OORPOKKIL ALIAS ATHIKKOT PARVATHI AMMA S DAUGHTER VISALAKSHI AMMA Vs. OORPOKKIL ALIAS ATHIKKOT KUPPU AMMA S SON MADHAVA MENON

JUDGEMENT

(1.) The plaintiffs whose right to a share in the income of the suit properties prior to the date of suit has been disallowed are the appellants and they challenge the finding of the lower appellate Court that they are entitled to an account only from the date of suit. The parties all formed members of a tarwad which owned the suit properties in British India and a number of other properties in the native State of Cochin. The contesting respondent so far as this part of the appeal is concerned is the first defendant. He was the Karnavan of the tarwad so long as it was undivided. The Cochin properties were made the subject of a partition suit in the District Court of Trichur, O.S. No. 63 of 1096 (1920) and Ex. II, dated the 15 November, 1922, is a certified, copy of the judgment in that suit. Ex. I dated the 12 August, 1925, is a certified copy of the judgment in appeal in that suit. The present suit is for partition of the properties in British India. The plaintiffs claimed a 10/24 share on the footing that the plaintiffs branch contained ten members on the date of the suit as against twenty-four on the whole. The defendants pleaded that the plaintiffs were not entitled to 10/24 share on the ground that there was a division in status brought about in the year 1920, and that at that time the plaintiffs branch would have been entitled to l/17th. This plea was accepted by the plaintiffs and thereafter they confined their claim to I/17 share with a claim for an account of their share of the income from the time when according to the defendants there was a division in status of the entire tarwad. This division in status was according to the defendants brought about by certain notices of the year 1920, evidenced by Exs. V, VI, VII and VIII. By Ex. V, dated the 18 October, 1920, partition was claimed on behalf of the second defendant of both the Cochin and British Indian properties. Reply notices sent on behalf of the other branches are Exs. VI, VII and VIII. These notices, sent one on behalf of each branch, have effected a division in status. This position has been accepted by the lower Court. On this footing the District Munsif gave the plaintiffs a decree for partition and delivery at the rate of 1/17 share in -the British Indian properties and also gave a decree for their share of the income from these properties from the date of the division which he fixed as 1096 Kollam corresponding to 1920.

(2.) On appeal, the Subordinate Judge while upholding the right of the plaintiffs to 1/17th share in the properties, on the footing that there was a division in status in 1920, disallowed their claim to share in the income which had accrued prior to the date of suit. The reasons given are that before the suit of 1920, there was a prior razi decree in O.S. No. 8 of 1094, on the file of the District Court of Trichur, a copy of the judgment in which is Ex. III. The plaintiff in that suit was the present first defendant. Under that decree, on the footing that a sum of Rs. 3,000 belonging to him was utilised for the benefit of the entire tarwad, he was given the right to enjoy during his life-time, the profits of the lands in British India which are now sought to be partitioned; and this the Subordinate Judge holds is binding on the parties. If that is so, the plaintiffs suit even for partition and recovery of l/17 share should also have been dismissed and the plaintiffs cannot be given a decree for their share of the income even from the date of suit. The first defendant is still alive and, if the razi decree is binding, he is entitled to the entire income during his life-time and the plaintiffs cannot get their share of the income even after the date of suit. The appellate Judge does not notice what really follows from the finding in the earlier part of the judgment.,. As a matter of fact, the rights of the parties as provided for in Ex. III were materially varied by later events. First, there were notices--Exs. V, VI, VII and VIII--to which I have already referred. Then there was the partition decree in the prior suit which was for partition of the Cochin properties. Under Ex. III, the right given to the present first defendant was apparently on the footing that he would be the Kama van of the entire tarwad properties, both British Indian and Cochin, and it contemplated the continuance of the tarwad, but once that tarwad was put an end to by Ex. II, judgment in O.S. No. 63 of 1096, the rights under Ex. III must necessarily be taken to have been given up and the provisions contained in the decree in that suit must take their place. As