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S. Shankar Alva Vs. S. Ramayya Naik - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal No. 248 of 1960
Judge
Reported inAIR1964Kant16; AIR1964Mys16; (1963)1MysLJ360
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 1; Limitation Act - Sections 27 - Schedule - Articles 88, 89, 106 and 120
AppellantS. Shankar Alva
RespondentS. Ramayya Naik
Appellant AdvocateMohandas N. Hegde, Adv.
Respondent AdvocateT. Krishna Rao, Adv. for ;N.T. Raghunathan, Adv. and ;M. Gopala Krishna Shetty, Adv.
Excerpt:
- code of civil procedure, 1908. order 21: [n.k. partil, j] execution proceedings application filed by the petitioner under section 114 read with section 151 to review the order passed by the execution court - petitioners repeated applications one after another only to trouble the respondent rejection of - held, it is the case of the respondents before the execution court that petitioner is not the legal representative of puttamadamma or nanjamma and hence, he has no locus standi to intervene in the above proceedings and by a considered order, the execution court has rejected the affidavit filed by petitioner and no revision or review has was taken up against the said order and therefore, the execution court has observed that, petitioner cannot re-agitate against the said order once.....kalagate, j. 1. this appeal arises out of o.s. no. 107 of 1952 filed by the respondent-plaintiff in the court of the subordinate judge, south kanara, claiming accounts of all the monies realised by defendant 1 from the plaint schedule properties and praying that the said defendant may be directed to pay him his share of the amount so found due. the trial court decreed the plaintiff's suit. hence this appeal by the defendant.2. the facts giving rise to this appeal may be briefly stated as follows:3. the plaintiff filed the suit against defendants 1 and 2. defendant 2 who is since dead was joined as a proforma party against whom no claim was made. the claim was only against defendant 1. plaintiff and defendant 1 with defendant 2 formed members of one joint aliyasanthana family. defendants 1.....
Judgment:

Kalagate, J.

1. This appeal arises out of O.S. No. 107 of 1952 filed by the respondent-plaintiff in the Court of the Subordinate Judge, South Kanara, claiming accounts of all the monies realised by defendant 1 from the plaint schedule properties and praying that the said defendant may be directed to pay him his share of the amount so found due. The trial Court decreed the plaintiff's suit. Hence this appeal by the defendant.

2. The facts giving rise to this appeal may be briefly stated as follows:

3. The plaintiff filed the suit against defendants 1 and 2. Defendant 2 who is since dead was joined as a proforma party against whom no claim was made. The claim was only against defendant 1. Plaintiff and defendant 1 with defendant 2 formed members of one joint Aliyasanthana family. Defendants 1 and 2 are uterine brothers and the plaintiff is the son of the deceased sister of the defendants.

4. It appears that this family owned considerable property but defendant 2, who was the yajaman of the family, had incurred some debts. Therefore they entered into an agreement under Ext. A-1, dated 5th August 1935, the details of which I shall relate at the appropriate place. By this agreement, the property in this suit which was known as 'Schedule 'B' property' in the said agreement was given to the present plaintiff and defendant 1 (who hereafter shall be referred to as the defendant) as Adalitadars who were to enjoy the income thereof after meeting certain liabilities. The plaintiff was practising as an Advocate in Madras and the defendant was in the Forest Service in Jaipur. Hence the plaintiff and the defendant executed a power-of-attorney dated 5th August 1935 in favour of one B.S. Sankar Alva for managing the suit property.

5. In the year 1944, the defendant seems to have left the service and came back to Mangalore and soon thereafter terminated the said power-of-attorney and assumed the management himself. Since then he has been in actual management of the properties and receiving the rents and profits from the same.

6. It is also stated that a sum of Rs. 15,000/- belonging to the plaintiff has bean utilised for the benefit of the family and it was agreed, by the agreement of the year 1935, that the plaintiff should be repaid this sum By instalments of Rs. 1,500/- per year out of the income realised from the suit property. The defendant, it is stated, after he assumed the management, adopted a hostile attitude to the other members of the family and did not meet the obligation arising out of the said agreement. The plaintiff, therefore, states that the defendant is liable to account to him in respect of his management of the properties from 1944.

