ABU SHAHID Vs. ABDUL HOQUE DOBHASH

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and arises out of a suit for accounts. The plaintiff's case is that in the town of Chittagong there was a market known as Feringibazar which was held at a place close to the land described in the schedule to the plaint and was run by certain persons who may be called the Sahas. The Mitters who are the owners of the schedule land, wanted to establish a rival market on the same, but being unsuccessful themselves, they allowed the plaintiff and the two defendants to start a market on that land and use the structures that stood upon it for that purpose. On 26 August 1925, the Mitters granted a lease of the land and structures to the plaintiffs and the two defendants, for a period of nine years only with an option of renewal for the same period after its termination. Prom the very beginning, the management of the market was left to defendant 1 by his co-lessees and it was he who realized tolls from the vendors and stall holders and paid the rents and taxes due to the landlord and the Municipality. Although the market became a profitable concern, and its income went on increasing year after year, defendant 1, it was said did not pay anything to the plaintiff as his share of the profits. When the plaintiff asked for accounts, defendant 1 prepared certain false accounts, and filed a money suit against the plaintiff, which was still pending when the present suit was commenced. The plaintiff was under these circumstances obliged to institute the present suit, and he prayed that defendant might be ordered to render accounts of the profits of the market from 25 August 1925 to 7 January 1937, and that the plaintiff might be given a decree for such sum of money as may be found due to him in his share on taking accounts.

(2.) The suit was contested by defendant 1 alone. His contentions inter alia were that neither the plaintiff nor any of the defendants were the real lessees in respect of the lands and structures, nor had they any beneficial interest in the market or its profits. It was said that the lease was actually taken by a Committee known as bazar Committee, who organized the removal of the market place to its present site, and as the landlords did not like to recognize a fluctuating and an indeterminate body of persons as lessees, the document was executed in the name of the plaintiff and the two defendants. It was this Committee which was running all the affairs of the market, collecting tolls and paying rent and taxes. Defendant 1 did not make any profit out of the market nor it was intended that any of the ostensible lessees should have any share in its income. It was further contended that the suit was not maintainable in its present form, and it was barred by limitation. The trial Court overruled all these defences and gave the plaintiff a decree. It held inter alia, that the lease was really granted by the Mitters to the plaintiff and the two defendants and that there was no truth in the story of defendant 1 that they were benamidars for a Committee known as bazar Committee. It found also that defendant 1 was placed in management of the market since it was started, with the consent of his co-owners, and he was all along realizing the rents and profits. The result was that a preliminary decree for accounts was passed and defendant 1 was directed to file all his accounts within one month, after which a Commissioner would be appointed to examine them. Against this decision there was an appeal taken by defendant 1 to the Court of the District Judge at Chittagong. The learned District Judge who heard the appeal, set aside the judgment of the trial Court and dismissed the plaintiff's suit. The District Judge concurred in the findings of fact arrived at by the trial Court, but dismissed the suit on the grounds that the suit was not maintainable in law and that it was barred by limitation. According to the lower Appellate Court the plaintiff ought to have, on the allegations made in the plaint sued for joint possession and he was not entitled to accounts unless he claimed joint possession or partition. As regards limitation, the District Judge did not discuss the matter in details, as he was going to dismiss the suit on the other ground but held that the suit would be time-barred, whether Art. 62 or Art. 89 be held to be the proper Art. applicable. It is against this decree of dismissal that the present second appeal has been preferred, and the Advocate-General of India, who appears in support of the appeal, has assailed the propriety of the decision of the District Judge on both these grounds. Dr. Basak who appears on behalf of the respondent, has besides supporting the decision upon the grounds upon which the Court of appeal below rested it put forward an additional ground that on the plaintiff's own case, the defendants were not co-owners but co-owners with him in the market business and he could demand accounts only on dissolution of the partnership. The first question that falls for determination in the appeal is as to whether the parties to the suit were co-owners or copartners, and whether a suit for accounts only is maintainable, without a prayer for partition in one case or dissolution of partnership in the other. I do not think that it would be right to say as Dr. Basak contends, that the parties to this suit are partners in a business and not joint owners of a property. No such case was made by defendant 1 in his written statement, and the Court of appeal below has come to the definite finding that the parties were not partners but co-partners. Partnership is the relation subsisting between persons, who have agreed to share the profits of a business carried on by all or any of them acting for all (vide Section 4, Partnership Act). We do not know what the agreement between the parties was in the present case. All that we find is that they took a joint lease of the property in suit upon which a market was started. There could have been, no doubt, a partnership in respect of the business of the market, but no foundation for such a case was made either in the pleadings or in the evidence. The mere fact that in para. (4) of the plaint, the market was said to have been opened a few days before the lease was actually granted does not justify the inference, that it was a partnership business. Accepting therefore the finding of the lower Appellate Court that the parties were joint owners of the market and its site, the question that we have to decide is whether one co-owner can sue another for accounts in case the latter receives rents and profits of the joint property in excess of his share, without instituting a suit for partition. There is no specific provision in the Indian law on this point and the question has got to be answered on general principles of equity, justice and good conscience. According to English common law, if one tenant-in- common occupied and took the whole profits, the other had no remedy against him whilst the tenancy in common continued unless he was actually dispossessed in which case he might sue for ejectment. The only case where an action of account would be maintained was where one co-owner had expressly appointed the other his bailiff as to his undivided moiety. This was remedied by the statute of Queen Anne (4 and 5 Anne Ch. 16) which by Section 27 provided that an action of account could be maintained by one joint tenant and tenant-in-common, his executors and administrators, against the other as bailiff for receiving more than comes to his just share or proportion.

(3.) This statute would apply whenever it was found that one co-tenant had received rents, money or other kinds of payment from third persons in respect of the tenancy, more than his proportionate share. It had no application where one co-tenant was himself in exclusive occupation or enjoyment of the common property, or when he employed his capital and industry in cultivating the whole of a piece of land in a mode in which the money and labour spent greatly exceeded the value of the rent or compensation for the mere occupation of the land, or where it was not possible, having regard to the circumstances of the case, to say that he had received more than his just share: vide Henderson V/s. Eason (1851) 17 Q.B. 701. As was observed by Parke B. in this case: The statute includes al] cases in which one of two tenants in common of lands leased at a rent payable to both, or of a rent charge, or any money payment or payment in kind, due to them from another person receives the whole or more than his proportionate share according to his interest in the subject of the tenancy. There is no difficulty in ascertaining the share of each and determining when one has received more than his just share, and he becomes as to that excess "the bailiff of the other, and must account."