1. Defendants 3 to 14 in original suit No. 106 of 1951 on the file of the Civil Judge, Mangalore, are the appellants in this appeal. In the said suit a preliminary decree for partition was passed on 30-11-1953. Under the said decree parties who were in possession of properties were directed to pay mesne profits to parties who were not in possession of properties in excess of their share In the family properties less than the shares they were entitled to. The record before us discloses among other thing, that defendants 1 and 2 were in possession of properties in excess of their legitimate share. Defendant 2 died on 1-10-1957. Defendants 34, 50, 40 who were the children and the widow of defendant 2, were brought on record as legal representatives of 2nd defendant on an application filed by them. But later on defendants 3 to 14 who are appellants in this appeal filed an application before the Court below stating that they were entitled to the estate which had fallen to the share of defendant 2, and therefore, they should get the share allotted to the 2nd defendant. The said application was allowed. Thereafter the trial Court proceeded to pass a final decree on 30th November. 1960. Under the final decree the trial Court created a charge on the shares which were allotted to defendants 1 and 2 in respect of the amount of mesne profits which defendants 1 and 2 were liable to pay to the other parties who were entitled to recover the same. After passing the final decree, proceedings were instituted against defendants 3 to 14, the appellants herein by defendant 33 for recovery of mesne profits from out of the estate which had fallen to the share of defendant 2.
The trial Court rejected the above claim. Aggrieved by the said order, defendant 33 filed an appeal in this Court in E. F. A. No. 14 of 1964. That appeal was allowed by this Court on the ground that defendants 3 to 14 who were parties to the decree had been impleaded as parties to the suit by the time the final decree was passed and had suffered a decree in the form in which it was passed and therefore they having not impeached that decree were not entitled to urge on the execution side that the share of 2nd defendant was not liable to be proceeded against for the mesne profits payable to the 33rd defendant. On the above ground the order of the trial Court was reversed and it was held that defendant 33 could bring the properties, which had fallen to the share of the 2nd defendant and on his death had devolved on defendants 3 to 14, to sale in enforcement of the charge created by the decree for recovery of the mesne profits payable in respect of the period prior to the death of the 2nd defendant also.
2. The controversy involved in this case relates to the liability of defendants 3 to 14 to pay the mesne profits or value of movables payable by defendant 1 from out of his share of the family properties.
3. It may be mentioned here that the first defendant died in July 1962 after the final decree was passed in the suit. It is true that in the final decree a charge has been created on the share allotted to defendant 1 for payment of the mesne profits payable by him to other parties who were entitled to it. Defendants 3 to 14 became entitled to the share allotted to defendant 1 on his death in view of the provisions of Section 36 of the, Madras Aliyasantana Act. 1949 (which will be referred to as the 'Act'). Defendant 15 made an application R. E. P. No. 84 of 1966 on 1-10-1966 after the judgment was delivered by this Court in Execution First Appeal No. 14 of 1964, claiming that he was entitled to get mesne profits and the value of movables which were payable by defendant 1 from out of the property which had fallen to the share of defendant 1 and which devolved on defendants 3 to 14 on the death of the 1st defendant. Defendants 3 to 14 denied the said claim. They inter alia pleaded that in view of the provisions of Section 36 of the Act, defendant 15 was not entitled to proceed against the properties which had been allotted to defendant 1 and which had later on devolved on defendants 3 to 14 in enforcement of the charge created under the final decree. In other words their case was that the charge created by the final decree on the property which was allotted to the share of the first defendant ceased to be operative on his death and that defendants 3 to 14 acquired interest in the said share free from the said charge, The Court below directed the execution application to be proceeded with after negativing the contentions raised by defendants 2 to 14. Aggrieved by the said order the defendants 3 to 14 have filed this appeal.
4. The parties to these proceedings are governed by the Aliyasantana Law as amended by the Act.
5. At the out-set it is necessary to refer to the relevant provisions of the Act which govern this case. Chapter VI of the Act deals with the topic of partition in Aliyasantana family, Section 35 recognises the right of kavaru to claim partition. Section 36 which is set out ' below deals with ascertainment of shares at partition.
6. The relevant provision of Section 36 reads thus:
'36 (1) Any kavaru entitled to partition under Section 35 shall be allotted a share of the kutumba properties in accordance with the provisions of Sub-section (2)
(3) If, at at the tome of the partition, any kavaru taking a share is a nissanthathi kavaru, it shall have only a life interest in the properties allotted to it if the kutumba from which it separates has at least one female member who has not completed the age of fifty years, or where the kutumba breaks up into a number of kavarus at the partition, if at least one of such kavarus is a nanthathi kavaru and if there is no such female member or santhathi kavaru, the kavaru shall have an absolute interest in the properties allotted to it.
