1. This is an appeal by the plaintiffs against the decree and judgment of the Subordinate Judge of Vijayawarla in O. S. No. 70 of 1943 on the file of his Court in so far as it is against them. To understand and appreciate the contentions of the parties to this appeal, it is necessary to state the following facts which are either undisputed or well established. Raja Bommadavara Naganaa Nayudu and the defendant who is the respondent before us are brothers and, were members of an undivided Hindu family. The defendant filed a suits for partition of the joint family properties against his brother Naganna Nayudu in the Court of the Subordinate Judge of Eluru (O. S. No. 38 of 1919). A preliminary decree for partition was passed on 21-1-1921 and eventually the final decree was passed on 30-11-1929. Each of the brothers was allotted a half share in the family properties. The suit lands were accretions to the main land comprised in the joint family estate formed in the river Krishna. The Government entered on these lands in 1894 under theprovisions of the River Conservancy Act. Both the brothers and their father filed a suit (O. S. No. 83 of 1916) on the file of the Court of the Subordinate Judge of Masulipatam against the Government and obtained a decree for recovery of a portion of the accretions which had become fit for cultivation. This decree was confirmed by the High Court in A. S. No. 372 of 1917. In the meantime there were other accretions of which a part was delivered over to the brothers by the Government. The Zamindar of South Vallur, a cousin of Naganna Nayudu and the defendant filed O. S. no. 9 of 1921 in the Court of the Saboriinate Judge of Vijayawada (tried subsequently as O. S. No. 50 of 1923 on the file of the Additional Subordinate Judge, Vijayawada) against the two brothers and the Government claiming that the accretions belonged to the South Vallur estate. That suit was decreed by lower Court and in accordance with the decree the Government delivered to the plaintiff in that suit, the Zamindar of South Vallur, 96 acres 48 cents of such accretions. An appeal wag preferred by the brothers against the said decree to the High Court (A. S. No. 327 of 1924) and this Court reversed the decision of the Court below and declared the right of the two brothers to the said accretions. In spite of this appellate decree, the Zamindar of South Vallur continued to be in the possession of the lands delivered to him by the Government and purported to divide the same with his son. So, the defendant in the present action filed two suits O. S. No. 9 of 1925 and O.S. No. 35 of 1925, in the Court of the Subordinate Judge of Vijayawada for recovery of possession of the said lands together with mesne profits. O. S. No. 9 of 1925 was filed for possession of that portion of the property in the possession of the senior Zamindar of South Vallur and others claiming through him, which fell to his share at the partition between him and his son. O. S. No. 35 of 1925 was filed against; the junior Zamindar of South Vallur who was then a minor represented by the Court of Wards in respect of the portion which fell to his share. The Government was made a party to both the suits. In both the suits Naganna Nayudu was impleaded as defendant 2. After the declaration of the rights of the brothers in A. S. No. 327 of 1924 by this Court, the two suits were decreed on 30-11-1929 in favour of the two brothers. The decree directed delivery of possession of the properties to the two brothers and left the question of mesne profits to be determined afterwards. On 4.12.1930, the defendant filed two applications, I. A. NOS. 142 and 143 of 1931 in the two suits respectively for ascertaining the mesne profits as per the direction in the judgment; and a decree in the two suits. The Court ascertained and passed a decree in O. S. No.9 of 1925 for certain amounts aggregating to Rs. 10413-4-7 with interest against the property of the senior Zamindar of South Vallur in the hands of the Official Receiver of Krishna and for Rs. 3081-11-1 against one Rani Inuganti Saraswati Devi Amma one of the defandents in that suit. And in O. S. No. 36 of 1925 a similar decree was passed for Rs. 518-6-9 with interest. The Court further directed that future profits tilldelivery of possession shall be ascertained in future proceedings. The defendant respondent obtained delivery of possession of the property and also collected amounts from time to time in respect of the decrees for mesne profits.
