1. This is an appeal by the third plaintiff - the husband and Legal Representative of the first plaintiff - and relates only to a portion of the subject-matter of the suit. The plaint was presented only by two plaintiffs, the daughters of the first defendant by his deceased first wife Santhanayaki. They claimed possession of the scheduled properties and other reliefs, as the heirs of their deceased mother. The second defendant is the first defendant's son by that wife. Defendants 3 and 4 are the sons of the first defendant by his second wife. The first plaintiff died very soon after the institution of the suit; and after some contest as to who her legal representative was, the third plaintiff was added as legal representative, by order, dated 21st March, 1927, on I.A. No. 102 of 1927. The question decided by this order has been re-agitated before us, though not seriously and it has been argued that the husband is not the heir, because the marriage was in an unapproved form. This question of heirship may be briefly disposed of.
2. The evidence recorded in connection with I.A. No. 102 of 1927 shows that in accordance with the custom of the community relating to 'Parisam', a jewel was presented by the bridegroom's father and placed on the bride's neck at the time of the betrothal ceremony. The form or value of the jewel was not even the subject of a bargain, but merely left to the pleasure of the bridegroom's father. This can in no sense be called 'bride, price. From Manu's texts as well as from the decided cases, it is clear that the distinctive feature of the Asura form of marriage is the giving of money or money's worth to the bride's father, for his benefit or as consideration for his giving the girl in marriage. See Muthu Aiyar v. Chidambara Aiyar (1893) 3 M.L.J. 261, S. Authikesavulu Chetti v. S. Ramanujam Chetty I.L.R. (1909) 32 Mad. 512 : 19 M.L.J. 656 and Jaikisondas Gopaldas v. Harikisondas Hullochandas I.L.R. (1876) 2 Bom. 9. In Reverend Gabrielnathaswami v. Valliammai Ammal (1909) 10 L.W. 491 there was a finding by the lower appellate Court, that the 'Parisam' in that case was in the nature of a 'bride price'. In Samu Asari v. Anachi Ammal : AIR1926Mad37 and in S.A. No. 236 of 1925, the money was held to have been paid for the father's benefit, though utilised by him to meet the expenses of the marriage, which he must have otherwise defrayed out of his own funds. See also Ratnathanni v. Somasundara Mudaliar (1921) 13 L.W. 582. As pointed out in Jaikisondas Gopaldas v. Harikisondas Hullochandas I.L.R. (1876) 2 Bom. 9 the texts clearly distinguish between payments to the father for his own benefit and payments to the bride, received by her kinsmen not for their own use. We therefore affirm the conclusion of the lower Court on this point.
3. The main question in the appeal is, whether, taking the third plaintiff to be his wife's heir, he is entitled to any, and if so to which, of the properties claimed in the suit. The learned Subordinate Judge has, in paragraphs 14, 42, 46, 49 and 55 of his judgment, recorded findings to the following effect, as to the title to the various items of properties specified in the plaint schedules, viz., that the properties in Schedules I to I(d), had been purchased in Santhanayaki's name and belonged to her; that there were cash deposits in her name to the extent of Rs. 30,000, that out of this sum, the properties in Schedules II (b), (c) and (e), items 1 to 3 in Schedule, II and items 1 to 4 in Schedule II(d) were acquired, after her death, in the names, sometimes of the two plaintiffs, sometimes, of the two plaintiffs and the second defendant jointly and sometimes, of the second defendant alone, but that they all belonged in law to the two plaintiffs; and that the property in Schedule II(a) and items 7 to 18 of Schedule II, had been purchased out of the income accruing from Santhanayaki's estate subsequent to her death. He held that all these three sets of properties constituted 'Santhanayaki's estate' and as such devolved on the second plaintiff as sole heir, on the first plaintiff's death (para. 72). The appeal is confined to the third group of properties above described, i.e., those specified in Schedule II (a), and the items 7 to 18 of Schedule II.As these are found to have been acquired out of income, accruing after Santhanayaki's death, it has been argued, on behalf of the appellant, that these properties did not form accretions to the main estate but belonged absolutely to the daughters in equal shares and on the death of one of them, her share devolved on the third plaintiff as her heir.
