R VENKATA SUBBAYA Vs. P VENKATA SUBBAYYA

JUDGEMENT

(1.) This appeal by the 8th defendant, in O S No. 74/51 on the file of the Court of the Subordinate Judge, Ongole, gives rise to an interesting question of law, whether a co-parcener of a Hindu Joint Family who has obtained a preliminary decree for partition of the family properties is entitled to proceed against the property alienated by any defendant co-parcener pending an appeal against the preliminary decree and before the passing of the final decree, for the recovery of mesne profits in respect of that alienated item of property.

(2.) In order to appreciate the scope of the question, it is necessary to state briefly the facts and circumstances which are not in dispute and which lie in a short compass: Raghavaiah and Venkata Subbaiah, sons of P. Sriramulu, instituted a suit for partition and separate possession of their hal share in the plaint 'A' and 'B' schedule properties and for accounts relating to future profits and rents, against their brother Gopalam (1st defendant) and Panduranga Rao, the son and Bhramaramba, the widow of their late elder brother Adinarayana Rao, and Muddana Chenchuramayya, the cultivating tenant of item 4 of the plaint 'A' schedule. The preliminary decree for partition with a direction to account in regard to rents and profits for the period subsequent to the date of suit, was passed by the court of the Subordinate Judge, Ongole on October 21, 1952. On August 4, 1953, plaintiffs 1 and 2 settled on Bommaraju Annapurnamma, the foster daughter of the 2nd plaintiff, under a registered settlement deed, undivided Ac 0-50 cents of land in 'item No. 4 and Ac. 0-20 cents in items 1 and 3 of the plaint 'A' schedule. She was therefore brought on record as the 3rd plaintiff. Aggrieved by the decision of the trial court, defendants 2 and 3 preferred A. S. No 192/53 in the High Court. During the pendency of the appeal i. e., on January 7, 1955, Raghavaiah, the 1st plaintiff died unmarried and issuelcss. Except the Ac. o. 25 cents of land in item 4 and 10 cents in items I and 3 which were settled under the settlement deed in favour of the 3rd plaintiff, the deceased Ist plaintiff's interest in other items of the plaint schedule properties devolved equally on his two surviving brothers, namely Venkata Subbaiah and Gopalam. The 1st defendant (Gopalam) also passed away on January 31, 1955 leaving behind his eons and widow who were subsequently brought on record as defendants 5, 6, and 7 respectively. The 6th defendant also died in the year 1956 unmarried and issueless as a result of which his interest devolved upon bis mother, the 7th defendant. The 2nd defendant sold his father Adinarayana's 1/4 share in item No. 4 of the plaint 'A' schedule to one Ravella Verkata Subbaiah under a registered sale deed on February 16, 1956. He was there upon added as defendant No. 8 and as 5th respondent in A. S. No. 192/53, On November 18, 1958 A. S. No. 192/53 was dismissed by the High Court. Plaintiffs 2 and 3 have field I. A No. 1495/59 for the passing of a final decree for mesne profits attributable to their share in item No. 4 of the plaint,'A' schedule for a period of four years, viz 1949-50 to 1952-53. Defendants 2 to 5, 7, and 8 are respondents in the application. The 1st respondent became ex parte. The 2nd respondent did not file any counter, Respondent No. 3 (4th defendant) who was the lessce of item 4 under a registered lease deed executed by Adinarayana, me then manager of the joint family on 5-7-1945 for a period of lO years, the rent payable being 10 1/2 candies of Molakolukulu paddy in kind valued at Rs. l.OOO/- pleadec that he paid the maktha to defendants 2 and 3, the legal representatives of late Adinarayana, the lessor. Respondents 4 and 5 claimed pro rats mesne profits in respect of their shares. The 6th respondent (defendan No. 8), the alienee contended that he is not liable to any profits for the period prior to the date of his purchase, i. e 16-2-1956, in respect of the item purchased by him, nor the alienated item of property can be proceedeed against.

(3.) The trial court framed as many as six points for determination. The petitioners examined P. Ws. 1 and 2 and marked Ex. A-I, a certified copy of the lease deed executed by late Adinarayana in favour of the tenant (respondent No. 3) in support of their claim whereas the respondents examined R. Ws, 1 and 2 and filed Exs. B-l to B-9 in support of their version. The court below, on a consideration of the evidence on record, found that the 2nd petitioner (3rd plaintiff) is not entitled to recover any amount by way of mesne profits, that the 2nd plaintiff is entitled to recover 3/8tb share out of the profits in respect of item No. 4, that the claim of the petitioners for profits in so far as for the year 1949-50 is concerned is untenable, that the amount payable for the three years 1950-51, 1951-52 and 1952-53 together with interest is Rs. 3160-38 paise, that the 4th defendant, the cultivating tenant, who paid the rent to the defendants 2 and 3 for the year in question is not liable for any profits from item No. 4 and the remedy of the 2nd plaintiff is only to proceed against the defendants 2 and 3 and their alienee, the 8th defendant, subject to the condition that 8th defendant's liability is restricted to l/8th share of the amount due which corresponds to the interest acquired by him from the 2nd defendant in item No. 4 and that the 2nd plaintiff is entitled to recover from out of the property purchased by the 8th defendant The 8th defendant is made liable for the profits on the ground that he purchased the property from the 2nd defendant during the pendency of the appeal and bis alienation is hit by lis pendens. The lower court further held that the 2nd plaintiff is entitled to recover the profits from and out of the property purchased by the 8th defendant. Hence this appeal. The principal contention ,of Sri. M. Chandrasekhara Rao, the learned counsel for the appellant is that the liability of a coparcener against whom a preliminary decree for partition of the joint family properties has been obtained, in respect of the profits subsequently realised by him is personal and the properties ultimately alloted to his share cannot be proceeded against unless a charge has been created by operation of law as contemplated by Section 100 of the TRANSFER OF PROPERTY ACT, 1882 and the appellant, who is an alienee from the 2nd defendant, was not in possession and enjoyment of the profits during those years and the alienated property no longer belonged to the 2nd defendant and hefice, it cannot be proceeded against for the recovery of the profits due and payable by the 2nd defendant.