1. The Lower Appellate Court has given the plaintiff a decree for the division of Survey No. 44/1 into 3 equal shares with reference to good and bad soil and for delivery to him of one of those shares and has directed defendants 1 and 5 to pay him past profits till the date of suit from the date of demand for partition and also from the date of suit to the date of decree and future mesne profits till the date of delivery of possession or for three years whichever be the shorter period. Defendants land 5 are the appellants before us. The only point argued for them is that the award of profits before the date of decree is wrong in law; no objection has been raised to the rest of the decree.
2. The facts necessary for the disposal of the question raised are these. Plaintiff purchased in 1910 an undivided 1/3rd share in Survey No. 44/1 from one Sengoda Goundan, the 4th defendant in this case. He and the other defendants were originally members of a joint Hindu family and me land Survery No. 44/1 was one of their joint properties and was in the possession of defendants 1 and 5 Plaintiff made a demand on them for a partition and delivery to him of the share he purchased; and on their failure to comply with it brought the present suit for a general partition against all the members of the family praying that 1/3rd of Survey No. 44/1 might be allotted to the share of his vendor and put into his possession with profits from the date of his demand.
3. The question of plaintiff's claim to the profits before decree was argued by the appellants' vakil on the assumption that the 4th defendant the vendor, continued as an undivided co-parcener of the other defendants till the date of the decree appealed against, and on this footing he cited the cases of Maharaja of Bobbili v. Venkataramanjulu Naidu I.L.R. (1914) M. 265 and Kota Balabadra Patro v. Khetra Das : (1916)31MLJ275 as also the observations of their Lordships of the Privy Council in Pirtipal v. Jowahir Singh I.L.R. (1886) C. 493 and in Shanker Baksh v. Hardeo Baksh I.L.R. (1888) C. 397. But the learned Vakil for the first respondent has pointed out to us that the 4th defendant was really divided in status from the other members sometime before the sale to his client. There is no express finding by the lower courts on this particular point because the issue as to profits was not ' seriously pressed' in the first court as the Munsif points out, and no question seems to have been raised about it in the Appellate Court. As the parties do not seem to be at variance on the question of fact from which the divided status is to be inferred, I think we may act under Section 103, C.P.C. in the matter and find the fact ourselves aud we need not call for a finding. The 4th defendant the vendor, stated in his written statement that he was entitled to a, third share in all the properties and that ' for 3 years there was a panchayat for dividing and giving him his share though it was not accomplished.' The main contesting defendant, the 5th defendant, admitted as first defence witness that Sengodan (i.e., the 4th defendant) had asked him for partition and delivery of his share in the presence of witnesses and that panchayatdars had also come and asked him on Sengodan's behalf to separate and give away his share. The 9th defendant also admitted in the written statement the allegation made by the 4th defendant. The case of defendants 1 to 2 and 5 to 8 in their written statement was that the 4th defendant had become divided from them long previously though that has been found against. The 4th defendant and his son the 10th defendant recently brought a suit in 1913 for partition by metes and bounds and delivery over to them of their share in the remaining properties, and that suit had been decreed. It seems therefore clear that the 4th defendant did make a demand on his coparcener for partition some 3 years before the date of this suit, and though the properties were not divided by metes and bounds at once, he must be taken to have become divided in status from the others on the authority of the Privy Council decision in
4. Suraj Narain v. Iqbal Narain I.L.R. (1918) A. 80 where their Lordships say that a definite and unambiguous indication by one member of his intention to separate himself and enjoy his share in severalty will amount to a separation or division of status. This proposition was adopted and acted upon in the Full Bench Case in Soundararajan v. Arunachallam Chetti I.L.R. (1915) M. 159 where the filing of plaint for partition was considered to be such an indication as above stated.
5. We have therefore to consider the validity of the award of profits in the present case with reference to a sale of his share by a member of a Hindu family who had become separate in status and not with reference to a sale by an undivided member of a joint family as was the case in the two Madras authorities cited for the appellants and referred to above. These cases are therefore clearly distinguishable from the present case.