2. Naganna Nayudu waa adjudged insolvent on 27-1-1941 in I. P. No. 8 of 1937. The Official Receiver of West Godavari representing his estate instituted the suit out of which the appeal arises on 6-9-1943 for a decree for partition by metes and bounds of the properties which the defendant had taken delivery in pursuance of the decrees in O. S. Nos. 9 and 35 of 1925 and for recovery of a half share therein and for an account of the money collected and expended by the defendant in connection with O. S. Nos. 9 and 35 of 1925 and for recovery of a half share of the sum ascertained in pursuance of the taking of the account with interest at six per cent per annum and for an account of the income which the defendant ought to have realised from the lands taken possession of by him in pursuance of the aforesaid decrees in O. S. Nos. 9 and 35 of 1925. Subsequently, the Official Receiver was removed in pursuance of a composition scheme which was accepted by the Court and in his place was substituted Sri Raja Bommadevara Lakshmi Chayadavamma as plaintiff 1 and Raja Bommadevara Venkata Narasimha Rao being minor represented by his mother plaintiff 1 was added as plaintiff 2. Plaintiff 1 was the guarantor under the composition scheme and plaintiff 2 is the son of the insolvent. In this judgment, Naganna Nayudu and his representatives at different times will be referred to as the plaintiff.
3. There wag really no objection on the part of the defendant for a partition and delivery to the plaintiff of a half shave in the suit properties. 'The only contention on his behalf was that the plaintiff was not entitled to costs as the partition could not bo effected solely on account of the recalcitrant attitude of she plaintiff himself. The learned Judge passed a decree for partition and held that the defendant was not liable for costs in respect of the relief of partition because of the laches on the part of the plaintiff. The main contest was in respect of the claim for a share of the amounts collected as mesne profits in execution of the decree in I. A. Nos. 142 and 143 of 1931. The defendant pleaded that the suit for this relief was not maintainable and in any event the suit was barred by time. The learned Judge held that the suit was maintainable, that a suit for an account of the mesne profits realised by the defendant in O. S. Nos. 9 and 35 of 1925 did not lie, but the plaintiff could recover a moiety of the amounts realised as mesne profits within three years of the institution of the suit. He further held that the defendant was not liable to render any account in respect of the income from the lands from Fasli 1343 when the lands were relinquished by the judgment-debtors in O. S. Nos. 9 and 35 of 1925 till Fasli 1351 in which year admittedly the lands were leased out by the two brothers in two equal shares because the defendant was not in possession of the lands during that period. In the result, besides the preliminary decree for partition, the learned Judge passed a decree directing the defendant to pay to the plaintiff Rs. 194-3-4 together with interest thereon at six per cant, per annum from the date of suit till realisation.
4. The plaintiff's appeal relates to three items (1) the costs disallowed in respect of the relief of partition, (a) the mesne profits collected by the defendant in O. S. Nos. 9 and 35 of 1925 in so far as they wore disallowed, and (3) an account of the income of the lands from 1933.
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We are left with the claim for an account of the mesne profits collected by the defendant in O. S. Nos. 9 and 35 of 1925. As already stated, the lower Court held that the suit, was maintainable, but the respondent has challenged the correctness of that finding before us.
We agree with the learned Subordinate Judge that the suit is maintainable.
