1. This appeal by the 8th defendant in O. S. No. 74 of 1951 on the file of the Court of the Subordinate Judge, Ongole, gives rise to an interesting question of law, whether a coparcener of a Hindu Joint family who has obtained a preliminary decree for partition of the family properties is entitled to proceed against the property alienated by any defendant-coparcener pending an appeal against the preliminary decree and before the passing of the final decree, for the recovery of mesne profits in respect or that alienated item of property.
2. In order to appreciate the scope of the question, it is necessary to state briefly the facts and circumstances which are not in dispute and which lie in a short compass; Raghavaiah and Venkata Subbaiah, sons of P. Sriramulu, instituted a suit for partition and separate possession of their half share in the plaint 'A' and 'B' schedule properties and for accounts relating to future profits and rents, against their brother Gopalam (1st defendant) and Panduranga Rao, the son and Bhramaramba, the widow of their late elder brother Adinarayana Rao, Muddana Chen-churamayya, the cultivating tenant of item 4 of the plaint 'A' schedule. The preliminary decree for partition was a direction to account in regard to rents and profits for the period, subsequent to the date of suit, was passed by the Court of the Subordinate Judge, Ongole on October 21, 1952.
3. On August 4, 1953, plaintiffs 1 and 2 settled on Bommaraju Annapumamma, the foster daughter of the 2nd plaintiff, under a registered settlement deed, undivided Ac. O-50 cents of land in item No. 4, Ac. O-20 cents in items 1 and 3 of the plaint 'A' schedule. She was therefore brought on record as the 3rd plaintiff.
4. Aggrieved by the decision of the trial Court, the defendants 2 and 3 preferred A. S. No. 192 of 1953 in the High Court. During the pendency of the appeal i. e., on January, 7, 1955, Raghavaiah, the 1st plaintiff died unmarried and issueless. Except the Ac. O-25 cents of land in items 4 and 10 cents in items 1 and 3 which were settled under the settlement deed in favour of the 3rd plaintiff, the deceased 1st plaintiff's interest in other items of the plaint schedule properties devolved equally on his two surviving brothers, namely Venkata Subbaiah and Gopalam. The 1st defendant (Gopalam) also passed away on January 31, 1955 leaving behind his sons and widow who were subsequently brought on record as defendants 5, 6 and 7 respectively. The 6th defendant also died in the year 1956 unmarried and issueless as a result of which his interest devolved upon his mother, the 7th defendant The 2nd defendant sold his father Adinara yana's l/4th share in item No. 4 of the plaint 'A' schedule to one Ravella Venkata Subbaiah under a registered sale deed on February 16, 1956. He was thereupon added as defendant No. 8 and as 5th respondent in A. S. No. 192 of 1958. On November 18, 1958, A. S. No. 192 of 1953 was dismissed by the High Court. Plaintiffs 2 and 3 have filed I. A. No. 1495 of 1959 for the passing of a final decree for mesne profits attributable to their share in item No. 4 of the plaint 'A' Schedule for a period of four years, viz. 1949-50 to 1952-53. Defendants 2 to 5, 7 and 8 are the respondents in that application. The 1st respondent became ex parte. The 2nd respondent did not file any counter. Respondent No. 3 (4th defendant) who was the lessee of item 4 under a registered lease deed executed by Adinarayana, the then manager of the joint family on 5-7-1945 for a period of 10 years, the rent payable being 10 1/2 candies of Molakolukulu paddy in kind valued at Rs. 1000/-, pleaded that he paid the maktha to defendants 2 and 3, the legal re presentatives of late Adinarayana, the lessor. Respondents 4 and 5 claimed pro rata mesne profits in respect of their shares. The 6th respondent (defendant No. 8), the alienee contended that he is not liable to any profits for the period prior to the date of his purchase, i. e. 16-2-1956, in respect of the item purchased by him, nor the alienated item of property can be proceeded against.
5. The trial court framed as many as six points' for determination.
6. The petitioners examined P. Ws. 1 and 2 and Marked Ex. A-l, a certified copy of the lease deed executed by late Adinarayana in favour of the tenant (respondent No. 3) in support of their claim whereas the respondents examined R. Ws. 1 and 2 and filed Exs. B. 1 to B. 9 in support of their version.
