Skip to content


R.M.N. Ramanathan Chettiar Vs. Narayanan Chettiar, Minor and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberAppeal No. 745 of 1950
Judge
Reported inAIR1955Mad629; (1955)2MLJ414
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 16
AppellantR.M.N. Ramanathan Chettiar
RespondentNarayanan Chettiar, Minor and ors.
Appellant AdvocateM.S. Venkatarama Iyer and T.V. Balakrishnan, Advs.
Respondent AdvocateA. Sundaram Iyer, Adv.
DispositionAppeal partly allowed
Cases ReferredMahadeo Govind v. Ramachandra Govind
Excerpt:
civil procedure code (act v of 1908), section 16(b)--suit for partition of joint family property in ina and partly abroad--relief for accounting in respect of foreign properties--whether maintainable--private international law--jurisdiction of courts over foreign properties--extent of ; in a suit for partition of immovable properties belonging to the joint family by the minor sons of a hindu father through their mother as guardian against their father, they also asked for a relief as to the father's liability to account in respect of properties situate outside the jurisdiction of court in a foreign country, namely ceylon.; held, the claim was maintainable.; though under section 16(b) of the code of civil procedure (act v of 1908), a suit for partition of immovable property shall.....1. this case is a concrete instance of the considerable difficulty experienced by members of a coparcenary owning property both in india and ceylon and also it may be, malaya or burma, in obtaining relief as against the managing member in possession and control of all the property. in this case, the plaintiffs are minor sons suing their own' father by their mother as guardian for partition, which has been found to be in their interests, the, father having neglected his wife and children and having been found by the trial court, to have been spending large sums out of the joint family estate on evil living, leaving his own wife and children destitute without making proper provision for their maintenance.the learned subordinate judge granted partition of the joint family property in india,.....
Judgment:
1. This case is a concrete instance of the considerable difficulty experienced by members of a coparcenary owning property both in India and Ceylon and also it may be, Malaya or Burma, in obtaining relief as against the managing member in possession and control of all the property. In this case, the plaintiffs are minor sons suing their own' father by their mother as guardian for partition, which has been found to be in their interests, the, father having neglected his wife and children and having been found by the trial court, to have been spending large sums out of the joint family estate on evil living, leaving his own wife and children destitute without making proper provision for their maintenance.

The learned Subordinate Judge granted partition of the joint family property in India, being of course unable to" direct a partition of the substantial properly in Ceylon in B, B 1 and C schedules as being for this purpose outside the jurisdiction of the Indian courts. I am in complete agreement with my learned brother that the Subordinate Judge was correct in law in however directing an account to be taken of the income from all the Ceylon property though this can only be done from the date of severance of status.

The first defendant divided from his brother the second defendant, by a registered partition deed. Ex. B. 1, dated 12-11-1947 and there can be no doubt that the subject-matter of the partition suit under appeal is all joint family property.

2. Under Section 16(b) C. P. C; a suit for the partition of immoveable property shall be instituted in the court within the local limits of whose jurisdiction the property is situated.

There is, however, an important proviso that a suit to obtain relief respecting immoveable property held by the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

I would in connection with this type of suit against a manager by a member of the family emphasise the clause in this proviso "where, the relief sought can be entirely obtained through his personal obedience." In the present case the first defendant is a resident of India, was served in India, and submitted to the jurisdiction of the Subordinate Judge of Sivaganga. As it appears to me, it is a case where the relief sought by the plaintiffs can be entirely obtained through his personal obedience in respect of the entire joint family property whether situated in India or abroad.

3. Rule 20 in Dicey's Conflict of Laws, 6th Edn. page 141 is to the effect that a court has no jurisdiction to entertain an action for the determination of the title to, or the right to the possession of, any immoveable situate in foreign territory is now well established and followed in Indian case Jaw, though its precise scope is still open, as Dicey himself observed, to some doubt ground either of (a) a contract between the parties to the action of (b) an equity between such parties in cases where the parties themselves, as in the present case, are within the court's jurisdiction. It by no means follows, therefore, that all property having a foreign origin is outside the jurisdiction of a British court for all purposes.