5. The question of limitation is not free from difficulty. According to the respondent, the proper article to be applied is Article 62, while the appellant contends that Article 120 should be applied, Another article which was occasionally mentioned was Article 89 but we did not understand either side to rely on its application. Decided cases on more or less similar facts are legion, and it is not easy to reconcile all the observations made by the different Judges dealing with different gets of facts. Before we deal with the decisions cited to us, it will be useful to analyse the relationship between the parties and the nature of the relief sought by the appellant. Undoubtedly, from the date of the preliminary decree in any event, if not; from an earlier date, the brothers must be deemed to be divided members of the family. By the date of the decrees in O. S. Nos. 9 and 35 of 1925, the final decree had also been passed in the partition suit between them. But it cannot be seriously disputed that the subject-matter of the two suits O. S. Nos. 9 and 35 of 1926 was also family property which was partible between the brothers but which owing to circumstances beyond their control could not be included in the suit for partition. It is because both the appellant and the respondent were jointly entitled to the lands in dispute in the two suits that a joint decree was prayed for and granted for possession. In law the two brothers must be deemed to be in the position of tenants in common in respect of these lands. The moneys collected by the respondent represent the income of the lands and presumably the brothers would be entitled to equal moieties of such income. In our opinion, the legal position is exactly similar to that in a case where one co-owner or one tenant in common is in possession and enjoyment of the entire common property and has received the rents and profits from it. In such a case, it is well established that the other co-owner or tenant in common would be entitled to ask for an account from the co-owner or tenant in common for possession and enjoyment and recover a half share of the net income; that is to say, the income realised less all legal and permissible deductions and allowances. In such a case it cannot be said that in every pie that is realised by the co-owner in possession, the other co-owner is entitled to a half. Cases can be conceived in which the outgoings may be in excess of realisations. It is only on taking an account that the net amount, if any, in which the co-sharers will each be entitled to a moiety can be ascertained.
6. If the above be the correct legal position, we think the appellant was right in claiming an account. The preponderance of authority is also in favour of holding that to a suit for such account the proper article applicable would be Article 120. Such a suit, however, must, be distinguished from a suit based on different facts such as, e.g., a suit for the recovery of a definite sum of money paid by a common debtor to one of two joint creditors. There would be no scope for the taking of an account as the plaintiff would be entitled exactly to a half of the amount received by the defendant. If this distinction between two types of cases is borne in mind, we can reconcile the several decisions relied upon by both sides before us.
7. So far as this Court is concerned, the leading decision on the subject is that of the Full Bench in Yerulcola v. Yerukola, 45 Mad. 648 : A. I. R. 1922 Mad. 150 . Before we deal at some length with the observations made by the learned Judges in that case, it will be instructive to refer to some of the earlier cases relied upon by either side before us and which are discussed by the learned Judges who formed the Full Bench. The earliest of the Madras cases is to be found in Arunachala v. Ramasamia, 6 Mad. 402. In that case the plaintiff had brought a suit against his father and his brother defendant 2 for partition and obtained a decree which inter alia declared that as to the outstandings due to the family the plaintiff was entitled to and to collect one-third share thereof. Among the outstanding was one item of Rs. 200 due by the debtor to the family. The debtor paid the entire amount to the plaintiff's father on 12-5-1878. The plaintiff then sued defendant 1 the debtor and defendants his brother for his one-third share of the debt, the father being dead by the time. The suit was dismissed against defendant 1 the debtor as he had only paid the debt to the plaintiff's father. But both the lower Courts found that defendant 2 was liable to pay the plaintiff's one-third share. The suit was filed on 18-7-1881 more than three years after the payment by defendant 1 to the plaintiff's father. In the second appeal, the learned Judges held that the plaintiff's share received by his father was money received to the plaintiff's use on 12-5-1878 and the plaintiff's claim would be barred under Article 62 of Schedule II, Limitation Act. It will be been from the facts narrated that there could be no necessity for an account. The debtor paid the money to one of the