1. Plaintiffs 1 to 6 are the sons and plaintiff 7 is a daughter of defendant 4 and plaintiff 8 is his brother. The plaintiffs 1 to 7 have brought a suit for partition and separate possession of their 13/15th share in the plaint schedule four items of property consisting of about 172 acres of wet and dry lands situate in Gundulpet Taluk, for mesne profits for four years before suit aggregating Rs. 20,000/- and for recovery of Rs. 2000/- claimed as compensation in respect of some an cuts which are the source of irrigation for the suit lands ana which the defendants wantonly neglected to repair.
2. The facts leading to the present litigation are briefly as follows: Defendant 1 filed a summary suit under the provisions of Order 37 R. I, Civil P. C., in the Court of the Subordinate Judge, Mysore, on the foot of a pronote executed by defendant 4 in his favour. Defendant 4 was allowed to contest that suit only on his furnishing security, which he did, by executing in favour of the Court on 31-3-1933 a mortgage bond whereby the plaint schedule properties and a house were given as security towards the satisfaction of any decree that may be passed in that suit. That suit was subsequently decreed and in Ex. Case No. 66/39-40 those properties were sold through Court and the right, title and interest of defendant 4 as on 31-3-1938 was purchased by defendant 1 and the sale was duly confirmed. He then applied for and obtained possession of the plaint schedule properties on 18-2-14 and subsequently sold the said properties to the father of defendants 2 and 3.On behalf of the family of plaintiffs 1 to 6, plaintiff 8 filed an application protesting against their wrongful dispossession in Mis. Case No. 124/41-42 when it was ordered that plaintiff 8 be put in possession jointly with defendant 1 and the father of defendants 2 and 3 which decision was confirmed in C. R. P. No. 238/42-43 by the High Court. Defendant 1 and the father of defendants 2 and 3 then brought a suit in C. S. No. 26/42-43 on the file of the District Judge, Mysore, againstdefendant 4 and plaintiffs 1 to 6 and 8 to set aside the order of the Subordinate Judge in the said miscellaneous case and to declare that they were entitled to exclusive possession of the entire schedule property. That suit was dismissed and that decision was confirmed in R. A. No. 101/44-45 by the High Court which held that only the interest of the lather of the plaintiffs had passed to defendant 1 as a result of the execution sale and not the right, title and interest of his sons therein. Plaintiff 8 then applied for re-delivery of the property and he was put in symbolical possession of the property on 31-6-46. The plaintiffs have now brought the present suit for partition and possession of their share and for mesne profits as stated above.
3. Defendants 1 to 3 did not deny that the plaint schedule properties are the joint-family properties of plaintiffs 1 to 7 and defendant 4 or that as a result of the decision of the High Court the plaintiffs are not entitled to a share therein. But they contended that plaintiffs 6 and 7 were not bom on 31-3-38, the date of the mortgage by defendant 4 in favour of the Court. They also pleaded that plaintiff 7 cannot in any event claim a share in the suit properties as she had no rights by birth in them; that the plaintiffs have not included in this suit a house referred to above and that, therefore, the suit is not maintainable as it amounts to one for partial partition. They also pleaded that defendant 4 had mortgaged all his properties which he got in a family partition to the Bangalore Central Co-operative Bank Ltd. for Rs. 8000/- on 16-4-37. That loan had been incurred to discharge certain ancestral debts binding on the family. Some payments had been made towards that debt and a sum of Rs. 3462-12-0 was still outstanding. The father of defendants 2 and 3 who had purchased the suit properties from defendant I had paid this sum to the Bank on 4-3-42 and was entitled to be reimbursed the said sum by the plaintiffs before they could claim possession of their share. The defendants also denied that they were liable to pay any damages or mesne profits and that these claims were very heavy.
4. The learned District Judge held that plaintiff 7, the unmarried daughter of defendant 4, was not entitled to claim any share as against defendants 1 to 3. He held that plaintiff 8 had been born and was in existence on 31-3-38 and that he was entitled to a share. He also held that the suit was maintainable and directed that defendants 2 and 3 may be paid some amounts as representing the value of their share in the house. He refused the plaintiffs' claim for damages in respect of the an cuts as well as the claim of the defendants for reimbursement. He found that the plaintiffs were entitled to mesne profits only for three years before suit and at a lesser rate than that claimed in the plaint. He accordingly made a decree in favour of the plaintiffs declaring that plaintiffs 1 to 7 are entitled to 6/7th share of the plaint schedule properties, for partition and possession of that share and for Rs. 2285/- as past mesne profits; and he directed enquiry under Order 20, Rule 12, C. P. C., in respect of the future mesne profits. Defendants 1 to 3 have appealed against that judgment only as regards the 6th plaintiff's share, mesne profits, a share in the house itself and the claim for reimbursement. They have not asked now for a dismissal of the plaintiffs suit nor paid Court fee for such relief. The plaintiffs have filed a memo of cross-objections regarding the quantum of mesne profits and the share awarded to the appellants in the house.