7. The court below on a consideration of the evidence on record, found that the 2nd petitioner (3rd plaintiff) is not entitled to recover any amount by way of mesne profits, that the 2nd plaintiff is entitled to recover 3/8th share out of the profits in respect of item No. 4, that the claim of the petitioners for profits in so far as for the year 1949-50 is concerned is untenable, that the amount payable for the three years 1950-51, 1951-52 and 1952-53 together with interest is Rs. 3160.38 paise, that the 4th defendant, the cultivating tenant, who paid the rent to the defendants 2 and 3 for the years in question is not liable for any profits from item No. 4 and the remedy of the 2nd plaintiff is only to proceed against the defendants 2 and 3 and their alienee, the 8th defendant, subject to the condition that 8th defendant's liability is restricted to 1 /8th share of the amount due which corresponds to the interest acquired by him from the 2nd defendant in item No. 4 and that the 2nd plaintiff is entitled to recover from out of the property purchased by the 8th defendant. The 8th defendant is made liable for the profits on the ground that he purchased the property from the 2nd defendant during the pendency of the appeal and his alienation is hit by lis pendens. The lower court further held that the 2nd plaintiff is entitled to recover the profits from and out of the property purchased by the 8th defendant. Hence this appeal.
8. The principal contention of Sri M. Chandrasekhara Rao, the learned counsel for the appellant, is that the liability of a coparcener against whom a. preliminary decree ior partition of the joint family properties has been obtained, in respect of the profits subsequently realised by him is personal and the properties ultimately allotted to his share cannot be proceeded against unless a charge has beep created by operation of law as contemplated by Section 100 of the Transfer of Property Act and the appellant, who is an alienee from the 2nd defendant, was not in possession and enjoyment of the profits during those years and the alienated property no longer belonged to the 2nd defendant and hence, it cannot be proceeded against for the recovery of the profits due and payable by the 2nd defendant.
9. This claim of the appellant is resisted by Mr. Anjaneyulu the learned counsel for the contesting respondents 2 and 8, contending inter alia that in a case where Section 52 of the Transfer of Property Act applies, Section 100 of that Act has no application and that the decree-holders have an implied charge over the shares of the other coparceners to enable them to recover subsequent profits as the claim for subsequent profits would go along with their right to share the suit properties.
10. In order to appreciate the scope of the respective contentions of the counsel, it is necessary to examine the nature and character of the liability of the defendants-coparceners relating to the claim of a plaintiff-decree holder for subsequent profits in a partition action.
11. It is well-settled that as long as the joint Hindu family continues, every coparcener is entitled to joint possession and enjoyment of the coparcenary property as there is community of interest and unity of possession between all the members of the family. No individual member of the family can predicate of the joint and undivided property that he has a certain share. But however, the severance in status of the joint family can be brought about by an unmistakable manifestation of intention of any member of the coparcenery to be divided. There need not be a division of the properties by metes and bounds. The institution of a suit for partition undoubtedly amounts to an intimation by the party who seeks partition, to his coparceners of his unequivocal desire for separation from the family. Where the suit for partition of a joint family property is decreed, the date of severence of the plaintiff until the contrary is proved, would be the date of institution of the suit. Hence the status of a Hindu Joint family would be disrupted the moment a suit for partition is filed by one of the coparceners. From the date on which the suit for partition was instituted, the members of the Hindu Joint family would hold the family property as tenants-in-common or co-owners.
12. It admits of no doubt that the preliminary decree obtained by a coparcener of a Hindu joint family would not amount to a decree for subsequent profits. The subsequent profits have to be determined either by a separate application under order 20, Rule 12 C. P. C. or by an independent suit. Unless and until the subsequent profits have been ascertained by the Court after due and proper enquiry, there can be no decree in that regard. A Hindu coparcener is entitled to alienate his interest in the joint family properties to third parties. However, the alienee of an undivided share of a coparcener has to work out his rights as he cannot get possession of the property purchased by him it being undefined and undivided interest of a coparcener. The Coparcener's right to alienate his share of the joint family property is in no way affected by the institution of a suit for partition by one of the coparceners. In other words, any defendant-coparcener, in a partition action can certainly alienate his share of the joint family property to third parties and create valid rights in them. Even subsequent to the passing of the preliminary decree in a partition action, the defendants-coparceners would certainly be entitled to alienate their interests or shares in the family properties. There is no rule of law which prohibits or obstructs any defendant-coparcener in a partition action from alienating his undivided and undefined share or interest in the joint family properties.