joint creditors. The prior decree for partition had declared that each of the coparceners was entitled to and to collect one-third share of the debt. Therefore, when the plaintiff's father received the amount representing the plaintiff's share, ho must be deemed to have received it to the use of the plaintiff. In Tallis v. Saldanha, 10 Mad. 69, Article 62 was applied to a claim for a, share of the rent to which the plaintiff was entitled from coparceners to whom the rent had been paid. The parties were Native Christians, descendants of Brahmins, who were living in coparcenary. It was decided that the rule of survivorship would not be applicable to them because of the passing of the Succession Act and the case was decided on the footing that they were joint owners. In Lakahminarasimha v. Lakshmamma, 25 M.L.J. 531 : 21 I. C. 394, the suit was to recover a half share of the plaintiffs in the mortgage amount due to the family collected by one of the members before the partition and not brought into account at the family partition. It was found that the predecessor of the defendant representing one of two co-mortgagees had released the entire mortgage-debt on receipt of Rs. 1000. Article 62 was applied to the suit. Obviously, the claim, was to the share of a definite sum of money received by the defendant's predecessor and there was no claim for an account nor could there be. Sub-barao v. Ramarao, 40 Mad. 291 : A. I. R. 1917 Mad. 948 arose on facts slightly different from the facts in the above three cases. The plaintiff and the defendant were co-owners in a Jagir. The defendant had been appointed by the Government as its manager and the suit was to recover the plaintiff's half share of the profits on the Jagir by taking an account. The learned Judges held that it was undoubtedly asuit for an account. The defendant was entitled to receive the money and ha was bound to pay over what was due to the plaintiff only after the deduction of the legitimate expenses and outgoings. One of the cases cited to them wasdistinguished on the ground that in that case the defendant had no right to receive the money and there was no question of rendering an account; whereas in the case before them the defendant was entitled to receive the money and it was not a claim for a definite sum which in law belonged to the plaintiff when it was received by the defendant. They following the ruling in Mohamed Habibullah Khan v. Safdar Husain Khan, 7 ALL. 25 : 1884 A. W. N. 219 where a person who was jointly entitled with the defendant sued to recover his share of the money in the hands of the defendant after an account being taken of what wag received by the defendant and what he lawfully spent and Article 120 was applied. Srinivasa Aiyangar J., observed thus :
'Both of them are beneficially interested and are owners beneficially of a certain jagir. But the defendant is the person who is constituted the manager. As manager he is entitled to collect rents and revenue of the jagir and bound to account; finally for the collections and disbursements. The plaintiff cannot claim a share in each individual collection nor can he claim any particular sum at the time of collection from the defendant. All that he is entitled to is an account technically so called .... The plaintiff is not entitled to a particular sum from the defendant at the moment he has received it. The article of limitation governing the suit is not, therefore, Article 62. There is no other article suggested and the suit must fall within Article 120.'
8. It will now be convenient to refer to the Full Bench decision in Yerukola v. Yerukola, 45 Mad. 648 : A. I. R. 1922 Mad. 150 . Actually the facts of that case were peculiar. Three brothers who were members of a joint Hindu family became separated. Arbitrators were appointed who divided some of the family properties, but owing to disputes, the partition was not completed, and the plaintiff brought the suit for the division of the remaining properties which during the interval had been enjoyed by one or other of the parties under a tenancy in 'common. The different members of the family had collected outstandings from debtors and rentsfrom tenants. The plaintiff claimed an account of the amount so collected. It was held that the article of the Limitation Act governing the claim for an account and share of the moneys and rents and profits collected was not Article 109 or Article 127, or Article 62, but the article applicable was 120 unless from the facts, it could be inferred that the person receiving the moneys and rents and profits acted as the agent of the others in whose case Article 89 would apply. Article 62 was not applicable, because the appropriate remedy in the case was an action for an account and not a suit for money had and received. Of the five learned Judges who formed the Bench, three delivered separate judgments agreeing in the final conclusion that the proper article was Article 120. Sohwabe C. J. pointed out that in England an action for money received by the defendant for the plaintiff's use would not lie by one tenant in