5. Mr. Lakshminaranappa, learned counsel for the Appellants, contends that the learned District Judge's finding that K. Suryanarayana, plaintiff 6, was born before 31-3-1938 is not correct. He urges that in Ex. II, the application made by defendant 4 for a loan to the General Co-operative Bank as well as in Ex. I, the mortgage deed dated 16-4-1937 executed by him in favour of that Bank, defendant 4 has clearly mentioned that he had only four sons and has not set out the name of plaintiff 6. (He has so omitted to mention the names of plaintiff 1 and plaintiff 7). He argues that so far as plaintiff 7 is concerned, as she was not entitled to claim a share as of right in the family properties except at a division, her name was rightly omitted. The name of plaintiff 1 was omitted probably because he was a major at the time and was employed outside Mysore on some Military duty and as his consent to the mortgage was difficult to obtain the father might have sup-pressed his existence from the Bank. No such reason is available to explain why the name of plaintiff 6 was not mentioned. The absence of such mention, it is urged by Mr. Lakshminaranappa, shows clearly that he could not have been in existence on that date.
This aspect of the matter has been considered fully by the learned District Judge and we are inclined to agree with him. It appears quite probable, as contended by Mr. U. Subrahmanyam, learned Counsel for the Respondents, that defendant 4 did not want to inform the Bank of the existence of plaintiffs 6 and 7 as the Bank might feel that there were too many minor sons and daughters who might either claim a share or whose upbringing would make it difficult for defendant 4 to discharge his debt. The name of a married daughter was mentioned in the application though clearly she had no interest in the properties. This probatailizes that defendant 4 did not want to mention his unmarried daughter's name as she was at least a kind of charge or present liability on the family.
6. Mr. Subramanyam strongly relies on the circumstance that in Ex. B, the plaint in O. S. No. 26 of 42-43, by defendants 1 and 2 filed on 22-3-1943, plaintiff 6 has been impleaded as defendant 7 and his age is given as about 11 years. This would mean that he must have been born in or about 1932. Mr. Lakshminaranappa contends that his elder brother Ganeshan's age has been given in that plaint as about 17 years while in the present plaint which is filed in January 1947 his age is given as about 18 years showing thereby that the ages that were put down in that plaint would have been only very approximate. But it is admitted by defendant 1, who has been examined as D. W. 4 in this ease, that he knew defendant 4, that before he filed the suit O. S. No. 18737-38 in the Sub Court against defendant 4 on his pro-note he had been on friendly terms with him and was also going to his house, that he gave instructions to his Counsel regarding the ages of the defendants in O. S. No. 26742-43 and that before giving such instructions he made enquiries about their ages, of defendant 4's brother's wife. After the present suit was filed he says he has not made inquiry about their ages. A person like defendant I who was a creditor of the family from quite a long time and who was trying to enforce the mortgage deed executed by the father and who was moving on friendly terms with the family and who admittedly made enquiries from a close relation of the family, who had no reason to mislead him cannot so easily escape responsibility for his statement under Ex. B.
7. There are also some other very significant circumstances which show that plaintiff 6 could not have been born only after 1938 as claimed bythe defendants. In the written statement, the defendants merely put the plaintiff to strict proof of the ages as given in the plaint and said that plaintiffs 6 and 7 were not born on 31-3-38. In the reply, which was filed in May 1947, it was stated for the plaintiffs that plaintiff 5 was studying in the Seshadripuram High School, Bangalore, and had been promoted to the VIth Form, that plaintiff 6 was studying in the Malleshwaram High School and had been promoted to the Vth Form and that the ages of plaintiffs 6 and 7 could not possibly be under 9 years on 31-3-38. These facts which have been sworn to by plaintiff 8 have not been seriously controverted. If plaintiff 6 was in Vth Form 1947 it is almost impossible that he would be less than 9 years of age. During the course of the suit the learned District Judge saw plaintiffs 6 and 7 in Court and on 18-2-48 he made a note as follows:
'The plaintiffs 5, 6 and 7 are now in Court, (the 5th plaintiff appears to be about 16 years of age, the 6th plaintiff is aged about 14 years and the 7th plaintiff is aged about 12 years)'.
