V GOPALA CHETTI Vs. VNARAYANASWAMI CHETTI

JUDGEMENT

(1.) This was a suit brought by the plaintiff who attained his majority in 1918 for an account of the properties left by his grandfather, Kasturi Chetty, who died on 1912, and for division of the same between the plaintiff and the defendant and for accounts and mesne profits. Kasturi Chetty left self-acquired properties which he divided equally between his grandson, the plaintiff, and his own third son the defendant. The defendant raised a number of pleas including a prior division and the issues were 70 Ind. Cas. 689; 43 M. L. J. 486; (1922) M. W. N. 532; 16 L. W; 369; A. I. R. 1922 Mad. 45/; 46 M. 190; 31 M. L. T. 221. whether the division pleaded by the defendant is true? (1823) 37 E. R. 1169; Turn. & R. 438; 24 R. R. 95. whether the defendant, is accountable to the plaintiff as claimed in the plaint? If so, to what extent and 8 Ind. Cas. 189; 12 Bom. L. R. 881. is the claim to mesne profits barred by limitation.

(2.) It appears from the judgment of the Subordinate Judge that there was no final division of the immoveable properties as alleged by the defendant and that as to the 2nd issue a plea was taken that the defendant was the guardian of the plaintiff and kept him under his protection. This is found against.

(3.) On the 3 issue, the question was whether Art. 123 of the Limitation Act applied to the facts of this case and the learned Subordinate Judge held that as the defendant must be held to be at best an intermeddler or an executor de son tort and as Art. 123 of the Limitation Act does not apply to an executor de son tort the plaintiff was only entitled to recover mesne profits from the defendant for three years prior to suit. On appeal to the District Judge he held that Art. 123 did apply to the facts of the case, that the defendant was an executor de son tort and, therefore, liable to account for 12 years mesne profits. Two points have been taken before me on second appeal, namely, (1) that the District Judge was wrong in holding that the defendant was an executor de son tort. It is admitted that, if he was an executor de son tort, Art. 123 applies by reason of the recent Privy Council ruling which has confirmed the decision of this Court reported as Parthasarathy Appa Rao V/s. Venkatadri Appa Rao (1)