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Lachhman Das and anr. Vs. Mt. Gulab Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1936All270
AppellantLachhman Das and anr.
RespondentMt. Gulab Devi and ors.
Excerpt:
- - the fact that the shares in the existing properties were not varied whereas the shares in the business itself were varied seems to me to convey a strong suggestion at least that ram chander, lachhman das and rameshwar das did not regard the existing properties as part of the assets of the firms. having considered the evidence i am satisfied that the immoveable properties, properly so called, in the possession of ram chandar, lachhman das and rameshwar das were not partnership property. as i have already held, i am not satisfied that any payments made out of the credit of the three members of the family as shown in the books can be considered to be payments out of the partnership capital.allsop, j.1. this appeal arises out of a suit which was decided by the learned subordinate judge of aligarh. it was a suit instituted by mt. gulab devi for the partition of certain property of which the details are set forth in schs. a, b and c of the plaint. the plaintiff alleged that she had inherited a share in this property from her deceased husband, ram chandar, under a will executed by him on 19th november 1918. she impleaded as defendants lachhman das, rameshwar das, nathu and seven other persons. according to her lachhman das and rameshwar das were joint owners of the property with her husband. she impleaded nathu because he was rameshwar's son and the other seven persons because they were transferees of parts of the property under deeds which were executed after the death of ram.....
Judgment:

Allsop, J.

1. This appeal arises out of a suit which was decided by the learned Subordinate Judge of Aligarh. It was a suit instituted by Mt. Gulab Devi for the partition of certain property of which the details are set forth in Schs. A, B and C of the plaint. The plaintiff alleged that she had inherited a share in this property from her deceased husband, Ram Chandar, under a will executed by him on 19th November 1918. She impleaded as defendants Lachhman Das, Rameshwar Das, Nathu and seven other persons. According to her Lachhman Das and Rameshwar Das were joint owners of the property with her husband. She impleaded Nathu because he was Rameshwar's son and the other seven persons because they were transferees of parts of the property under deeds which were executed after the death of Ram Chandar. The property in suit included interests created by three simple deeds of mortgage respectively dated 19th February 1920, (item 1 of Schedule B), 5th November 1919, (item 2, Schedule B), and 11th January 1921, (item 2, Schedule C). The defence about the two first of these mortgages, namely those in Schedule B, was that they had been redeemed respectively on 27th May 1925 and 23rd May 1920. The learned Subordinate Judge held that the mortgages had been redeemed and that the suit for recovery of a share in the interests created by them was barred by limitation. He therefore dismissed the suit in so far as it related to these items.

2. It appears that he was under the misapprehension that the mortgage described in Schedule C had also been redeemed and that the same considerations applied to the interest created by it as applied to the interests created by the other two mortgages. He, therefore, dismissed the suit also in so far as it related to the interest created by this third mortgage. The general defence raised by Lachhman Das and Rameshwar Das was that all the properties included in the plaint were partnership property and that the plaintiff was not entitled to get a decree without instituting a suit for an account and a share of the profits of the partnership; They further contended that such a suit,, if it had been instituted, would have been barred by limitation under Article 106, Schedule 1, Lim. Act. This defence was not accepted by the learned Subordinate Judge and he gave the plaintiff in the first instance a decree for partition of all the properties except those to which I have already referred, namely the interests created by the three deeds of mortgage. The learned Subordinate Judge delivered judgment on 13th July 1932. The defendants, Lachman Das and Rameshwar Das, instituted the appeal with which I am dealing on 26th July 1932. Meanwhile, however on 15th July 1932, the plaintiff had made an application under Sections 151 and 152, Civil P.C., asking; the Court to correct its judgment in so-far as it related to the interests created by the mortgage deed of 11th January 1921, referred to as item 2, Schedule C of the plaint. This application was followed on 21st July 1932 by another application for review of judgment on the same grounds. The applicant, that is the plaintiff, pointed out that the learned Judge had dismissed the suit for partition of the interest created by that mortgage under a misapprehension.

