Frederick William Gentle, C.J.
1. This appeal arises out of an execution petition, E.P. No. 19 of 1946, in O.S. No. 47 of 1929 on the file of the Subordinate Judge's Court of Nellore. The suit was one for partition instituted by the plaintiffs, who are respondents 1 to 3 here against three defendants. The second defendant was the karta of the family and is the appellant. The other defendant-respondents can be ignored.
2. On 1st February, 1933, a compromise decree was passed and it is in respect of that decree that the execution petition out of which this appeal arises was issued. The relief sought by the petition was for a division of moveable and immoveable properties belonging to the family, amongst the members according to their shares. Three lots of property are concerned--(1) promissory notes representing debts due to the family, (2) cattle which belonged to the family, and (3) items of immoveable property similarly possessed. The suit was instituted in 1929, and in 1933, when the decree was passed, it was tolerably manifest that the promissory notes were all barred by limitation. In fact during the progress of the suit they were all ordered to be deposited into Court and that order was complied with by the present appellant, the late karta of the family. So far as the cattle were concerned, they were admittedly and undoubtedly in the possession of the appellant. As regards the immoveable property, that was the subject of some proceedings in execution prior to the petition out of which this appeal arises.
3. The learned District Judge of Nellore, before whom the execution petition came for disposal, expressed the opinion that the appellant was in a fiduciary position to the respondent-plaintiffs by virtue of his late position as karta of the family, and being in possession of property, formerly joint property, and he directed the appellant to account in respect of the promissory notes and cattle on the basis of fiduciary relationship. In regard to the immoveable property, he passed orders by which three of the nine items were to be divided between the sharers.
4. Firstly in regard to the promissory notes: From the date when pursuant to an order of Court, the appellant parted with their possession and deposited them into the Court, where they have since remained, he had no possession of them either as trustee or in any other capacity. That aspect was apparently overlooked by the learned Judge. The items of moveable property, namely, the promissory notes and cattle, are set out in Schedule I of the decree. In regard to the cattle, the schedule records that they were in the possession of the appellant. There is no such indication in regard to the promissory notes. In paragraph 6 of his judgment the learned District Judge seems to have held the view that, even if the pro-missory notes became barred owing to reasons beyond the control of the appellant, nevertheless in some way he would be responsible for that operation of the law taking place. I am unable to accept his view in the matter, but no examination regarding that is necessary inasmuch as the appellant was not having possession of the promissory notes. They were in the custody of the Court and the plaintiffs themselves (the decree-holders) equally with the appellant, could have taken steps to prepare for suits to be filed upon these notes if the debtors failed to make payments according to their respective promises. The promissory notes in no way being in the possession, custody or power of the appellant, he is under no obligation to account in respect of them.
5. In regard to the cattle, the appellant, as already pointed out, makes no challenge to the allegation that, when the suit was instituted some nineteen years ego end sixteen years before the institution of the execution petition out of which this appeal arises, he was in possession of certain cattle. He stated that some beasts had died from natural causes, some had been seized in execution and others had been sold to meet family necessities and debts. But he gave no details or any information, barring the statement above mentioned. In respect of the cattle also, the learned District Judge arrived at the conclusion that the possession of the appellant of the beasts was by way of a fiduciary character, and he was ordered to account on that basis. Learned Counsel for the respondent-plaintiffs has not challenged, the correctness of the position that, upon the institution of the partition suit, rupture took place in the family status and no longer was there joint family property but the members of the family, in respect of the property became tenants-in-common. It is beyond doubt that, in regard to one of two or more tenants-in-common, pos-session of property is not one of a fiduciary character. It was so held in Kennedy v. De Trafford (1897) A.C. 180 which decision was referred to and its principles accepted by this Court in three cases--Ramaswami Aiyar v. Subramania Aiyar : (1922)43MLJ406 , Abdul Samad Khan Kiladar v. Bibi Jan3 and Venkatasubbamma v. Subbamma (1944) 2 M.LJ. 257. The same view has been accepted in decisions of the Allahabad High Court. No authority was cited to support the proposition that tenants-in-common or co-owners or persons in like position are in fiduciary relationship to one another in regard to property possessed by them. In my view the appellant cannot be called upon to account upon the basis of trusteeship or similar principle. He must however account in the ordinary way in respect of joint family property which was in his possession some eighteen years ago and in respect of which the respondents called upon him to account some sixteen years after they had instituted the suit for partition and twelve years after a decree had been obtained. The account will be solely as between tenants-in-common.
