P.V. Rajamannar, C.J.
1. This appeal from the decree and judgment of the Court of the Subordinate Judge of South Kanara arises out of a suit for partition in O.S. No. 21 of 1949, of properties which at one time belonged to an aliyasanthana family.
2. That family consisted of two branches called the Dodda Hadi Mane branch and the Sanna Hadi Mane branch. The parties to this suit all belong to the Sanna Hadi Mane branch. Daramma was the common ancestress of this branch. She had three daughters, Durgi, Rukku and Lingamma. The plaintiffs are the descendants of Rukku, and the defendants the descendants of Durgi. Lingamma's branch has now become extinct. On 19th February, 1896, a partition was effected between the two main branches by a registered deed. (Exhibit A-1). So far as (he properties allotted to the Sanna Hadi Mane branch were concerned, certain terms were embodied in this partition deed, which are material to the disposal of this case. The relevant clauses of the partition deed are the following:
17. In connection with this partition, it has been decided that the management of the entire property that has fallen to the first branch (Sanna Hadi Mane branch) should be conducted by the second individual', Subbiah Shetty among them... The profit remaining as per accounts, he shall divide into three parts; and out of them, he, i.e., the second individual shall keep one for the miscellaneous expenses of the members of his own sub-branch; and as regards the remaining two parts, he shall give one part to the Krishtappa Shetti's sub-branch for their miscellaneous expenses and give the other part to Kolai Shetti's sub-branch for their miscellaneous expenses.
18. After the death of Subbiah Shetti, Krishtappa Shetti, individual No. 22. should take possession of the entire property of the first share, should get the Kudthale entries entered (in his own name) and should conduct the management up to his death in accordance with all the terms mentioned above in paragraph 17. He should maintain the account, and he should distribute the remaining profit among his and the other two branches according to one-third share each and should obtain receipt.
19. After the death of Krishtappa Shetti, Manjaiah Shetti, individual No. 20, should take possession of the entire property of the first share and with Kudthale entries, he should conduct the management up to his death in accordance with all the terms mentioned in column 17.
27. In Krishtappa Shetty's branch, there are three males only and there are no female descendants. Hence it has been settled that, up to the death of these three individuals, viz., Krishtappa Shetty, Subbiah Shetty, the first adaltedar, and Manjaiah Shetty, the third adaltedar, there should not be separation. After the death of the said first branch, the entire property of the first share should be divided into two equal parts with due considerations for good, bad and middling qualities; and out of them, the first portion should be enjoyed by Subbiah Shetty's branch and the second portion should be enjoyed by Kolai Shetty branch with Kudthale got entered separately. When one branch requires partition in that manner and the other branch objects to the same, the persons who object in that manner should be bound to pay, with security of the property belonging to their share, the expenses and loss incurred by persons requiring possession of the half portion of the property in that manner as well as the market value of the profit that remains apart from the tirve, in respect of the property, up to the date of its possession together with the interest thereon.
Subsequently there was a suit O.S. No. 24 of 1903, filed in the Court of the Subordinate Judge of South Kanara by Manjaiah Shetty and others for removal of Subbiah Shetty from ejamanship and management of the family property and further reliefs. This suit ended in a compromise decree, the only term of which it is necessary to mention is as follows:
The defendants should deliver possession of one-third portion of the family property to the members of the branch of the first plaintiff, Manjaiah Shetty, among the plaintiffs, for their maintenance. The members of that branch should enjoy it without alienating it in any manner by way of gift, mortgage, sale, mula geni, vaide geni, etc., and should conduct their own maintenance as well as good and auspicious deeds and havya kavyas. In the same manner the members belonging to the branch of the defendants should enjoy the remaining two-thirds share subject to the same terms. In this manner, up to the lifetime of these two individuals, i.e., the first plaintiff and the first defendant, the members of the plaintiff's branch should be enjoying one-third share of the property and the members of the defendants' branch should be enjoying the two-thirds share of the property. After the death of these two individuals, the members belonging to these two branches should bring into force the terms contained in the partition deed executed in the year 1896 and should conduct themselves in accordance with it.
3. (The present plaintiffs represent the plaintiffs in that suit, and the defendants represent the defendants therein).
4. Manjaiah Shetty died on 4th June, 1936. On 16th August, 1936, on behalf of the plaintiffs' branch a notice was issued to Kaveri Shedti, representing the defendants' branch, calling upon the defendants' branch to join in the division of the properties in accordance with the terms of the partition deed as confirmed by the compromise decree, and for the payment of their excess share of the income being enjoyed by the defendants' branch from the date of the death of Manjaiah Shetty. To this Kaveri Shedti, on behalf of the defendants, sent a reply, through her vakil, in which she emphatically denied that either as per the partition deed or as per the compromise decree in O.S. No. 24 of 1903 the plaintiffs were entitled in law or equity to demand or insist on effecting a partition of the properties in question and that she was not willing and did not consent to have any such partition effected. The present suit for partition was instituted on 29th January, 1949. During the pendency of the suit the Madras Aliyasanthana Act came into force. But before us no contention was raised as regards its applicability to the present suit. The learned Subordinate Judge of South Kanara who tried the suit passed a preliminary decree for partition in favour of the plaintiffs as prayed for. He overruled the main contention of the defendants that the suit was barred by limitation. Defendants 2 to 9, 15 to 18, 20 to 26, 34 and 35 are the appellants before us.
5. Mr. Adiga, learned Counsel for the appellants, has raised a contention which we find was not raised either in the written statement or at the trial of the suit, namely, that the agreement, to divide in future, which we find contained in the partition deed, is invalid and unenforceable in law. We do not think it just or proper to allow the appellants now, for the first time to raise a point which they could well have taken in their written statement. It does not mean, however, that there is any substance in this contention.