7. It appears that on 31st July 1944, the 2nd defendant as the manager issued a notice to the 1st defendant and the plaintiff, cancelling the agreement and claim-Nig the management of all the properties and called upon the first defendant to deliver possession of the suit properties and to render accounts. Defendant 1 neither delivered possession nor rendered accounts and, therefore, the second defendant and the present plaintiff filed O.S. No. 96 of 1949 in the Court of the Subordinate. Judge, South Kanara, for partition and accounts of the income of the properties. The first defendant contested the claim therein. The trial Court held that the entire family properties were divisible among the sharers but the plaintiff in ins present suit alone was held entitled to claim accounts from the first defendant. The matter was taken up in appeal to the High Court of Madras which confirmed the decree of the trial Court. That means, the plaintiff alone was held entitled to claim accounts from defendant 1.

The plaintiff, however, during the pendency of the appeal instituted the present suit on the basis that he and the defendant are co-owners and the defendant being in exclusive possession is liable to render accounts to him of the income realised by him of the suit properties as co-owner. He further alleged that no part of his claim is barred by the law of limitation since the defendant at no time denied his right to claim accounts. He further prayed that he should be awarded the amount found due after taking accounts from the defendant. The accounts have been claimed from 24th February 1944 to 14th May 1949 i.e. the date of the filing of O.S. No. 96 of 1949.

8. The defendant denied in general the allegations made in the plaint. He, however, admitted the facts relating to the suit O.S. No. 96 of 1949. He then contended that the suit properties are 'to be deemed to be the separate and absolute properties belonging to the plaintiff and this defendant in which the second defendant has no right and, so far as the present plaintiff and himself are concerned, under the karar there is no stipulation' that he should render accounts to the plaintiff, he being the yajaman and manager was not liable to render accounts to him. He admitted that he took possession of the suit properties from the attorney-holder and was managing the same since then, but he stated that the management was in his own right as the yajaman and manager thereof. He further contended that the plaintiff has no right to claim accounts from the defendant from 24th February 1944 to 14th May 1949 and that the right, if any, is barred by the law of limitation. He also denied the Plaintiff's claim in respect of Rs. 15,000/-.

9. The trial Judge, on these pleadings, raised appropriate issues. Issues Nos. 1 and 2 are relevant for the purpose of this appeal. Issue No. 1 relates to the defendant's liability to account to the plaintiff and issue No. 2 relates to the defence that the plaintiff's claim for accounts is barred by the law of' limitation.

10. It has to be noted that no oral evidence has been led by either party to the suit but both parties merely relied upon the documents produced in the case. The trial Judge held that the defendant is liable to render accounts to the plaintiff and that the latter's claim for accounts is not barred by the law of limitation. As a result of his findings, he passed a preliminary decree for accounts on the 19th of August 1960, and it is against this decree that the present appeal has bean preferred by the defendant.

11. Mr. Mohandas Hegde, who appears for the appellant, has submitted two points for our consideration: (1) as to whether there is any liability on the defendant to render accounts to the plaintiff and (2) whether the plaintiff's claim for accounts is not barred by the law of limitation.

12. As to the first point, what Mr. Hegde contends is that the properties in suit were allotted for enjoyment to his client and the plaintiff under Ext. A-1, an agreement of the year 1935, and that there is no clause in the agreement which requires his client to render accounts to the plaintiff. Now, why this agreement of the year 1935 came to be entered can be seen from this Ext. A-1 itself. It states that defendant 2 had incurred debts. In order to satisfy a part of the debt, some properly of the family was mortgaged in favour of defendant's wife. It further states that there are some more debts to be discharged and in order that no further debts may be contracted in future by any of the parties to the agreement, they entered into the said arrangement as contained in Ext. A-1. What is described as 'A' schedule property in the agreement and a house were given to the 2nd defendant for the maintenance and residence of the family and to meet his own expenses.