6. After a division of status between two co-parceners there can be no doubt that they are in the position of tenants in common with reference to the property left undivided, and therefore the party who is in exlcusive possession of the property and takes the whole of the rents and profits thereof will have to account to the other party for his share of such rents and profits. The plaintiff's alienor the 4th defendant was excluded from the enjoyment of the land and the share of his profits by defendants 1 and 5 who took the whole of the profits, and he was thus entitled to recover his share from them from the date of his exclusion after he became divided in status. The appellant has relied on the observations of the Privy Council in the case in Pirthi Pal v. Jowahir Singh I.L.R. (1886) C. 493 and in Shanker Baksh v. Hardeo Baksh I.L.R. (1888) C. 397. In the former case though their Lordships say that the provision of the Code as to mesne profits apply only to suits for land or other property in which plaintiff has a specific interest and not to a suit for partition where he has no specific interest until decree, they point out in the sentence just previous that it is erroneous to treat a claim for an account of the proceeds or profits of a joint estate as a claim for mesne profits as defined in the Code. In the latter case, while they re-affirm the position that in a suit for partition of a joint family estate profits are not recovered till after decree, they hold that where there is an agreement between the members that each should get a share of the profits, a suit for such share of profits and for partition can be maintained when the enjoyment of that share is in any way disturbed. The observations that profits cannot be claimed till after decree apply only to the case of a joint family and not to a case like the present of a divided family with joint property.
7. Plaintiff's alienor having thus a right to obtain from defendants 1 and 5 his 1/3 share of the profits of the land in this case, is there any reason why plaintiff who stands in the shoes of that alienor with reference to the share he purchased should not get the same relief, the alienor consenting? I can see none. It was argued, that as partition by metes and bounds between the members of a joint family has to be effected by the court with due regard to the interest of the sharers and to the debts due by the family and other such circumstances, it may happen that to get that share allotted to him in a partition suit he may even chance to get no land at all but only money compensation or perhaps even nothing at all. This may very well be so in some cases, but of course the court will always endeavour as far as possible to allot to the purchaser the share he purchased, See the observations of Bhashyam Aiyangar, J., in Ayyagari Venkataramayya v. Ayyagari Ramayya I.L.R. (1902) M. 690. It does not follow however as argued by the appellants that, because a difficulty may arise in some cases and the profits awarded in such cases to the purchaser may be more than he would otherwise have got or no profits may be awarded to him, in all cases profits should be disallowed. Where as in the present case, the court has been able to award to the purchaser the very share he purchased and there is no dispute about that award there is no reason for disallowing his proper share of profits.
8. As regards the amount awarded in the present case for profits before decree there has been no contest before us so that the distinction between profits and mesne profits is immaterial.
9. For the above reasons I am of opinion that plaintiff is entitled to the profits before decree as awarded to him and that the second appeal fails and should be dismissed with costs of the first respondent.
10. I am of the same opinion. In Maharajah, of Bobbili v. Venkataramanajulu Naidu I.L.R. (1914) M. 265, one of the most telling arguments for disallowing mesne profits prior to suit in a suit brought by a purchaser from a member of a joint Hindu family was that it would be unfair to require the other members of the family to bear the expenses of the family including the alienating co-parcener and simultaneously to bear the extra burden of allotting a portion of the income of the family properties to meet the alienee's claim. This argument however loses its force when the alien or has already ceased to be a co-parcener. From the moment that he becomes divided in status he is no longer entitled to be maintained out of the funds of the undivided family, but he is entitled to call for an account from the manager of the income of his share remaining in the hands of the latter if these is any interval between the division of status and the actual partition, and if, as presumably is the case, he has been excluded from enjoyment of the property since the former event. Bhimrav v. Sitarama I.L.R. (1894) B. 532.
11. It follows also that whatever the seller can get by way of income of his share, the purchaser of his right title and interest can recover.
12. The second appeal is dismissed with 1st respondent's costs.