3. The learned Judge accepted this contention and he passed an order on 5th September 1932 accepting the application for review and directing that the suit should be decreed with respect to the interest created by the mortgage mentioned in Schedule C-2. This order led to another appeal 458 of 1932 instituted, by Lachhman Das and Rameshwar Das. Mt. Gulab Devi also on 21st October 1932 instituted an appeal No. 379 of 1932 against that part of the decree which dismissed her claim under the two mortgages mentioned as items 1 and 2, Schedule B of the plaint. There are therefore three connected appeals before us and I shall deal with all of them in this judgment. It is admitted that Ram Chander, Lachhman Das and Rameshar Das were at one time members of a joint Hindu family. The common ancestor was Bagar Mal. He had two sons, Kanhaiya Lal and Lokman Das. Ram Chander was the son of Kanhaiya Lal and Lachhman Das and Rameshwar Das are the sons of Lokman Das. The family remained joint till sometime towards the end of the year 1912. On 11th May 1913 Ram Chander, Lachhman Das and Rameshwar Das executed a deed in which they indicated that they had separated some time before and that the joint family was dissolved. They mentioned in this deed that there were two family firms, one carrying on business as traders in lime at Hathras under the style of Bagar Mal Kanhaiya Lal and the other carrying on business as manufacturers of and traders in lime at Katni Mundwara in the district of Jubbulpore in the Central Provinces under the style of Bagar Mal Lokman Das.

4. They said that they were agreed that their shares in the joint family property were as follows, namely Ram Chander, 8 annas, Lachhman Das, 4 annas, and Rameshwar Das, 4 annas. The deed described how the partition had been effected. The household articles and ornaments had been distributed between the various branches of the family after the death of Kanhaiya Lal and Lokman Das. Ram Chander, Lachhman Das and Rameshwar Das confirmed this distribution and agreed that there was no further dispute between them about this property. They said that they had divided the cash in their hands by relevant entries in the books of the two firms. The firms were to remain joint but the three relations were to have definite shares in them in accordance with their shares in the whole of the family property. The moveable and immoveable property at Katni Mundwara was also to remain joint on the same condition. There were two houses which had been divided between the members of the family. One house worth Rs. 10,000 had been delivered to Ram Chander and the other worth Rs. 2,000 to Lachhman Das and Rameshwar Das. By way of adjustment Lachhman Das and Rameshwar Das had each been credited with Rs. 4,000 in the books of the firm at Hathras. The houses were at Hathras and that is where the members of the family had their home. The businesses were carried on in accordance with the provisions of this deed till the year 1917. On 13th December of that year Ram Chander, Lachhman Das and Rameshwar Das executed another deed which is described as a deed of partnership.

5. According to this deed the shares in the moveable and immoveable property which they held jointly at that time were to remain as they had been before, but the three of them were to have equal shares in any moveable or immoveable property which they might acquire jointly after that date and the shares in the businesses of any kind which they carried on were to be varied, that is, Ram Chander was to have a share of 6 annas and the other two to have a share of 5 annas each. According to the deed the businesses had been carried on, on these terms since Katik Sudi 1, Sambat 1974, i.e. since some date in October 1917. The position was not changed when Ram Chander died on 3rd July 1921. At that time he was credited with a large sum of money in the books of the firms. It is obvious that the three persons had been carrying on business as partners after the dissolution of the joint family towards the end of the year 1912 and that the death of Ram Chander dissolved the partnership. Mt. Gulab Devi was admittedly the heir of Ram Chander under the will to which I have already referred. She did not institute any suit for an account and a share of the profits of the dissolved partnership, but eventually on 8th June 1931 she instituted the suit which has given rise to these appeals. I have already mentioned that the main defence put forward by Lachhman Das and Rameshwar Das was that the properties in suit were part of the partnership property of the two firms. That is a very important question in these appeals.

6. Before I proceed to discuss it I think that it is necessary to describe the nature of the properties in suit. The property in item one of Schedule A is a house and 7 shops situated at Katni Mundwara.