It further states that, as regards the properties of the B list, the present plaintiff and defendant 1 would in future be the Adalithedars thereof and shall enjoy the same either by themselves personally or through others. However, it is stated that from the income of the said property they shall pay the 'theerve' of the A and 8 schedule properties and shall pay the interest due on the debts. Having made this arrangement, it further states that none of the parties to the agreement has any right to encumber any property either in the A schedule or in the B schedule. In case, it is necessary for the family to borrow a loan, it shall be jointly done by all the three together. These, in short, are the terms of the agreement.

13. It is, therefore, clear from this agreement that the B schedule property, with which we are concerned in this appeal, was given for the enjoyment of the present plaintiff and the defendant. Thus the plaintiff and the defendant were constituted co-owners of the property in the sense that the income of the suit property was to be enjoyed by them absolutely subject to the liabilities mentioned therein. It is on this basis that the present plaintiff has instituted a suit for accounts of the realisations made by the defendant while he was in possession thereof. The defendant has, as stated in his written statement. In terms, admitted that he and the plaintiff are co-owners. Exhibits A, 4, 5 and 6 also confirm his admission. Further the defendant has admitted that he did make realisation of the rent and profits of the property. But what he contends is that he as the yajaman is not liable to render any accounts to the plaintiff and that his claim, if any, is barred by the law of limitation.

14. The question, therefore, that arises is, If, in the circumstances as in the present case, two persons are joint owners of a property and one of them is in possession of the same enjoying the entire income for himself, then whether the person in possession is liable to render accounts, to the other co-owner. What Mr. Mohandas Hegde contends is that the property of which his client was in possession was allotted to his client and the plaintiff by the agreement Ex. A-1. His possession, therefore, being referable to Ext. A-1 and there being no obligation to render accounts under that exhibit, he contends that his client is not liable to render accounts to the plaintiff. It is true that there is no clause in the agreement regarding the accountability by any party. But the property in suit was allotted to the present plaintiff and the defendant for enjoyment as stated in the agreement; the allotment to them was as co-owners, as stated before, the income of which was to be enjoyed by both the plaintiff and the defendant. Therefore, if the defendant himself, remaining in exclusive possession, enjoys the income wholly for himself without giving the plaintiff his share, then there seems to be no reason why the defendant should not be held liable to render accounts to the plaintiff. The liability to render accounts in such circumstances is one of the Incidents of the Joint property and when the defendant, as admitted by him in his written statement, has realised the profits wholly for himself, then, in equity, he must be held liable to render accounts of the realisation made by him and directed to pay the share of the plaintiff. It would be highly dangerous and inequitable to hold otherwise.

15. This aspect of the case came for consideration In the decision Abu Shahid v. Abdul Haque : AIR1940Cal363 . In that case, the facts were that the plaintiff and two defendants took a lease of land and structure jointly on 26th August 1925 and from the very beginning of the lease, the management of the lease-hold properties was entirely left to defendant 1 alone by his co-lessees and it was he who realised tolls from the vendors and stallholders and paid the rents and taxes due to the landlords and 'the municipality. It was stated that although the market became a profitable concern, the first defendant did not pay anything to the plaintiff as his share of the Profits. It was in such circumstances that the plaintiff instituted a suit against the defendant for rendition of accounts of the profits of the market from 25th August 1929 to 7th January 1937 and prayed that the defendant be directed to pay him such sum of money as may be found due to him on taking accounts. The defendant contested the plaintiffs claim on two grounds, that the lease-executed In favour of himself and others was, in fact, benami for the Bazaar Committee and that the plaintiff. In tact, was not one of the lessees. It was further contended that the suit was not maintainable in the form in which it was brought and that it was barred by the law of limitation. The trial Court decreed the plaintiff's claim accepting the plaintiff's case as true. On appeal to the District Court, the District Judge, though he agreed with the finding of fact, yet dismissed the suit on the ground that the suit was not maintainable in law and that It was barred by the law of limitation.

16. Then the matter was taken up to the High Court in second appeal and it was there contended for the appellant thai the lower appellate Court was wrong on both* the grounds. On behalf of the respondent, the decree of the lower appellate Court was sought to be supported on the ground that the defendants were not co-owners but co-sharers with him in the market business and he could demand accounts only on dissolution of the partnership. The High Court accepted1 the finding of the lower appellate Court that the parties were co-owners and it is on that footing that the plaintiff's claim for accounts was investigated. The judgment of the Court was delivered by B.H-Mukherjea J. {as he then was).

