Sadasiva Aiyar, J.
1. The 1st plaintiff is the appellant before us in this second appeal which is called an Appeal against Appellate Order.
2. This litigation has been going on for the last 26 years, the suit having been filed in 1895.
3. It was a suit for partition brought by the plaintiff against his father, brothers and other members of his (family and alienees.)
4. In 18 99 when the old Civil Procedure Code was in force the District Judge on appeal made a decree as follows: 'It is ordered that the items Nos. 1, 2, 14 and 15 mentioned in the Schedule C and the moveables in Schedule D (except items 5, 10 and 37) of the plaint be divided into live shares and that the plaintiff be given a one fifth share of the same etc.'
5. As pointed out by Bhashyam Iyengar, J. in Mallikarjunadusetti v. Lingamurthi Pantulu I.L.R. (1902) Mad. 244 . 'In the case of a suit for partition there is to be but one decree' (under the old Civil Procedure Code) 'but before making that decree the Court may appoint a commissioner to submit a scheme for effecting the partition under Section 396. There is in the section no reference made to a preliminary decree. All that the section enjoins is that the Court 'after ascertaining the several parties interested in the property of which a partition is sought and their several rights therein, may issue a commission etc.' Thus it was only after the commissioner or commissioners sent the report or reports and after the actual division and allotment of shares to the parties (awarding sums if necessary for equalizing shares) and after hearing objections to the commissioner's report or reports and deciding on those objections (if any) that the Court could pass the decree (and the only decree) in the suit under the old Code. There was no such thing as a preliminary decree under the old Civil Procedure Code in a suit for partition, and, of course, no such thing as a final decree. As a matter of practice, the order ascertaining the several parties interested in the property to be divided and their several rights therein used to be treated as itself a decree subject to appeal and as such an order does contain the adjudication as to rights and shares and persons interested, the description of that order as a decree may not be considered inapt. But, the description of that order as a preliminary decree and the description of the decree passed after the report of the commissioners making the actual division as a final decree are not authorised by the old Civil Procedure Code.
6. The distinction between the old Civil Procedure Code (Section 396) and the new Procedure Code (Order 26 Rs. 13 and I4, and Order 20, Rule 18, which contemplate the passing of a preliminary decree in place of the order, ascertaining the parties and shares and contemplate a final decree after the commissioner's report) has not been kept in mind by the lower Courts during the progress of the present partition suit which as I said was governed by the old Civil Procedure Code for about 13 years after its institution and has been governed by the new Civil Procedure Code during the last 12 or 13 years.
7. The result has been that the order passed in 1899 under the old Code has been (by confusion and mistake) called a preliminary decree in the proceedings after the new Code came into force and what is called a 'final' decree has (after the report of the commissioner appointed in this case in 1915,) been passed in September 1916. Against this 'final' decree of September 1916, an appeal was preferred to the District Court which dismissed the appeal and against that dismissal the present second appeal has been brought. I think for the reasons stated above that the decree passed by the Subordinate Judge in September 1916 is the only decree passed in this case and that the so called decree of 1899 is not a preliminary decree but an interlocutory order ascertaining the rights and shares with a view to pass the partition decree in the case after the lands are divided by (and other steps taken through) commissioners etc.
8. I now turn to the merits of the substantial questions in the suit. The plaintiff in his plaint prayed besides the division of the properties owned jointly, the award to him of the profits of his share of the lands for the three years preceding the date of the plaint and of subsequent profits, (till possession was given of his shares) from defendants 1 and 2. (The 1st defendant died after the suit). The order of 1899 was silent on the question of those profits. Here again, I have to point out that the Tamil word corresponding to 'profits' seems to - have been translated into the technical phrase 'mesne profits' in the Judgments and orders which we have to considor in the disposal of this case. 'Mesne profits' according to the definition given in Section 211 of the old Civil Procedure Code and in Section 2, Clause 12 of the new Code mean those profits which 'the person in, wrongful possession actually received, etc.' The observation of their Lordships of the Privy Council in Pirthi Pal and Uman Parshad v. Jowahir Singh I.L.R. (1887) Cal. 493 , may be quoted in this connection. 'The District Judge thus proceeded erroneously in their Lordships' opinion to treat the claim for an account of the proceeds of the family estate as a claim for mesne profits, and quoted the provisions of the Code of Civil Procedure as to mesne profits. These provisions are intended for and are applicable to suits for land or other property in which the plaintiff has a specific interest, and not to a suit for partition where he has no specific interest until decree.' As pointed out by their Lordships a member of a Hindu family suing for partition and for the profits on his share is really suing for an account of the profits received by the manager or the persons in possession so that the proceeds so received by the latter which are also divisible property may be divided and his share therein also given to him. As stated by their Lordships at page 512, a sharer has a 'clear right' to an account of the profits received by the person in possession of the whole, and to be awarded his share thereof, not as mesne profits received by a person in wrongful possession but as appurtenant to the plaintiff's right in his share of the lands.