4. The plaintiff also claimed a large sum, by way of profits, on the ground that for a number of years the first and second defendants had been managing the estate on behalf of the two plaintiffs. The Court below held (para. 73) that the sum awardable under this head must also be held to devolve on the second plaintiff as an 'accretion' to the estate. This conclusion has also been attacked before us and the appellant claims that he is entitled to a half share in the profits.
5. On behalf of the respondents, Mr. Sitarama Row reiterated before us, the contention put forward, on behalf of the defendants in the Court below, that the first two groups of properties (as classified above) should not be held to belong to Santhanayaki or to her daughters and therefore not the third group also. The title to the first set of properties and the deposit in respect of the cash fund undoubtedly stood in Santhanayaki's name. The defendants made some suggestions of benami but they had no definite case, for there are obvious difficulties in substantiating a theory of benami. The second defendant suggested that up to a certain stage, it was benami for the mother and aunt of Santhanayaki and later on those people purchased properties out of those funds in the names of whomsoever they wanted to benefit. There is very little proof of this either. Mr. Sitarama Row suggested that the old ladies could not have intended that the second defendant - the daughter's son - should get no benefit and they must have intended to give a kind of 'daughter's estate' to Santhanayaki, so as to make it descendible to the second defendant at her death. No such case was put forward in the pleadings : on the other hand, it is inconsistent with the case actually put forward, viz., that Santhanayaki was only a benamidar. Beyond putting forward these hypotheses, Mr. Sitarama Row did not seriously assail the findings of the Court below (as above set out) and we do not therefore pursue these hypotheses further.
6. On the findings of the Court below as to the title of Santhanayaki and of plaintiffs 1 and 2, both sides have elaborately argued before us, the question of law, as to the devolution, on first plaintiff's death, of her share of the items claimed' in the appeal. In dealing with their arguments, certain: facts and dates are material. The second defendant was-born in 1902, the first plaintiff in December, 1905 and the second plaintiff in June, 1907. Santhanayaki died in December 1909. She was born in a rich family and throughout her life lived with her mother and aunt (father's brother's widow), the first defendant also living with them. Plaintiffs 1 and 2 also lived with her aunt or mother, till they were married, sometime about 1920. During the minority of the plaintiffs, the first defendant has (as found by the lower Court in para. 56). been acting as their guardian up to 1920, managing Santhanayaki's properties and making the various purchases above referred to. After the second defendant attained majority, he has been in management of the suit properties since 1921 (see para. 63 of the lower Court's judgment). Even after the plaintiffs attained majority, they were never put in possession, but the management continued with the second defendant up to-date of suit. The importance of these circumstances is this : if before the theory of 'accretion' to the main estate could be applied, it is necessary that the limited owner should be in possession of the main estate or should have received the income there from or made investments out of such income, there would be no scope for its application here; because plaintiffs 1 and 2 never had possession, never received the income and never made any investments themselves. Again, if any act or expression of intention on their part should be held necessary to constitute the surplus income (or the investments thereof in the purchase of land) an accretion to the main estate, there has-been no such act or declaration of intention on their part, prior to suit. Even if any presumption, whether of fact or of mixed law and fact were necessary to send the accumulations and their investments in the same line of devolution as the corpus, no such presumption could, according to the decisions, be made when the limited owner has never been in possession cf. Sowdaminee Dossee v. The Administrator-General of Bengal . Indeed, during all the time when the properties claimed in the appeal were purchased, the second plaintiff was a minor.
