SRI RAJA MALARAJU LAKSHMI VENKAYAMMA ROW BAHADUR ZAMINDAR GARU Vs. GOPESETTI NARAYANASWAMI NAIDU GARU, RECEIVER

JUDGEMENT

(1.) The question raised by this appeal relates to mesne profits of a village called Repudi which is in possession of the Receiver of the Nidadavole estate. The appellant obtained a decree for recovery of the village in the court of the District Judge of Godavari but in an appeal by one out of the three reversioners entitled to the Nidadavole Zamindari who were also entitled to the estate of Papamma Row, the widow of the last Zamindar, it was held by the High Court that there had been no completed transfer of the village by Papamma Row, who had bought it with her own money, the plaintiff and hence she was not entitled to recover one-third share of the village which represented the share of the contesting reversioners. An appeal has been preferred from the judgment of the High Court to the Privy Council and is still pending decision. The dispute relating to one-third share in the village was not therefore finally determined, but in as much as the mesne profits in any event have to be determined, we have proceeded to hear this appeal which raises certain questions as to the principle on which the mesne profits are to be ascertained. The Receiver, we may mention, was appointed in a suit between the reversioners themselves, who, as already mentioned, are also heirs of Papamma Row.

(2.) The first question raised by the appeal arises in these circumstances. Papamma Row during her lifetime paid only part of the purchase money of the village Repudi. So the vendor after the death of Papamma Row sued the Receiver, who was in possession as representative of Papamma Row s estate, and re-covered the unpaid balance of the purchase money with interest and costs of the suit. The lower court, so far as we can make out from its judgment, which, we may observe, is so vague, as to be almost unintelligible on this and some other points, has held that this amount should be deducted from the mesue profits payable by the Receiver. We think this is clearly wrong. What was held by the court of first instance (O.S. No. 32 of 1903) was that Papamma Row made a valid transfer of the village to the plaintiff, of which, however, she herself was to remain in possession as long as she lived, and that she would pay the balance of the purchase money. We hold, therefore, that this plaintiff is not liable to pay the sum nor the interest on it nor the costs of the suit instituted by the vendor of Repudi against -the Receiver. It is to be noted that Mr. Seshagiri Iyer, the learned Vakil for the appellant, did not press his objection as to the liability of his client for apportion of the peishcush for fasli 1309 inasmuch as no such objection was taken in the lower court.

(3.) The 2nd question concerns the rate of interest on the mesne profits. The Subordinate Judge has allowed 31 per cent., the rate which the Receiver received from the bank in which he kept the money in deposit. It is rightly contended by the appellant that the ordinary court rate is 6 per cent, but having regard to the peculiar facts of the case we are not prepared to hold that the interest allowed by the lower court is too low.