(4) In the case referred to in subsection (3) the life interest of the nissanthathi kavaru in the properties allotted to it at the partition shall become absolute, if the kutumba concerned ceases to have among its members a female who has not completed the age of fifty years or if all the kavarus into which the kutumba broke up, whether at the same or at a subsequent partition, become nissanthathi kavarus.
(5) The properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, shall devolve upon the kutumba,or where the kutumba has broken up, at the same or at a subsequent partition Into a number of kavarus, upon the nearest santhathi kavaru or kavarus'.
7. It is not disputed that defendant 1 constituted a nissanthathi kavaru and that on his death the property allotted to his share devolved upon defendants 3 to 14. It is not also disputed having regard to the language of Sub-sections (3) to (5) of Section 36 of the Act extracted above, defendant 1 was only a holder of a life interest in the property allotted to his share at the partition.
8. The question for consideration in this case is whether a charge created in the final decree for payment of the mesne profits payable by defendant 1 would survive and continue to be enforceable even after his death when the properties devolved on defendants 3 to 14 by virtue of the aforesaid provisions.
9. Shri K. R. Karanth, learned counsel for the defendants 3 to 14 contended, that in view of the Act defendant 1 had only a life interest in the property allotted to his share and therefore he could not burden or encumber the property with his personal debts. Hence even if he had contracted any personal liability during his lifetime it could not be enforced against the estate which devolved on defendants 3 to 14 under the Act. He contended that the nature and incidents of the estate in the hands of the 1st defendant were similar though not analogous, to the nature and incidents of a widow's estate recognised by Hindu law or of an estate in the hands of a sthani under the Marumakkatayam Law. It was submitted that the object of enacting Sub-sections (3) to (5) of Section 36 of the Act was to see that the share allotted to a nissanthathi kavaru ultimately devolved on a santhathi kavaru without being burdened by any debts contracted personally by the holder of the life interest. It was argued that the recognition of the right of a holder of a life interest to expose the property for his personal debts even after his death would virtually defeat the very object of the Act. In support of the above contention Shri Karanth relied on the decision of the Privy Council in Lalit Mohan v. Smt. Dayamoyi Roy, . That was a case which arose under Hindu Law. In that case it was held that where a creditor filed a suit against a limited owner (e. g. daughter) as such and not against the estate of the last male holder and a decree was passed personally against the limited owner, the decree and the auction sale of property following thereon did not bind the reversioner, although the foundation of the decree was a liability which might bind the reversioner.
10. Sri Karanth, next referred to a decision of the Madras High Court in P. K K. Nallappada Nair v. Chami Mannadiar, : AIR1955Mad177 . That case was governed by Malbar Law and the question for consideration was one relating to an alienation made by stani It was held that an alienation of a stanom property made by a stani, which was not supported by legal necessity or benefit to the stanom, would not be binding on his successor, and if possession had passed into the hands of the alienee in pursuance of such alienation, the succeeding stani would be entitled to recover possession forthwith from the alienee. The said decision was rendered by the High Court of Madras on the basis of the legal incidents which were attached to a stanom under Malabar Law. The said decision was given in view of the earlier judicial precedents in which it has been held that the position of a stani was analogous to that of a childless widow among Hindus who had only a life interest in the properties which she had inherited from her husband.
The principle enunciated in the above Madras decision was followed by the Kerala High Court in Raghavan v. Soumini Amma. : AIR1957Ker178 and in Parukutti v. Province of Madras, : AIR1962Ker93 . It is not the case of any of the parties before us that the liability which had been incurred was for legal necessity or for the benefit of the estate. A reading of the final decree Itself shows that the charge was created on the share which was allotted to the 1st defendant for mesne profits which he was liable to pay. The said liability was personal in nature and arose out of tort. A person in possession of property belonging to other without any right thereto is under the Law of Torts liable to compensate the party who is deprived of its possession. Such a liability cannot remain attached to the estate held by a person having merely life interest in it after his death. The position is the same even with regard to the liability in respect of movables which were in possession of defendant 1 and which did not come into the hands of defendants 3 to 15 after the death of the 1st defendant.