7. The Respondents relied upon the statement in para. 12 of the plaint as proof of the plaintiffs' intention to make the purchased properties an accretion to the mother's estate. We shall presently deal with this argument. But Mr. Sitarama Rao mainly pressed the contention that the question of 'intention' is material only when the female owner has made an alienation and that independently of any acts or intention of the limited owner, the income derived from an estate inherited by her is of such a character that unless the limited owner has appropriated it or disposed of it or at least otherwise made it her own by some positive act, the income and any investments thereof will go with the main estate and not devolve on the personal heirs of the limited owner.
8. The contention based on para. 12 of the plaint may be briefly disposed of. In that paragraph reference is made to the purchases made by the first defendant out of the corpus of the funds that belonged to Santhanayaki and also to purchases (by defendants 1 and 2) out of the income that accrued after Santhanayaki's death; and in respect of both these sets of properties it is stated that 'they lawfully belong to the estate of Santhanayaki. They have been purchased only for the benefit of the plaintiffs'. The next succeeding sentence as well as paras. 8 and 9 of the plaint, make it clear that the averment relied on was meant to negative the claim put forward on behalf of the second defendant that the purchases were made for his benefit. There was no occasion at that stage to think of any contradistinction between the 'inherited' properties and the 'acquired properties' and the allegation is at best only a statement of Law ('law fully' is the word used). It does not seem reasonable to read into it any expression of intention, if such be necessary for the Respondents' case.
9. On the point of law, we have been taken through a number of decisions relating to accumulations and investments made by Hindu widows. Both sides rightly pointed out that in most of the cases, there had in fact been dispositions made by the widows and the observations as to what should happen if there were no disposition, were obiter. The divergence of view noticeable in the decisions in India may be illustrated by the two following extracts. In Subramanian Chetti v. Arunachalam Chetti I.L.R. (1904) 28 Mad. 1 Sir Subramania Aiyar, J. observed; 'where the widow making the purchase has, while not annexing it to her husband's estate, left it undisposed of, whether the descent thereof is to be to her husband's heirs or to her own, is a question which can hardly be treated as settled'; and the learned Judge proceeded to give reasons why it should be held that what the widow could dispose of at pleasure is 'her own property, not limited but absolute, exclusive and separate in every sense and devolving as such'. On the other hand in Kula Chandra Chakravarti v. Bama Sundari Dasee I.L.R. (1914) 41 Cal. 870Imam and Chapman, JJ. said 'It is now a well-settled rule of Hindu law that property acquired by a Hindu widow with the accumulations of the income of her husband's estate does not constitute her stridhanam but forms part of the corpus of the estate' (the italics in both the extracts are ours). In Sarat Chandra Mitra v. Charusila Dasi I.L.R. (1928) 55 Cal. 918 Page, J. Laid down that whatever power of disposition a Hindu widow might have over the savings or their investment, could be exercised by her only during her life-time but she had no testamentary power even in respect of her income or its accumulations, or investments therefrom. Mr. Sitarama Rao did not however support this distinction between dispositions intervivos and dispositions by will, in view of the decision of the Privy Council in Venkatadri Appa Rao v. Parthasarathy Appa Rao (P.C.).