Mr. Ranganadhan, learned Counsel for the defendants, appears to have been absent that day and it is argued before us that the note was made behind his back and cannot take the place of legal evidence. In fact it is contended that the learned District Judge could not have made a note of such observations at all. We have not been shown any authority for that extreme position. We see no reason why the learned District Judge should not make a record of the ages of the plaintiffs according to their appearance. Such a note is made about the age of witnesses, and the learned District Judge has on the next date been careful to record that the ages he has noted were by no means conclusive and were really a matter for proof in the suit. That estimate of the learned District Judge taken with the rest of the evidence greatly probabilises the truth of the plaintiffs' case regarding the age of plaintiff 6. The difference in age between 9 years and 14 years would have been quite obvious and there could hardly be much room for doubt that anyone could easily say the difference in appearance between a boy of 9 and a boy of 14 or 15.
8. It is contended for the Appellants that the burden of proving the age of plaintiff 6 lay heavily on the plaintiffs and that they could have given better evidence. It is represented for the respondents that they did make some attempt to produce some extracts from school registers but the same were not admitted as being not in proper form. The admission of defendant 1 in Ex. B, and the evidence of plaintiff 8 and the probabilities leave no room for doubt that the learned District Judge's finding that plaintiff 6 was in existence on 31-3-1938 is correct. There is much force in the learned Judge's observation that in a case like the present where defendant 1 had made an admission as per Ex. B, the burden was at ]east as much on him to show that the admission was made by mistake and to produce some evidence to prove the ages of plaintiffs 6 and 7; and this he has entirely failed to do.
9. It is next contended for the appellants that the Court below was in error in not allowing in favour of the defendants a sum of Rs. 3462-12-0. The main grounds on which it had been refused by the Court below is that such a claim had been made by defendant 1 and Ameerjan the father of defendants 2 and 3 in the previous suit O. S. No. 26 of 42-43 and was not granted and that the effect of the same would operate as a bar to the present claim and that that payment even if true was notshown to have been for purposes binding on the plaintiff.
In para. 19 of Ex. B, the plaint in that suit, it was pleaded that Ammerjan had paid the Central Co-operative Bank this sum and was therefore sub rotated to the rights of the Bank both in law and in fact; and in para. 23 (c) a relief in the alternative to the effect that if for any reason the Court did not grant the plaintiffs the relief for declaration that the Court sale in favour of the plaintiff was binding on the plaintiffs herein then the Court may order the sale of the plaint schedule properties for the realization of the amounts paid by Ameerjan to the Bank or to such part as may be found to be a proper charge on the properties with interest thereon at 9 per cent, per annum, was asked for. This claim for alternative relief was disputed and issues were framed both with regard to the factum of payment and the liability of the present plaintiffs to pay the same to defendant 1 and Ameerjan.
The then learned District Judge of Mysore, who tried the suit, held on a consideration of the evidence that Ameerjan was not shown to have paid the concerned amount to the Bank and he, therefore, refused to grant to the plaintiffs therein the alternative relief while dismissing their entire suit. On appeal to this Court the decision of the learned District Judge was confirmed by Venkataramana Rao, C. J. and Paramasiviah J. They held that the decree obtained on the foot of the pronote executed by defendant 4 and the execution proceedings consequent thereon was not binding on the minor sons' interests and refused to make a declaration in favour of the plaintiffs as prayed for. They did not also grant the alternative claim. In the appeal memo defendant 1 and Ameerjan had expressly raised this question.
It is contended that their Lordships have not even referred to this alternative claim in their judgment and therefore their judgment cannot operate as 'res judicata'. The argument is that when an appeal was filed against the decision of the District Judge it ceased to be 'res judicata' between the parties and that in the absence of a decision by the High Court for or against the plaintiffs in that suit, there is now no decision which bars their present claim for reimbursement. The findings of fact of the learned District Judge who tried O. S. No. 26 of 42-43 (and of the Court below in respect of the factum and binding nature of the payment) has also been canvassed before us; but it is unnecessary for us to go into that question now in the view of the law which we have taken.