7. The properties in items 2, 3, 4 and 5 are plots of land at or near Katni Mundwara. In items 2 and 3 it is mentioned that there are quarries in the plots. The significance of this fact is that these quarries constitute a special kind of property. It is not denied that agricultural land in the Central Provinces is held by the proprietors under grants by which they have only the surface rights in the property, that is, they are entitled to use only the surface and the immediate subsoil for purposes of cultivation, whereas the mining and quarrying rights in the deeper soil remain the property of the Government. The Government deals with these rights by issuing mining or quarrying leases either to the proprietors or to other persons. If the leases are given to persons other than the proprietors, the proprietors are granted compensation for the interference with their rights in the surface of the soil. There are some louses upon the record which show that it is the usual practice to grant such leases for periods of ten years with the right of renewal. The mention of quarries in the plaint is intended to indicate that the plaintiff is claiming a share in quarrying rights which have been granted to Lachhman Das and Rameshwar Das under certain leases. These quarrying rights constitute a special class of property with which I shall have to deal in duo course.

8. The property described in item 3, Schedule B is some zamindari property in Hathras and that described in item 1, Schedule C is an enclosure in Hathras with a number of shops in it. The other three items in Schs. B and C are the interests created by the three mortgages to which I have already referred. I shall now proceed to discuss the question whether the properties mentioned in the plaint or any of them can be described as the partnership property of either of the two firms in which Ram Chander, Lachhman Das and Rameshwar Das were partners. Partnership is a matter of contract between the parties although there are provisions in the Contract Act that in the absence of a contract to the contrary certain covenants will be assumed to exist between the partners. I may refer particularly to some of the provisions of Section 253 of that Act. The first part of the section is as follows:

In the absence of any contract to the contrary the relations of partners to each other are determined by the following rules:(1) All partners are joint owners of all property originally brought into the partnership stock or bought with money belonging to the partnership or acquired for the purposes of the partnership business. All such property is called partnership property. The share of each partner in the partnership property is the value of his original contribution, increased or diminished by his share of profit or loss....

9. The defendants contend that the property in suit was partnership property within the meaning of this section. What we have to decide is whether this property was originally brought into the partnership stock or was bought by money belonging to the partnership or was acquired for the purposes of the partnership, and if it was, whether there was any special contract varying the terms of the section. As this is a question of contract, we have to consider what conclusion we can reach from the express agreements in the two deeds of partition and partnership or from implicit agreements which can be inferred from the conduct of the parties. I may mention at this stage that the property in Schedule A was acquired before the partition with the exception of that part of the property in item 3 which is situated in village Mundwara and consists of plots 1236, 1237, 1254, 1255 and 1256. This latter property was purchased on 13th December 1913 from one Jagan Prasad. The property in list B was all purchased after the partition and so was the property in list C.

10. The first question is whether it was the intention of Ram Chander, Lachhman Das and Rameshwar Das that the property in existence at the time of the partition should become partnership property or whether it was their intention that it should be regarded as their joint property apart from the partnership and should be used only so far as was necessary for the purposes of the partnership. It seems to me that it does not necessarily follow because certain partners jointly own immoveable property which they use for the purposes of the partnership business that that property is partnership property. Whether it is or is not depends upon the agreement between the partners. If two brothers jointly inherited a house and thereafter at some time set up a business in the house in partnership, I do not think that it could be inferred from that fact alone that they were intending to transfer their shares in the house to their partnership business. In the present case the partition deed of 1913 does not contain any stipulation that the property in Kunti Mundwara which was at that time the only joint family property should be regarded as the property of the partnership in the firm which was carrying on business in lime. It is true that that was the only property which was not divided between the partners by metes and bounds, but there are possible explanations for this apart from the inference that the property was to be partnership property.

