each and 6th defendant to 1/3 share in the plaint property. " It was declared in Clause. 2 of Ext. B 7 the decree for partition, that the "remaining properties mentioned in the schedule below be partitioned by metes and bounds among the plaintiff and, defendants in the following proportions and then the shares of the plaintiff and defendants therein were set out in a tabular form. It is well settled that where the question arises, whether the separation effected by a decree "was only a separation of the plaintiff from his coparceners or was a separation of all the members of the joint family from each other", the decree is what is decisive. See Palani Ammal v. Muthuvenkatachala Maniagar (ILR. 48 Madras 254 ). Applying this, I entertain no doubt, that under Ext. B7, there was a separation or disruption of all the members of the joint family. LEARNED counsel invited my attention to the cause title of the plaintiffs, in which they were mentioned as "members of a joint Hindu family, represented by its present managers. . . "; in the face of Ext. B7, this has no meaning.

(3.) FOR the foregoing reasons, Second Appeal 482 of 1960 is allowed, by setting aside the decree of the Subordinate Judge and restoring that of the Munsiff with costs in this Court and in the court of the subordinate Judge and Second Appeal 939 of 1960 is dismissed, but without costs.