1. This execution appeal relates to the mesne profits of certain lands for which the plaintiff obtained a decree against the defendant. While the litigation for the possession of lands was going on the defendant's estate was managed by the Court of Wards, the defendant being then a minor. The dispute, relates to the mesne profits of Faslis 1306 to 1315 inclusive. The appellant is the defendant and the plaintiff has put in a memorandum of objections in which she impeaches the correctness of a portion of the order of the lower court.
2. The appeal relates to three points. The first of these raises the question whether the defendant is entitled to deduct the water-tax paid by him to Government while he was in possession, in calculating mesne profits due to the plaintiff. There is no doubt that ordinarily in calculating mesne profits public taxes paid by the person liable would be deducted, but in this case the defendant was entitled to recoup himself by collecting the tax from the ryots in actual cultivation of the land, and it u admitted that as a matter of fact the Court of Wards took muchilikas from the ryots agreeing to pay the tax. A portion of the tax payable by the ryots was remitted by the Court of Wards, and the question far decision is whether the defendant is entitled to credit for the amount so remitted. It was at first staled to us that the amount in question was written as irrecoverable from the ryots, but on examining the evidence as given by defence witnesses Nos. 2, 3 and 4, we find that as a matter of fact what happened was that the Court of Wards remitted a portion of the amount payable by the ryots. It does not appear that the amount in question was remitted on the ground that it was irrecoverable. The witnesses say that as the ryots were poor and as the crops failed, the amount was remitted. This would be no justification for the remission to the defendant as against the plaintiff. It is therefore unnecessary to consider whether, if the amount were actually irrecoverable from the ryots, the defendants would be Entitled to credit for it. Mr. Tiruvenkatachariar contends that in any event, the defendant, who was a minor daring the years in question, could not be made liable for more than the amount actually received whilst the estate was in the possession of the Court of Wards. But this question was not raised either in the lower court or even in the grounds of appeal to this court, and as it is impossible for us to say that, if the question had been raised, the plaintiff might not have had an answer to make to it, we have refused to allow the matter to be argued. The Subordinate Judge accepted the view of the Commissioner and based his judgment on the ground that as the defendant took possession of the land which the plaintiff was entitled to have in her possession, she cannot claim credit for the water rate paid by him. But in the view we take of the case it is unnecessary to consider the correctness of this position. As we have found that the defendant has not shown that the whole water rate paid by him to Government could not have been collected from the ryots, we must disallow the appellant's contention.
3. The next point raised relates to the question whether the defendant is entitled to deduct the commission of 2 1/2% paid to the Court of Wards under the Standing Orders of the Board of Revenue for the expenses of management over and above the cost of the establishment employed separately for the Pittapore Estate. The Subordinate Judge was of opinion that the defendant was not entitled to this deduction. There is no doubt that the management by the Court of Wards must have contributed considerably to efficiency, but it is difficult to hold that the defendant taking possession of the plaintiff's property is entitled to ask her to contribute towards a specially effective mode of management adopted in his Own interests. We are of opinion that the Subordinate Judge was not wrong in disallowing the commission. The third and last point raised in the appeal relates to a small sum of Rs. 256 which the defendant claimed a deduction of as uncollected rent. We see no reason to differ from the view taken by the Subordinate Judge that the defendant is not entitled the credit for it. We must therefore dismiss the appeal with costs. The memorandum of objections relates to the correct amount of mesne profits which the plaintiff is entitled to recover for the Vemavaram village. A portion only of this village was included in the grant to the plaintiff made by the late Raja of Pittapore.
4. The remainder of the village was the property of the estate. The Court of Wards took possession of the whole village when it assumed management of the estate. The evidence shows that the lands in the whole village were leased together without any distinction between what belonged to the plaintiff and what form apart of the estate. Tins continued to be the case until a division was made in execution of the plaintiff's decree arid possession was deliverer to her of her portion. The Subordinate Judge has allowed the plaintiff for the ten years in question a sum of about Rs. 900 a year. The plaintiff claims that she is entitled to profits at the rate of about Rs. 1,500 a year. Exhibit LII series, the Amarakom accounts for Faslis 1306, 1309, 1313, shows that the income during those years was between Rs. 2,800 and 2,900 for the whole village; and the account Exhibit VI shows that that was the the amount of income practically during the whole period in question. These accounts, however, do not enable us to fix the income of the portion belonging to the plaintiff. There is general evidence on the side of the defendant that the lands of the plaintiff and of the defendant were nearly, equal in quality. The Subordinate Judge, accepting this view, proceeded on the footing that the total income must be rateably divided between the plaintiff and the defendant according to the average belonging to each. The plaintiff contends that this view is wrong and shortly relies on the fact that immediately after delivery was made to the plaintiff of her portion of the village she was able to lease it for about Rs. 1,500. Exs. land G series are the muchilikas for Faslis 1316 and 1317 and they apparently bear out the plaintiff's contention that she was able to rent her lands for Rs. 1,500. The eleventh defence witness who is the kurnam of the village, in cross-examination by the plaintiff, said that the income in Fasli 1316 of the defendant's section of the Tillage was about Rs. 1,400. This, added to the amount for which the plaintiff's portion was leased, brings up the toal income of the village in Fasli 1316 to about Rs. 2,900 which is the amount shown for the previous years by the defendant's accounts. This is strong evidence, to show that the muchilikas taken by the plaintiff for 1316 were not get up for the purpose of helping her to swell the amount of mesne profits which she might be able to obtain in execution of the decree. The accounts show that there was practically no change in the income of the village from the year 1306 to the year 1316 and the income of the respective portions belonging to the plaintiff and the defendant in 1316 maybe taken as prima facie evidence of the proportion in which they were entitled to the income of the village in previous Faslis. See Bhawanee Deen Sahoo and Anr. v. Mohun Sahoo (1869) 1. N.W.P.C.R. 273. It was open to the defendant, and we are inclined to think it must have been in his power, to show what the actual income of the two sections of the village was in previous years. He has not adduced any such evidence. Although the onus of proof lay in the first instance on the plaintiff, the statement made by the kurnam in cross-examination must be taken to lend strong support to the plaintiff's case that the income of her section was Rs. 1,500, more or less. The plaintiff has not got much evideuce to prove the precise amount due to her. But we think, having regard to the kurnam's evidence already referred to, that she is entitled to not less than Rs. 1,400 a year. We shall therefore add to the amount allowed by the Subordinate Judge Rs. 500 a year, for the mesne profits for each year or Rs. 5,000 in all. We modify the order of the Subordinate Judge as indicated above. The appellant will pay three-fourths of the respondent's costs of the memorandum of objections.