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Rasammal Vs. K. Subbaroya Goundar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 915 of 1960
Judge
Reported inAIR1963Mad402; (1963)IMLJ148
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 2, Rule 2
AppellantRasammal
RespondentK. Subbaroya Goundar and ors.
Appellant AdvocateK.S. Narayana Iyer, ;N. Sivamani and ;M. Krishna Mitra, Advs.
Respondent AdvocateV. Krishnan and P. Viraraghavan, Advs.
DispositionAppeal allowed
Cases ReferredUdekar v. Chandrasekhar Sahu
Excerpt:
.....the judgment of the trial court, accepted that the provisions of order ii, rule 2 of the civil procedure code would not apply to a claim like the present; it is true that it has been laid down, and that point is well settled, that so long as the partition suit is pending, it will be open to any co-sharer to request the court to enquire into the subsequent income from the family properties and ascertain the shares of the respective sharers and pass an appropriate decree in that suit itself. that this point is almost well settled, can be seen by a reference to the judgment of the full bench of this court in doraisami v. it is now well settled that the claim by one co-sharer against another for compensation in respect of his share of the income received by the other, will arise only after..........properties and allotting to the appellant's father his legitimate share of the income from the suit properties received by the defendants therein subsequent to the institution of that suit. possession of the properties in accordance with the terms of the final decree was delivered to muthuswami gounder on 21st july 1956. shortly thereafter, that is, on the 10th december 1956 muthuswami gounder instituted the suit, out of which the present appeal arises, for recovery of rs. 3000, his share of the income realised from the date of the plaint in o. s. no. 167 of 1959 to the date of delivery of possession, after remitting a portion of the claim. both the courts below have dismissed the suit on the substantial ground that it will not be open to the plaintiff to agitate in this suit any.....
Judgment:

1. This second appeal arises from the judgment of the Additional DistrictJudge, Salem, dismissing the suit instituted by the appellant's father, Muthuswami Gounder, (since dead, deceased) for recovery of mesne profits. Muthuswami Gounder was the son of Chinnakutti Gounder. He instituted the suit O. S. No. 167 of 1950 for partition and separate possession of his one-third share in the family properties. There was a preliminary decree on 25-9-1952 under which the appellant's father's right to a third share was declared; the other two-thirds was to be taken by Chinnakutti Goundan and his other son Sub-baraya Gounder, the latter of whom is the first respondent in this appeal. Under the plaint in the partition suit Muthuswami Gounder did not pray for recovery of subsequent mesne profits. A final decree was passed on 14-3-1956. That decree did not provide for taking of accounts of the income of the family properties and allotting to the appellant's father his legitimate share of the income from the suit properties received by the defendants therein subsequent to the institution of that suit. Possession of the properties in accordance with the terms of the final decree was delivered to Muthuswami Gounder on 21st July 1956. Shortly thereafter, that is, on the 10th December 1956 Muthuswami Gounder instituted the suit, out of which the present appeal arises, for recovery of Rs. 3000, his share of the income realised from the date of the plaint in O. S. No. 167 of 1959 to the date of delivery of possession, after remitting a portion of the claim. Both the Courts below have dismissed the suit on the substantial ground that it will not be open to the plaintiff to agitate in this suit any claim for mesne profits or accounts, he having failed to include that claim in the partition suit. The learned Additional District Judge who confirmed the judgment of the trial Court, accepted that the provisions of Order II, Rule 2 of the Civil Procedure Code would not apply to a claim like the present; but yet he held that where once there was a suit for partition, all claim by way of accounts in respect of the income received by the co-sharer in possession subsequent to the institution of the suit for partition, should have been made in that suit itself. I am afraid that there is no support for such a proposition. It is true that it has been laid down, and that point is well settled, that so long as the partition suit is pending, it will be open to any co-sharer to request the Court to enquire into the subsequent income from the family properties and ascertain the shares of the respective sharers and pass an appropriate decree in that suit itself. It is enough in this connection to refer a recent decision of this Court in Ponnuswami Udayar v. Santhappa Udayar, : AIR1963Mad171 . That however gives only an option to the co-sharer to make a claim in the partition suit, the existence of such an option cannot prevent him from agitating his claim, which arose subsequent to the filing of the partition suit, by filing a separate suit. The principle on which the Court passing the final decree in the partition suit is allowed to take an account of the subsequent income from the properties and divide the same between the sharers is, that the subsequent income forms part of the assets of the family and it will always be open to the Court passing the decree in the partition suit to divide all the assets of the family that may be disclosed, right upto the time of the passing of the final decree thereby avoiding multiplicity of suits. This is but an application of the twin principles namely of the Courts competence to take note of subsequent events and the essential character of a partition suit. Once it is held that the income received from the family properties subsequent to the institution of the suit for partition, will also form part of the assets ofthe family, the sharers being co-tenants it would be open to the sharers to file a separate suit in regard to division of that income, as it will be nothing more than a case of property being omitted from the previous partition. That this point is almost well settled, can be seen by a reference to the judgment of the Full Bench of this Court in Doraisami v. Subramania, ILR 41 Mad 188 : AIR 1918 Mad 484, where it was held that where in a suit no relief was given with respect to the subsequent mesne profits, a fresh suit to recover them would not be barred under the provisions of Section 11 of the Civil Procedure Code. The learned District Judge has brushed aside this decision of the Full Bench on the ground that it related to a suit for possession and not one for partition. I am unable to see any force in the distinction. If it can be accepted the case of a suit for possession, that the claim for subsequent mesne profits can be laid by a separate suit, it will all the more be proper for such a claim being agitated in a subsequent suit in a case of a partition suit. But the mistake committed by learned District Judge is more fundamental. There is no doubt that he has merely looked at the headnote of the decision without actually going through the decision itself. The headnote unfortunately refers to the suit as one for possession, but a reference to the order of reference to the Full Bench will show that the suit in that case was one for partition. It would therefore follow that the decision cited above is a complete authority for the question raised in the present case. Mr. V. Krishnan who appears for the respondents contends that the decision in ILR 41 Mad 188 : AIR 1918 Mad 484 albeit it might be of a Full Bench ought not to be accepted by this Court as according to him, the rule laid down in Udekar v. Chandrasekhar Sahu, : AIR1961Ori111 is more in consonance with the accepted principles of procedure and it should therefore be preferred. In that case the Orissa High Court held that a claim for accounts being implicit in every partition suit, it should be settled at the time of the preparation of the final decree. The claim for a share of profits received subsequent to the date of suit was therefore held as not furnishing a separate cause of action so as to confer on the party a right to bring a separate suit subsequently. With great respect to the learned Judges who decided that case, I am unable to share that view. It is now well settled that the claim by one co-sharer against another for compensation in respect of his share of the income received by the other, will arise only after the income had been received. There cannot therefore be any prospective accounting. That would show that the cause of action will arise only on the receipt of the income, that is, subsequent to the date of suit. Such cause of action cannot possibly exist even before it accrued. Therefore, it will not be obligatory on the plaintiff in a suit for partition to ask for accounts in respect of future income, when he files the suit. The omission to do so will, therefore, not entail the application of the provisions of Order II, Rule 2 or Section 11 of the Civil Procedure Code.

2. The decree and judgment of the lowerappellate Court will be set aside and the appeal(A-S. No. 34 of 1959) will be remanded to thelower appellate Court for disposal on the meritsof the claim. The Court-fee paid on the Memorandum of appeal will be refunded. The respondents will pay the appellant the costs in this appeal.


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