(1) The only point for consideration in this second appeal is whether the plaintiff has established his title to and possession of one-sixth share in the suit property. The learned District Munsif found in the affirmative and granted a preliminary decree for 1/6th share in the suit properties of the total extent of acrs. 7-31 cts., comprising items 1 and 2 but that that extent will be marked out only from item 1. He also directed that the 1st defendant should render an account for the plaintiff's 1/6th share of the plaint scheduled properties after deducting taxes paid by him. This decision of the District Munsif was confirmed by the learned Subordinate Judge in A. S. No. 54 of 1961. While this appeal came up before me for hearing, Sri Sankara Sastry the learned counsel for the appellant made a grievance of the fact that in coming to the conclusion that the plaintiff had title to an undivided 1/6th share and also possession within 12 years, the learned Subordinate Judge, as a final court of fact, did not advert to certain aspects of the case. I therefore, by my order dated 11-2-1965 called upon the Subordinate. Judge to submit revised findings on the question whether the plaintiff was entitled to an undivided 1/6th share in the suit properties, and was in possession thereof for 12 years prior to suit and whether the 1st defendant was simply managing them on his behalf. Since the judgment of the lower appellate court did not disclose that in giving its findings on the question of title and possession it had pin-pointed its attention to four points I framed them, and directed submission of findings thereon. The Subordinate Judge has since submitted the findings as follows:
'For all the reasons mentioned above, accepting the evidence of P. Ws. 1 to 3 and holding that Exs. A-12 to A-17 are the money order coupons, relate to the money orders sent by the 1st defendant to the plaintiff and that the writing and signatures therein are those of the 1st defendant and that the accounts Exs. A-20 to A-31 contain genuine and truthful entries and rejecting the evidence of D. W. 1, I find on points 1,3 and 4 as follows:-
Point 1: The Inam statements and other evidence establish that the plaintiff's ancestors owned and possessed an undivided one-sixth share in the suit lands within 12 years prior to suit.
Point 3: Ex. A-37 taken along with Ex. A-1 to which Ex. A-37 specifically refers, supports the plaintiff's contention that the plaintiff is entitled to an undivided one-sixth share in the suit properties; and
Point 4: The money order coupns, Exs. A-12 to A-17 and the accounts produced by the plaintiff establish the plaintiff's case that the 1st defendant managed the suit properties on his behalf.
So my finding on point 2 is that though there is no direct evidence the greater probability is that the attestor in Ex. A-2 is the 1st defendant's father.'
These findings admittedly are in favour of the 1st respondent. Sri Sankara Sastry for the appellant raised the following contentions. The first contention is that the accounts do not satisfy the requirements of S. 34 of the Evidence Act as they were not maintained in the usual course of business. The learned Subordinate Judge in paragraph 9 of his findings stated thus:
'A scrutiny of the entries in the account books will clearly show that the accounts are quite reliable and genuine and they were not got up for purposes of this suit. The account books bear all the indecia of true and regular accounts maintained in the usual course. On the evidence on record, I hold that the accounts. Exs. A-20 to A-31 are true and correct accounts maintained in the usual course and the entries therein are to be accepted and acted upon.
The finding of the learned Judge was arrived at having regard to all the facts and circumstances, and sitting in second appeal I cannot interfere with that finding. I therefore, hold that there is no force in the contention that the accounts are not maintained in the usual course of business.
(2) The next contention is that the money order receipts were only proved by P. W. 1 who, Mr. Sankara Sastri submits, is not a competent witness. The learned Subordinate Judge in paragraph 9 observed that though there were some differences in the signatures in the several money order coupons, yet all the signatures were made by the 1st defendant himself. The learned Subordinate Judge also by his comparison came to the conclusion that the signatures in Exs. A-12, A-15 and A-16 compare favourably with the admitted signatures of the 1st defendant and also with his signatures in the written statement. Thus he came to the conclusion that the writing and signatures in Exs. A-12 to A-17 are the writing and signatures of the 1st defendant. He also relied upon several other circumstances to support the conclusion. In this view, I cannot accept the argument on behalf of the appellant that the only evidence available is the statement of P. W. 1 and that it did not amount to admission. This is a finding of fact which the learned Subordinate Judge was entitled to arrive at.