6. There remains the only other contention, namely, that the suit is barred by limitation. Mr. Adiga first tried to bring the suit within Article 113 of the First Schedule to the Limitation Act. That Article applies to a suit for specific performance of a contract and prescribes a period of three years from the date fixed for the performance, or, where no date is fixed, when the plaintiff has notice that performance is refused. In our opinion, this Article cannot apply to a suit like the present. Here, there is no contract which the plaintiffs seek to be specifically performed. The partition deed in unambiguous terms declared the substantive rights of the plaintiffs' branch and the defendants' branch, each to a moiety in the suit properties. Provision was made only for postponement of division by metes and bounds till after the death of Manjaiah Shetty. The suit to work out the rights declared under the partition deed can in no sense be described as a suit for specific performance of a contract. Mr. Adiga relied upon two decision, in support of his contention. The first is a decision of Pandrang Row J., in Natarajan v. Palaniandi Pillai (1935) 42 L.W. 208. The learned Judge held that a suiv to enforce a provision in a partition arrangement whereby each party thereto whose share shows an excess binds himself to make good the deficit in the others' shares is a suit to enforce the specific performance of a contract under Article 113 of the Limitation Act. That decision can have no bearing on the facts of the present case. As already explained, this suit is not founded on a covenant; the suit is to work cut the rights declared by the partition deed. The other decision, Trailokya Nath Das v. Kanaram Das (1935) Cri.L.J. 551, is nearer the point. There, an agreement for partition provided that partition would be effected in accordance with the rules mentioned therein and that within six months from the date of the agreement the parties should get the properties divided according to shares by calling certain gentlemen and get the partition deed properly executed and registered. It was held that a suit to specifically enforce the agreement would be governed by Article 113 and that the three years' time ran after the lapse of six months from the date of the agreement. This decision again can be distinguished on the same ground namely, that it did not deal with a prior declaration of the respective rights of the parties. This becomes clear from the following passage from the judgment of Mitter, J., who delivered the judgment of the Division Bench:
It has been strenuously argued by Mr. Amarendra Nath Bose, the learned advocate for the appellants, that the first 25 paragraphs should be treated as embodying the agreement between the parties as to their respective rights and what remained to be done by the arbitrators might be done by the Court. The parties never agreed to such a course, and to accept this argument would be to allow the parties to substitute for the agreement in question another agreement which the parties never contemplated. The defendants were to blame if they did not in time take steps to have the agreement carried out.
The passage cited to us from Mitra's Law of Limitation, Vol. 1, page 641, does not carry us further than the above two cases. We therefore bold that Article 113 has no application to the case.
7. Mr. Adiga next contended that Article 144 would apply and the suit was barred because there had been ouscer of the plaintiffs for over the statutory period of twelve years recokoning from the date of the reply notice, Exhibit A-4. After the partition deed there can be no doubt that the plaintiffs and the defendants were in the position of co-owners and the general presumption would be against ouster. Mr. Adiga relied on the language used in Exhibit A-4, the reply notice sent on behalf of the defendants, to support a case of ouster. We do not agree with him that there is anything in Exhibit A-4 which supports this case. It is true that Exhibit A-4 contains an emphatic denial of the plaintiffs' right to claim partition. It also contains a definite assertion on the part of the head of the defendants' branch that she was not willing to effect a partition. At the same time, however, there is no denial of the substantive rights of the plaintiffs in and to the properties. The notice does not say that the plaintiffs have no manner of right in and to the properties. It only refutes their claim for a partition. Mr. Adiga was not able to rely upon any other fact to support his case of ouster, and we have shown that Exhibit A-4 does not help him either. We therefore hold, agreeing with the Court below, that the defendants have not established ouster for over the statutory period. The same conclusion would follow even if Article 127 were to be applied. The suit was therefore not barred by limitation.
8. In this, view the appeal fails and is dismissed with the costs of the plaintiffs-respondents.
9. The plaintiffs have filed a memorandum of cross objections as regards mesne profits which they claim but which had been disallowed to them. The Court below granted them mesne profits, only for six years before suit. The plaintiffs want profits from 1st April, 1937. To sustain this claim the plaintiffs can only rely on Clause 27 of the partition deed which inter alia, provides that when one branch requires partition and the other branch objects to the same, the persons who object should be bound to pay, with security of the property belonging to their share, the expenses and loss incurred by persons requiring possession of the half portion of the property in that manner as well as the market value of the profit that remains apart from the tirve, in respect of the property up to the date of its possession together with interest thereon. Now the difficulty in the way of the plaintiffs' succeeding on this point is because the claim for mesne profits from 1937 is based only on the terms of the partition deed which sound in contract. It cannot be said that this provision declares the substantive rights of parties. The clause is in pan materia with the provision construed by Pandrang Row, J., in Natarajan v. Palaniandi Pillai (1935) 42 L.W. 208. There the member of the family in possession of an excess share was bound to pay the excess to the other members of the family. In this case one branch is bound to pay to the other branches the expenses and loss incurred by the persons demanding the partition and the profits pertaining to their share. A claim to enforce a covenant like the above would be really in the nature of a claim for specific performance of a contract, when Article 113 would govern the case. If this clause is not invoked but the general law relating to co-owners and their rights inter se is alone sought to be relied on, then the Court below is right in applying Article 120 of the Limitation Act in granting mesne profits only for a period of six years before the date of suit. The memorandum of objections is therefore dismissed with costs.