pointed out by Mr. Krishna Aiyar for the appellants, provision has been made in the decree in that suit in respect of Rs. 3,000 of which the entire tarwad had the benefit. The provision is that interest at 71/2 per cent, should be paid by the other branches to the first defendant during his life-time. This is clearly referred to in the judgment of the trial Court and also of the appellate Court. Thus the right created in favour of the first defendant under Ex. III, has been varied by the judgment in the suit of 1096, and this is not noticed by the Subordinate Judge. He seems to think that there is no reference to the Rs. 3,000 given by the first defendant in O.S.No. 63 of 1096. This is clearly wrong. There is a reference to the Rs. 3,000, which was really made up of two sums of Rs. 2,000 and Rs. 1,000. The judgment of the lower appellate Court disallowing the right to a share in the income even though the parties have been found to have become divided in status in the year 1096, (in this respect accepting the case of the defendants themselves) appears to me clearly wrong. When once the parties are found to have become divided in status and one of them continues in actual possession, and further, when there is a demand for division of that property, a reply is sent by the person in possession saying that he has no objection to the property being divided, he is clearly accountable to the other sharers for their shares in the income of that property. The ground upon which the lower appellate Court rejected the claim of the plaintiffs to share in the income prior to the date of the suit cannot be supported.

(3.) The learned advocate for the respondents then urges that, even if the plaintiffs are entitled to share in the income prior to the date of suit, it is only for a period of six years that the plaintiffs can get their share and not for the full period from 1096 (1920), up to the date of suit. I am clearly of the opinion that this contention is unfounded. The Art. of the Limitation Act applicable to this claim is Art. 120, which provides a period of six years and the starting point is when the right to sue accrues. That this Art. is applicable has been held by a Full Bench of five Judges of this Court in Yerukola y. Yerukola . The learned Judges pointed out that the period of six years smarts from the time when the right of the plaintiff is denied or from the time when there is ouster. In all the decisions brought to my notice By either side it is Art. 120, that has been held to apply in such cases. The respondents advocate refers to two decisions Sundararaja Aiyangar V/s. Raghava Reddi (1936) M.W.N. 410 and Siddaiingana Gowd V/s. Bhimana Gowd (1034) 68 M.L.J. 487. In the former case the father made an alienation of the entire properties and the sons sued for their share of the properties on the footing that the alienation was not binding on them. A decree was passed upholding their claim but in that suit they did not ask, for their share of the income from the properties. More than seven years after the date of the preliminary decree in this suit a suit for mesne profits or for their share of the income accruing due for all the seven years was filed. The learned Judge held that Art. 120, applied to such cases and that the plaintiffs can get the income only for six years prior to the date of suit. This is obviously on the footing that to the knowledge of the plaintiffs, the defendant who was called upon to account, had even prior to the date of the preliminary decree asserted a hostile title as against the sons. In fact, in the suit by the sons for setting aside the alienation, the alienee pleaded that he was entitled to the whole of the property and that the alienation was binding on the sons. The Court upheld the right of the sons and passed a preliminary decree. From that date at any rate it cannot be said that there was no ouster or assertion of a hostile right to the knowledge of the plaintiffs. Therefore the learned Judge rightly held that applying Art. 120, it is only for six years before suit that the plaintiffs can get their share of the income. That is on the footing that the right to sue for their share of the income accrued at least from the date of the previous decree. The latter case is still clearer and also proceeds on similar lines. There a step-brother of the plaintiffs effected a mortgage in favour of the defendants and a suit was filed upon the mortgage. In execution of the mortgage decree the mortgagee himself became the purchaser and got into possession. The plaintiffs filed a suit after an unsuccessful attempt to resist the mortgagee taking possession in execution proceedings. Then they filed a suit for a declaration that