10. Section 11, Civil P. C. bars a Court from trying any issue which has been directly and substantially in issue in a former suit between the same parties and which has been heard and finally decided. Explanation V to that section lays down that any relief claimed in the plaint which is not expressly granted by the decree shall for purposes of that section be deemed to have been refused. It is urged that the relief claimed in the former suit was merely to declare a charge on the suit properties and to direct their sale while the present claim for reimbursement is for payment to defendants 1 to 3 of a specific sum of money and are therefore different. The claim in the former suit was also in money. The sale of the properties was to be made only for the purpose of recovering the amount by the plaintiffs in that suit. Even now the defendants want that they should be allowed to remain in possession till they are paid off the said amount. In our opinion the wording of explanation V to Section 11 bars the grant of any such relief to the defendants.
11. In support of his contention Mr. Lakshmi naranappa has relied on some decisions which may be examined. In -- 'Nilvarn v. Nilvaru', 6 Bom 110 (A), the plaintiff brought a suit for damages caused by the defendant's cutting and removing certain trees on a piece of land which he alleged belonged to him. In the trial Court two issues were raised, viz,, whether the land belonged to the plaintiff and whether the act of trespass alleged had been committed by the defendant. The trial Court found both those issues against the plaintiff and dismissed the suit. On appeal, the appellate Court did not decide the question of title but upheld the decree of the trial court on the ground that the defendants had not committed trespass. In a later suit where the plaintiff sought to recover possession of the piece of land, the decision in previous case regarding title was not held to be 'res judicata', it being held that the appellate Court had declined to decide the issue. It was clearly unnecessary to decide that issue as if no trespass had been committed the plaintiff would be clearly entitled to no relief. This case has no bearing on the present question.
12. In -- Venkataratnama v. M. Krishnamma', AIR 1921 Mad 21 (P. B.) (B), a suit was brought for declaring a will to be a forgery. It was also contended that it operated as authority to adopt. The trial Court gave a decision on both the questions. The High Court, however, decided only on the question of the genuineness of the will. Subsequently in a suit brought for a declaration that an adoption made in pursuance of the will was invalid, it was contended that the consideration of that question was barred. It was held that the question as to the will being operative as an authority to adopt was not so barred and that the doctrine of constructive 'res judicata' enunciated in Explanation IV to Section 11 did not apply. Abdur Bahim, Offg. C. J. observed that
'by the plaint in the earlier suit, all that was asked for was a declaration that the alleged sale was not genuine. It did not contain any alternative prayer that even if the document was found to be genuine the Court should hold that it was not a will but an authority to adopt and as such invalid for non-registration. The issue framed was also confined to the question of genuineness of the document. But at a later stage of the trial the other question 01 the construction and operation of the document was allowed to be raised and determined by the trial Court.'
Seshagiri Ayyar, J. observed that 'the mere ground of attack relating to the main relict should not be regarded as a separate relief and the refusal to entertain a ground which related to the relief which was adjudicated upon by the judgment cannot be regarded as a refusal to relieve. Therefore the constructive 'res judicata' referred to in Explanation V had also no application to that case'. This decision therefore dees not really help the appellants.
13. In -- Karuna Charan Das v. Krishna Sun-dar', AIR 1326 Cal 179 (C), -- '6 Bom 110 (A)', was applied and it was held that when the judgment upon a particular issue by a Court of first instance is appealed against that judgment ceased to be 'res judicata1 and becomes 're sub judice' and if the appellate Court declines to decide that issue and disposes of the case on other grounds, the judgment of the first Court upon that issue is no more a bar to the future suit. Neither in this case nor in--'Gulab Rai v. Sundar Lal : AIR1925All243 , nor in -- 'Nga Ti v. Nga Pan', AIR 1914 U. B. 43(1) (E), was the applicability of the explanation to Section 11 involved.
14. Mr. Subrahmanyam has relied on --'Wadhava Singh v. Ladha Singh', AIR 1931 Lah 335 (F) for contending that if there are two issues which had been determined in a suit and the decision of either was potent enough to defeat the plaintiff's whole suit then it is open to the defendant in a subsequent suit to rely upon the previous decision on the one or the other of the issues and to ask the Court to throw out the plaintiff's case as barred by 'res judicata;' and on -- 'Kotayya v. Subbaya : AIR1937Mad114 , where it was held that though a finding on an issue may not be necessary for the disposal of the suit yet it a party invites the decision of the Court on that issue and the Court also considers it necessary to go into it and give a finding thereon, the decision on that issue will constitute 'res judicata' in the subsequent suit provided the party against whom there was a finding on that issue would be in a position to carry the matter in appeal.
