T RAMASAMY AIYAR Vs. TSUBRAMANIA AIYAR

JUDGEMENT

(1.) On the second issue remanded, relating, to plaintiff's share of the net profits received by second defendant and to be accounted for by him from plaintiff's share of the lands, or rather from the lands assigned to the latter, we have been unable to ascertain and the learned vakils concerned cannot say how the total found payable to plaintiff has been reached. We, therefore, can only with the assistance of the materials now available and accepted by the lower Court indicate the lines, on which the account must be taken. The second defendant was in possession as manager of the family, until on the date of the plaint the joint family became divided and a tenancy-in-common replaced it, second defendant continuing in possession as one of the co-tenants. It is, therefore, possible to say at once that he has, from the date of the plaint (22 August, 1895), been accountable for plaintiff's share of the produce of all the lands with the exception for the present of Survey Nos. 228-B (representing items 1 and 2), and 233 (item 3 and items 4 to 6), because the special considerations applicable to these require separate treatment.

(2.) The next question is whether plaintiff is entitled to interest on his share of the profits for each year from the time when second defendant received it. As a co- owner in possession of the co-ownership property, he was, it may be conceded, a constructive trustee with reference to Section 94 of the Trust Act and was subject to the same liabilities as a trustee with reference to Section 95. But it does not follow that he is liable for interest on the profits. For, it has not been shown how a trustee can ordinarily be so liable in the absence of any breach of trust established against him in the special circumstances enumerated in Section 23. There is no imputation on second defendant's realization of profits as fraudulent or inefficient; and, when the suit might at any moment during the long period of its suspension have been resumed and it might have been necessary for second, defendant to produce the funds in his hands, we are not prepared to hold that he was bound by Section 20 to invest them. Authority is, as my learned brother has shown, against the duty of a trustee ordinarily to pay interest on profits. We accordingly cannot hold second defendant liable for it, and, taking this view, we need not consider whether the learned Judges, in holding him liable for profits, not mesne profits, in the order of remand, intended, as has been argued before us, to deal with the matter. Venkatasubba Rao, J.

(3.) I am of the same opinion, and I should like to state my reasons for holding that the second defendant is not liable for interest.