(3) The main contention on behalf of the appellant is that the title of Butchayyacharyulu to an undivided 1/6th share in the suit properties at the inception was not established and that all other documents are of a later date and they cannot be said to establish the plaintiff's title. The learned counsel also made a number of other submissions in order to dislodge the finding of the learned. Subordinate Judge regarding title and possession. This is not a case where the title rests upon the construction of any particular document and hence it is not a question of law as such. The conclusion has to be arrived at taking a number of documents and the oral evidence and probabilities into account. In such a case as laid down by the Supreme Court the conclusion arrived at is not one of law but only a question of fact. In this case it may be said that in addition to the District Munsif, two Subordinate Judges on different occasions, on a consideration of the entire evidence, came to the conclusion that the plaintiff has established his title to an undivided 1/6th share and also possession within 12 years prior to suit. Sitting in second appeal it is not possible for me to interfere with this finding. For all these reasons I accept the revised finding now submitted and hold that the plaintiff's title to and possession of the suit lands within 12 years prior to suit has been established.
(4) There remains only the other question as to the period for which the plaintiff is entitled to claim mesne profits. He (the plaintiff) demanded partition and separate possession of his share by means of Ex. A-18 dated 21-5-1953 to which the 1st defendant sent a reply notice Ex. A-19 dated 23-6-1963 denying the plaintiff's title altogether. The contention of Sri Sankara Sastri, the learned counsel, is that the 1st defendant must have collected the rents only as agent and in that view the plaintiff will be entitled to claim an account only for a period of 3 years and no more and Article 89 (of the Limitation Act) governs the case. In the instant case the basis of the plaint is that the plaintiff and 1st defendant are co-owners and the relief of account is based on the ground that he is a co-owner and collected the entire cist and was therefore liable to account. It is not the plaintiff's case that the legal relationship between them was only that of principal and agent. The distinction between co-owners and principal and agent is too well established to be lost sight of. Except in certain cases the agent has no interest in the subject-matter of the agency or the property entrusted to his management. In the present case, the basis of the claim is that both the plaintiff as well as the 1st defendant are co-owners. It is no doubt true that a co-owner also performs duties similar to that of an agent in that he collects the rents and renders an account in making payments to the other co-owner after deducting the expenses incurred and the taxes paid on the entire property. But that would not warrant the inference that the legal relationship between them is that of principal and agent. Having regard to the findings already arrived at the plaintiff is entitled to an account.
(5) Sri Sankara Sastry placed reliance upon the decision in Yerukola v. Yerukola, ILR 45 Mad 648: (AIR 1922 Mad 150) (FB). The facts in that case are clearly distinguishable. There when the property was in the management of arbitrators the individual members began collections of the amounts due from debtors and the rents due from tenants and when they are sought to be made liable it was held that the article of the Limitation Act governing such a suit for account and share of monies was not Article 109 or Article 127 nor Article 62 but that the Article applicable was 120, unless from the facts it can be inferred that the person receiving monies and mesne profits acted as the agent of the other, in which case Article 89 would apply. On the evidence in the case it was found that the property was kept joint since the time of the great grand-fathers, and the 1st defendant's adoptive father. The adoptive father of the 1st defendant was accounting for 1/6th share of the plaintiff only as co-owner, and he was collecting the cist for the entire land and paying the balance after deducting the proportionate taxes. In those circumstances it cannot be said that the 1st defendant or his ancestors acted as agents of the plaintiff. It may be that in the course of evidence the statement might have been made by the plaintiff that the 1st defendant was collecting rents on his behalf or as agent. The question what exactly is the legal relationship is a question of law to be decided by courts and not by parties. Any statements in his evidence that the 1st defendant is in the position of an agent is not decisive of the matter.
(6) For all these reasons I hold that the liability of the 1st defendant to account is only that of a co-owner and the proper Article applicable to the suit is Article 120. The suit is filed admittedly within 6 years from Ex. A-18 and hence the lower Court is right in awarding past profits from 1950.
(7) Mr. Sankara Sastri wants me to make it clear that the period for which future profits could be awarded to the plaintiff is only 3 years from the date of the decree or delivery whichever event occurs first. It has been laid down by the Supreme Court in a recent case in Chitturi Subbanna v. Kudapa Subbanna, Civil Appeal No. 598/1961, D/- 18-12-1964: : 2SCR661 , that the maximum period for which future profits can be awarded is only 3 years, of course from the date of this preliminary decree.
(8) In the result, all the contentions fail and the second appeal is dismissed with costs. No leave.
(9) Appeal dismissed.