KRISHNA PILLAI Vs. JAGADEESACHANDRAN NAIR

JUDGEMENT

(1.) This second appeal is by the 1st defendant and the only question canvassed before me on his behalf is the imposition of liability for mesne profits as against him by the courts below. The reason assigned therefore was that the 1st defendant was the Karnavan of the thavazhi of the plaintiff and defendants which inherited the properties in dispute on the death intestate of the 3rd defendants daughter Janaki on 25.4.1115. By S.15 of the Nair Act of 1100 the properties devolved upon the thavazhi as heir to Janaki and by S.23 the 1st defendant had a right to be in possession and management until partition among the members of the thavazhi. The 1st defendant, no doubt, disclaimed possession and the 3rd defendant claimed to be in possession and to have appropriated the profits, though with the consent of the 1st defendant and others. The courts below did not find actual possession with the 1st defendant but thought nevertheless that he could not deny de jure control and consequent liability for mesne profits. The question is how far this conclusion of the courts below is right.

(2.) It follows therefore that the decisions of the courts below to the extent they impose a liability for mesne profits as against the 1st defendant, are unsupportable. They are therefore vacated. The appeal is allowed and the suit dismissed to that extent. There will be no order for costs in the appeal.