11. One possible explanation is that the arrangement was made for convenience of management. Parts of the property were doubtless connected with the business because they were used for the purpose of quarrying limestone, but other parts of the property, notably the shops (which were let to tenants, had no necessary connexion with the limestone business. I notice that in the deed of partition there is an express stipulation that the parties shall have no power to carry on any other trade except that of lime without the consent of each other and that if any party carries on any other trade without obtaining the consent of the others the loss sustained in that separate business shall be borne by that party and that the profits accruing from that business shall be deposited in the shop, that is, shall be regarded as the profits of the partnership. It is suggested that the plots of land which were not used for quarrying were connected with the business because they were used for the purposes of the employees of the business, but it is not certain that that was so. Then in the deed of 1917 the parties have stipulated that there shall be different shares in different properties. It is not inconceivable that partners might enter into a contract in respect of partnership property, that part of that property should be held in certain shares and the rest of it in certain other shares, but it is not what one would regard as an ordinary arrangement. The fact that the shares in the existing properties were not varied whereas the shares in the business itself were varied seems to me to convey a strong suggestion at least that Ram Chander, Lachhman Das and Rameshwar Das did not regard the existing properties as part of the assets of the firms.

12. An inference also arises from the manner in which the accounts of the Katni firm were kept. At the time when the joint family was disrupted and the partnership business was begun certain immoveable properties were shown in the books as the assets of the family. I refer to an extract from the accounts dated from Katik Badi 14th Sambat 1969 to Katik Sudi 15th Sambat 1969, that is, from the 8th November 1912 to 24th November 1912. Although the partition deed was executed on 11th May 1913 it appears that the partition took place in November 1912, that is, at the beginning of the firm's financial year. In the extract to which I refer there are certain sums of money which are shown to the account of land at Mundwara, Tikaria and) other places. It appears from this extract that at the time when the partition took place these sums of money were deducted from the capital account. It would appear that when the family was a joint family there was a ledger in the name of the family, that is, in the name of Kanhaiya Lal Lokman Das which represented the capital invested or the property of the family. On Katik Badi 14th Sambat 1969 the sum credited to the family was Rs. 51,118-2-6. Of this amount two sums of Rs. 28,934-11-3 and Rs. 13,222-7-3 were cash and the balance was the value of the landed properties to which I have referred and the value of something which is described as a 'bailat' and may mean a boiler. When the partition took place, the capital sum of Rs. 51,118-2-6 was taken away from the credit of the family. The sum of Rs. 28,934-11-3 was transferred to the account of the firm at Hathras and it has not been explained how this was dealt with in the books of that firm. The other sum of Rs. 13,222-7-3 was transferred to the credit of the three new partners according to their shares i.e., a sum of Rs. 6,611-3-6 was credited to Ram Chander and sums of Rs. 3,305-9-6 were credited to each of the other two partners. The balance represented by the value of the properties including the 'bailat' was removed from the account altogether, that is, the ledger in which the debits against the properties were shown were balanced and there was a corresponding reduction of the capital in the hands of the family. The ordinary meaning of this entry would be that the properties were no longer regarded as the assets of the firm but that they were returned to the partners to hold in their separate right according to their shares. It has been argued on behalf of the appellants that no inference can be made against the appellants from these entries in the account books because it is the ordinary practice of firms keeping their accounts in the Indian fashion not to show as assets of the firm any properties acquired out of the moneys of the firm. It is said that the ordinary practice when money is spent on acquiring property is immediately to debit the money so spent against the capital account of the firm. There is no expert evidence on the record and I consider therefore that we must take the entries as they stand. Whatever the usual practice may be, it is clear that the practice of this particular family was to debit money spent on acquired property against a ledger account in the name of that property: in other words, to show the property as an asset of the firm.

13. Even if it is not advisable to lay undue emphasis upon these items in the accounts it still must be admitted that the value of the property in existence in 1913 does not appear anywhere in the books of the firm as an asset of the firm. This is certainly an indication, if it is no more, that the property was regarded by the partners as existing apart from the partnership. After the partnership account was opened the system in accordance with which the books were kept was that there were three separate ledgers in the names of the three partners, a ledger called the Chunna Khudan Khata, in which the profits of the expenditure on the limestone business were included and a ledger called the Kharch Khata in which the profits of and the expenditure on the shops and other property were entered. It has been argued on behalf of the respondent that the books contained the joint ac counts of Ram Chander, Lachhman Das and Rameshwar Das and that it was only the Chunna Khudan Khata which contained the accounts of the partnership business as such. It seems probable that the three men allowed the accounts to be continued in the same form in which they had been kept while the family was a joint family with this modification that the shares of the three of them were defined and that their assets were separately shown according to their shares. It appears that at the end of each year all the ledger accounts were balanced and the profits calculated and carried over to the ledgers of the three members of the family according to their shares.

