MOTILAL AGARWALA Vs. BASANTLAL JALAN

JUDGEMENT

(1.) This appeal arises out of a suit for accounts. It is the admitted case of the parties that the house bearing holding No. 435 in the town of Giridih is the joint property of the plaintiff and defendant first party in the ratio of half and half. Further, it is not denied that the members of the defendants second party are in occupation of the various parts of the building as tenants. The claim of the plaintiffs is that defendant first party has realised rent from the various tenants of the building during the period from the 1st of January, 1952 to the 31st of December, 1956, on behalf of the 16 annas proprietors of the building, but has not paid to the plaintiffs their share therein in spite of various demands made for the same. The defence raised in the written statement was that the rents of some of the tenants were realised during the period in suit by the plaintiffs as well. To that extent they were liable for rendition of accounts of the amounts realised by them. Further it was pleaded that defendant first party had spent a good amount over the repair of the building and on payment of taxes of the holding. Therefore, he was entitled to get a set off for the same. Both the courts below have decreed the suit, but with this difference that the trial Court, accepting the case of the plaintiffs, directed that the defendant first party, who is the appellant here, was entitled to a set off bcth for the money spent over the repairs and on payment of taxes. But the lower appellate Court has set aside this direction in regard to both the items.

(2.) Mr. B. C. De, relying on the decisions in Henderson v. Eason, (1851) 117 ER 1451 at p. 1457, Dipnarain Mahton v. Bihari Mahton, AIR 1951 Pat 481 and Chandra Kishore v. Biseswar Pal, 32 Cal WN 291: (AIR 1928 Cal 216) has submitted that in a case where the property is jointly owned by the parties and there is diference of opinion between them over the mode of user of the property, the remedy, if any, for the party dissatisfied with the user is to institute a suit for partition, and not to assert a claim for accounts, even if the defendant is found to have been in possession of the major portion of the property and using it according to his own scheme, but without any denial of plaintiff's title or without asserting ouster against him. This principle, according to Mr. dC, is subject to only one exception, and that is, when there is an agency between the parties for using the joint property for the benefit of both. The leading case on the subject is the aforesaid case in (1851) 117 ER 1451. Therein the law laid down on the subject is in these words:

(3.) Secondly, Mr. De has also submitted that in any case the direction by the trial court for a set off towards the amount incurred by the defendant first party over the repair of the building and the payment of taxes should not have been set aside by the lower appellate court. In my opinion, this part of the submission made by Mr. De in regard to the money spent by defendant first party over the payment of the taxes relating to the building in suit is unanswerable. Unfortunately, the lower appellate Court has made no discussion in regard to the payment of the taxes, and the discussion, if any, that is to be found therein is not only nominal, but wholly unsatisfactory. I, therefore, have no doubt that the defendant first party is entitled to have the set, off in regard to the amount incurred by him over the payment of the taxes in regard to the building in suit.