13. The preliminary decree fixes the shares of the several sharers and furnishes a basis for the actual division of the family properties by metes and bounds. Even after the passing of a preliminary decree, a partition suit is still a pending suit. The rights of the parties and the equities arising between them have to be adjusted as on the date of the final decree. Before effecting an equitable final partition of the family properties, several matters such as the realisation of common outstanding, the discharge of common liabilities, the distribution of the profits from the properties realised subsequent to the date of the plaint, the allotment of alienated proper-ties to the share of the alienor, the allotment of lands or any other properties improved by a sharer to his share, the grant of owelty, the provision of maintenance to parties entitled thereto, etc., have to be considered and determined by the Court. Hence, one of the important matters to be determined by the Court at the time of the passing of the final decree is the division and distribution of subsequent profits realised from the family properties amongst the several sharers. The plaintiff would, therefore, be entitled to claim an account of the profits accrued to his share from the manager or any member of the coparcenery who was in possession and enjoyment of the properties subsequent to the date of the plaint. Where a plaintiff-decree-holder intends to recover subsequent profits either pending the suit or appeal, it is open to him to obtain appropriate orders directing payment or deposit of the probable and approximate profits, from the Court concerned and safeguard his interests. Until and unless the determination or ascertainment of the profits in accordance with law has been made by the Court, the plaintiff-decree-holder cannot proceed to recover such profits from the other defendants-coparceners who were found to be in possession and enjoyment of the properties in which he has got a share. The liability of the manager or any member of the Hindu Joint family who was in possession and enjoyment of the properties to account for the profits subsequent to the date of institution of the partition suit must, in the circumstances, be held to be only personal, as he cannot be proceeded against for the recovery of such profits unless and until they are ascertained and quantified in the form of a decree obtained in accordance with law. A coparcener of a Hindu Joint family who has obtained a preliminary decree for partition of the properties and a final decree against the manager or the members of the family who were found to be in possession and enjoyment of the family properties allotted towards his share, for profits subsequent to the date of the plaint, can only proceed to recover such amount just like any other simple money decree-holder. He can only proceed against the judgment-debtors personally or attach and bring to sale the properties belonging to them. He stands in the position of a simple money decree-holder, and cannot equate himself to a secured creditor as a money decree-holder. Just as a simple money decree-holder cannot claim to have a charge over the properties of the judgment-debtor unless a charge is created in the decree itself, a coparcener who has obtained a final decree for subsequent profits cannot be considered to be a person having a charge over the properties of the defendants coparceners (judgment-debtors). The only course open to him is to proceed to recover the decretal amount either by attachment and sale of the properties of the defendant coparceners or to proceeed against them personally.
14. Section 52 of the Transfer of Pro-perty Act which is sought to be relied upon by the respondents-decree-holders in support of their contention that the right to recover subsequent profits is also a subject-matter of the suit ana therefore subsequent alienation of the property allotted to the defendants-coparceners is hit by the doctrine of lis pen-dens, has no application to the case on hand. Section 52. Transfer of Property Act only indicates the doctrine of lis pendens. As ruled by the Supreme Court in Samarendra Nath Sinha v. Krishna Kumar Nag : 2SCR18 .
'......... the purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him...... It is true that Section 52, strictly speaking, does not apply to involuntary alienations such as court sales but it is well established that the principles of Ms pendens applies io such alienation (see Nilkant v. Suresh Chunder, (1885) 12 Ind App 171 and (1897) 24 Ind App 170 (PC)).'
The recent decision of the Supreme Court in Kedar Nath v. Sheonarajn, : 2SCR204 wherein the scope and application of Section 52, T. P. Act to cases of attachment before judgment of property involved in a proceeding fell for consideration, may be noticed. The learned Chief Justice Hidayatullah, speaking for the Court, repelled the contention that the doctrine of lis pendens cannot be applied to a case where the property has been attached before judgment. The learned Judge observed thus:--
'If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore attachment was ineffective against the doctrine. Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal v. Karrab-ul-din, (1897) 24 Ind App 170 (PC).'
Section 52, therefore, has no application to the case on hand. It does not affect the rights of a bona fide purchaser of the property pending a proceeding for the passing of a final decree in a partition action instituted by a member of a Hindu Joint family. The plaintiff, in a partition action, is only entitled to have an account of the profits proved to have been enjoyed by the defendant-manager or any other coparcener in possession and such profits are treated as appurtenances and accretions to the right to claim his share: See Ramaswami Aiyar v. Subrahmania Aiyar, AIR 1923 Mad 147. I may conveniently refer in this context to the decision of a Full Bench of the Madras High Court in Babhuru Basavayya v. Babburu Guruvayya, : AIR1951Mad938 (FB) where the effect of a preliminary decree for partition of joint family properties and the scope of preliminary decree have been considered. The Full Bench observed thus:
'The profits accruing from the common properties pending a suit for partition like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits and a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition. A suit for partition by a member of a joint Hindu Family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him.' The decision of Jagadisan, J. in Ponnuswami v. Santhappa, AIR 1968 Mad 171, on which strong reliance has been placed by the respondents, is also to the same effect and it does not in any way advance the plea of the respondents. Therein the learned Judge observed thus:
'The mesne profits accruing from the properties forming the subject-matter of the division and referable to the properties which are eventually allotted to the share of the successful plaintiff, formed part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves.'
