VASU Vs. VISWANATHAN

JUDGEMENT

(1.) This is an appeal from the final decree passed by the Subordinate Judge of South Malabar, Palghat, in O.S. No. 21 of 1938 on the file of his Court. That was a suit for partition of the family properties instituted by the respondent against his brother, the appellant. On 26th December, 1939, the Subordinate Judge passed a preliminary decree declaring the respondent to be entitled to one half of the properties referred to in paragraph I of the decree. He also declared that the respondent " is entitled to mesne profits from the date of the registered notice, namely, 19 December, 1937." The decree also contains the usual direction for the appointment of a Commissioner for effecting a partition by metes and bounds and for the ascertainment of the mesne profits as from the date mentioned. Against that decree the defendant appealed to this Court in A.S. No. 35 of 1940 but it ended in its being dismissed by this Court.

(2.) A Commissioner was appointed in pursuance of the preliminary decree and he submitted two reports to the Court. The first report was submitted on 5 August, 1940. In this report the Commissioner submitted a scheme for the division of the immovable properties which formed the subject-matter of the litigation. It is to be mentioned that the family owned immovable properties situate not only within the territorial jurisdiction of the Court below but also other properties in Cochin territory over which the Court had no jurisdiction. As regards the movables the Commissioner stated as follows: The movables shown by the defendant in his written statement are said to be in his possession except the seed grains and stock of paddy shown as in hand, which he says, have been utilized for his cultivation this year. Except these latter, he is prepared to hand over to the plaintiff his share of the remainder when the plaintiff takes delivery of properties. The plaintiff agrees to the arrangement as he has at present no place whereto he can take the cattle.

(3.) The second report of the Commissioner was submitted on 11 October, 1940. The Commissioner suggested the mode of division of the movable properties between the parties and he also fixed the share of the mesne profits to which the respondent was in his opinion entitled from the appellant. In arriving at the amount of mesne profits divisible between the parties, the Commissioner took an account of the profits derived not only from the properties in British India but also from the properties situate in the Cochin state. He found that the plaintiff was entitled to a sum of Rs. 989-14-4 for the mesne profits of the properties in British India and a sum of Rs. 935-14-1 for the profits for the properties in Cochin. The profits so ascertained related to the income derived by the appellant for a period of three years from 19 December, 1937. After the report was submitted, the suit was adjourned to 17th October, 1940, and on that day the Judge being absent on casual leave, it was posted to 1st November, 1940. On 28 October, 1940, the appellant filed his objections to the report of the Commissioner. On the 1 November, the suit was heard and judgment was reserved. The final decree was passed on 5 November. By that decree the Court accepted the Commissioner's report that the plaintiff was entitled for his share of the mesne profits to a sum of Rs. 1,925-12-5. The Court also accepted the Commissioner's report regarding the division of the movable properties. It is from this decree that the present appeal has been filed.