This has been laid down in -- 'Kasbinath v. Anant', 24 Bom 407 (A), in which Jenkins C. J. reproduced the dictum ,of Lord Selborne in --'Ewing v. Orr Ewing', (1883) 9 AC 34 at p. 40 (11; quoted by my learned brother in bis judgment. The effect of that decision was that the jurisdiction of the courts in India should be governed and ascertained by the same principles except so far as they may be at variance with legislative enactment.

4. Now an action for partition of joint family property within a Hindu coparcenary is one unknown to any other system of law and even in countries where a large number of Hindus live and claim to be governed by their own personal laws, this type of suit both in its novelty, in its complexity, and its somewhat alarming comprehensiveness poses a most difficult question for courts in other countries to answer.

In the assumption of jurisdiction outside India in this type of suit we can find therefore no direct precedent or guidance in English law. We have to evolve our own law and practice. A partition suit cannot be put into the category of an action cither 'in personam' or 'in rem'.

It is a curious mixture of both kinds of actions, involving as it docs, change in character of title of property from joint family ownership to individual ownership, liability to account for joint family moveables, jewels and money, and also in some cases, liability of the kartha or managing member to account and bring into the family botch-pot joint family moneys which he has fraudulently secreted to his own advantage, the setting aside of alienations and so on.

5. A few days ago, my learned brother and I dealt with an appeal, C.M.A. No. 532 of 1951, in which a plaintiff in partition suit which was not against his father, was appointed receiver for the purpose of filing suits in Ceylon to recover joint family property against the first defendant. He filed more than seven suits for partition of several estates situated all in Ceylon. They were all dismissed for misjoinder of causes of action by a District Court and an appeal also was dismissed by the Supreme Court in a brief judgment.

The litigation expenses amounted to over Rs. 11,000, with no result in Ceylon. Now as it appears to me, it would be an extremely difficult matter for the mother as guardian of the two minor plaintiffs to institute suits in Ceylon either for an account or for partition of the properties situated there. They may not in fact want actual partition by metes and bounds of any Ceylon property without even a probability of their ever going and residing in Ceylon.

All that they may desire is a valuation of the entire joint family estate and payment to them of their share of its value in money. To deprive them even of the decree they have obtained against the first defendant for an account of all Ceylon properties and give them only a partition decree for properties actually situated in India would make their condition pitiable and drive them unnecessarily into wasteful litigation in a foreign country and would put a premium on dishonest evasion and obstructive repudiation of his responsibilities and liabilities by the first defendant.

I have no hesitation in holding that in a case of this kind an Indian, court would, as a court of conscience, be operating primarily 'in personam' and not 'in rem'. It is not doing anything by way of determination of title to property situated out of India. Nor is it actually partitioning such property by metes and bounds. It is merely calling upon the defendant who lives within its jurisdiction to account as managing member of his joint family for all the joint family properly, no matter where if is situated and in what part of the world.

Such a decree for an account has court sanction behind it as it can be enforced against the managing member who resides atid has property within the jurisdiction of the court. The kartha or managing member of a joint Hindu family, once notice of severance of status is given, in consequence of which a suit for partition is filed, becomes liable to account as a person occupying a fiduciary position of trust and responsibility.

The court having jurisdiction to try a partition suit and within whose jurisdiction the members of the coparcenary reside and own other property has ample powers to compel the manager to make a full and complete disclosure of all joint family property, and if there are grounds for thinking that he has failed to do so, to take such measures as may be necessary by the appointment of commissioners to verify his statement.

I am unable myself to see any legal impediment in the way of the court, although it may not have jurisdiction to partition joint family immoveable property abroad, having it valued on the application of other coparceners who may not desire to have it divided by metes and bounds and their shares separated and given to them, which in the great majority of cases would be utterly impracticable and profitless, but only to have credited in the partition suit their share of this asset in money.

If the managing member or kartha objects to this course, the court would, I consider, have powers to direct him to sell that asset and make the proceeds available for distribution in the family. I do not propose to attempt to exhaust the remedies that a court in India can resort to in a partition suit in order to do justice and equity as between the parlies without permitting the kartha or managing member to put the maximum difficulties in the way of the coparcener seeking reb'ef against him.

All that I would say is that the resources and powers of a court which has jurisdiction over a manager of a joint family in control and possession of property situated both in India and abroad are sufficiently wide so as to enable it to do justice and equity as between the members of a family without encroaching on the jurisdiction of any foreign courts.