common against another who has received more than his share. The Statute 4 Anne, Ch. 16, Section 27 permitted an action for an account in such a case. The learned Chief Justice referred to the case of Thomas v. Thomas, (1860) 5 Ex. 28 : 19 L J. Ex. 176 in which Parke, B. gave his reasons for holding that an action for money had and received would not lie by one tenant in common against another, namely that the rent a remained undivided and no one tenant in common was entitled to any specific part and further, the collecting tenant in common would be entitled to all just allowances which could not be given in an action for money had and received, but could be given in an action for an account. The learned Chief Justice approved of the decision in Subbarao v. Ramarao, 40 Mad. 291 : A.I.R. 1917 Mad. 948 and the line of cases which decided that Article 62 did not apply to a suit for an account between tenants in common. He specially distinguished the case in Arunachala v. Ramasamia, 6 Mad. 402, on the ground that in that case a debt had been collected by one of two brothers, each of whom was entitled to a third of the debt and the collecting brother had no authority or right to collect his brother's one-third share and it was a specific sum which the brother was alone entitled to and for which an action for money had and received would properly lie. He was also inclined to apply Article 8) in case it could be inferred that one of the tenants in common was making a collection of common debts acting as agent for the other tenants in common and not merely on his own account. Kumaraswami Sastri J. in an exhaustive review of the decided cases approved the principle laid down in Subbarao v. Ramarao, 40 Mad. 291 ; A.I.R. 1917 Mad 948 that Article 62 would only apply where there was no question of rendering an account. Much of the discussion turned on the peculiar facts of the case where several properties including out, standings had been left undivided, but the ratio decidendi which emerges from the judgment of the learned Judge on the whole is that where the circumstances are such that an account is necessary for ascertaining the amount payable to the plaintiff, Article 62 would have no application. Very much to the same effect are the observations of Devadoss J. in dealing with some of the decided cases. Mr. P. Somasundaram the learned counsel for the respondent relied considerably on the illustration given by the learned Judge at p. 701 of the Report, namely, that where A and B were jointly entitled to a specific sum, if A collects the whole without being B's agent, implied or express, there is a presumption that he does so for B's use and Article 62 would apply. But obviously this illustration has reference to a case like that of Arunachala v. Ramaswamia, 6 Mad. 402 and not to a case where there is no specific sum, but a sum has to be ascertained. The learned Judge immediately thereafter says that in the case of the income of the immovable property, the proper article to be applied is Article 120. In our opinion, though the facts in Yervkola v. Yerukola, 46 Mad, 648 : A.I.R. 1922 Mad. 150 are not identical with the facts of the present case, the principle of the decision would govern the present case, namely, that Article 62 would have no application to a case in which an account is the proper relief to be claimed.
9. The decision in Yerukola v. Yerukola, 45 Mad. 648 : A.I.R. 1922 Mad. 150 was followed in other High Courts in India. In Abu Sahib v. Abdul Hogue : AIR1940Cal363 , Article 120 was applied to a suit by one joint owner of a property against another for accounts when the defendant was alleged to have received rents and profits of such property in excess of his share in such rents and profits. Mukherjea J. observed that the co-sharer is only entitled to accounts, which means that the defendant is entitled to all just allowances and all the rights and indemnities of a Receiver, whereas if it was an action for money had and received, the defendant's liability would be absolute.
10. In Sitaram v. Narayan : AIR1943Bom216 Broomfield and Macklin JJ, held that Article 120 was the proper article to apply to a suit for accounts by one co-owner against another who had received more than his share of the income of the joint property. In the opinion of the learned Judges the basis of the decision in Yerukola v. Yerukola, 45 Mad. 648: A. I. R. 1922 Mad. 150 was the reasoning of Parke, B., in the English case of Thomas v. Thomas (1850) 8 Ex, 28 : 19 L. J. Ex. 175 to which reference has been already made earlier in our judgment. Though the case before them related to the administration of the estate of a deceased Muhammadan, the Judicial Committee in Muhammad Ali v. Shafiabai, I. L. R. (1941) Bom. 8: A. I. R. 1940 P. C. 815, appear to have taken Yerukola v. Yerukola, 45 Mad. 648: A. I. R. 1922 Mad 150 as lading down correct law. Their Lordships say:
'Upon the proper application of Article 120 as between tenants in common it will be sufficient to refer to Bolo v. Koklan and Yerukola v. Yerukola, 45 Mad. 648, A. I. R. 1922 Mad. 150 .
