SRI NARAIN Vs. RAM NARAIN

JUDGEMENT

(1.) This is a first appeal by the defendant, Sri Narain, against whom the Assistant Collector has granted a decree for profits to the extent of Rupees 3,107-10-9, for the years F. 1333, F. 1334 and kharif of F. 1335. The plaintiff sued also for the rabi of 1332 F. which was dismissed by the lower Court. The family pedigree is as follows:

(2.) The plaint sets out that the plaintiff owned a quarter-share in the khewat No. 1 of mauza Nenkhera in Saharanpur District, and that the defendant was the lambardar and collector of the rent and had realized the entire rent from the tenants but that he did not have the entire realizations entered in the papers; that Lakshmi Narain died in May 1925, and from the date of his death the defendant used to make collections and pay revenue. The written statement set out that after the death of Lakshmi Narain the family of the parties continued to be a joint Hindu family and the plaintiff remained in charge and was manager and collected rents up to October 1926; that the plaintiff was general attorney of the defendant and that for these reasons the claim for 1333 F. and 1334 F. kharif should not be allowed: that the plaintiff as manager dispensed with the services of the former karinda and employees and appointed new servants Keshab Deo, Umrao Singh and others for realizing the arrears. They realized the arrears in respect of the village in question and other villages, but in the patwari's papers the realization was caused to be entered in the names of the defendant and Behari Lal wherein fact the rent was realized by the plaintiff; that in October 1926, the defendant took the management into his own hands because the plaintiff had failed to pay the Government revenue in September 1926, and the defendant himself had to pay it. It was further set out that under an arbitration award between the parties certain debts were to be paid and no income should be given to any of the sharers until the debts had been paid, and therefore the plaintiff was not entitled to any profits. It was denied that the amount alleged by the plaintiff had been realized by the defendant. The Assistant Collector framed only two issues: (1) Can the plaintiff claim profits? and (2) what is the amount of profits due from the defendant if any?

(3.) An application was made by the defence that two more issues should be added as to whether the plaintiff was manager in making collections up to October 1926, and whether the become was used for the joint business of the parties while the family was joint, and a claim therefore could not be brought for arrears of profits. This application was not granted, The Court of first instance did not go into these matters and when the case came before this Court in appeal it was remanded for finding on three further issues as follows: (1) Were the plaintiff and defendant members of a joint Hindu family up to July 1926? (2) during this period was the property managed by the plaintiff or by the defendant? (3) did the defendant in the years 1331 and 1335 Fasli pay off a portion of the debt due by the parties father as required by the award dated 24 May 1927? If so, how much did he pay on that account?