14. It is also probable that when that was done the amount credited to the name of each of the three men was regarded as his separate property. There is a stipulation in the deed of 1917 that each of the three partners will be allowed interest; at any time when his deposit is more than his share in the capital of the firm, but we have not been shown on any occasion that any interest was paid to any of these persons on any credit in his separate account. It seems impossible that the three persons should always have withdrawn amounts exactly proportionate to their shares from their separate accounts either from the firm in Katni Mundwara or from the firm at Hathras. If they drew upon their accounts separately, as presumably they must have done, the balances to their credit could not always have been proportionate to their shares in the capital and, if the whole of those balances were regarded as parts of the capital, interest should have been paid to those whose balances were in excess of their shares. I may now refer again to the property which was purchased from Jagan Prasad on 15th December 1913. Before discussing the accounts in so far as they relate to that property it was necessary to mention the existence of the Kharch Khata and Chuna Khudan Khata. The price paid for the property was Rs. 675. There is a mention of this in an extract from the accounts which is published on p. 258 of our paper book.

15. The payment of this sum is entered on Pus Badi 7th. At the same time there were certain expenses in connexion with the registration of the deed which brought the whole amount up to Rs. 684-8-0. This sum was debited to the Chuna Khudan Khata, that is, the limestone quarry account. It has been argued on behalf of the appellants that this property at leasts must be considered to have been purchased for the purposes of the business. The fact however is that the limestone quarry account was balanced every year and the profit was calculated and was credited to the partners. This sum of Rs. 684 therefore was included in the profit and loss for the year in which the entry was made and it was included therefore in the balance which was transferred to the partners in their separate accounts. The result is that this sum of Us. 684 does not appear anywhere in the accounts as an asset of the firm and the property as such must therefore be considered to have passed to the partners in their separate right. In any case, in the year 1917 when the second agreement was entered into, this property with the rest of the property existing at that time was to be held by Ram Chander, Lachhman Das and Rameshwar Das in shares of 8 annas, 4 annas and 4 annas.

16. The same argument applies to it as applies to the other property, namely that it is improbable that the partners if they had regarded this property as the property of the partnership would have agreed to hold it in shares different from the shares which they held in the business concerned. I now come to the property mentioned as item 3 of Schedule B. This was zamindari property with buildings thereon in the village of Dhunri in the Central Provinces. It was acquired by means of a sale deed dated .1.0th July 1920. From the extract of the accounts appearing at p. 293 of our paper book it seems that a sum of Rs. 3,122-14-0 was spent on the purchase of this property. Contrary to the practice which is set up on behalf of the appellants this sum was not debited immediately to any capital account but a ledger account was opened in the name of the village and in this account this sum was debited. This ledger account continued to be kept till the property was sold after the death of Ram Chander to one Ram Adhin in the year 1924. From an extract from the accounts at p. 291 of our paper book it appears that a sum of Rs. 4,000 was paid by Ram Adhin for the property.

17. The entries show that this particular village was shown as an asset in the books kept at Katni Mundwara. But it must be remembered that Ram Chander died a year after the property was purchased and it may be that this property would have been absorbed in the accounts of the three persons concerned if his death had not taken place. Accounts were made up for that year three or four months after the property came into the hands of these people and before the next accounting Ram Chander had died. There is no reason for thinking that the parties intended to treat this property in a manner different from the other immoveable property in their possession. It does not appear to have been particularly connected with the business in lime or any other business which might have been carried on by the partnership. Another possibility is that this property which belonged to all the three relations was being managed on their behalf by the same agency and that it was necessary to keep a separate account as there were profits from the property and money spent upon it. The fact that the shares in this property were equal and were consequently different from the shares in the business would make it necessary that the accounts of the two should not be amalgamated, and this seems to me to be an argument in favour of the contention of the plaintiff-respondent that the accounts kept at Katni Mundwara were not taken as a whole, the accounts of the partnership, but the accounts of three joint owners. If that is so, this would have been an account entirely separate from the partnership account which was represented by the Chuna Khudan Khata or limestone quarry account.

18. There remains the enclosure or Nohra at Hathras described in item 1, Schedule C. This property was purchased on 31st January 1921. The arguments about this are the same as those about the property in Dhunri. The sums paid on account of the property are debited in the Nohra account in the Hathras books. The property has no connexion with any limestone business and the purchase took place only a few months before Ram Chander's death. Having considered the evidence I am satisfied that the immoveable properties, properly so called, in the possession of Ram Chandar, Lachhman Das and Rameshwar Das were not partnership property. As soon as the joint family ceased to exist the members of it became owners in specific shares of the properties which were in existence at that time. They agreed to carry on certain businesses in partnership, but in order that the defendants' plea in this case should be accepted it would be necessary to hold that it is positively established that the three members of the family intended to pool those shares and hold the property not as co-owners but as members of a partnership. There is no sufficient evidence to justify a finding of this kind. On the contrary, all the indications are that they regarded those properties as separate from the partnership, although some of them may have been used in part or in whole for the purpose of the business. As for the properties which were acquired after the partnership came into existence, that is, the property which was acquired from Jamna Prasad and the two properties, item 3 of Schedule B and item 1 of Schedule C, in order that the defendants should succeed, it would be necessary to hold that these properties were purchased from partnership funds for the purposes of the partnership business. It is true that the accounts of the partnership business and the accounts of the members of the partnership were perhaps not very distinct, but on the whole it seems that the sums credited to the various members of the family in their separate accounts were regarded as their separate property and not as the joint capital of the partnership. If purchases were made jointly out of these funds, therefore, it cannot be said with any certainty that they were made out of the capital of the partnership. It appears, also, that none of the properties purchased had any real connection with the business in lime which was at least the primary business of both the firms in which the members of the family were partners.

19. I may now deal with the question of the quarries. According to the decree of the learned Subordinate Judge the plaintiff is to receive a share in the rights created by the leases granted to Lachhman Das and Rameshwar Das by the Government of the Central Provinces. Now all these leases were executed after the death of Ram Chander. They are dated 29th September 1923, 20th November 1923, 11th January 1924, 28th July 1927 and 17th September 1929. Ram Chander could not have had any right in the interests created by the leases after he was dead. It is argued on behalf of the plaintiff-respondent that these leases were granted in renewal of previous leases which had been in favour of the two appellants and of Ram Chunder and consequently that it should be held that Ram Chunder had a share in the interests created by them. It has been admitted, however, that there is no evidence whatsoever to show that any of these leases were granted in renewal of previous leases. The plaintiff-respondent bases her argument only on the fact that the form in which the leases are drawn up show that they are capable of renewal. I am not prepared to hold in these circumstances that the leases were renewals of previous leases and it follows that there can be no doubt that Ram Chander had no right in the interests arising out of them. That part of the decree of the lower Court which provides that the plaintiff-respondent should get a share in these interests cannot be upheld.

20. I now come to the mortgages. The two which are mentioned in Schedule B are the subject-matter of the plaintiff's appeal. It is admitted that these two mortgages have been redeemed in the sense that the money due has been paid to Lachhman Das and Rameshwar Das. It is argued however on behalf of the plaintiff appellant in that appeal that two of the mortgagees could not give a valid discharge. It is unnecessary, I think, in this appeal to express any opinion upon that argument. The mortgagors were not parties to the case from which the appeal has arisen and are not represented before us. The plaintiff-appellant is on the horns of a dilemma. If she contends that the mortgages were extinguished by the payment of the money, there is no doubt that her claim for a share of that money against Lachhman Das and Rameshwar Das would be barred by limitation. On the other hand, if she maintains, as it is suggested by arguments addressed to us that she does maintain, that the mortgages still subsist, because there has been no valid discharge, then her proper remedy is to institute suits to which the mortgagors are parties. In any case she cannot succeed in getting a decree in this appeal. Her appeal therefore must be dismissed with costs.