11. Shri. Santhosh Hegde, learned counsel for defendant 15 the respondent herein, however contended that when once a charge is created by a decree on the estate held by a holder of a life Interest, the charge would remain in force even after his death. In support Of his above submission he relied upon a decision of the High Court of Orissa in Tirthabasi v. Trinayani Dasi, : AIR1951Ori306 in which it was held that when a Hindu wife obtained a charge decree for maintenance against her husband, she had a right to proceed against any item of the property charged and therefore a purchaser of the property subject to the charge would not be entitled to resist the execution of the decree on the ground that there was other property available which was sufficient to meet the claim. It may be mentioned here, that the above case is clearly distinguishable from the case on hand. The decision of the Orissa High Court rested On two points, viz., (1) that the decree was binding on the alienee in view of the provisions of Section 52 of the Transfer of Property Act, and (2) that the family property on which a charge was created for maintenance by a decree of court could not be sold free from the said charge in view of the law governing Hindus. The present case does not attract either of the above points.
12. Sub-section (5) of Section 36 of the Act does not recognise any right in the holder of any life interest to burden the estate by his personal debts. Even though the expression 'life interest' is not defined in the Act, we must understand the expression to mean that the holder of such an interest would not have a right to burden it with his personal liabilities as in the case of a widow's estate. We, however, do not mean to say the nature and incidents of a life interest acquired by a nissanthathi kavaru under Section 36 (5) of the Act, is in all respects equivalent to those of a widow's estate under the Hindu Law or Stanom under the Malabar Law. But in so far as the extent of the right of a holder of a life interest to encumber his or 'her personal debts is concerned we are of the opinion, that it is equivalent to the right of the holder of a widow's estate under Hindu Law or a Stance under the Malabar Law. If a holder of a life interest cannot incur liability or burden the estate beyond his or her lifetime with his or her personal liability by entering into voluntary transactions, then a decree made by a court creating charge for payment of mesne profits on the share allotted to a nissanthathi kavaru also cannot be operative beyond the lifetime of the person who constitutes the nissanthathi kavaru.
It was, however, contended by Shri Santhosh Hegde, that defendants 3 to 14 were parties to the proceedings when the final decree was passed and since they did not raise any objection at the stage when the decree was not made creating a charge on the share allotted to the 1st defendant they were precluded from contending to the contrary after defendant 1 died. We cannot agree with the submission made by Shri Santhosh Hegde. As long as defendant 1 was alive, defendants 3 to 14 had no interest In the share allotted to him. Then they had only a mere chance to succeed to the estate on the death of defendant 1. In that situation, it was not open to defendants 3 to 14 to contend before the court that a charge should not be created on the share allotted to defendant 1. It was likely that if defendant 1 had lived for a longer period the 15th defendant would have been entitled to recover all the mesne profits payable by the 1st defendant either by getting his life interest sold or by the appointment of a receiver in respect of the income of the share allotted to the 1st defendant We Are, therefore of the opinion, that the fact that defendants 3 to 14 were parties to the final decree would not in any way disentitle them from raising an objection in the form in which it has been raised now.
13. Shri Santhosh Hegde next urged that in view of the decision of this court in Execution First Appeal No. 14 of 1964 in which this court has upheld the liability of the share allotted to defendant 2 which later on devolved upon defendants 3 to 14 they should be made liable similarly. The above contention urged by Shri Santhosh Hegde overlooks one important distinction, between the two cases as can be seen from the order in Execution First Appeal No. 14 of 1964, viz., that the 2nd defendant died even before the passing of the final decree and that the defendants 3 to 14 in their own right had been brought on record even before the final decree was passed. In the above decision this court observed, that a decree which had been passed was in effect against defendants 3 to 14 themselves and it was therefore not Dismissible for them to raise an objection regarding the binding nature of the said decree on the execution side when the decree had become final. We are therefore of the opinion that there is no substance in the above contention.
14. Hence, we hold that the court below was wrong in holding that defendants 3 to 14 were liable to pay the mesne profits from out of the estate which had devolved on them on the death of defendant 1.
15. Shri Karanth, however, submits that he would not press this appeal in so far as two sums viz.. Rupees 16-3 Ps and Rs, 4-80 claimed at Items Nos. 7 and 8 in execution petition. He also, submits that he does not press the appeal in so far as the amount claimed from defendants 3 to 14 as legal representatives of defendant 2, in view of the decision in Execution First Appeal No, 14 of 1964.
16. In the result, this appeal therefore succeeds in part. The order of the court below is modified by disallowing the claim of defendant 15 in respect of Item No. 3 (Rs. 3637-27 Pa). Item No. 4 (Rs. 1167-50 Ps.) and Item No. 9 (Rs. 48-60 Ps.) and Item No. 10 (Rs. 15/-) in the execution petition filed before the court which relate to mesne profits and the value of movable which did not come into the hands of defendants 3 to 14. The appeal is dismissed in other respects.
17. Parties to bear their own costs.