VANJAPURI GOUNDAN Vs. PACHAMUTHU GOUNDAN

JUDGEMENT

(1.) The Lower Appellate Court has given the plaintiff a decree for the division of Survey No. 44/1 into 3 equal shares with reference to good and bad soil and for delivery to him of one of those shares and has directed defendants 1 and 5 to pay him past profits till the date of suit from the date of demand for partition and also from the date of suit to the date of decree and future mesne profits till the date of delivery of possession or for three years whichever be the shorter period. Defendants land 5 are the appellants before us. The only point argued for them is that the award of profits before the date of decree is wrong in law; no objection has been raised to the rest of the decree.

(2.) The facts necessary for the disposal of the question raised are these. Plaintiff purchased in 1910 an undivided 1/3rd share in Survey No. 44/1 from one Sengoda Goundan, the 4th defendant in this case. He and the other defendants were originally members of a joint Hindu family and me land Survery No. 44/1 was one of their joint properties and was in the possession of defendants 1 and 5 Plaintiff made a demand on them for a partition and delivery to him of the share he purchased; and on their failure to comply with it brought the present suit for a general partition against all the members of the family praying that 1/3rd of Survey No. 44/1 might be allotted to the share of his vendor and put into his possession with profits from the date of his demand.

(3.) The question of plaintiff s claim to the profits before decree was argued by the appellants vakil on the assumption that the 4th defendant the vendor, continued as an undivided co- parcener of the other defendants till the date of the decree appealed against, and on this footing he cited the cases of Maharaja of Bobbili v. Venkataramanjulu Naidu (1914) I.L.R. 39 M. 265:27 M.L.J. 409 and Kota Balabadra Patro v. Khetra Das as also the observations of their Lordships of the Privy Council in Pirtipal v. Jowahir Singh (1886) I.L.R. 14 C. 493 and in Shanker Baksh v. Hardeo Baksh (1888) I.L.R. 16 C. 397. But the learned Vakil for the first respondent has pointed out to us that the 4th defendant was really divided in status from the other members sometime before the sale to his client. There is no express finding by the lower courts on this particular point because the issue as to profits was not " seriously pressed" in the first court as the Munsif points out, and no question seems to have been raised about it in the Appellate Court. As the parties do not seem to be at variance on the question of fact from which the divided status is to be inferred, I think we may act under Section 103, C.P.C. in the matter and find the fact ourselves aud we need not call for a finding. The 4th defendant the vendor, stated in his written statement that he was entitled to a, third share in all the properties and that " for 3 years there was a panchayat for dividing and giving him his share though it was not accomplished." The main contesting defendant, the 5th defendant, admitted as first defence witness that Sengodan (i.e., the 4th defendant) had asked him for partition and delivery of his share in the presence of witnesses and that panchayatdars had also come and asked him on Sengodan s behalf to separate and give away his share. The 9th defendant also admitted in the written statement the allegation made by the 4th defendant. The case of defendants 1 to 2 and 5 to 8 in their written statement was that the 4th defendant had become divided from them long previously though that has been found against. The 4th defendant and his son the 10th defendant recently brought a suit in 1913 for partition by metes and bounds and delivery over to them of their share in the remaining properties, and that suit had been decreed. It seems therefore clear that the 4th defendant did make a demand on his coparcener for partition some 3 years before the date of this suit, and though the properties were not divided by metes and bounds at once, he must be taken to have become divided in status from the others on the authority of the Privy Council decision in