Krishnaswami Nayudu, J.

6. The appellant is the father of minor plaintiffs 1 and 2, and the appeal arises out of a suit for partition of joint family properties instituted on behalf of the minor plaintiffs against the appellant as the first defendant and two others. Defendants 1 and 2 arc brothers. The third defendant is their mother. There was a division between the brothers, defendants 1 and 2, on 5-11-1947, and the suit is in respect of properties that were allotted to the first defendant at the partition and certain other properties which are alleged to be trust properties in respect of which directions are asked for in the suit.

The relief for partition was opposed mainly an the ground that the partition was not beneficial to the interest of the minors, which contention was repelled by the learned Subordinate Judge and a decree for partition was passed.

7. The appeal confines itself to the consideration of two questions: (1) as to the decree relating to the properties described in Schedule B-l of the plaint, which are trust properties, and (2) as to the first defendant's liability to account in respect of properties situated outside the jurisdiction of the court and in a foreign territory, namely, Ceylon.

8. A half share in a large estate in Ceylon valued at Rs. 20,000, in 1939 was endowed by the father of defendants 1 and 2 Narayanan Chettiar to a Vinayagar temple in Keelapoongudi village, -Sivaganaga taluk, under a deed of trust executed on 14-2-1939, Ex. B. 2. Under the deed, an absolute endowment of the property to the temple is effected and the sole power of management of the temple and its funds was reserved by the father in himself during his lifetime and after his death the direction is that the two sons, defendants 1 and 2, shall have the right of succession to the said trust and they are appointed as trustees to manage the trust after his death, and it is only after the lifetime of defendants 1 and 2 that the succession to the management of the trust is vested in their heirs.

As regards the the endowment itself, the net income of the property is to be utilised towards the daily worship of the deity and the balance of the income for the general, progress and development of the temple.

9. There is therefore an absolute dedication of the property to the temple and the members of the family including the plaintiffs are not entitled to any beneficial interest inasmuch as even the surplus of the income has been set apart for the purposes of the temple; The only right which the plaintiffs could claim is the right to manage, which right could accrue only after the lifetime of both the first and second defendants.

As such, they have no present right to' interfere with the properties by virtue of their being members of the family. Though the property was family property prior to its dedication, after its dedication it ceased to belong to the family and as such it is not competent to give any directions as regards the corpus or the income of the property in the suit for partition.

The plaintiffs included this item of property in the suit since the property was endowed for running a religious .endowment of a Pillayer Koil and a Samadhi Mutt in Keelapoongudi and the reason for the inclusion is stated in the plaint to be that suitable arrangements have to be made as to rotation or otherwise regarding the management of the trust between plaintiffs 1 and 2 and defendants 1 and 2, who are hereditary trustees.

The prayer is in similar terms and the plaintiffs prayed that suitable arrangements be made for future management of the trust and B-l schedule property to the extent of the Honourable Court's jurisdiction. It is unnecessary to examine in this connection the contention that since the property is situated in Ceylon, no direction of any sort could be given.

Without going into this question, which however, would arise in dealing with the second of the contention's raised in this appeal, the appeal on this point could be disposed of on other and surer grounds.

10. The learned Subordinate Judge took the view that the appointment as trustee is a benefit which the first defendant should share with the members of his joint family, that the trust is a private trust and that the minor plaintiffs are therefore entitled to joint management of the trust properties along with the first defendant, and therefore he considered it necessary to issue certain directions and he ordered an account to be taken of the management of the trust properties to find out whether the first defendant had properly accounted for all the income and moneys and to find out the extent of the misappropriation or misuse if any.

This direction is obviously beyond the scope of the suit, as there was no allegation of mismanagement and in is appropriation of trust funds in the plaint, and the plaintiffs only required that suitable arrangements had to be made for their being associated in the management along with the first defendant. The Subordinate Judge's views of the nature of the interest which the first defendant had under the trust deed and the rights of the plaintiffs in relation to the trust are misconceived.

There is no benefit conferred on the first defendant, which he should share with the other members of the family; nor was there any evidence to show that it is a private trust; nor, on the terms of the document, could the plaintiffs claim any right to present management. The devolution of the trusteeship has been provided in clear terms under the document and it is only after the lifetime of both the first and second defendants that the plaintiffs could have any hand, in the management of the trust.

