1. The 2nd and 4th defendants in O. S. Nos. 257 of 1960 and 396 of 1963 on the file of the court of the District Munsif, Devakottai, who are the one and the same persons and who lost before the courts below, are the appellants herein. The suits were instituted for rendition of accounts for different periods in respect of No. 22 in Coral Merchants St. at Madras. The genealogical tree attached to the judgment of the learned District Munsif shows the relationship between the parties. According to the plaintiffs, the property in question originally belonged to the joint family consisting of four brothers. K. R. P. R. Alagappa Chettiar, KR. PR. Karuppan Chettiar alias Sinnia Chettiar, Udayappa Chettiar and Palaniappa Chettiar. Their father's case is, in 1908, there was a partition between those four brothers and at that partition, the suit property was kept in common and was managed by the first branch. It is on this allegation that the two suits for rendition of accounts in respect of the management of the property in question were instituted by the plaintiffs who belonged to the third branch. The defendants put forward several contentions, such as, the property in question not belonging to the family, the third branch to which the plaintiff belonged having been cut off from the family even in 1902, the defendants having acquired title to the property by ouster of others and the suits for rendition of accounts not being maintainable without there being a prayer for partition of the property itself. The courts below held against the appellants on all these points and passed a preliminary decree for rendition of accounts. Hence the present second appeals.
2. As far as the first point is concerned, any finding on a question as to whether there was an oral partition or not and, at such oral partition, whether the suit property was kept in common or not, is essentially a finding on a question of fact to be arrived at with reference to the materials produced before the court with regard to the enjoyment of the property and other circumstances and the correctness of such a finding cannot be canvassed in the second appeal unless it is shown that such a finding is perverse or is not supported by any evidence, or material evidence bearing on the question has not been considered. No such thing has been brought to my notice as far as the present cases are concerned. As a matter of fact, the very argument of the appellants that the suit property was purchased in 1902 in the name of the fourth branch and there was a litigation in respect of the property by a person claiming an agreement in his favor anterior to the sale in favor of the fourth branch, will clearly show that it was that fact which necessitated the parties to keep the suit property in common at the oral partition. Similarly, the finding of the courts below that the appellants had not established their title by ouster must also stand. Once it is concluded that in the oral partition in 1908 the suit property was kept in common, the appellants can succeed, if at all, only by showing the particular point of time at which they asserted hostile title to the property in themselves to the knowledge of the other co-owners and had been in enjoyment of the property thereafter in their own right for a period of 12 years and more. In this particular case, the only facts on which reliance was placed in respect of the case of ouster was the fact that the property stood registered in the Corporation registers in the name of the first branch and the property tax had been paid in the name of the first branch. In my opinion, this is not sufficient to establish the case of ouster. It is not the case of the appellants that mutation of names was effected after giving notice to the other persons interested. As far as the payment of property tax is concerned, it can be paid even by an occupier and therefore that will not prove ouster on the part of the appellants.
3. The finding on the question whether the third branch was excluded or not is also a finding on a question of fact supported by evidence and therefore cannot be interfered with in second appeal.
4. The next argument advanced by the learned counsel for the appellants is that the plaintiffs in this case could not have filed the suit for rendition of accounts alone without filing a suit for partition. It must be mentioned that the common case of the parties is though the time at which the division is said to have taken place is different that there was a division in status between all the four branches. Once a division in status has taken place, the members of the erstwhile coparcenary are tenants-in-common with respect to the property kept in common and consequently, whether considerations that may be available with regard to a suit for partition of an undivided coparcenary, will not be available with regard to a property kept in common at a partition that had already taken place. Mr. Desikan, the learned counsel for the appellants, frankly conceded that he was not able to lay his hands on any authority either in favor of his contentions or against. On the other hand, the courts below have relied on the decision of the High Court of Calcutta in Abu Shahid v. Abdul Haque Dobash : AIR1940Cal363 . The headnote to that decision states:--
'If one of two joint owners of a property receives rents and profits of such property in excess of his share in such rents and profits, the other can, unless he had been ousted from the property sue the former for accounts, without at the same time claiming a partition of the property.'
That was a case dealing with the suit instituted by one of the co-lessees against the other lessees in management of the leased property for rendition of accounts and in that case, the Calcutta High Court went into the entire law of one of the joint owners instituting a suit for rendition of accounts without claiming partition. Mr. Desikan contends that this decision is cited as an authority for the position under Dayabaga law in Mullah's Hindu law. In my opinion this contention proceeds from a mistake.
The case cited in Mullah's Hindu Law, 13 the Edn. page 271, paragraph 239, is another decision reported in the same volume, namely, Benoy Krishna Ghosh Chaudhri v. Amarendra Krishna Ghosh Choudri : AIR1940Cal51 . In that decision, it was held that in a Dayabhaga family a junior co-sharer has a right to demand accounts of the Kartha without praying for the partition of the joint estate. That position flows from the fact that under the Dayabhaga law a member of the family is the owner of a defined share of the property without any fluctuation unlike in the case of a Mitakshara coparcenary in which a coparcener is entitled to an undivided interest in the coparcenary property, which interest is liable to fluctuation by birth or death of in the family. Consequently, once division in status has taken place in the Mitakshara family, the erstwhile coparceners are only in the position of joint owners of the property or tenants-in-common. Therefore, the decisions of the Calcutta High Court referred to above will be an authority for the proposition that it is not necessary that a person entitled to a share in the property should file only a suit for partition and cannot file a suit for rendition of accounts alone. Mr. Desikan tried to argue that there can be no claim for rendition of accounts against a manager of the Hindu Joint family with regard to past transaction. In my opinion, this argument is fallacious because once a division in status has taken place, the status of a kartha has come to an end and there is no question of there being a manager to a Hindu undivided family in possession of the property though he may be an erstwhile manager now in possession of the property liable to render accounts to the other owners of the property. Therefore, I have no hesitation in agreeing with the conclusion of the courts below that the suit for rendition of accounts was maintainable and the plaintiffs were not bound to sue for partition of the property.
5. There remains only one other question which was not specifically raised by the appellants herein before the courts below. The appellants herein put forward the contention that their branch had spent about Rs. 20,000/- in repairing the property in question. This contention was put forward only for the purpose of supporting their exclusive title to the property and not for the purpose of claiming any credit or contribution or adjustment in the rendition of accounts. The learned District Munsif, while dealing with the question, points out that even the witnesses on behalf of the plaintiffs admitted that such repairs were effected, though they did not say that what was the cost of the repairs. In view of this, Mr. Desikhan's appeal to the court in these second appeals is that in the accounts to be rendered credit must be given to the appellants for the amounts that were spend on the reconstruction or repair of the building, the benefit of which are to be enjoyed by all the parties interested in the property. In my opinion, since only a preliminary decree has been passed and it is still open to the court, at the stage of passing the final decree, to find out whether any amount has been spend by the appellants herein in the repair of the property no injustice would be caused to the respondents herein by allowing the question to be raised at that stage. Consequently, while affirming the conclusion of the courts below, and maintaining the preliminary decree passed by them, I direct that if the appellants establish by acceptable evidence that they had spend any money on the repair of the property in question, they would be entitled to credit for the same in the accounting in favor of the other parties to the suit. Subject to this observation, the second appeals are dismissed. There will be no order as to costs. No leave.
6. Appeal dismissed.