Mr. Somasundaram for the respondent placed some reliance on the ruling of this Court in Hussain Ali v. Baquir Ali, I. L. R. (1946) Mad. 423: A. I. R. 1946 Mad. 116. The facts of the case, however, clearly demonstrate the impossibility of a claim for an account being made. The sale proceeds of a property belonging to several co-heirs were handed over to the defendant to be distributed amongst the coheirs. One of the co-heirs was not paid his share and he filed a suit for the recovery of his share of the money. It was held that the suit was barred by limitation under Article 62, Limitation Act. The defendant was not obviously entitled to any allowance or deduction from the amount in his hands. The only other case cited by Mr. Somasundaram was Mohamed Wahib v. Mohamed Amir, 32 cal. 527 : 1 C. L. J. 167. Here again, there was no question of the plaintiff claiming an account. Two mortgage deeds were esecuted in favour of defendant 1 by defendant 2. The plaintiff had a share in the sums advanced under the two mortgages. Defendant 1 (mortgagee) received from the mortgagor the whole of the two sums due under the deeds. The plaintiff sued for recovery of his share of the mortgage money Article 62 was applied.
11. The evidence in this case confirms our view that the proper relief to which the appellant is entitled to is an account. On 3-4-1941 the Official, Receiver, West Godavari, on behalf of the appellant wrote to the respondent demanding a half share of the amount received by the respondent in respect of mesne profits under the two decrees (EX. P-4). To this the respondent replied on 30-4-1941 (EX. P-5). He referred to the fact that he had himself conducted the suit proceedings as plaintiffs bearing the entire costs and under these circumstances the respondent had no right whatever to claim one half share in the amounts received from the Court. Further he added that there were amounts which he (the respondent) had to realise from the appellant in accordance with the partition agreement entered into between them and a proper account should be taken in respect of all these amounts. He stated that the appellant had no right without having an account settled to claim payment of half the amount because it was only after settling the account it would be possible to know how much had to be paid and by whom. The prayer in the present plaint was that an account be taken of the moneys collected and expended by the defendant in connection with O. S. Nos. 9 and 35 of 1925 and that a decree be passed in favour of the plaintiff for a half share of the sum so ascertained. In the written statement inter alia the defendant pleaded that he had spent large sums of money in the litigation involved in O. S. nOS. 9 and 35 of 1925 and there were other large sums of money due to him from the plaintiff and if any account had to be rendered by him, all these amounts had to be duly taken into account. Before the amounts were realised, the respondent had to file several execution applications and we find that costs of some such applications were not allowed by the Court. Nevertheless, be would be entitled to the money expended on them and it is only after all just deductions that the amount due to the appellant can be finally ascertained.
12. If Article 120 is applicable, the suit was certainly in time. The earliest denial by the defendant of the plaintiff's right wag on 27-1-1939 when his advocate addressed the letter Ex. D-7 to the Sub-Collector in charge of South Vallur (Part I) estate that the appellant had no claim under the decrees in O. S. Nos. 9 and 35 of 1925 to the meane profits realised by him. The suit was filed on 6-9-1943 well within sis years of this letter.
13. The appeal is, therefore, allowed in part and the decree of the lower Court in so far as it concerned the meane profits realised by the defendant is set aside. There will instead be a preliminary decree for an account of the moneys collected and expended by the defendant in connection with O. S. Nos. 9 and 35 of 1925 sub-Court, Vijayawada. The appellant will be entitled to a half share of the net amount ascertained on taking of an account, with interest thereon at six per cent, per annum from the date of suit. As the appellant has partly succeeded and partly failed, there will be no order as to coats in, the appeal. In the lower Court the appellant would be entitled to his costs in respect of his prayer for an account which will be provided in the final decree. In other respects the direction of the lower Court as regards costs will stand.
[This appeal having been set down to be mentioned this day, the Court delivered the following judgment :]
14. Mr. Somasundaram the learned counsel for the respondents desires that it may be made clear that in the taking of the account the loss which the defendant might have sustained on account of the conduct and inaction of the plaintiff may be debited against the plaintiff. Without pronouncing on the merits of the claim in this behalf, we direct that the defendant will be at liberty to make the plaintiff liable for such loss, if any, incurred by the defendant). We, however, wish to make one thing clear, namely, that the conduct and inaction above mentioned must be in connection with the subject-matter of O. S. Nos. 9 and 35 of 1925.