That contingency not having arisen, the plaintiffs have no present right to the management of the trust. The suit in relation to the trust properties is entirely misconceived and the direction given by the learned Subordinate Judge cannot therefore be supported. It was sought Judge cannot therefore be supported. It was sought to be argued that the temple is a private temple, about which there is absolutely no evidence, and it was also suggested that the first defendant has been utilising the income for his own purposes and that the charities have not been properly conducted.

If the plaintiffs arc able to establish these contentions, the remedy is always open to them to take the matter before the Hindu Religious and Charitable Endowment Board for necessary action. But, in view of the clear terms of the trust deed, no relief could be granted to the plaintiffs. The direction in the decree for the Commissioner to take an account in respect of the properties, described in Schedule B-1 is therefore set aside.

11. Besides the trust properties described in Schedule B-1 to the plaint, the other family properties in which the plaintiffs would he entitled to a share but which are situated in foreign territories, are the properties described in Schedules B and C, the B schedule properties being in Ceylon and the C schedule properties' being situated in Burma. In respect of the foreign properties, the plaintiffs reserved their right to sue for partition, but they included those properties for such relief as the Honourable Court could grant in its personal jurisdiction against the defendants and the relief asked for is that the defendants 1 and 2 or such of them as found to be in the management should be directed to render accounts of the income of the suit properties and pay over to the plaintiffs such amounts as are found due to them to the extent of that court's jurisdiction.

12. The interesting question that arises for determination is whether the plaintiffs, in a suit instituted in a court in India, for partition of properties situated in India, though not entitled to ask For a partition in respect of properties 'situated in a foreign territory, could ask for a 'relief not for partition" of the properties, but for an account of the income of those foreign properties and payment of their share in the income.

The question as to the power of Indian courts to-entertain a suit for partition of immovable properties situated outside India was 'considered in --'Nacbiappa v. Muthukaruppan', AIR 1946 Mad 398 (C), where a Bench of, this court held that neither under Section 16(h), C.P.C., nor under the rules of private international law has a British Indian Court jurisdiction to entertain a suit for partition of immovable properties situate outside British India, especially where the partible nature of such properties is disputed, and that it has no jurisdiction' even to declare that the said properties are partible joint family properties; nor has it power to take such properties into its calculation in adjusting the equities between the parties.

But the question as to whether in such a suit the plaintiffs could ask for an account of those properties and claim their shave of the income did not, however, come up for consideration in that case.

13. In 'Ram Acharya v; Anant Acharya', 18 Bom 389 (D), where there was a suit for partition of certain properties situated within the jurisdiction of a British Indian Court and the suit was resisted on the ground that the plaintiffs did not, bring into the suit certain other properties situated in a native Indian State, the court held that a partition of the properties belonging to a, joint family situated in British India could be granted without taking into, account other properties situated outside British India.

While observing that it is plain that the court has no jurisdiction and no machinery for partitioning that property situated in a foreign jurisdiction, and with reference to a contention that the court might, nevertheless take such properly into its calculation and award to the plaintiff in possession so much only of the property in British India as will equalise the shares of the plaintiff and the defendant, Telang J., repelled that contention by pointing out that that would be "doing indirectly that which the law says may not be done directly".

The properties in a foreign jurisdiction cannot therefore be taken into account for any purpose in a suit for partition and any relief in respect of those properties could therefore be agitated only in a suit instituted in courts which have jurisdiction over those properties.

14. The rule relating to jurisdiction over properties situated in a foreign territory is framed as follows in Dicey's Conflict of Laws, 6th Edn. Page 141:

"Rule 10 -- Subject to the exceptions hereinafter mentioned the court has no jurisdiction to entertain an action for

(i) the determination of the title to, or the right to the possession of, any immoveable situate out of England (foreign land); or

(ii) the recovery of damages for trespass to such immoveable."

There are three exceptions to this rule and excep tion 1 runs thus:

"Where the court has jurisdiction to entertain an action against a person under either Rule 27, or under any of the Exceptions to Rule 28, the court has jurisdiction to entertain an action against such person respecting an immoveable situate out of England (Foreign land), on the ground of either-

(a) a contract between the parties to the action; or

(b) an equity between such parties; with reference to such immoveable."