15. In this Court in -- '17 Mys C. C. R. 217 (H)', following an earlier decision in -- '13 Mys C. C. R. 145 (I)', it has been held that where a decision is, as a matter of fact, based on two grounds either of which would by itself be sufficient to support the decree, the decision upon each such ground is conclusive between the parties and is 'res judicata' in a subsequent suit.
16. We do not think that the above rulings are applicable to the circumstances of the present case. Explanation V to Section 11 C. P. C. declares unequivocally that any relief claimed in the plaint which is not expressly granted by the decree shall for purposes of Section 11 be deemed to have been refused. Stress is laid in that explanation on 'the relief claimed in the suit'. Mulla in his Code of Civil Procedure, 11th Edition, has pointed out that Explanation V does not apply unless the relief claimed is (1) a substantial relief and (2) it is such as it is obligatory on a Court to grant.
In O. S. No. 26 of 42-43 defendant 1 and Ameerjan expressly prayed for the alternative relief to enable them to recover this sum. They referred in para 10 of their plaint to the borrowing by the father of the plaintiffs from the Central Co-operative Bank and in para. 19 to Ameerjan paying that Bank a sum of Rs. 3432-12-0 and having become therefore subrogated to the rights of the Bank both in law and in fact; and in para 23(c) they stated that if for any reason the Court was not prepared to grant to the plaintiffs a declaration that the Court sale in favour of defendant 1 was fully binding on the plaintiffs in this suit then to order the sale of the schedule property for the realization of the amounts paid by Ameerjan to the Bank or such part of it as the present plaintiffs could be held liable to contribute towards the same with interest thereon. That alternative claim of theirs also was rejected by the learned District Judge who held that they had not made out that they had paid off the Bank. The appeal to this Court in -- R. A. No. 101 of 44-45 expressly included the grievance that they had not been granted this alternative relief. The same could have been granted by the District Judge or by this Court on appeal in O. S. No. 26/42-43; and while it was refused by the District Judge it was certainly not granted by this court. In these circumstances we fail to see how the appellants can escape the clear provisions of Section 11, Explanation V.
17. It has been contended for the appellants that if it is found that Ameerjan had properly paid this sum to the Bank and that that debt was incurred for legal necessity binding on the minors, defendants 2 and 3 are entitled to remain in possession till the same is paid off and that a decree in favour of the plaintiffs can only be made conditional upon their paying this amount to defendants 2 and 3. In this view it is urged that the plaintiffs would not DC entitled to recover any mesne profits until they have deposited that sum in Court.
In support of this contention reliance is placed on -- 'Madhavrao Ganpat v. Shankar Hari', AIR 1943 Eom 278 (J). That was a case of an alienation by a manager of a joint Hindu family accompanied by delivery of possession for a declaration that the sale of the joint property by a manager was not binding on him. Part of the consideration was found to be not for legal necessity and the sale, was set aside. It was held that the plaintiff could recover possession of his share only on the condition of his paying to the defendant alienee a proportionate share of the consideration found binding on the family. The plaintiff in such a case was not entitled to mesne pro-fits 'from the date of suit but only from the date of deposit of the money on which recovery of possession was made conditional. in -- 'Vadivelam Pillal v. Natesam Pillai', AIR 1914 Mad 582 (K), where the managing member of a joint Hindu family had sold the family property for consideration of which a part was found to be binding on the family, it was held that the proper decree to be made in favour of the plaintiff was conditional one on his paying the defendant a proportionate share of the consideration found binding on him together with mesne profits from the date that he deposits the amount into Court and gives notice thereof to the defendant. We do not think that that principle would apply to the present case. The present is not a case of an alienation by a manager which the minor members are seeking to set aside. It is a case of a compulsory sale through Court.
18. The debt in favour of the Central Co-operative Bank was a simple mortgage debt and not accompanied with possession. It is not even alleged that the Bank was pressing for payment or was about to file a suit, it was not entitled to possession under the mortgage and if Ameerjan paid the amount due to the Bank he could at the most claim to be subrogated to the position of that Bank, see Section 92, T. P. Act. He could have asked for the amount being realised by the sale of the hypothecated properties. This he has already done, and failed in the previous suit. Ameerjan could not improve his position vis a vis the minors by paying some debt which may even be found binding on the minors for the purpose of denying mesne profits to them. If the contention of the Appellants is to be accepted even a stranger wrongful purchaser may pay off some small debt binding on the minor members of a family without any valid Justification or pressure and claim that he should remain in possession until the amount he has paid is recouped to him. The amount apparently need not have any relation even to the quantum of mesne profits according to the appellants. The principle enunciated in the decisions relied on for the appellants is not based on any statutory rule but is one of equity, and we think that the Court is entitled to mould the application of such equitable principles in accordance with the circumstances of each case.
