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Thammannagowda Vs. Shankarappagowda - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 495 of 1948-49
Judge
Reported inAIR1952Kant106; AIR1952Mys106; ILR1952KAR267
ActsHindu Law; Code of Civil Procedure (CPC), 1908 - Order 20, Rule 18
AppellantThammannagowda
RespondentShankarappagowda
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateNitton Srinivasa Rao, Adv.
Excerpt:
the case discussed about a decree for mesne profits in a suit for partition that was filed on behalf of minor within the framework of rule 18 of order 20 of the civil procedure code, 1908 and the hindu law. - mysore general clauses act, 1899 section 10 & karnataka value added tax act, 2003, section 38(1) & karnataka value added tax rules, 2003 rule 148(4):[d.v. shylendra kumar, j] computation of time - assessment order passed by the assistant commissioner of commercial taxes -appeal under section 62 to the appellate authority - computation of period of limitation plea against dismissal of appeal as barred by limitation - held, the last date for presentation of the appeal being a holiday and the appeal presented on the very next day, should be taken to have been filed within the..........decree was passed granting a share in certain properties with a direction for payment of mesne profits by the persons in possession of the properties up-to-date of delivery after determination of the same in execution proceedings. the suit was filed on 28-3-1945 and the properties due to plaintiff were delivered on 7-2-1941. mesne profits were claimed lor the intervening two years. on a consideration of the evidence and the contentions of appellant, the learned munsiff fixed the amount payable at a certain sum which on appeal by appellant is slightly reduced. there are thus concurrent findings about the amount which the appellant is liable to pay & we see no reason to disturb this. sri krishnamurthy on behalf of appellant argued that the claim with respect to one year prior to.....
Judgment:

Venkata Ramaiya, J.

1. During the minority of respondent, a suit was filed on his behalf by his next friend for partition of the properties belonging to a joint family of which he was a member and for possession of his share. A preliminary decree was passed granting a share in certain properties with a direction for payment of mesne profits by the persons in possession of the properties up-to-date of delivery after determination of the same in execution proceedings. The suit was filed on 28-3-1945 and the properties due to plaintiff were delivered on 7-2-1941. Mesne profits were claimed lor the intervening two years.

On a consideration of the evidence and the contentions of appellant, the learned Munsiff fixed the amount payable at a certain sum which on appeal by appellant is slightly reduced. There are thus concurrent findings about the amount which the appellant is liable to pay & we see no reason to disturb this. Sri Krishnamurthy on behalf of appellant argued that the claim with respect to one year prior to the date of the decree is untenable in view of the fact that severance of status in the case of a minor plaintiff can only be deemed to be effected from the date of the decree. '16 Mys LJ 406' and '16 Mys LJ 521' 'APPALASWAMI v. SURYANARA-YANAMURTT, AIR 1947 PC 189 cited by him lend support to this, though it may be observed that in 'KUISHNASWAMI v. KULUKURUPPA', 48 Mad 465, such severance was held to have been effected I from the date of suit. This is not a factor which is a conclusive test for the award of mesne profits.

The appellant being in possession of the family properties cannot escape liability if by his conduct and acts others entitled to participate in the enjoyment thereof are shut out (See Mulla's Hindu Law, 10th Edn. page 302). The direction for ascertainment of mesne profits in execution proceedings is not correct as the enquiry according to '42 Mys 439' is a proceeding relating to the suit. This does not however affect the defendant's obligation since as held in 'BASAVAYYA v. GURAVAYYA', : AIR1951Mad938

'A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. If, as we think this is the true nature of the proceedings in a suit for partition, a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing inOrder 20, Rule 18, C. P. C. interdicting such pro- cedure.'

28 Mys. 257 relied upon is not of help to Appellantas it is a case in which mesne profits were allowedto a minor Pltff. for the period prior to the decreethough for the purpose of fixing his share, the deathof another plaintiff after suit was taken into account. The appeal fails and is dismissed withcosts.

2. Appeal dismissed.


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