17. While considering the question as to- whether the-defendant was liable to render accounts to the plaintiff, the learned Judge observed:

'The Question that we have to decide is whether on* 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 an* the question has gat to be answered on general principles of equity, justice and good conscience.'

His Lordship then examined what was the English law off the subject and observed:

'If one tenant-in-common occupied and took the whilst profits, the other had no remedy against him whilst the ten--icy 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 Anna 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 cones to his just share or proportion.'

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 properly or when ha 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. Eason, (1851) 17 QB 701.' Then his Lordship referred to the following observation made by Parke B in that Case:

'The statute includes all cases in which one of two tenants in common of lands leased at 3 rent payable to both, or of a rent charge, or any money payment or payment in hind, 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.'

and observed:

'This was the principle underlying the statute of Anne. Quite apart from this statute, the Courts of Equity in England entertained bills for account, by one co-sharer against another on the same equitable grounds, (vide) Denys v. Shuckbergh, (1840) 4 Y and C. Ex. 42 .....'

Then his Lordship further stated:

'Queen Anne's statute itself cannot of course apply to India, and it has now been repealed in England, but the principle which was embodied in this statute and which was given effect to by equity Courts in England, can I think be applied as a rule of equity, justice and good conscience in India, In the absence of any statutory provision on the point.....'

18. The argument of the learned counsel for the respondent that if such a principle is applied, it would be open to one co-owner by leaving the property to the management of the other co-owner to impose upon the latter an obligation of a fiduciary character, was repelled by stating that there is no fiduciary relation between co-owners of a property as such (vide) Kennedy v. De Trafford. (1897) AC 180 and that if one co-owner realises rents and profits, he does so in his capacity as an owner for which no agency from the other proprietor was necessary but that for what he received in excess of share, he must be under an obligation to account to the other co-sharer.

19. We, with very great respect, are in entire agreement with the principle enunciated by his Lordship.

20. It must, therefore, be held that in between theco-owners, if one of them, while remaining in possession,realises rents and profits and utilises them wholly forhimself without paying the share of the other co-owner,then such a co-owner would be liable to render accountsto the other co-owner in equity, Justice and goodconscience.

21. If that is the law, which we hold it is, then, in this case, the defendant who cut short the agency of the attorney and got into sole possession is clearly liable to render accounts to the plaintiff.

22. Then the other question raised by the appellant is with regard to limitation. Now it has not been disputed before us by the learned counsel both for the appellant and the respondent that the Article which is applicable to the facts of the case is Article 120 of the Limitation Act and, in our view this position now seems to be well settled, vide Bolo v. Koktan ; Annamalai Chettiar v. Muthukaruppan Chettiar. AlR 1931 PC 9; Yerukoja v. Yerukola AIR 1922 Mad 150 (FB); Sitaram Vinayak v. Harayan Shankarrao; AIR 1943 Bom 216 and Rukhmabai v. Lala Laxminarayan : [1960]2SCR253 .

23. But, what is contended by the learned counsel or the appellant is what is the terminus a quo i.e. the Starting point of limitation and, secondly, in any event, the plaintiff would not be entitled to claim accounts for a period more than six years.

24. As to the first part of his contention viz. the starting point of limitation, what is contended by the learned counsel is that the right to receive income accrues continually as and when the income comes into the co-tenant's hand and that this right is continually barred by Article 120 when the account sought is for more than 6 years, in support of this proposition, the learned counsel for the appellant relies upon the decision, Vidya Wanti Kaur v. Shahdev (Shivdev) Singh AIR 1938 Lah 139. The learned Judges there, relying upon AIR 1922 Mad 150 (FB), held that the Article of the Limitation Act which applied to the facts of the case was Article 120. Having thus stated, they proceeded to consider the point of time from which the limitation began to run and stated:

'Shah Dev Singh's suit did no doubt positively assert such a title but though that clearly gave the widows a right to sue for accounts forthwith, there is nothing in Article 120, and I say so with the greatest respect, warranting the view that where 3 defendant is, as a matter of fact, a co-tenant of property with the plaintiff, he can bar the letter's subsisting right to ask him for accounts by merely denying that the plaintiff is a co-tenant. So long as Shah Dev Singh was a co-tenant with the plaintiffs the latter had a right to ask for accounts. Their right accrued continually as income comes into the co-tenant's hands. In this case although Shah Dev Singh had denied the widows' rights in any of the family property, it was ultimately found that, in reality, his possession had never been adverse but that he held what he possessed of the joint property as a co-tenant on the widows' behalf. On the other hand that right is continually barred by Article 120 when the account sought is more than six years old and the learned Subordinate Judge was in my opinion wrong in decreeing rendition of accounts for a longer period than six years.'

25. Now, this passage on which reliance has been placed by the learned counsel for the appellant, Mr. Hegde, it appears to us, with the greatest respect, contains observations which are contradictory to each other. It is stated in one part that a co-tenant cannot defeat other co-tenant's right by merely denying the latter's status as a co-tenant. In other words, their Lordships stated that so long as the relationship of co-tenants continues. the liability to render accounts subsists; but, at the same time, they have observed that the right is continually barred by Article 120 when the account sought is more than six years old. Now, this latter observation appears to us, with respect, to be contradictory to what their Lordships have stated in the earlier part of their judgment to which we have already referred.

The Full Bench decision of the Madras High Court reported in AIR 1922 Mad 150 on which they relied, has held that in a suit for account of the collections mad a by the various members as co-tenants in respect of the property, the proper Article to apply is Article 120 and the period of limitation will run from the demand of the share by the plaintiff and refusal by the defendant or from the time when the defendant asserted a hostile title to the knowledge of the plaintiff. Therefore the decision on which they relied does not support the conclusion reached by their Lordships viz. that the right is continually barred by Article 120. In our view, the reasons for, the decision are mutt rally destructive of each other and', therefore, with respect, we find ourselves unable to agree with it. We will presently refer to the other decisions which have taken the same view as the Full Bench decision of the Madras High Court.

26. The other decision on which reliance is placed by Mr. Hegde is reported in Pazhuk Kath v. Veluthan Cheria AIR 1956 Mad 108. This is a judgment of a single Judge of that High Court. His Lordship held that a co-sharer's suit for his share of profits is governed by Article 120 and the cause of action in such a case must be deemed to arise when the income accrues and not when there is a denial of the co-sharer's right. With very great respect to the learned Judge, we find ourselves unable to agree with that proposition. It is somewhat curious to note that the learned Judge was referred to the decision in Visalakshl Amma v. Madhava Menon AIR 1942 Mad 514 Which, in turn, relying on tho Full Bench decision reported In AIR 1922 Mad 150, held that the time began to run from the time when the right of the plaintiff is denied or from the time when there is ouster. We are unable to understand why the learned Judge disregarded the decision of the Full Bench and held contrary to it. We are, with very great respect, wholly unable to subscribe to the proposition stated by his Lordship.

27. Now, Article 120 of the Limitation Act is a residuary Article and it prescribes a limitation of six years for a suit for which no period of limitation is provided elsewhere in that schedule. The words appearing in the third column are 'when the right to sue accrues.' That means six year have got to be counted from the time when the right to sue accrues. These words 'when the right to sue accrues' came for interpretation as early as in the year 1930 by their Lordships of the Privy Council in the case reported in . Their Lordships after quoting Article 120 Stated:

'There can be no 'right to sue' until there is an accrual of the right asserted In the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mr. Koklan's right to the properly arose on the death of Tara Chand, but in the circumstances of this case their Lordships are of opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted.'

Thus it is clear that the right to sue accrues only when there has been in fact an infringement of the right or a threat of infringement of that right by the defendant. The mere fact that the right to the property arose on the death cannot be sufficient to hold that then was an infringement of the right. This decision of their Lordships came to be affirmed subsequently in the two later decisions reported in and, Gobinda Narayan v. Shamlal .