19. In this connection it was contended for the appellants that the above view worked a serious hardship on them. It is difficult to see wherethe hardship comes in. According to the law in Mysore it was quite clear that in a suit on a pro-note only the right, title and interest of the father who was the executant could be proceeded against irrespective of whether the amount was borrowed for legal necessity or not. In spite of it defendant 1 chose to bring to sale the entirety of the very considerable and valuable proper ties in which the minor sons of the executant had shares and purchased them himself and sold them to Ameerjan who obviously knew or ought to have known that he was purchasing litigation. We have no evidence in this case for what price Ameerjan purchased these properties. It was mentioned at the time of arguments that the purchase was for only Rs. 12,000/-. They managed to dispossess the plaintiffs of all their valuable lands and till very recently have successfully kept them out of possession by filing the suit under Section No. 26/42-43 and later on by taking it up in appeal not satisfied with the decision of the District Judge. In these circumstances the appellants cannot be seriously heard to complain of any hardship.
20. The next contention raised for the appellants is with regard to mesne profits. The Court below has awarded mesne profits for only three years before suit at the rate of Rs. 1000/- per year. While the appellants contend that no mesne profits should have been awarded at all, the respondents have filed a memo of cross-objections complaining that the amount awarded is much too low and that they should have been awarded mesne profits for four years at Rs. 5000/- per year as claimed in the plaint; but in their cross-objections they have restricted their claim at Rs. 3500/-per year as they are unable to pay the requisite Court-fee on any higher claim.
21. We think that the award of mesne profits for only three years before suit is not correct. Mr. Subrahmanyam has contended that the position of a purchaser in Court auction like defendant 1 is that of a tenant in common with the other-coparceners, and for that position he has relied on cases reported in -- Naro Gopal v. Para Gowda Basagowda, AIR 1916 Bom. 130 at p. 131 (L) --'Veerappa. v. Anantharaman', 53 Mys H. C. R. 438, (M) -- '19 Mys C. C. R. 67 at p. 69 (N) -- '22 Mys. C. C. R. 293 at page 295 (O). He urges that if the purchaser is treated as a tenant in common the claim for mesne profits by a coparcener against him falls under Article 120 and not under Article 109, Limitation Act. (Article 109 prescribes a period of 3 years for a suit to recover the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant). For this position he has strongly relied on the cases in -- 'Siddalingana Gowd v. Bhimana Gowd', AIR 1935 Mad. 731 (P) and -- 'Yerukola v. Yerukola', AIR 1922 Mad. 150 (FB) (Q).
22. In -- 'AIR 1922 Mad. 150 (F. B.) (Q) the parties were members of a joint Hindu family who had become divided in status but the properties had not been divided and apportioned among them. Subsequently one of them brought a suit for partition by metes and bounds claiming also for an account being taken of the moveable properties outstanding and collections made by the various members in respect of the properties. It was held by a Full Bench of five Judges that the proper article to be applied in such a case was Article 120. The period of limitation would run from the date of demand of the share by the plaintiff or refusal by the defendant. If the rents and profits were received by one of them with the consent of the others Article 89 may apply as he might be deemed to be an agent of the others; but neither Article 62, nor Article 127, nor Article 109 were applicable. Dealing with the applicability of Article 109, which the District Judge had applied Schwabe C. J. said that the same 'was not in terms applicable.' He observed:
'that it appeared to be well settled that a receipt of profits by one of several tenants-in-common was not wrongful.'
Kumaraswami Sastry J., dealing with the same contention observed:
'It seems to be clear that the receipt of profits by one of several tenants in common cannot be said to be wrongful. The receipt of rents or profits from tenants or persons in occupation of lands held in common is one of the ordinary modes of enjoyment of property and it cannot be said that a tenant in common is not entitled to receive the rents due.'
