ROSA Vs. ELIKUTTY

JUDGEMENT

(1.) This is a plaintiff's appeal. In O.S. No. 109 of 1117 she brought a suit for partition and delivery to her a half share in the movable and immovable properties described in the various schedules annexed to her plaint. The owner of the remaining half share was her cousin one Devassikutty who died on 16.10.1117. The suit was brought soon afterwards on 26.11.1117. The 1st defendant is Devassikutty's widow and defendants 2 to 7 are his minor children. The suit was hotly contested. The Lower Court passed a preliminary decree for partition and for accounting on 11.1.1120. Both sides preferred appeals to the High Court of Cochin against that preliminary decree and the High Court disposed of those appeals on 26.4.1124. Subject to certain modifications the lower Court's decision was confirmed. The plaintiff then took steps to have a final decree passed and the present appeal is directed against an order settling certain outstanding disputes between the parties. It is virtually a supplementary preliminary decree and on behalf of the plaintiff - appellant as many as seven points were urged before us. These points will be discussed one after the other.

(2.) The plaintiff had claimed that Devassikutty had realised several outstandings due to them in common and she mentioned them in Schedule E to the plaint. That schedule originally consisted of three items. Subsequently an amendment was effected as per order on C.M.P. 1642 of 1118 dated 12.12.1118 whereby five more items were also brought into that schedule. In the preliminary judgement the question is discussed in paragraph 20 in dealing with issue 12. After referring to the items originally mentioned and setting out the respective amounts due under each item the discussion concludes thus. "The schedule as amended contains some other items of collections also. There is no serious dispute with regard to the existence of these amounts. These are the items of outstandings for accounting. Accounting will be done at the final stage". The Lower Court has in the present order held that the plaintiff is entitled to obtain her moiety out of the three items specifically mentioned in the preliminary judgment and not from other item of outstandings. This decision is based on what the preliminary judgment states towards its concluding part in para. 31, Cl. (o). That Cl. (o) reads thus: "The Kuri amounts of Rs. 18,220, Rs. 1120 and the mortgage amount of Rs. 750 as found in considering issue No. 12 will be the amounts out of which the plaintiff should get her half share." This the lower court has interpreted as impliedly negativing the plaintiffs claim for any other amounts. We regret we cannot accept that conclusion. Reading the preliminary judgment as a whole and keeping in view the fact that the suit was one for partition and accounting and that the accounting was to be done at a subsequent stage of the proceeding we cannot hold that the preliminary decree has refused or it should be deemed to have refused the plaintiff a half share in the other outstandings which the subsequent enquiry might disclose. In fact what para. 28 states is that there is no serious dispute with regard to the existence of the items mentioned as Nos. 4 to 8 in Schedule E as amended. Both as a matter of construction of the preliminary judgment and as a matter of law we would hold that the preliminary judgment does not preclude the plaintiff from claiming her half share in outstandings if any which the evidence in the case discloses. It would in his connection be apposite to recall certain observations which Sadasiva Iyer, J. made in Ramaswamy Aiyar v. Subramonia Aiyar (43 MLJ 406). At page 412 of the report the learned Judge observed:

(3.) The next question relates to interest on the outstandings collected. The lower court has held that the plaintiff is not entitled to claim any interest on such amounts. In so holding the court has stated that the executing court cannot go behind the decree. But that rule has obviously no place here. Another ground mentioned is that as the preliminary decree awards interest on mesne profits and costs, interest on the outstandings collected must be deemed to have been refused. Once again we feel constrained to repeat that this is an unwarranted extension of the so-called rule of refusal by the Court of a relief by implication. The Court passed a preliminary decree for accounting and so long as the preliminary decree has not expressly denied interest it is always open to the Court at the final decree stage to decide whether and for what interest the accounting party should be made liable for. The decision in AIR 1925 Bom. 406 cited before the lower court is a decision directly in point. The decision in 17 Cochin LR p. 273 which the lower court followed, like the decisions in 6 Cochin L.R. p. 11 and 23 Cochin L.R. p. 131 deals with the question whether the executing court could award interest when the decree is silent about it. As mentioned earlier that is not the present question and we wonder how after declining to rely on the two latter decisions the court below could have relied on the decision in 17 Cochin 273 to decide the question. After Devassikutty's death the 1st defendant had no right to retain the plaintiff's share of the outstandings collected by him in her (1st defendant) hands. She ought to have either invested it or paid it over to the plaintiff. Her improper refusal to do either must necessarily carry with it the liability to pay interest on the amounts withheld. Regard being had to all the circumstances of the case we hold that the plaintiff's share of the outstandings found due must carry 4 per cent simple interest from the date of Devassikutty's death (16.10.1117) till payment and that the 1st defendant must personally be made liable for the same. The lower Court's direction to the contrary will stand set aside.