9. The lower Courts have rejected the plaintiff's claim to his share of the profits received by the defendants from the divisible property for reasons which I shall set out in the words of the Subordinate Judge: 'The objection of the first counter-petitioner' (the 2nd defendant) 'that the petitioner is not entitled to ask for mesne profits seems to me well founded. In the suit, mesne profits have been prayed for but none appears to have been granted. The preliminary decree does not make any mention of mesne profits nor is any provision made therefor therein'. This opinion of the Subordinate Court was pronounced not in what is called the 'final judgment' of 13th September 1916 in pursuance of which the Subordinate Judge passed what he called the 'final decree' but in an order passed in November 1915 by his predecessor on three interlocutory applications made for appointment of a commissioner and for the taking of other necessary steps in the suit. The District Judge on appeal from the final (or only) decree refused to consider whether an account should be taken of the profits alleged to have been received by the 2nd defendant and the reason is thus shortly stated by him. 'It has already been decided that the preliminary decree did not provide for mesne profits, and I cannot go into that in this appeal'. The reason so given is rather obscure. It is contended that what the District Judge meant was that as the previous Subordinate Judge had decided in November 1915 that the preliminary decree did not provide for mesne profits and as that opinion of the Subordinate Judge (when deciding interlocutory applications) had become final by not having been appealed against, the plaintiff was not entitled to reopen that matter. If that is the meaning of the District Judge's observation, I think it is erroneous in law. Neither the order appointing the commissioner nor any opinion expressed therein can be the subject of an appeal and under Section 105, Clause (1), C.P.C., a party has a right to appeal from a decree and any error in any order affecting the decision of the case passed in unappealable interlocutory proceedings before the decree may be set forth as a ground of objection in the Memorandum of Appeal. This, of course, means that that ground is open to him when appealing from the decree and should be considered and disposed of in deciding the appeal, if taken.
10. I might also refer to the judgment of Abdul Rahim, J. and Oldfield, J. in A.S. No. 322 of 1919 explaining Ghulsam Bivi v. Ahamadsa Rowther I.L.R (1919) Mad. 296 and to the decision in Ramnath Choturam v. Goturam Radhakishan I.L.R(1920) . Bom. 179 , and the other decisions referred to in the latter case in support of the following conclusions: (1) That Order 20 Rule 12, Code of Civil Procedure, relating to technical 'mesne profits' does not apply to the claim of a plaintiff suing for partition of lands and the profits which are accruing on the lands which ultimately might fall to his share under the decree, (2) That unless a preliminary decree for partition refused or should be deemed to have refused to grant profits, the Court is not precluded from granting profits in its final decree. In the present case, Order 20, Rule 12, does not apply, there was no such thing as a preliminary decree and there was no expression of opinion against the award of profits before the decree or order of 1899 was passed and no refusal in the decree or order of 1899 to award such profits. On the other hand, the division directed by the order of 1899 impliedly recognised the right in the plaintiff to the award of profits accruing on the plaintiff's share. In all adjudications which are not intended to be final but only to be determinations of some of the questions involved in a suit, there is and ought always to be implied the reservation of leave to all parties to apply for further directions and adjudications necessary for the complete trial and complete disposal of the litigation.
11. If this view (which I hold to be the true legal view) be taken, the lower Courts were wrong in not going into and deciding on the clear right of the plaintiff to have an account taken of the profits of the properties in which he was awarded a share and in not giving him the appropriate relief in respect of such profits in the decree which was intended as the final stage in the disposal of the suit.
12. I now come to the above real question in dispute, namely, whether the plaintiff is entitled to have an account of the profits as claimed in the plaint. As in a partition suit, the plaintiff is not entitled ordinarily to claim past mesne profits, his claim for profits before date of suit must be disallowed. As regards subsequent profits, he is clearly entitled to have an account taken of the profits of the properties proved to have been in the 2nd defendant's possession, such profits being treated as appurtenances and accretions to the properties, the right to a share in which has been declared in the plaintiff's favour in the order of 1899. I would therefore call for findings on the following issues:
(1) What are the properties which have been in the 2nd defendant's possession since the date of the suit up to the date when the plaintiff's share according to the decree was divided off and placed in his possession?
(2) What is the value of the net profits which have been so received by the 2nd defendant from the plaintiff's share of the lands?
13. Time for submission of findings will be three months from the date of the receipt of records by the District Court and ten clays will be allowed for objections.
14. I agree.
15. In compliance with the order contained in the above judgment the District Judge of Madura submitted findings on the said issues.