In -- 'A. I. R. 1935 Mad. 731 (P)' this case was referred to and followed with approval. In that case the plaintiffs were members of a joint Hindu family. The defendant held a mortgage over certain joint family properties but that mortgage had been executed only by a step-brother of the plaintiffs. In execution of the decree obtained on that mortgage, the defendant himself became the purchaser of the properties. As the plaintiffs and another deceased brother of theirs were not parties to the suit on the mortgage they resisted the defendant when he attempted to take possession as execution purchaser. The Court ordered their obstruction to be removed, and the plaintiffs brought a suit for mere declaration which later on was amended by the addition of a prayer for possession of the properties. The plaintiffs' suit was ultimately decreed for partition and possession of a 5/7th share of the suit properties and to a 5/7th share of the profits received from those properties. The question arose whether they would be entitled to such profits for 4 years before suit or for only 3 years.
Varadachariar, J., as he then was, after a discussion of all the relevant previous case-law on the Subject, held that the principle of the Full Bench ruling in -- 'AIR 1922 Mad. 150 (Q)' was clearly applicable and the suit for mesne profits must be held to be governed by the 6 years rule of limitation prescribed by Article 120. He observed that the parties were clearly in the position of co-owners. He referred to Col. (1), Article 109, and pointed out that neither of the conditions assumed by Col. (1) can apply as between co-owners because in such a case the property cannot be said to belong to the plaintiffs alone nor could profits derived by the other co-owners be held to have been wrongfully received by them. That is why it had been held in several cases that the proper conception even in respect of a claim in the nature of damages as between co-owners is that he has claimed for compensation and not made a claim for mesne profits.
This case has been followed in -- 'Sundararaja Ayyangar v. Raghava Reddi : AIR1936Mad654 . See also -- 'Naganna Naidu v. Venkatarayulu Naidu', : AIR1951Mad234 (S). In -- Midnapore Zamindari Co. v. Naresh Narayan Roy see -- 'Midnapore Zamindari Co. v. Naresh Narayan Roy', AIR 1924 P. C. 144 (U) where a co-sharer had been given symbolical possession in execution of a decree for joint possession in a suit for partition & separate possession, it was held that he should be allowed mesne profits for only 6 years previous to suit. There is no discussion in that judgment, but it is instructive as showing that apparently that position was not seriously controverted. In -- 'Rangayya Naidu v. Subbayya Naidu : AIR1936All706 it has been held that where the suit is between co-sharersfor share of profits realised by a co-sharer in possession, Article 120 and not Article 89 applies. Where some of the co-sharers have been deprived of the use and occupation of the land and of the use of the profits they have derived from the land since the other co-sharers had appropriated them, the former should be compensated for the loss suffered due to non-use of the money by them.
23. In -- '53 Mys. H. C. R. 438 (M)' it has been held that the legal possession of a purchaser at Court sale of the right, title and interest of a coparcener in an item of joint family property is that of a Tenant in common with that of the other coparceners, that mere non-participation in profits by a Tenant in common would not amount to ouster and that a suit brought by such a purchaser of a coparcener's share for partition and possession is governed by Article 144, Limitation Act. In that case the Court did not award to the purchaser mesne profits prior to suit and the question of limitation in a suit for such recovery did not, therefore, arise for consideration. -- '10 Mys. C. C. R. 52 (w)' was referred to in that decision and it was pointed out that an observation in that decision based on -- 'Muttusami v. Ramakrishna,' 12 Mad. 292 (X) that
'The possession of one coparcener is the possession of all for purposes of limitation does not apply as between a purchaser from one of the coparceners and another coparcener'
was merely an 'obiter dictum' of the learned Judges and did not arise for consideration in that case.
In -- '45 Mys. H. C. R. 450 (Y)' which was a suit, for partition and accounts of rents and profits as between co-owners who had become divided in status but had not actually divided the immoveable properties by metes and bounds, Article 89 was applied as a relationship of principal and agent was established between the person who had collected such rents and mesne profits and the plaintiff, as the former was found to have been managing the properties. -- '10 Mys. C. C. R. 49 (Z) was relied on for the contention that a claim for an account of mesne profits was subject to a limitation of 3 years. Their Lordships, however, considered that
'that case could be easily distinguished, inasmuch as the joint owners in that case were not members of a joint Hindu family. The parties there were holders of specific and definite, though undivided, shares and were not living as members of a joint family. Each of the persons interested had been taking out of the property, which, consisted of some jungle and other land, whatever he liked'
and those circumstances were considered as justifying the application of Article 109, Limitation Act. A suit by one co-sharer against another who is in exclusive possession of the joint property for compensation for use and occupation, or for his share of the rents and produce of the joint family property would, it was observed in that case, fall within Article 120. -- 'AIR 1922 Mad 150 (FB) (Q) -- 'Po Nyun Maung V. Ma- Saw Tin, A. I. R. 1931 Rang. 150 (Z1) and -- : AIR1936Mad654 were referred to and relied on for holding that a suit by one co-sharer against another for the share of the rents collected fay the latter is within Article 120 and Article 109 could not apply because the defendant could not be said to have received the rents wrongfully so as to attract its operation.
