GANGABISAN JEEVANRAM MARWADI Vs. VALLABHDAS SHANKARLAL

JUDGEMENT

(1.) [His Lordship, after setting out facts and dealing with other questions, said:] With regard to the mesne profits, we do not think that the auction purchasers were bound to account to Vallabh for mesne profits before proceedings were taken for partition of the properties. The learned Judge has allowed mesne profits on the ground that the auction purchasers were in possession wrongfully. But although the purchaser of a particular portion of joint family property, or the urchaser of the interest of one of the members of the family in any particular item of joint property may not be entitled to possession, it follows, if he gets possession, that his possession cannot be considered as wrongful possession against the other members and he cannot be liable to account for the mesne profits. All that the law allows, as we understand it, is that a co-parcener is entitled to recover possession from an outsider of the joint family property or any portion of it. But if he stands by and allows an outsider to remain in possession, then although his share in that property or interest in that property is not thereby affected, he is not entitled to demand an account for the past profits. We think that although the decree in Suit No. 212 of 1915 was confirmed by the High Court, it was intended that if the plaintiff filed his suit for partition, the question with regard to mesne profits would remain open. That is the only possible interpretation that can be put on that order, because we do not think that it was intended that the question of mesne profits should be excluded from the purview of any suit that the plaintiff might file under the direction of the High Court order dated March 1, 1918. We think, therefore, that in this case defendant Vallabh is only entitled to mesne profits from the date of suit at the rate at which they have been calculated, namely, Rs. 300 a year, in the previous suit. That will be the amount which the plaintiffs will be responsible for, and they must be given credit for the amount which was already paid by them in execution proceeding in Suit No. 212 of 1915. The order of the lower Court will, therefore, stand with this addition that the defendant No 2 shall be held to be entitled to the mesne profits from the date of suit at Rs. 300 a year with interest until he gets possession of his father's share, or until partition, and that the amount of Rs. 1,735 paid in execution of the decree in Suit No. 212 of 1915 must be given credit for.