SIVANARASA REDDI Vs. DORAISWAMI REDDI

JUDGEMENT

(1.) 1st and 2nd plaintiffs, appellants, with 3rd plaintiff, sued the defendant to recover the share of the peishkush they had paid on the mitta, which all own in common, defendant s interest being one-fourth. The defence was that plaintiffs had collected from the tenants sufficient to cover what they paid for defendant in addition to what they were entitled to retain as their own share of the collections; and the issue between the panties relates to the manner in which the collections should be apportioned, plaintiffs contending that, as co-owners, they are entitled to all they may collect up to a sum equal to three quarters of the total demand of the estate; defendant, as his case was put forward in the Lower Appellate Court and finally here, that they are entitled to retain only three quarters of their total actual collections and must hold the balance in trust for him and credit it against the amount they have paid out on his behalf.

(2.) Of these methods of calculation that proposed by plaintiffs is evidently open to the objection, regarded by the Lower Appellate Court as decisive, that it admits of one side collecting its share of the rents from the solvent tenants and leaves the other to collect at excessive trouble and expense from the insolvent and recalcitrant. But plaintiffs have founded their contention on their alleged right as co-tenants to any enjoyment of the common property, which does not involve their receipt of more than their just share of the profits realisable from it on the ouster of the co-tenants; and this is supported by reference to two Indian and two English cases, in which, it is contended, the law applicable to the co-tenants is laid down.

(3.) The first of these Nallayappa Pillai v. Ambalavana Pandara Sannadhi (1903) I.L.R. 37 Mad. 465 at 477 : 14 M.L.J. 81 no doubt dealt with collection of rents and it was said that not only was the kattalai, as one of the tenants in common, not bound to pay over to the mutt (the other) a moiety of what it received from the ryots, so long as such receipts did not exceed its proper share, but in an action against the kattalai to account for its receipts over and above what it was entitled to, it was for the mutt distinctly to allege and show that the kattalai s receipts did in fact exceed its due share," But the judgment proceeded, " no averment of that kind having been made and no proof in support of it having been offered, the suit" (brought on an agreement, not, as the District Munsif had treated it for an account) " necessarily failed." The circumstances were peculiar and it appears from the record that, not only was the suit not for an account, but the kattalai had been tendering pattas and presumably collecting only its half share. With the English authorities referred to, including Kennedy v. De Trafford I.L.R. (1897) A.C. 180 I deal later. The material fact is that the Court referred to the share of the receipts, not of demand; and this is in defendant s favour. The other Indian decision, Mahesh Narain v. Nowbat Pathak (1905) I.L.R. 32 Cal. 837 relied on as supporting plaintiffs, can in my opinion be distinguished. The dispute was between one co-tenant of a quarry and a lessee under another, the lessee s rights being discussed as equivalent to those of his lessor; and it was no doubt held that, as there was no ouster or destruction of the common property, the co-tenant plaintiff, who himself had not attempted or been debarred from any enjoyment of it, was not entitled to an account in the absence of proof that the lessee had taken more than his lessor s just share of the stone. The case however differs from that before us in respect of the manner, in which the profits were claimed and in which they were obtained. Firstly in Mahesh Narain v. Nowbat Pathah (1905) I.L.R. 32 Cal. 837 they were claimed directly by the plaintiff, co-tenant, while as the judgments show he was disclaiming any liability to contribute towards the expenses incurred. Here, not only has defendant been ready to give and plaintiffs have not refused credit for the proper proportion of the expense incurred by the latter in collection, but also defendant s claim is made in answer to one by plaintiffs to be reimbursed for expenditure, essential to the continuance of the common property in the common ownership, but for which it would have been brought to sale by Government for arrears of peishkush and no profits could have accrued. It is not suggested that contribution is claimed from defendant in respect of any distinct portion of the estate, for which plaintiffs have not collected and he is at liberty to collect, or otherwise than for his unascertained share in the property as a whole. The second distinction between the present case and Mahesh Narain v. Nowbat Pathah (1905) I.L.R. 32 Cal. 837 appears clearly from the quotation from the judgment in one of the English authorities now relied on, Henderson v. Eason (1851) 17 Q.B. 701 on which the Calcutta decisions are based The claim in Henderson v. Eason (1851) 17 Q.B. 701 was to an account and shares of the profits derived by a co-tenant from common property, of which he was in possession and which he had cultivated directly, just as the lessee and the co-tenant lessor had enjoyed the quarry, which was in question in Calcutta; and it was observed that in such cases it is impossible to say that the co-tenant" has received more than his just share. He takes the whole of the crops; and is he to be accountable for any of the profits, when it is clear that, if the speculation had been a losing one altogether, he could not have called for a moiety of the losses, as he would have been enabled to do, had the land been so cultivated by the mutual agreement of the cotenants ?--He receives in truth the return of his own labour and capital, to which his co-tenant has no right." This ground of decision was as directly available in Mahesh Narain v. Nowbat Thakur Pathak (1905) I.L.R. 32 Cal. 837 as it is excluded by the facts before us, plaintiff s acceptance of profits, to the making of which their own exertions or expenditure have not gone, except as regards the latter so far as they claim that defendant was jointly liable for the peishkush with them.