N. Krishnaswamy Reddy, J.
1. Defendants 1 to 3 are the appellants. The plaintiff, the younger brother of the first defendant, filed the suit in forma pauperis for partition of his half share in schedules A,B,G mentioned in the plaint and for rendition of accounts of joint family business of Soda and Cigar factories. The learned Subordinate Judge passed a preliminary decree for partition of items 1 and 3 of A schedule properties into two equal shares and to allow one such share to the plaintiff and for a division of items 6 to 8 and 16 to 18 of the moveable C schedule properties. Under the preliminary decree, the plaintiff was made liable to pay a moiety of the debt due under Exhibit B-8. The suit was dismissed in other respects. The plaintiff filed a memo, of cross-objections.
2. Defendants 2 and 3 are the minor sons of the first defendant, the brother of the plaintiff, and the fourth defendant is the wife of the first defendant. The case of the plaintiff is that he and his brother, the first defendant were members of a joint family. Their father Vaithilinga Padayachi, who died, during his life time, purchased item 2 of the A schedule properties bearing door No. 12, Angalamman Koil Street, in 1924. Vaithilinga started a cigar company in or about 1932 with the trade mark Kuttiman and Paladi in the name of the plaintiff as Sundaram and Company. The trade went on till 1948. Vaithilinga also started a soda factory in or about 1940 and was carrying on the business till his death. Items 1 and 3 were purchased during the life time of Vaithilinga from the funds of the family business and items 4 and 5 were purchased subsequent to the death of Vaithilinga from the funds of the soda factory, the family trade carried on by the first defendant. When Vaithilinga had an attack of paralysis in or about 1946 at which time the plaintiff also left for Villupuram to join the Railway Department, the first defendant was managing the affairs and conducting the family business. The soda factory run by the first defendant in the name of Vasan and Company subsequent to the death of Vaithilinga is the continuation of the old business started by Vaithilinga and Kanaka Vilas Soda Factory run in the name of the first defendant's wife, namely, the fourth defendant, was also a family concern. The same business of Vaithilinga was stopped in 1949, but was revived in 1957 by the first defendant and as such that was a family concern. Therefore, the first defendant is liable to render accounts to the plaintiff for the profits. The plaintiff gave a notice to the first defendant demanding partition, on 10th November, 1957, and though this notice was acknowledged by the first defendant, he did not send any reply and therefore the plaintiff again sent a notice on 24th September, 1962 to which the first defendant sent a reply that there were no joint family properties for division and hence, the plaintiff filed the suit.
3. The defendants while admitting that item 2 of the A schedule property was a joint family property, and that Vaithilinga was running cigar and soda factories, contended that both the factories were discontinued in 1948 and 1949 respectively, as loss ensued, that the first defendant started the soda and cigar business later as his own concerns by borrowing from others. He purchased item No. 1 for Rs. 4,000 on 25th June, 1949, with his own earnings, in his name even while his father was alive.
4. As regards item 3, it is contended by the first defendant that he purchased it in 1946 by borrowing from third parties and from his own funds, and that it did not being to the joint family. As regards item 4 it is the case of defendants 1 to 4 that it was purchased by the fourth defendant in 1962 out of her own earnings and that it belonged to her absolutely. As regards item 5, though it was purchased by the first defendant, in 1951, subsequently in consequence of a litigation in respect of this property which resulted in a compromise, under which the first defendant received Rs. 10,000 he gave up his rights in the suit property.
5. In respect of item 2, though the first defendant admitted that it was his ancestral property, he contended that he made improvements to the house with his own funds and in 1950, the plaintiff had released, his interest in the said property in consideration of the first defendant having performed the marriage of the plaintiff by spending about Rs. 3,500 out of his earnings. As regards cigar business, the first defendant contended that though his father started this business in 1948 with a small capital, which resulted in a loss in 1948 and the first defendant after the death of his father, started a new cigar factory in 1957 out of his own earnirgs and continued it till 1962 and as it ended in a loss, he stopped the same. In respect of this business he submitted that there was no stock-in-trade in cigars or any materials and that the cigar factory started by him was not a continuation of the cigar factory of the joint family started by his father.
6. As regards the soda factory, the first defendant submitted that his father stopped the business in 1948, as it ended in a loss, and he thereafter started a new soda factory at Thiruvidaimaruthur in 1950 with his own funds and later, he shifted the factory to Chidambaram in 1951 which is being run in the name of Vasan and Company. The soda factory started by him was not a joint family concern and it belonged to him absolutely. The; fourth defendant submitted that the soda, factory run in her name is her own concern and it does not belong to the joint family.