their rights were not affected by the mortgage of the step-brother and by the proceedings in the mortgage suit. Unfortunately they did not ask for future profits in that suit. The suit was only for possession and was decreed and ultimately the decision was upheld by the High Court in 1923. They got into possession in pursuance of the decree of the lower appellate Court in May, 1922. They had been dispossessed in proceedings in the mortgage suit in 1918. So from 1918, when they were dispossessed to 1922, when they got back possession they were entitled to mesne profits. The suit was filed in 1927. The decision was that though the right accrued in 1918, when the mortgagee-purchaser took possession, he would be liable only for six years before the date of suit, that is from 1921-22 and not from 1919-20. There was a clear ouster and denial of the plaintiffs right in the possession proceedings. which took place in execution of the mortgage decree. It was a clear case of ouster and an assertion of hostile title to the knowledge of the plaintiffs more than six years before the date of suit. Therefore, according to the decision of the Full Bench in Yerukola V/s. Yerukola , time began to run from the time when the right to sue accrued--1918-1919. That being so, it was held that the plaintiffs were not entitled to the profits of the first two years but that they were entitled to the profits of the later two years; and on that ground their right to share in the income for the first two years was disallowed. There is no discussion of the ground upon which that right was disallowed, but on the facts it was a case where the plaintiffs right had been denied by the defendant to their knowledge in 1918 and that started limitation running under column 3 of Art. 120 of the Limitation Act. In fact the learned Judges say: The judgment of a Full Bench of this Court in Yemkola V/s. Yerukolal also lays down that as between co-sharers the proper article applicable is Art. 120 and that limitation will begin to run from the time that there is an assertion of exclusive title or what may amount to ouster. The two decisions relied upon by Mr. Govinda Menon are therefore of no help to him. There is a full discussion of this question in the judgment of Madhavan Nair, j., in Syed Levvai V/s. Syed Ammal , where the learned Judge has discussed the earlier cases and has in my opinion laid down the proposition correctly. Reference was made to the decision of the Full Bench in Yerukola V/s. Yerukola , and it was held that the plaintiff was entitled to an account of her share of the income for more than six years "before the date of suit. After referring to Yerukola V/s. Yerukola , the learned Judge says: This case was followed in Ayyakutti Thevan V/s. Sigappi Achi , in which case the plaintiff was given a decree for an account for the period mentioned in the plaint which appears from the papers was for 13 years, i.e., 1910 to 1923. So according to the trend of the decisions of this Court, having regard to the findings that the demand for the income and its refusal in this case was only in the year 1921, the plaintiffs right to demand from defendant 4 an account of the income from October, 1911, to the date of the suit though the period is for more than six years cannot be held to be barred under Art. 120, Limitation Act. The learned Judge also dealt with the decision of the Privy Council in Midnapore Zamindari Co. V/s. Naresh Narayan (1924) 29 C.W.N. 270 (P.C.), on which also reliance was placed by Mr. Govinda Menon. As pointed out by Madhavan Nair, J., there was an amendment confining the right to the income to six years before the suit was passed by the Judicial Committee, but without anything more we must assume that there was ouster or assertion of hostile title to the knowledge of the plaintiffs more than six years before the date of the suit. The Privy Council approved of the decision in Yerukola V/s. Yerukola , in a recent decision in Mahomedally Tayebally V/s. Safiabai (1941) 1 M.L.J. 594 : L.R. 67 I.A. 406 : I.L.R. (1941) Bom. 8 (P.C.). It is unnecessary to refer to the other decisions on the point. All the decisions on this question referred to by either side apply Art. 120 and there is no decision which lays down that even in the absence of ouster or assertion of hostile title to the knowledge of the plaintiffs, the plaintiffs right to share in the income is to be confined to a period of six years before the date of suit. In the two cases relied upon by the learned advocate for the respondents it is clear that there was such ouster more than six years before the date of suit. The law on this question has been plainly laid down in the Full Bench decision in Yerukola V/s. Yerukola .