28. In a recent decision of the Supreme Court, reported in : [1960]2SCR253 , while considering what is the starting point of limitation under Article 120, their Lordships, in terms, followed three Privy Council decisions viz. . Therefore, in view of the decision of the Supreme Court, it cannot be said that the decisions on which reliance has been placed viz. AIR 1938 Lah 139 and AIR 1956 Mad 108 are any longer good law. Hence, in our view, it must be held that there can be no right to sue unless there is an accrual of the right asserted in the suit and its actual infringement or at least of clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.

29. Mr. Hegde, the learned counsel for the appellant, then contended that in this case there has been, in fact, a denial of the plaintiff's right to claim accounts by Ext. B-2, dated 27th June 1946. This Ext. B-2 is a ready to the notice' given by the plaintiff under Ext, B-1, dated 19-6-44. The plaintiff who himself is an Advocate issued that notice to the defendant in which he described the defendant as a joint Adalithedar and drew his attention to the agreement of the year 1935 whereunder he was to be given a sum of Rs. 1,500/- every year. He further stated that he received in all a sum of Rs. 4,755/- from the attorney-holder and that the balance of Rs. 8,577/-still remained due. He then stated that defendant is collecting the rent and is in possession of all the family documents etc. He, therefore, called upon him, in the first instance, to pay him a sum of Rs. 8,557/- with interest and secondly to give him 'the inspection of the accounts and documents of the family within seven days from the receipt of the notice.'

Thus it is clear that by this notice he called upon the defendant to pay him the balance out of the sum of Rs. 15,000/- and secondly he demanded an inspection of the accounts and documents of the family. It is only with reference to this notice that we have got to understand the reply given by the defendant by Ext. B-2. This reply has been issued through a lawyer, and in that reply notice, he referred to the agreement of the year 1935 and denied his liability to pay Rs. 8,557/- the balance of the sum of Rs. 15.000/-. He admitted that he entered into possession of the suit property and had taken halogen chits from all the tenants and made small collections of rental only thereafter. He then denied that he ever came into possession of any of the accounts or of family documents. He finally repudiated his liability to satisfy any of the demands made by the plaintiff.

30. Mr. Hegde, the learned counsel for the appellant, relies upon this last sentence in this reply notice by his client repudiating his liability to satisfy any of the plaintiff's demands, and contends that in effect he has denied the plaintiff's right to claim accounts. We are unable to accede to this argument. I have stated that two demands I were made by the plaintiff by issuing a notice under Ext. B-l, one claiming the balance of Rs. 15,000/- and the other, inspection of the accounts, and it is these two demands that have been repudiated by the defendant. We are unable to read in the notice of the plaintiff that he ever called upon the defendant to render accounts. In our view, asking for an inspection of the accounts is not the same thins as calling upon to render accounts. Therefore what has been denied is his ability to afford the plaintiff an opportunity for the inspection of the accounts on the ground that he was not in possession of any of the accounts or the family documents and secondly his liability for the plaintiff's claim of Rs. 15,000/-.

We are, therefore, unable to read in this reply notice that there has been any denial of the plaintiff's right to claim accounts from him. If there is no denial, then it is clear that no right to sue accrued to the plaintiff. In that event, the period of limitation has not at all started to run under Article 120 of the Limitation Act. The trial 'Court has held that defendant had not by Ext. B-2 specifically denied his liability to render accounts but had only pleaded that he had not come into possession of any of the family documents and that he had no account books with him and had not questioned the right of the plaintiff to claim accounts. We, after carefully considering the contents of Exts. B-1 and B-2, have come to the same conclusion viz. that there is no denial by the defendant of the plaintiff's right to claim accounts.

31. Then the other point which has been argued by Mr. Hegde for the appellant is that, in any event, the plaintiff is not entitled to claim accounts for a period more than six years. In support of that proposition, he again relied upon two decisions viz., AIR 1938 Lah 139 and AIR 1956 Mad 108. With great respect to the learned Judges who decided those two cases, we are unable to agree that the plaintiff is not entitled to claim accounts for a period more than six years.

