1. This appeal arises out of a suit for possession and mesne profits. The father of the defendants-respondents, that is, Jai Bahadur Singh, took what might be called, a theka of a certain area of land or water from the Baja of Bansi. There was no formal theka, but Jai Bahadur Singh agreed to pay rent at the rate of Rs. 1025 a year for five years from. 1340 to 1344 Fasli inclusive and was let into possession. After the expiry of this period of five years the Raja of Bansi apparently wished to take possession of this piece of land or water and Jai Bahadur Singh opposed him. Eventually the Raja instituted the suit which has given rise to this appeal. Soon after the suit was instituted, Jai Bahadur Singh died and his sons, the defendants-respondents, were impleaded as his representatives. It has been held by the learned Judge of the Court below that Jai Bahadur Singh was not entitled to retain possession of the property and a decree for ejectment has been passed. The learned Judge has also passed a decree for future mesne profits, presumably for the period after the date of the decree. He refused to pass a decree for mesne profits up to the date of the institution of the suit and presumably pendente lite upon the ground that Jai Bahadur Singh was doing a wrongful or immoral act by remaining in possession of the property against the wishes of the plaintiff and consequently the amount due from him was an immoral debt in the technical sense of the Hindu law.
2. This appeal has been instituted by the plaintiff-appellant who claims mesne profits for the period up to the date of the decree. In our judgment, the decision of the learned Judge of the Court below was wrong. Jai Bahadur Singh and his sons are admittedly zamindars who pay land revenue of about Rs. 450 a year and are members of a joint Hindu family. As they have this nucleus of property, the presumption is that the theka (so called) was taken for the benefit of the whole family. A witness was also produced by the plaintiff, one Thakur Uma Maheshwar Singh, a revenue officer of the Bansi Raj, who stated that in fact the father and sons jointly took possession of the property in suit. One of the defendants, Chandrika Prasad Singh, gave evidence. He said that he and his brothers had not interfered with the management of the property, but there was no reason why they should do so as Jai Bahadur Singh was the karta. He also said that they did not enjoy the usufruct, but the usufruct might be paid into the joint family funds without their getting any part of it earmarked for their benefit. The evidence of this defendant does not contradict the presumption that the property was joint family property or the evidence of the witness produced by the plaintiff. If the family was in possession as such, there can be no question of an immoral debt. The family is being directed merely to repay profits which it enjoyed and which should have been enjoyed by the plaintiff.
3. In the alternative even if Jai Bahadur Singh alone was the thekedar it does not seem to us that there was anything immoral in his conduct. If the transaction had been properly a lease he would merely have been holding over; if it was a licence he was merely holding in continuation of the permission granted to him, and as he died before he could put in any written statement, we do not know what excuses he had for remaining in possession of the property. His conduct might have been legally wrong, but it does not necessarily follow that he was acting in bad faith or that he had no reason which in his view might be sufficient for retaining possession. We do not think it can be concluded that every trespasser in law is guilty of immoral conduct.
4. We do not consider that the mesne profits due to the plaintiff for the period before the death of Jai Bahadur Singh constituted an obligation arising out of some immoral conduct and we cannot see how the learned Judge could refuse mesne profits after Jai Bahadur Singh's death soon after the institution of the suit when the defendants themselves were admittedly in possession. We, therefore, set aside the decree of the learned Judge of the Court below on this particular point and direct that in addition to a decree for ejectment and a decree for future mesne profits, the plaintiff shall get a decree for mesne profits for the period claimed up to the institution of the suit and pendente lite. The rate will be that claimed in the plaint, namely Rs. 1025 a year, and on the amount due for each year interest will be calculated at the rate of six per cent. per annum. The appellant will get his costs in this Court, and the costs in the Court below will be recalculated as the proportion of success and failure has been varied by this Court's decree.