There are two other exceptions relating to trust properties arising out of. Admiralty jurisdiction, which, however, do not require to be referred to in the present context

15. Rule 27 reads:

"When the defendant in an action 'in personam is, at the time for the service of the writ, in England, the court has jurisdiction in respect of any cause of action, in whatever country such cause of action arises, subject however in the case-of actions under the Carriage of Air Act, 1932, to the limitations therein contained,"

16. The jurisdiction of a court over immoveable properties situated in a foreign land is restricted against a person who resides within its jurisdiction and to actions arising out of a contract between the parties to the action, or arising out of equity between them, the reason behind the rule being that it is only an action 'in personam' that is enter tamable though it may relate to immoveable properties situated outside.

A suit for an account, though in respect of the profits of immoveable properties situated in a foreign territory, is contended to be an action 'in personam' and therefore the present suit 'for an account against the first defendant is urged to be sustainable and such an action is in the exercise of equitable jurisdiction of courts. Reliance is placed on the following passage in Halsbury's Laws of England, Vol. 6, 2nd Edn. at page 227 (Halsbury's Laws of England, Vol. 7, 3rd Edn. 'at page 37).

"The English courts have jurisdiction to order an account of the rents and profits of a foreign immoveable against any person liable to account in respect thereof, and in a suitable case, a receiver will be appointed."

In '24 Bom 407 (A)', the plaintiff, who was a member of one of the three branches of 'pujaries' attached to a temple at Nasik, sued to establish his rights to a share in the income arising from certain immoveable properties, one of such properties being situated outside British India in Nizam's Dominions and the other in another native State. It was held that the suit was within jurisdiction, there being no dispute as to title. Jenkins C.J., following the principle laid down by Lord Selb'orne in '(1883) 9 AC 34 (B)', at p. 40 viz.

"The courts of Equity in England are, and always have been courts of conscience, operating 'in personam' and not 'in rem'; and in the exercise of this personal jurisdiction, they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or 'ratione domicilli' within their jurisdiction. They have done so as to land, in Scotland, in Ireland, in the Colonies, in foreign countries,"

held, that the jurisdiction of courts in India is governed and must be ascertained by the same principles except so far as they may be at variance with legislative enactment.

17. While therefore Indian Courts have no jurisdiction to determine question of title to land situated in a foreign jurisdiction, but so long as the title to land is not required to be determined, in a partition suit where by a decree for partition and allotment to one or cither of the parties the court has necessarily to adjudicate upon title by vesting title in one or other of the members, the question is whether, when rents and profits of such properties are received but burdened with an obligation arising out of a contract or trust, courts could be considered to have no jurisdiction even to enforce such contracts or trusts.

The principle" which is well established in England is that the courts have power, in the exercise of personal jurisdiction, to enforce the performance of contracts and trusts though relating to immoveables in foreign land. If that is the case, the question would arise as to whether the present action, in so far as it concerns the accounts of the profits of foreign immoveables, could be sustained. The answer would depend upon the scope and extent of the liability of the first defendant to render an account and whether the right to account could be considered to be founded upon a contract, express or implied, with the first defendant or trust arising out of his position as father and manager of the joint family.

18. The suit was instituted on 8-12-1949 and notice of demand was issued on 18-11-1949 on behalf of the minors asking for a partition and declaring a division in status. It therefore follows that on and from 18-11-1949 the plaintiffs could not be considered to continue to be members of an undivided joint Hindu family, the division of status having been effected by virtue of the notice dated 18-11-1949. The decree directs accounts of the income from the joint family properties situated in Ceylon from the date of the partition deed Ex. B-l, namely 12-11-1947, when admittedly the first defendant's family has not been divided.

It is well established that a 'kartha' or manager of a joint Hindu family is not liable to account, in the absence of proof of direct misappropriation, or fraudulent and improper conversion of the moneys to his personal use and that he is liable to account for what he has received and not for what, as reasonable and prudent manager ho should have received, and the decisions go so far as to say that he is not even bound to keep accounts, unless the nature of the family properties is such, as in the case of a trading family that it becomes necessary to keep accounts.