7. In respect of the claim for moveable properties mentioned in C schedule to the plaint, the first defendant submitted that certain items mentioned therein did not exist and that the other items mentioned therein belonged to the first defendant absolutely. The first defendant further contended that he incurred mortgage debts to the tune of Rs. 8,000 and simple debts to the extent of Rs. 5,000 and that if in any case it was found that the properties claimed by the plaintiff belonged to the joint family liable for a division, the debts also should be equally divided.
8. The learned Subordinate Judge held that items 2 and 3 of the A schedule alone belonged to the joint family and the plaintiff would be entitled to a half share in the said properties and that items 6 to 8, 16 and 18 of the C schedule properties which are moveables valued at Rs. 320 are liable to be divided equally or in the alternative for recovery of a sum of Rs. 160. The plaintiff was made liable to pay the moiety of the debt due under Exhibit B-8. The suit in respect of other claims was dismissed.
9. The first defendant has filed this appeal against the decree and judgment of the lower Court declaring items 2 and 3 of A schedule and items 6 to 8, 16 and 18 of C schedule as joint family properties. The plaintiff has filed a memorandum of cross-objections.
10. It is convenient to dispose of items 2 and 3 of the Plaint A schedule as the appeal has been preferred by defendants 1 and 2 in respect of these items. Item No. 2 is a terraced house in door No. 12, Angalamman Koil Street, Chidambaram. This was purchased in the year 1924, by the father of plaintiff and the first defendant. This is admittedly a joint family property. The first defendant claimed that he made improvements to the property to the tune of Rs. 10,000 with his own funds while the plaintiff contended that the improvements were effected by his father with the joint family funds during his life time. The first defendant further claimed that in consideration of the amount spent by the first defendant for the marriage of the plaintiff, the plaintiff orally released the property in his favour and that, therefore, he became the absolute owner of item 2. There is no acceptable evidence that the first defendant made improvements with his own funds to item 2. On the other hand, there is evidence to show that this property was treated as joint family property and even after the death of the father, both the plaintiff and the first defendant rented this property, with all the improvements effected, as joint family property. The father of the plaintiff and first defendant died somewhere in 1951. The plaintiff and the first defendant and the minor sons of the latter, namely, defendants 2 and 3 executed a mortgage on 27th October, 1953, the registration copy of which is Exhibit B-8 in favour of one Sadagopa Naidu for Rs. 2,000. The recitals in Exhibit B-8 clearly indicate that item No. 2 Was treated as joint family property. The relevant recital in the said document is as follows :
(The sale deed having been obtained in I the name of Vaidyalinga Poosi.... and alter him (the same) having been in our possession and enjoyment). The purpose for which the amount was borrowed is stated thus :
(for the purpose of meeting the family expenses and for business purposes) etc. While describing the property, it is stated thus :
(The terraced construction built therein). When the first defendant was confronted with these recitals while he was examined as D.W. 1 he stated that these recitals are wrong, and he did not give any explanation as to why such recitals were made. Under Exhibit B-8, the first defendant had made a clinching admission that item 2 was in a terraced form in 1953, that it belonged to both the plaintiff and defendants 1 to 3 and that they have been in possession subsequent to the death of their father.
11. In respect of the alleged release of item-2 in favour of the first defendant by the plaintiff, we have only the oral evidence of the first defendant. The first defendant would say that the plaintiff released his rights in item-2 in 1950 in consideration of the first defendant having performed his marriage with his own monies. There is no reason, if that were true, as to why he did not obtain a release deed from the plaintiff. The first defendant relies on Exhibit B-1, a post card written to him by the plaintiff on 19th September, 1950. This letter only shows that in 1950, the plaintiff and the first defendant were in cordial terms and that the plaintiff expressed his gratitude to his elder brother for having celebrated his marriage. The first defendant was managing the entire properties at that time and he was living in Chidambaram on the plaintiff's father being afflicted with paralysis from 1946. The plaintiff was employed as a Clerk in Railways at Villupuram from 1946 and he was away from the family. Exhibit B-1 does not indicate that the marriage was performed -with the funds of the first defendant. The clinching circumstance in this case which negatives the case of oral release is Exhibit B-8 itself. We have already seen that the mortgage was executed in 1953, three years after the marriage of the plaintiff. The oral release was said to be in 1950, If that were so, there is absolutely no reason for the plaintiff to have joined in the execution of the mortgage and the property being described as a joint family property. The first defendant relied upon his account book Exhibit B-23 to show that the incurred expenses for effecting improvements to item No. 2. On a careful perusal of this account book, we find that the father of the plaintiff and the first defendant made certain purchases for making improvements, to the house. There is thus no acceptable evidence that the improvements to item No. 2 were effected with the funds of the first defendant.