6. Now, in regard to the immoveable property: As stated above there are nine items which figure in Schedule 2 of the compromise decree in the suit. Clause 6 of that decree, so far as material, provides that:
Out of the properties mentioned in paragraphs 3 to 5 supra, the property mentioned in Schedule No. 2 annexed hereto shall be held jointly by the plaintiffs and defendants 2 and 3, and they shall enjoy the same according to the shares specified in paragraphs 3 to 5, supra.
In Schedule 2 a note appears against items 4 to 9 that those properties shall be held jointly. No such note is found with regard to items 1 to 3. On behalf of the appellant it was argued that Clause 6 provides that none of the items of immoveable property are divisible, and hence the relief sought in the execution petition for division must fail. On the other hand it was contended on behalf of the respondents that the property, particularly indicated in Schedule 2 as being joint, namely items 4 to 9, alone remains of that character but not the other property.
7. Before expressing my view with regard to this matter it is necessary to refer shortly to the execution proceedings which have taken place since the decree was passed in 1933.
8. In 1936 the plaintiffs-decree-holders filed E.P. No. 13 of of 1936 for division of moveable and immoveable properties. Nothing further was done and in Octo-ber, 1936, that petition was struck off for want of prosecution. The same fate was met by E.P. No. 15 of 1936. In 1939 and 1940 two further execution petitions were instituted; and they also terminated by similar disposal. On 31st July, 1940, E.P. No. 96 of 1940 was instituted, the same relief being sought, namely, division of immoveable properties belonging to the family. That petition received final disposal on 1st October, 1941, when it was dismissed. In the course of the order in E.A. Nos. 75 and 84 of 1941 the learned Subordinate Judge of Nellore Mr. A.M.S. Tagat, before whom the matters came for disposal held that the immoveable properties in Schedule 2 could not be divided inasmuch as Clause 6 of the decree forbade such division by directing all the properties to be joint. His conclusion in that respect is to be found in paragraph 5 of the judgment. No appeal was preferred against his decision and it remains a final and conclusive order. There were other proceedings but reference to them is unnecessary, save to E.P. No. 19 of 1946 which is the petition now under consideration.
9. Learned Counsel for the appellant raised a question of res judicata, and he relies upon the decision in E.P. No. 96 of 1940 and in E.A. Nos. 75 and 84 of 1941 in which it was held that the immoveable properties, in their entirety, are not subject to division, pointing out that that was a decision by a competent Court, and, whe-ther it is correct or whether it is incorrect it matters not, it is conclusive as between the parties. That point was raised before the learned District Judge of Nellore who rejected it, it would appear, on the ground that in the several execution petitions prior to 1940 the appellant did not raise the point that none of the immoveable properties are divisible by reason of the provision contained in Clause 6 of the decree. It is manifest that there was no decision in any of the earlier execution petitions, all of which were terminated, it may be after some preliminary directions had been given. The only execution petition in which a decision was given was E.P. No. 96 of 1940, already referred to and in which the decision was expressed regarding the indivisibility of the immoveable property But, even assuming, which is not the case here, that in an execution petition prior to that instituted in 1940 there had been a decision to a contrary effect to that expressed in the execution petition above mentioned, nevertheless, since the decision in E.P. No. 96 of 1940 is later in date, that decision must prevail. It was so found regarding a decree by a Division Bench of this Court in Moturi Seshayya v. Sri Rajah Venkatadri Appa Rao (1897) A.C. 180.
10. In my opinion the question is res judicata as between the appellant and the plaintiff-raspondents regarding the immoveable property which belonged to the family at the time when the members were joint in status. There has been a decision of a competent Court that the property is not divisible and that decision remains, it has not been set aside, nor any steps taken to have it set aside. In my view, so far as the immoveable property is concerned, the matter is concluded, and the relief sought in E.P. No. 19 of 1946 for this property to be divided is not available to the respondent-plaintiffs by reason of the decision that the property is not divisible.
11. In my opinion the order of the learned District Judge in the Court below must be set aside regarding his directions relating to the promissory notes and the im-moveable property. In so far as cattle are concerned, his order will be varied to the extent indicated above. The appellant has, in substance, succeeded in this appeal and that being so, in my view, he is entitled to costs.
Satyanarayana Rao, J.
12. I agree.