This observation is only consistent with the view expressed by the Full Bench of the Madras High Court in Babburu Basavayya's case : AIR1951Mad938 (cited supra). The right of the plaintiff-coparcener to claim an account of the profits realised by the manager or any other defendant-coparcener of the family subsequent to the date of the suit is not in dispute. The persons who were in possession and enjoyment of the family properties have to account for the profits realised by them during the period subsequent to the date of the plaint and before delivery of possession of the properties allotted to the other coparceners. A member of a coparcenary is entitled to a share in the profits accrued from the family properties just like the very properties themselves which are liable to be partitioned under the final decree. However it cannot be said that such a right to claim share in the profits along with a share in the joint family properties would amount to creating a charge over the properties that would be finally allotted to the manager or other coparceners who are in possession of the family properties subsequent to the date of plaint and before the delivery of possession of the properties allotted to the coparceners at the final division of the properties. No charge can be claimed by the plaintiff-decree holder unless the ingredients of Section 100 of the Transfer of Property Act have been proved. Under Section 100 T. P. Act a charge on immovable property for payment of money by one person to another can be created by act of parties or operation of law. To put it differently, no charge can be created except in the manner provided under Section 100. The parties may agree to have and create a charge on the immovable property belonging to one of them as security for payment of money by one to the other. Such charge can also be created by operation of law. In the case on hand, admittedly there is no charge created by act of parties. It therefore remains to be seen whether a charge has been created by operation of law, Unless a charge ss contemplated by Section 100 has been created, thg plaintiffs cannot proceed against the properties purchased by third parties pending a partition action from the defendant-coparceners, for the recovery of the subsequent pro-fits. Section 52 of the Transfer of Property Act as pointed out earlier, does not apply to. the case on hand. In any event, I am of the; view that the plaintiff cannot claim to have a charge over the property which was sold by the defendants 2 and 3 to the appellant herein. The liability of the 2nd defendant to account for the profits realised by him from item No. 4 which was in his possession during the relevant period is not in dispute. But the real controversy is with regard to the nature and character of such liability. Such liability to account for profits is only personal and it shall not run with the property. Hence, I find that no charge on the property sold by the 2nd defendant to the appellant pending the partition suit has been created by operation of law, for the recovery of subsequent profits.
15. That apart, no prejudice will be caused to the plaintiffs decree-holders in the instant case, as the defendants 2 and 3 have allowed the decree passed against them to become final for no appeal has been preferred by them. The profits may as well be recovered from the defendants 2 and 3. Such course is not only lawful but just and proper in view of the finding of the lower Court that the 4th defendant who is the cultivating tenant of item No. 4 during the relevant period has in fact paid the maktha to the defendants 2 and 3.
16. True, as submitted by the counsel for the contesting respondents that the right to claim subsequent profits is appurtenant to the right to a share in the family properties. But, however, his further submission that they can, therefore, proceed against the property whatever it is, for the realisation of the subsequent profits cannot be acceded to. An 'appurtenant right in the context means nothing but a right to receive, in addition to the share in the property, the profits from such share but it does not amount to a charge on the share. In the circumstances I am satisfied that no charge on the property purchased by the appellant towards subsequent profits is created in the preliminary decree cr in the final decree under which the family properties have been allotted to the different sharers. In any event no charge as contemplated by Section 100 of the T. P. Act has been created on the property purchased by the appellant herein.
17. For all the reasons stated, my answer to the question is in the negative and in favour or the appellant, as the liability of the manager or defendant-coparcener who is in possession and enjoyment of the family property subsequent to the institution of the partition suit, to account for the profits realised by him is only personal and it does not go along with the property that would be allotted to his share in the final partition. I may add that M. Krishna Rao . also expressed the same view in A. S. No. 170 of 1969 D/- 10-5-71. Therein the learned Judge held that the claim for the profits is a simple money claim directed personally against those who received the profits and it did not relate to any dispute as to title to any immovable property.
18. The decision of the Supreme Court in Swaminatha Odayar v. Official Receiver of West Tanjore, : 1SCR775 , on whioh strong reliance has been placed by the contesting respondents herein, is distinguishable on (acts. That was a case where owelty was awarded to a member at the final partition, for equalization of the shares on excess allotment of immovable properties to another member of the joint family. It was held that such a provision for Owelty created a charge or lien on the land taken under the partition. It was a case of maintenance decree-holder obtaining a charge in the decree itself. As pointed out earlier the grant of owelty is one of the matters which has to be considered and decided by the Court before effecting final partition of the properties. Hence, that case does not lend support to the plea of the respondents.
19. In the result, the appeal is allowed with costs throughout.