12. We will presently show in discussing items Nos. 1 and 3 that the first defendant could not have had funds of his own. We agree with the finding of the lower Court that item No. 2 with its superstructure is a joint family property and that the oral release set up by the first defendant is not true.
13. Item No. 3. - It is a property in Chunnambukara Street comprised in T.S. Nos. 1117 and 1118. This item was purchased under three sale deeds Exhibit B-1 1 to B-1 3 dated 25th March, 1946, 27th July, 1946, and 23rd December, 1946 respectively in the name of the first defendant. Item No. 1 of A schedule is a house property with door No. 9 Anagalamman Koil Street, Chidambaram. This property was also purchased in the name of the first defendant under a sale deed Exhibit B-14 dated 25th June, 1949 for Rs. 4,000. The learned Subordinate Judge found that item No. 3 is a joint family property and that item No. 1 is the self-acquired property of the first defendant. In respect of these two items, it is the case of the first defendant that he purchased the properties with his own funds. It is the case of the plaintiff that the properties were purchased in the name of the first defendant as their father was afflicted with paralysis during that period and as the plaintiff had left the family having got employment in the Railways. It is his case that these two items were purchased with joint family funds and that the first defendant did not have money of his own. It is the evidence of the plaintiff that their father was afflicted with paralysis from 1946 and that it was in that year, he Was employed as a Clerk at Villupuram. The first defendant, though he would deny that the father was ill for about four years, admitted that his father had an attack of paralysis about five or six months prior to his death. It is, therefore, submitted by the plaintiff that as his father was ill and as he himself was away, items 1 and 3 were purchased in the name of the first defendant as he was with the father and looking after the affairs of the joint family business. The relationship between the plaintiff and the first defendant was cordial till November, 1957 when the plaintiff issued notice for partition. After the death of their father, the first defendant wrote a post card, Exhibit A-6 dated 12th April, 1951, asking the plaintiff to continue the family business in case he (first defendant) died. Though the plaintiff, was employed elsewhere from 1946 the joint family consisting of the plaintiff, the first defendant and their father, continued. Admittedly, the first defendant and the father were living together in the same house till the death of the latter in 1951. The first defendant admitted in his evidence that the soda business which was commenced in 1941 in a rented house by the father was flourishing and the business was shifted to item No. 1 in the plaint schedule and the business was stopped in 1949 and till then, it continued in the said premises. It is, therefore, clear that when items 1 and 3 were purchased, the joint family soda business was carried on. Similarly the cigar business conducted by his father which was commenced in 1935 continued till 1948. During this period, item 3 in the plaint schedule was purchased. The joint family funds should have been available at the time of the purchase of items 1 and 3. The first defendant admitted that he opened a soda factory at Thiruvidaimarudur in 1950 and that his business was wound up and later he started a soda factory at Chidambaram in 1951. Therefore, he could not have utilised the funds obtained from his soda business for the purchase of items 1 and 3. The first defendant would say that he was getting independent income unconnected with the joint family business by hiring four single bullock carts from 1940 onwards and that he was earning a net income of Rs. 10 per day from those carts. But in cross-examination, he stated that he was working for wages. In the year, 1940, the first defendant was aged about 18. It is not likely that he would have started an independent business while he was living with his father at that age. He would say that he borrowed moneys for the purpose of purchasing carts and bulls from got return of pro-notes after having discharged them. He admitted that those discharged pro-notes were not with him. He also admitted that he did not maintain accounts for the cart business.
14. He filed an application in this Court to admit certain accounts alleged to have been maintained by him in respect of his cart business. It has been rightly pointed by the learned Counsel for the plaintiff that when the first defendant categorically admitted that he did not maintain accounts in respect of the cart business, the accounts sought to be now filed could not be true and that the application for admission of documents should be dismissed. In view of the admission made by the first defendant that he did not maintain accounts, we are not inclined to admit additional evidence. Apart from this, it is in evidence, which has been admitted also by the first defendant, that while doing soda business, the joint family owned carts for the purpose of carrying soda bottles from the factory to the shop and, therefore, even if there are stray accounts to show that carts were used for hire, it is not unlikely that such carts used for the soda business might have been occasionally used for hire also. It is significant to note that in his reply notice Exhibit A-12 dated 9th October, 1962, the first defendant had not mentioned anything about his having done independent business in hiring carts while he was a member of the joint family with his father and the first plaintiff.