32. In : AIR1940Cal363 , account was claimed from 25th August 1925 to 7th January 1937 and the plaintiff was given a decree for accounts for the entire period claimed by him in that suit. To the same effect is the decision reported in AIR 1943 Bom 216 to which a reference has been already made. Mr. Justice Mack in who delivered the main judgment with reference to this point, after referring to some cases, stated:

'But we think that any doubts that might arise on this point are set at rest by the fact that in Hurrinath Rai v. Krishna Kumar, ILR 14 Cal 147, which was decided under the old Limitation Act but under one or other of the articles corresponding to the present Articles 89 and 120, the Privy Council ordered an account to be taken of an agency for the whole period of the agency, amounting to about 20 years.'

The other learned Judge, Mr. Justice Broomfield, stated with reference to the period for which accounts should be taken and a recovery ordered, as follows:

'In suits for account under Articles 89 and 106 it is clear that the accounts which may be ordered cover the whole period during which the defendant has realised the plaintiff's money. There is nothings anomalous therefore in holding that in a suit for account under Article 120 also the account should be for the whole period. On principle indeed it would seem that it must be so. To say that a suit for an account is in time but the sum to be recovered must be limited to moneys received by the defendant within six years of the suit seems to me to presuppose a right in the plaintiff to sue to recover the money distinct from his right to sue for an account of the money. But no such suit is provided for by any article of limitation.'

We, with respect, agree with the views taken by the above stated Calcutta and Bombay decisions. We may also, with advantage, refer to the words appearing in the third column of Articles 88 and 89 of the Limitation Act relating to a suit for accounts. They are:

'When the account is, during the continuance of the agency, demanded or refused or, where no such demand is made, when the agency terminates.'

If this is any indication that accounting period is to be held to be a period of the continuance of the agency, then, on the analogy, it could as well be held that as between co-owners when limitation has not started, accounts could be taken during the continuance of the co-ownership.

33. Thus it is obvious from what has been stated above that the accounting period cannot be limited to a period of six years only.

34. Mr. Hegde then drew our attention to the decretal order and pointed out that the learned Judge has ordered a preliminary decree to be draws up as prayed for. This, he contends, is wrong because the plaintiff in the prayer clause of his plaint has not only asked for the account to be taken and the amount found due to be paid but has also prayed for a direction for the payment of Rs. 15,000/-. He, therefore, submits that when the learned Judge has directed a preliminary decree to be drawn up as prayed for, it could also mean to include the direction for the payment of Rs. 15,000/-. If that is so, he contends, the order of the learned Judge is wrong and requires modification.

It seems that the apprehension of the learned counsel for the appellant is justified. The plaintiff has prayed in the prayer clause of his plaint for the award of a sum of Rs. 15,000/-. But he has not paid any Court-fee on the said amount nor has be led any evidence to substantiate the said claim. The trial Judge has not raised any issue regarding that claim. In such circumstances, it appears to us that though the learned Judge has stated that a preliminary decree should be drawn up as prayed for, he never meant to award a sum of Rs. 15,000/-. We would, therefore, like to clarify that, in the circumstances stated by us above, the plaintiff is not entitled to claim the said sum of Rs. 15,000/-. Therefore we modify the order passed by the learned trial Judge and direct that a preliminary decree be drawn up for taking accounts of the profits and income of the properties in possession of the defendant from 24th February 1944 to 14th May 1949 only and the defendant be directed to pay to the plaintiff his share of the amount so found due after taking the accounts.

35. Mr. Hegde then sought to urge a point which was not taken in the written statement nor urged in the trial Court, viz. that the defendant's liability to account to the plaintiff should be restricted to the amounts realised by him in excess of his share in the income of the property. We do not think it is permissible for the learned counsel to raise a point which was not urged in the Court below. We, therefore, hold that he is not entitled to raise this contention and the said contention is accordingly rejected. The defendant is directed to pay to the plaintiff a moiety of the amount collected and found due after taking accounts.

36. Therefore, for the reasons stated above, subject to the aforesaid modification, we confirm the decree passed by the trial Court and dismiss this appeal with costs.

37. Order accordingly.


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