He is neither an agent nor an express trustee. In Mayne on Hindu law and Usage, 11th Edn. page 367, it is stated that "the members of the family cannot call for an account, except as incident to their right to a partition, nor can they claim any specific share of the income, nor even require that their maintenance or the family outlay should be in proportion to the income."

That he is not an agent is established beyond dispute, but as to whether he is a trustee the earlier view, based on the observation of Lord Lindley in -- 'Annamalai Chetti v. Murngesa Chetti's 26 Mad 544 at p. 553 (E), was that the relation of such a person (namely, a manager) is not that of principal of agent, or of partner; it is much more like that of trustee and 'cestui que trust'.

But the view in -- 'Arumilli Perrazu v. Subbatayudu', AIR 1922 PC 71 (F), dispelled any doubt and it was held that the manager cannot in strict parlance be a trustee and the rules applicable to strict accounts and 'cesluis que trusts' existing in England are not applicable.

19. In that case Sir John Edge observed at page 73:

"Their Lordships desire once more to repeat the warning they have often given against attempting to apply without qualification in India the rules applicable to strict accounts between trustees and "cestui que trusts' that exist in this country, because in truth there are a number of fiduciary relationships in India to which these rules cannot in their entirety apply.

This does not mean that, breach of established duty should be less severely' dealt with in India than in this country, but that there are fiduciary relationships which do not involve all the duties which are imposed upon trustees here. The office of manager of a joint family estate affords an illustration of this difference."

The Full Bench decision in -- 'Abhaychandra Roy Chowdry v. Pyari Mohan Guho', 5 Beng LB, 347 (FB) (G), is cited in support of the view that a coparcener may sue the 'kartha' for an account even before the partition. In that case, two questions arose for decision as to (1) whether the managing member of a joint Hindu family could be sued by other members for an account, and (2) whether such a suit would not lie even if the parties suing were minors during the period for which the accounts were asked.

Both the questions were answered in the affirmative. Miller J,, in making the reference took the view that such a suit for accounts could not be avoided as the minor must necessarily have an idea as to what the assets of the joint family are, the receipts and disbursements, so that he might know what funds are available for partition before he could institute a regular suit for partition, and in order to obtain the information as to the state of the joint family assets including the then income and expenditure and any surplus that is available, a coparcener can sue for an account without suing for partition and adding the relief for account as auxiliary one. But, Mayne, with reference to this decision, observes at page 371 as follows:

"The only difference that may possibly exist between the Dayabhaga law and the Mitakshara law as a result of this decision is that a Dayabhaga coparcener may sue the 'kartha' for an account even before division."

The very structure of Mitakshara joint family excludes the possibility of a separate share and as such a right to account against the manager of the receipts and disbursements, that is of his management of the family and for a share of the income, is a right which a coparcener of a Mitakshara family cannot enforce independent of the suit for partition. The result would be that the decree, directing an account as from the date of Ex. B-1 could not be sustained.

20. But the question still remains, whether after the division in status in November 1949, the position had not changed, the plaintiffs ceasing to be coparceners, but being in the position of co-tenants with reference to the other members of the joint family. If from 18-11-1949 the coparcenary in so far as the plaintiffs are concerned ceases to exist, the plaintiffs, become co-tenants or co-owners with the other members of the family in respect of properties including the properties in Ceylon and Burma, and the question is whether in this changed status of the plaintiff with reference to the family, a suit for an account of the income and the ascertainment of their share could still be resisted as a suit for an account by coparceners against the manager.

A suit for an account alone by a coparcener even against the manager of a joint Hindu family, though can be considered to be an action 'in personam' but by reason of the peculiar advantageous position in which the Hindu joint family manager is placed he not being an agent nor an express trustee is not sustain able, whether the properties in respect of which the suit for account is instituted are situated in India or in a foreign territory, and a relief for account therefore cannot be asked apart from a suit for partition but only as an incident to such a suit.

21. The severance effected consequent on notice of partition dated 18-11-1949 renders the position of the plaintiffs different and thenceforward the parties held the properties as tenants-in-common. What was an undivided share of the plaintiffs until then becomes defined and thenceforward they are persons entitled to defined shares in the joint family properties, their shares being not liable to be varied by any further births in the family.