10. As the High Courts in India have, in dealing with this question, purported to follow or explain away certain observations of the Judicial Committee, it will be convenient to refer at some length to the decisions of the Judicial Committee. The Respondents have principally relied on Isri Dut Koer v. Hansbutti Koerain do not throw much light on the precise question now under consideration. In the former case, their Lordships accepted the positive finding of the High Court that 'upon the evidence there is not the slightest doubt that the properties in question were dealt with by the widows as accretions to their husband's estate.' The only general observation in the judgment is in the following words: 'Where a widow comes into possession of the property of the husband and receives the income and does not spend it but invests it in the purchase of other property, their Lordships think that prima facie it is the intention of the widow to keep the estate of the husband as an entire estate and that the property purchased would prima jacie be intended to be accretions to that estate'. This can hardly be read as a statement of a rule of Law, for it is clearly expressed in terms of an inference of fact and that is how it has been understood in the Madras Cases. The head-note however uses the word 'presumption' and in the Calcutta cases, this decision has been understood as laying it down that whenever there is a permanent investment by the widow, of her accumulated savings, the onus is thrown on the other side to prove that it was not meant to be an accretion. How far this view can be justified in the face of the observations in Sowdaminee Dossee v. The Administrator-General of Bengal the circumstances of the purchase and the nature of the interests purchased were held to justify the view that the rights acquired 'would be an obvious accretion to the husband's property'. Starting from that basis, their Lordships added, if it were possible for her to segregate 'the purchased rights, it would require some more unequivocal act for the purpose than anything to be found in this evidence'. It is obvious that this remark must be read in connection with their Lordships' view of the evidence in the case. The only other observation in that judgment which has been relied on, runs in these terms: - 'Though it is true that when that property (meaning apparently the income) had been received, it would be possible for her so to deal with it that it would remain her own, yet it must be traced and shown to have been so dealt with and in this case there is no sufficient evidence of this having been done'. Even this observation would not support the respondent's argument in the form presented before us, for, in the Privy Council case there has been an attempt by the widow at an alienation of the property acquired out of the savings. To that extent, it could not be said that it was 'unappropriated'. It is clear that their Lordships' remark was made in the light of the nature of the investment that the widow had made, and not as a general proposition of law, throwing upon the widow and her heirs the onus of proving 'that she has done some act to show her intention to appropriate the income for herself. As early as in the Sowdaminee Dossee v. The Administrator-General of Bengal their Lordships had held that the widow's income, as it fell due, became 'her absolute property' and why is any further act of 'appropriation' necessary in respect of what is already her own? If, from the mere act of 'saving', the fund could be held to acquire a new character - and this was one of the contentions in the Sowdaminee Dossee v. The Administrator-General of Bengal - it is sufficient in the. present case also, as in the Sowdaminee Dossee v. The Administrator-General of Bengal I.L.R. 20 Cal. 433 to say that even the saving was not the act of the plaintiffs, because they never had possession and never received the income.
13. The Respondents' argument had thus to be rested solely on the observations in Isri Dut Koer v. Hansbutti Koerain . Even there, the widow had made an alienation, thus showing her intention, if possible, to make the acquired property her own, but their Lordships held that it was no longer open to her to do so, because the evidence showed that she had already made the acquired property an accretion to her husband's estate. There however occur the following observations, in the judgment: 'If she has made no attempt to dispose of them (savings) in her life-time, there is no dispute but that they follow the estate from which they arose. The dispute arises when the widow who might have spent the income as it accrued, has in fact saved it and afterwards attempts to alienate it' (p. 335). After referring to the earlier cases, their Lordships say on p. 337 'Nor do they think it possible to lay down any sharp definition of the line which separates accretion to the husband's estate from income held in suspense in the hands of the widow, as to which she has not determined whether or no she will spend it'. The succeeding portion of the judgment shows that this must be dealt with as a question of fact in each case. With this may be compared their Lordships' observation in Rajah of Ramnad v. Sundara Pandiyasami Tevar 'It is a question of fact to be determined if there is any dispute, whether a widow has or has not so dealt with her property'. The question now is, is it justifiable to treat the first of the above extracts from the Isri Dut Koer v. Hansbutti Koerain ) as embodying a decision or even pronouncement by their Lordships, on the point of law. The argument before them proceeded on the assumption that, according to the then state of the authorities, 'a widow's savings from her husband's estate are not her stridhanam' - for the obvious reason - that in Bhagbutti Daee v. Bholanath Thakoor the Board had observed that 'one consequence of the widow's estate no doubt would be that she would be unable to alienate the profits or that at all events whatever she purchased out of them would be an increment to her husband's estate'. In the High Court, Ainslie, J. unquestioningly accepted this dictum so far as the devolution of the undisposed portion went and he only struggled to establish at least a limited power of disposition see Hansbutti Koerain v. Ishri Dutt Koer I.L.R. (1879) 5 Cal. 512 where the learned Judge reiterates on this point 'I think there is no difference of opinion'). On p. 525, the learned Judge observed that this view would fit in with Justice Dwaraka Nath Mitter's theory In Kery Kolitany v. Moneeram Kolita (1873) 13 Beng. L.R. 1 that the widow is in possession as a kind of 'trustee'; but he attempted his own explanation by the theory of a presumable intention to add such-moneys or properties to the estate and to abstain from exercising her full rights over them'. Though dissenting from, Justice Dwarakanath Mitter's theory, Ainslie, J. (on p. 527) accepted the decision in Chundrabulee Debia v. Mr. Brody (1868) 9 W.R. 584 (Civ.) which was largely founded on the doctrine that the Hindu widow takes her husband's estate only for purposes of maintenance. On page 528 he would have it that even if the widow severed the accumulations from the main estate, he would only go the length of giving her a power of testamentary disposition over it but not recognise its descendability to her own heirs - apparently because it won't fall under the categories of stridhana enumerated by Jimutavahana see Chundrabulee Debia v. Mr. Brody (1868) 9 W.R. 584 . The report of the argument on p. 328 of the Isri Dutt Koer v. Hansbutti Koerain would show that this is all that respondent's Counsel sought to maintain, before: the Judicial Committee.
14. Their Lordships' remarks on page 334 Isri Dut Kocr v. Hansbutti Koerain show that the law relating to 'widow's estate' was then taken to have advanced only one step from the earlier view, i.e., from the 'trusteeship' theory, to a stage wherein the widow had a 'more free and complete usufruct of her husband's property'. Hence, it is that their Lordships formulate to themselves the question as to the point of time or the circumstances under which the widow loses her control over the unexpended portion of her income from her husband's estates. If as is now established by the decision in Sowdaminee Dossee v. Administrator-General of Bengal the income is her 'absolute property', and as shown by the decision in Venkatadri Appa Rao v. Parthasarathi Appa Rao she does not lose her power of control even at her death but can deal with the accumulated income by her will, there is no reason for drawing the line at testamentary disposition and refusing to reach the logical conclusion that even if she happens to die intestate, the surplus amount should be treated as 'her absolute property'' for purposes of devolution as well.
15. It will be instructive to compare the decision in Chundrabulee Debia v. Mr. Brody (1868) 9 W.R. 584 (Civ). with that in Venkatadri Appa Rao v. Parthasarathi Appa Rao In the former case, the High Court held that a decree for mesne profits obtained by a widow could not, after her death, be made available for the discharge of her personal debts; but in the latter case, the Privy Council have Laid down that the income due to the widow from the Receiver was on her death, 'part of her estate' available for payment of legacies bequeathed by her. It certainly cannot be said that what is available for payment of legacies cannot be made available for payment of debts of the deceased. Their Lordships' observations in this latest case also suggest that unless the widow had made the surplus income an accretion to the husband's estate, such surplus would remain part of 'her estate' even after her death. The case also answers - and answers from a far more liberal standpoint - the question left open by the Judicial Committee at the end of their judgment in Gonda Kooer v. Kooer Oodey Singh (1874) 14 Beng. L.R. 159 and by Sir John Wallis in Narayanan Chetty v. Suppiah Chetty I.L.R. (1920) 43 Mad. 629 : 38 M.L.J 437. As for the decision of Jackson, J. in Pavani Subbamma v. Mungamur Venkatakrishna Row (1924) 80 I.C. 290 it is clear from the Judgment in Piramanayakam Pillai v. Krishnaswami Pillai (1929) M.W.N. 355 that he himself did not regard it as authoritative after Venkatadri Appa Rao v. Parthasarathi Appa Rao in so far as the Calcutta High Court held that the rent due to the deceased female owner would not be available for the satisfaction of her debts.
