V GOPALA CHETTY Vs. VNARAYANASWAMI CHETTY

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 Chetti, who died in 1912j and for division of the same between the plaintiff and the defendant and for accounts and mesne profits. Kasturi Chetti 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: (1) whether the division pleaded by the defendant is true; (2) whether the defendant is accountable to the plaintiff as claimed in the plaint. If so, to what extent? and (3) 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 immovable properties as alleged by the defendant and that; as to the second 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 third 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 applied by reason of the recent Privy Council ruling which has confirmed the decision of this Court reported in Zamindar of Bhadrachalam V/s. Venkatadri Appa Rao A.I.R. 1922 Mad. 457 (F.B.).