24. In -- 'Sreenivasachar v. Rama Rao', 23 Mys. L. J. 179 (Z2) the Courts below had concurrently found that the plaintiff and the defendant who had once been members of a joint Hindu family had become divided in status before the suit was filed and that they were co-sharers owning definiteshares without having effected a division of the family properties by metes and bounds. It was pointed out that the receipt of the family income by one of the members could not be wrongful and Article 109 must therefore be excluded from consideration. -- '45 Mys. H. C. R. 450 (Y)' was relied upon to apply Article 120. -- 'AIR 1922 Mad. 150 (Q)' -- 'A. I. B. 1938 All 706 (V)' and -- 'AIR 1925 P. C. 93 (1) (T) were referred to in support of that position. -- '10 Mys. C. C. R. 49 (Z) which was relied on even on that occasion was distinguished, their Lordships adopting the reasons given in --'45 Mys. H. C. R. 450 (Y) for so doing. -- '10 Mys C. C. R. 49 (Z) relied on for the appellants has, therefore, no application and the respondents are entitled to mesne profits for four years before suit.
25. In the present case there is a further circumstance in favour of the plaintiffs. By an order in Mis. Case No. 124/41-42 which was confirmed in C. R. P. No. 238/42-33 by the High Court it was directed that plaintiff 8 who was and is acting for plaintiffs 1 to 7 should be put in possession jointly with defendant 1 and the father of defendants 2 and 3. In the face of that order it is difficult for the appellants to contend that they must be deemed to have been in such wrongful and exclusive possession of the properties as would bring their case under Col. (1) of Article 109, Limitation Act. We must, therefore, hold that the plaintiffs are entitled to four years mesne profits and not only for 3 years as held by the Court below.
26. As regards the quantum of mesne profits, the burden of proving the actual mesne profits which the persons like defendants 2 and 3 who are in actual possession of the lands realized from them is on them while if the plaintiffs claim any mesne profits on the basis that with due diligence the person in possession could have realised more profits from the lands would be on the plaintiffs; see -- 'Ramakka v. Nagesam : AIR1925Mad145 and -- 'Abdul Gaffur Rowther v. M. Samsuddin Rowther', A. I. R. 1925 Mad. 297 (Z4). The present claim of the plaintiff is only on the former basis and the onus of proof is clearly on the defendants to make out what they had realized from the properties during the years in question. In O. S. No. 26 of 42-43 defendant 1 and Ameerjan had claimed Rs. 1500/- per year as mesne profits. The reason given by the learned District Judge to reduce the present plaintiffs' claim even to a figure lower than that is clearly unconvincing. Indeed the learned District Judge has not discussed the evidence in the case relating to the actual yield from the lands and has awarded more or less an arbitrary figure as mesne profits. (After discussion of evidence with regard to mesne profits and determining the amount the judgment proceeds as follows):
27. It was next contended for the appellants that the direction given in the concluding portion of para 19 of the judgment of the learned District Judge that instead of dividing the tiled house in Panjanahalli and giving the defendants their l/7th share they may be paid Rs. 285/- as being the approximate value of the 1/7th share due to them in respect of the house was not proper. It is urged that the Court was bound to have determined the present value of the house and allowed 1/7th share of the same to defendants 1 to 3 instead of fixing its value without any evidence. We think there is some force in that contention. That provision in the judgment will, therefore, be modified by directing that the Court below will determine the value of the-house and allow defendants 2 and 3 to recover 1/7th share of its value. Mr. Lakshminaranappa has urged that they might be given a share in the house by actual partition taut we are inclined to think that the District Judgehas decided correctly in holding that the house which is apparently a small one In a village cannot and need not be partitioned by metes and bounds.
28. In the result, subject to the slight modification indicated above the appeal is dismissed with costs. The memorandum of cross-objections is allowed with costs. The connected C. R. P. No. 331 of 50-51 is not pressed. It is dismissed. There will be no order as to costs.
29. Order accordingly.