16. There is little force in the argument that Jimuthavahana's definition or enumeration of 'Stridana' won't comprise this kind of assets. Even the Calcutta High Court has latterly refused to adopt a literal construction of that text or consider the enumeration there as exhaustive: see Ram Gopal Bhuttacharjee v. Narain Chandra Bandopadhya I.L.R. (1905) 33 Cal. 315. This Court has long been accustomed to give a wide scope to the doctrine of 'stridhana' in view of the liberal definition thereof in the Mitakshara : see Salemma v. Lutchmana Reddi I.L.R. (1897) 21 Mad. 100 : 8 M.L.J. 14 and the view indicated by Sir Subramanya Aiyar, J. in Subramanian Chetti v. Arunachelam Chetti I.L.R. (1904) 28 Mad. 1 as to the devolution of the widow's savings and acquisitions on her stndhanam heir was accepted in Veeraraghava Reddi v. Kota Reddi : (1916)31MLJ465 and by Kumaraswami Sastriar, J. in Ayiswaryanandaji Saheb v. Sivaji Raja Saheb I.L.R. (1925) 49 Mad. 116 : 49 M.L.J. 568. As observed in Tadiboyina Peda Punnayya v. Debbakutti Kattamma (1915) 17 M.L.T. 363 once it is established that certain property is the absolute property of a woman under her entire unfettered control, there ought to be only one rule of succession recognised in Madras, namely the rule of succession relating to stridhanam property. Indeed this conclusion would follow even from the observations of the Privy Council in Bhagbutti Daee v. Bholanath Thakoor (1875) I.A. 256 : I.L.R. 1 Cal. 104 where speaking as a 'life estate' (as contradistinguished from a widow's estate) they said (at p. 260) 'she would have the power of making whatever use she chose of the proceeds of her estate; and if she bought land or personal property with them, that land and that property would be hers and would devolve on the defendant (grand daughter) who represents her'. There is no particular point of distinction, in the income being derived from the husband's estate, because that was the case even in Bhagbutti Daee v. Bholanath Thakoor (1875) I.A. 256 : I.L.R. 1 Cal. 104 .
17. Of the Indian decisions relied on by Mr. Sitarama Rao Sirdhar Chattopadhya v. Kalipada Chuckerbutty 16 C.W.N. 106, Sheonandan Prasad v. Damodar Prasad (1923) 78 I.C. 306 and Sm. Bharateswari Dasi v. Bhagaban Chandra Chakravartty 33 C.W.N. 193 are directly in. point, but we are, with all respect, unable to follow them, because, as already indicated they are based on a different view as to the effect of the dicta in the Isri Dutt Koer v. Hansbutti Koerain (1883) L.R. 10 10 IndAp 150 : I.L.R. 10 Cal. 324 . Further, the first two are decided before Venkatadri Appa Rao v. Parthasarathy Appa Rao and in the third, no reference is made to Venkatadri Appa Rao v. Parthasarathi Appa Rao Even in Calcutta, one learned Judge has in a recent case Bankim Behary v. Probodh Chandra : AIR1934Cal284 have more than been counter-balanced by later decisions. We think that the trend of opinion in this Court since Subramanian Chetti v. Arunachelam Chetti I.L.R. (1904) 28 Mad. 1 is in consonance with their Lordships' latest pronouncements.
18. Amongst text-writers, Sir Dinshah Mulla seems to endorse the Madras view (see his Hindu Law, 7th Edition, p. 176) et seq. In Mayne's book, the learned Editor of the 9th Edition, after referring to the decisions in Akkanna v. Venkayya Nor is this case referred to in the 6th Edition of Sircar's Hindu Law. We may add that whatever reason or justification - historical or sacerdotal - may exist for looking with disfavour on a widow's right to dispose of her surplus income or transmit them to a line of heirs different from her husband's, the same considerations need not be extended to the case of a daughter and much less to a daughter inheriting her mother's stridhana. The Hindu Law givers never looked with disfavour on the succession of a daughter or imposed upon her restraints of abstinence or even continence, as in the case of a Hindu widow. The Privy Council have no doubt held that the estate taken by a daughter as heir to her mother's stridhana is not an 'absolute estate' Sheo Shankar Lal v. Debi Sahai but the doctrine of reverter' may well be limited to the original estate and proved accretions to it.