Once the shares are defined and the relationship of co-tenancy is established, they become entitled to ask for an account of the income. The liability of each co-tenant to account for rents and profits received is statutorily recognised in England, the legal remedy being provided under statute. The tenancy-in-common is different from other tenancies, in that there is only one unity, unity of possession, in contrast to the joint tenancy, where there is unity of title, of possession and of estate.

Apart from law, on principles of general equity the liability to account arises. An implied agency of the one who is in possession for the others can be also inferred either on the basis of tenancy or on equitable considerations. A co-owner cannot therefore escape liability to account to his other co-owners.

22. In -- 'Yerukola v. Yerukola', AIR 1922 Mad 150 (H), a Full Bench of this Court had occasion to consider the position of the members of a joint Hindu family who had become separated without actually dividing the properties by metes and bounds. In a suit by one of the brothers against the others for partition and an account, it was held that the properties remaining undivided were held by the Brothers as tenants-in-common and, with reference to the question of the proper Article of the Limitation Act that was applicable to suits for accounts, it was held that Article 120 was applicable, unless from the facts of the case, it could be inferred that the person receiving the moneys and rents and profits acted as the agent of the others, in which case Article 89 would apply.

Schwabe C.J. referring to -- 'Banoo Tewary v. Doona Tewary', 24 Cal 309 (I) and -- 'Gabu v. Zipru', AIR 1921 Bom 384 (J), where it was hold that the defendant was acting on behalf of the other co-sharers as their agent in the realisation, of their shares, and noting the distinguishing feature of those cases from the facts of the case before him, observed that, even though there was no such express agreement that one brother had to realise and divide among the three brothers, such au agreement could be implied as well as express, and in the absence of evidence to the contrary, where one brother collected the assets of an estate of which he and the other brothers were co-owners, the natural inference was that he was acting as agent for himsolf and the Other co-sharers and not on his own account.

23. In -- 'Mahadeo Govind v. Ramachandra Govind', AIR 1922 Born 188 (K), the suit was one to recover mesue profits of lands situated outside British India. There was a dispute between the brothers about the family properties and the dispute was settled by an award and a decree was passed in terms of the award by a court in British India. Under that decree, the plaintiff became entitled to the lands situated outside British India, the possession of which he obtained subsequent to the decree,

He filed a suit to recover the mesne profits of those properties from the date of the decree to the date of his obtaining possession from his brother, who was in possession of the properties during the period, and it was held that such a suit could be instituted in a court in British India. In answer to the contention that the British Indian Court had no jurisdiction as the suit came under Section 16(c), C.P.C., Macleod C.J. observed that in the case of land outside British India Section 16 has no application and one has to fall back upon general principles in considering whether this is a suit in which a personal relief is claimed against a defendant residing within the jurisdiction of the court and that the proviso to the section makes it clear "that even although a wrong to immoveable property is alleged, yet, where the relief sought can be entirely obtained through the defendant's personal obedience, then the suit can be instituted either in the court within the local limits of whose jurisdiction the property is situate or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain." Following the decision in 24 Bom 407 (A), the learned Chief Justice observed that there appeared to be an equity in favour of the plaintiffs that the profits of those lands which were awarded to him in 1915 should not remain in the pockets of the defendant and, therefore, there was no reason why the Indian Court should not have jurisdiction to administer that equity in favour of the plaintiff.

24. So, viewed either on the basis of an implied agency or purely as working out an equity in favour of the plaintiffs, the suit by the plaintiffs, even though the accounts relate to properties situated outside Indian territory, being an action 'in personam' and arising but of an implied contract between the parties, or in any event to work out the equity between the parties, is maintainable.

In this respect, I am of opinion that it would not make any difference, whether the property is situated in India or in a foreign territory, so long as the action is one by a member of the joint family, who had become divided in status, and whose position is that of a co-sharer or a co-tenant.

In that view, while the decree for accounts and for the ascertainment of the income of the joint family properties from the B schedule properties, that is immoveable properties belonging to the joint family excluding the trust property, though may not be sustainable in the form in which it is passed, the plaintiffs would in any event be entitled to an account of the income, ascertainment and payment of their shares from the properties commencing from 18-11-1949. The decree of the lower court will accordingly be modified.

25. The appeal is therefore partially allowed. There will be no orders as to costs of this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //