RAGHAVA REDDY Vs. P SREEDEVAMMA

JUDGEMENT

(1.) This appeal is directed against the final decree passed by the Subordinate Judge, Nellore in I.A No. 37 of 1958 in O S. No. 266 of 1953. In O.S.No. 266/1953 a preliminary decree for partition of the plaintiff's 1/3rd share of immoveable properties in Schedules A and C excepting items 57 and 58 of A Schedule and l/3rd share in moveables was passed by the learned Subordinate Judge. The preliminary decree also directed defendants I and 2 to render accouants, for the profits of the joint family estate which consists of bus, salt pans, casuarina plantation, mango thope, outstandings, oil engine and pump sets and the lauds due to the family, for a period of six years prior to the date of the suit. Against the said preliminary

(2.) decree an appeal was preferred to the High Court. The High Court modified the preliminary decree only with regard to the date from which the mesne profits should be rendered and the High Court directed the determination of the mesne profits from the date of the suit only. After the receipt of the orders passed by the High Court, the learned Subordinate Judge, appointed a commissioner for the determination of the mense profits. The Commissioner inspected the properties and also held enquiry recording the evidence of the witnesses produced before him by both sides and then he sudmitted his report. Oa the basis of the evidence placed before him, the Commissioner filed the plaintiff's l/3rd share towards mesne profits as follows.:- <FRM>JUDGEMENT_325_ALT1_1977Html1.htm</FRM>

(3.) Thus he calculated the total mense profits of the plaintiff's l/3rd share as Rs. 1,30, 009 8 0 The Commissioner also fixed interest at 5 1/2 percent on the mense profits payble in the respective years till the date of realization as the parties are agriculturists. The learned Subordnate Judge agreed with the Commissioner's report with regard to mense profits oa salt pans, outstandings, manures and hay and he differed from the Commissioner with regard to other items, at could be seen from his findings, as follows:- Bus <FRM>JUDGEMENT_325_ALT1_1977Html2.htm</FRM> intiff also filed a memo before the learned Subordinate Judge showing the total advances which would come toRs. 36,925/-made by defendants 1 and 2, The defendants did not dispute the amounts mentioned in this memo. Hence the learned Subordinate Judge gave credit to that amount out of the net amount payable to the plaintiff. After deducting that, he held that the amount payable to the plaintiff by defendants I and 2 will be Rs. 89,400-51. He also accepted the rate of interest awarded by the Commissioner at 5 1/2 per cent per annum on the mesne profits in the respective years till the date of realisation and also the interest on the outstandings and other items from the date of the suit till the date of realisation. Though the defendants contended before the learned Suborinate Judge that the interest cannot be awarded since the possession of the defendants cannot be said to be wrongful and hence Order 20 Rule 12 C.P.C. does not apply to the defendants' possession and management of the joint family properties in which the plaintiff has interest, the learned Subordinate Judge did not accept this contention. He felt that in view of the overall conduct of the defendants who have been in possession and enjoyment of the entire estate for 12 years even after the suit, deriving benefits therefrom to the exclusion of the plaintiff, the Commissioner rightly proposed to award interest and therefore the plaintiff is entitled to interest at the rate of 5 per cent on the mesne profits of paddy derived by the defendants by the end of March every year in the respective years till the date of realisation and also on the outstanding at 5 1/2 per cent from the date of suit and on other items from the respective dates till the date of realisation. He also held that counter-interest can be calculated and given credit for the advances of the defendants to the plaintiff from the due dates as mentioned in the calculation memo of the plaintiff dated 5-4-1971. He further held that the plaintiff will get costs of the proceedings from defendants I and 2. Not being satisfied with the findings given by the learned Subordinate Judge with regard to the income on various items and consequently the final decree passed on the basis of such findings and also with the awarding of interest on plaintiff's share of profits, the defendants preferred this appeal. Sri P. Ramachandra Reddy, the learned Advocate General, questioned the correctness of the findings given by the learned Subordinate Judge only with regard to the income derived from the items of salt pans, outstandings and lands. He also questioned the validity of awarding interest.