19. The view we have taken receives some support from the analogy of the law relating to savings and acquisitions made out of the income, by the holder of an impartible estate belonging to a joint family, it is true that there is this difference between the two cases, viz., that, unlike the female holder,, the impartible estate holder is during his lifetime an absolute owner of the estate; but, for our present purpose, there is sufficient similarly between the two cases, in that in both instances, the holders for the time being are absolute owners of the income and that after their death, there are two lines of devolution, one for the main estate and another for their personal property. The following observations of the Judicial Committee in Rani Jagadamba Kumari v. Wazir Narain Singh are equally opposite to the present case:
The income when received is the absolute property of the owner of the impartible estate. It differs in no way from property that he might have gained by his own effort or that had come to him in circumstances entirely disassociated from the ownership of the Raj. It is a strong assumption to make that the income of the property of this nature is so affected by the source from which it came that it still retains its original character.
20. In Gurusami Pandiyan v. Pandia Chinna Thambiar I.L.R. (1920) 44 Mad. 1 : 39 M.L.J. 529 a woman who was entitled to an impartible estate died before getting possession and the income had accumulated in the hands of a Receiver. The learned Judges determined the succession to such accumulated income, on the footing that it washer 'absolute property' (see p. 34).
21. We therefore hold that the appellant (third plaintiff) is entitled to the half share of the first plaintiff in the properties claimed in A.S. No. 88 and to the share of the profits that may, on the taking of accounts, be found due to the first plaintiff. He will also be entitled to a half share of the mense profits between the date of plaint and the date of the first plaintiff' death. As from the date of the first plaintiff's death, the appellant will be entitled to mesne profits in respect of the share of the properties, decreed to him. The Respondents will pay the appellant his costs in the appeal and proportionate costs in the lower Court. The case will go back to the Subordinate Judge for passing a final decree after effecting a division of the properties, taking the necessary accounts and ascertaining profits prior to suit and fnesne profits subsequent to suit.
22. Mr. T.M. Krishnaswami Aiyar who appears for the second plaintiff brought it to our notice that subsequent to the date of the lower Court's decree the second plaintiff has made payments, on the footing that she was the exclusive owner of the suit properties and he referred to the possible inconveniences that may arise on that account, in working out the division now directed by us. We are unable to give any directions with regard to that matter. It will be for the lower Court to see how far such inconveniences can be avoided in effecting the division.
23. In A.S. No. 236 of 1932, the third plaintiff has taken exception to the order of the lower Court in respect of his claim for 'interest' on the amount of profits awardable to him. Mr. Sitarama Rao has brought it to our notice that paras. 2, 5 and 6 of the decree of the lower Court do not give due effect to the directions contained in para. 66 of the Lower Court's judgment. It seems to us sufficient to direct that accounts up to date of suit sh ill be taken on the footing that the first and the second defendants were respectively managing the estate on behalf of the plaintiffs prior and subsequent to 1921, and accounts after date of suit shall be taken on the footing that second defendant is liable for mesne profits in the proper sense. The claim for interest on the amounts found due will also be dealt with on the same basis; for the period prior to suit, interest could be claimed only if and in so far as the sums in the hands of 1 and 2 defendants have in fact earned interest; in respect of the period subsequent to suit, mesne profits will include interest on the profits at 6 per cent, per annum.
24. We make no order as to costs in A.S. No. 236 of 1932.
25. In A.S. No. 434 of 1928, a decree has been already passed in terms of the compromise as between appellants and the first Respondent (second plaintiff). As against second Respondent that appeal must be dismissed with costs, excluding advocate's fee which will be taxed only in A.S. No. 88 of 1929.