D SRINIVASA IYENGAR (DIED) Vs. THIRUVENGADATHAIYANGAR

JUDGEMENT

(1.) The suit in this case is one for partition by a Hindu minor. The first defendant is the plaintiff s stepbrother. The fifth defendant is the plaintiff s mother and the first defendant s step-mother. The sixth defendant is the plaintiff s elder sister. The fifth and sixth defendants were made parties on the ground that provision should be made for the maintenance of the former and for the maintenance and marriage and other expenses of the latter.

(2.) The first question raised in Second Appeal is whether the plaintiff is entitled to a share of the amount recovered from a Life Insurance Company on a policy of insurance taken out by Doraiswami Ayyangar, the father of the plaintiff and the first defendant. The policy states that it was taken for the benefit of Doraiswami s wife and two sons of whom the wife and one of the sons died, and the first defendant alone was left; but both the Courts have found that the premia for the policy were paid out of funds belonging to the whole family. This finding has been attacked in Second Appeal; but we are unable to interfere with it. It was argued that the finding of the Lower Appellate Court was based in part on the supposition that Doraiswami Ayyangar was the managing member of the family and that this was not the fact. But no objection was taken to the finding on this ground in the Memorandum of Second Appeal; nor does Doraiswami Ayyangar s management seem to have been denied in the Lower Appellate Court. The plaintiff was therefore rightly held entitled to a share of the insurance money.

(3.) The next question is whether the decree in plaintiff s favour for mesne profits for two years before the suit is right. It was alleged by the plaintiff that he and his mother were turned out of the family house and had to live elsewhere. The Subordinate Judge has found that the plaintiff has failed to prove that they were turned out of the house; but he allowed mesne profits, because he held that a minor plaintiff is entitled to recover mesne profits in a suit for partition. I am of opinion that there is no foundation for this view. The case relied on by the Subordinate Judge, Krishna v. Subbanna (1884) I.L.R., 7 Mad., 564 at p. 569, does not support it. In that case it was observed: "If an adult member is not excluded but chooses to live apart from the manager, then, as he did not choose to enforce partition, it may be very reasonable that, apart from the consideration of fraud or misappropriation by the manager, the principle above stated should be applied to him;" (that is the principle that the manager is not bound to account for past transactions or past income). "But that principle cannot apply to the case of an infant member, who has been excluded by the manager from the family house and from enjoyment of the property. The infant is, by reason of infancy, incompetent to authorize the act of the manager, or, at all events, cannot be legally bound by any authorization in fact given during his infancy. Moreover, the infant being excluded, cannot be assumed in point of law or fact to have known of any act of the manager." The observations relate primarily to a suit for account including an account of past profits. An infant who has been excluded from commensality was held entitled to an account of past profits during the period of his exclusion. They do not support the view that the mere fact that the infant was living separately when it was not due to any fault on the part of the manager would entitle him to recover a share of the profits. The manager of a Hindu family is entitled to spend the income for the benefit of all the members of the family. It is unnecessary to consider whether a member living separately could make a claim for the expenses of his maintenance; for that is not the question raised for decision before us. The manager after making all proper expenditure is expected to add any surplus that may be left to the family funds. No member is entitled to claim a share of past profits on the ground of his separate residence. If he is excluded by the act of the manager, he has, no doubt, been held to be entitled to call upon the manager to account for the profits received during the time of his exclusion. The manager would then be entitled to credit for all proper expenditure including any investments made in which of course the excluded member would be entitled to share. With respect to any profits for which the manager is unable to account, the excluded member would be entitled to his share of them. There is no reason why the same principle should not apply to a minor co- parcener. No authority has been cited in support the application of a different principle. The question here is not one of the right to an account. No doubt one reason for refusing an account to an adult co-parcener suing for partition has been stated to be that "every adult member of an undivided joint family living in commensality with the Karta, must be taken, as between himself and the Karta, to be a participator in, and authoriser of, all that is from time to time done in the management of the joint property to this extent, namely, that he cannot without further cause call the Karta to account for it." Abhayachandra Roy Chowdhry v. Pyari Mohan Guho (1870) 5 B.L.R., 347 at p. 354 (F.B.). This reason would not of course be applicable to the case of a minor member. But the point has no bearing in deciding whether a minor is entitled to claim mesne profits. The claim for mesne profits must therefore be disallowed., The Subordinate Judge s decree awarding Rs. 61 1/2 on this account must be set aside.