21. As for the mortgage which is mentioned as Item 2, Schedule C, we are informed that a suit was instituted upon the basis of it by Lachhman Das and Rameshwar Das who impleaded Mt. Gulab Devi as a defendant. The lady made an application to the Court that she should be included in the array of plaintiff and that was done. A decree was passed on the basis of the mortgage. The property was sold and was purchased by the three plaintiffs in that suit. The direction we understand of the Court is that the question of the shares in the property shall depend upon the decision in the suit which we are considering. The sum of money which was secured by the mortgage was paid out during the life-time of Ram Chander. As I have already held, I am not satisfied that any payments made out of the credit of the three members of the family as shown in the books can be considered to be payments out of the partnership capital. It does not appear that this mortgage had anything to do with the partnership business. I am therefore of opinion that Mt. Gulab Devi had a share of one-third in the interest created by the mortgage and would have the same share in any property acquired out of those interests. There remains one other point. The plaintiff asked for a decree for mesne profits for a period of three years. The learned Subordinate Judge decreed a sum of Rs. 2,100 on this account. In arriving at that sum however he took into consideration the profit from the quarries to which I consider that the plaintiff respondent had no claim. The decree for mesne profits as it stands cannot be upheld. It seems unnecessary at this stage to go into the question of the amount which is properly due. I would therefore leave that question to be decided at the time when the final decree for partition is passed.

22. As a result of my findings I would dismiss the plaintiff's appeal No. 379 of 1932 and the defendants' appeal No. 458 of 1932. In pursuance of the present appeal No. 327 of 1932 I would modify the decree of the Court below. Where the lower Court has said that the plaintiff's share in properties Nos. 1-5 of Schedule A is one-half, I should say that the plaintiff's share in properties Nos. 1-5 of Schedule A is one-half except that she shall not be entitled to any interests in the quarrying rights created by leases granted by the Government of the Central Provinces. Where the lower Court says that defendants 1-3 shall pay Rs. 2,100 as mesne profits to the plaintiff, I should say that the plaintiff shall be entitled to mesne profits from defendants 1-3 for a period of three years before the institution of the suit on the property in which she is held to have a share and that the amount of mesne profits should be calculated and included in the final decree for partition. I should give the respondents their costs in appeals Nos. 379 and 458 of 1932. I should give the defendants-appellants one-third of their costs in this appeal No. 327 of 1932, and the plaintiff two-thirds of her costs in the lower Court from defendants 1 to 3. I would not interfere with the order of the lower Court that defendants 4 to 10 should bear their own costs. The provision about future mesne profits should stand.

Niamat Ullah, J.

23. I agree and have nothing to add.

24. We dismiss the plaintiff's appeal No. 379 of 1932 and the defendants' appeal No. 458 of 1932. In appeal No. 327 of 1932 we modify the decree of the Court below. Where the lower Court has said that the plaintiff's share in properties Nos. 1 to 5 of Schedule A is one-half, we direct that the plaintiff's share in properties Nos. 1 to 5 of Schedule A shall be one-half, except that she shall not be entitled to any interest in the quarry rights created by leases granted by the Government of the Central Provinces. Where the lower Court says that defendants 1 to 3 shall pay Rs. 2,100 as mesne profits to the plaintiff, we direct that the plaintiff shall be entitled to mesne profits from defendants 1 to 3 for a period of three years next before the institution of the suit on the properties in which she is held to have a share and that the amount of mesne profits shall be calculated and included in the final decree for partition. We give the respondents their costs in appeals Nos. 379 and 458 of 1932. We give the defendants appellants one-third of their costs in appeal No. 327 of 1932, and the plaintiff two-third of her costs in the lower Court from defendants 1 to 3. We do not interfere with the order of the lower Court that defendants 4 to 10 shall bear their own costs. The provisions in the decree of the Court below about future mesne profits shall stand.


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