15. It is true that D.W. 2 Pakkiriswami Naidu has stated that the first defendant had purchased two single bullock carts by borrowing from Palaniappa Chettiar and Sivalinga Chettiar and that he knew that he hired those carts and was getting a net income of Rs. 10 per diem. He was employed as a clerk under Periakaruppan Chettiar for about 10 years on a salary of Rs. 15 per mensem and he admitted that he was the friend of first defendant and that he used to stand as surety for the first defendant when he borrowed moneys from others. We are not impressed with his evidence. D.W. 3, Karuppayya Mudaliar gave evidence that the first defendant had two single bullock carts, that he w as driving one of those carts for wages and that the other cart was driven by one Rathinam. He stated that he would earn from Rs. 4 to Rs. 7 per day and that he would take 1/3rd for his wages and give 2/3rds for the first defendant. Similarly, D.W. 4, Rajamanika Padayachi stated that the first defendant originally purchased two carts and later two other carts, that he, P.W. 3, Annamalai and Pakkiri were driving those carts for wages, that each cart will get only Rs. 4 or Rs. 5 and that he would take 1 /3rd and pay the remaining 2/3rds to the first defendant. We are not impressed with the evidence of these witnesses also. There is nothing to show excepting their oral evidence that they were actually driving the carts; but even if their evidence is accepted, it does not show that the first defendant was getting an income of Rs. 10 per day as stated by him in his evidence. D.W. 5 Subbiah who was employed as a clerk under Palaniappa Chettiar of Chidambaram stated that the first defendant used to borrow from their shop on thandal basis. He also stated that he was plying carts for hire and for that purpose, he borrowed and paid the debt from the income. Excepting the oral evidence, there is no document to show that the first defendant was borrowing moneys and was repaying the debts from the separate income derived from hiring the carts. Apart from this, in the security bond executed by Vaithilinga Padayachi and the first defendant dated 16th June, 1947 (the registration copy of which is Exhibit A-15) items 2 and 3 were shown as security for a sum of Rs. 1,000. While describing the three contiguous portions of item 3, the expression (our site) had been repeatedly used. It is, therefore, clear from the recital in Exhibit A-15 that item 3 was not a self-acquired property of the first defendant but it belonged to the joint family. It is true that D.Ws. 1 and 5 stated that Vaithilinga joined at the insistence of the creditor for better security, and we are not impressed with his testimony.
16. It is well established that if the property stands in the name of the coparcener of a joint family, mere proof of the existence of the joint family owning some joint family property, does not give rise to any presumption and that it must be established that there was sufficient nucleus of the joint family for purchasing the property which stands in the name of the coparcener. The position in respect of this aspect has been clearly and succinctly summarised in the judgment of Beaumont, C.J., in the case of Babubai v. Ujamlal : AIR1937Bom446 as follows:
The law, I think, is clearly established that from the existence of a joint family, it is not to be presumed that there is any joint family property. There is no presumption that property which belongs to a member of a joint family is joint family property. The plaintiff in setting out to prove that property 'B' is joint family property must in the first instance discharge the burden of proving that fact. But it is also established that if there is a joint family, which possesses a nucleus of joint family property, then property acquired by a member of that family is presumed to be a joint family property. But the question arises what is meant by a nucleus. In my opinion the nucleus of joint family property necessary to give rise to the presumption must be family property from which the purchase money for the property in suit might have been derived wholly, or, 'at any rate, in considerable part...It would, I think, be unfortunate if the Court was bound to presume that something had occurred which on the evidence could not possibly have occurred, and if it be shown that the only joint family property existing at the date of the acquisition of the property in suit was of such a nature that it could not possibly have been the means of acquiring the property in suit, then in my opinion the presumption that the property in suit is joint family property does not arise.
17. Sri N.R. Raghavachari, the learned Counsel for the plaintiff urged that the account books of the joint family in respect of the business conducted by Vaithilinga, the father, were with the first defendant after the death of Vaithilinga and that the fact that he had not produced those accounts had to be taken into consideration for drawing adverse inference that if such accounts are produced, they would go to show that the property was purchased from the nucleus of the joint family. There is force in his submission. The first defendant admitted in his evidence that his father maintained accounts in respect of the cigar business. He also admitted that the plaintiff left the house in 1946 after having secured a job and thereafter, he was living with his parents. In those circumstances, it would be reasonable to expect the first defendant to have taken charge of the account books from the father and he should have been in possession of those books. If the books of accounts are expected to be in the custody of a person and if that person does not produce those accounts or does not offer an explanation for not producing such accounts, it could be inferred that such accounts, if produced, would not support his case.
18. In Murugesam Pillai v. Munickavasaka Desika Guana Sambandha Pandara Sannadhi I.L.R. (1971) Mad. 402 : 1971 32 M.L.J. 369 : 44 I.A. 98 : A.I.R. 1917 P.C. 6 the Privy Council, on this point, observed as follows:
It was an important fact that the account books of the mutt were not produced in which it is the habit of the head or manager to make entries with such detail and elaboration forming a current record on the financial side of the history of the institution. The parties to a suit should bring before the Court their best evidence; and when it is not producd the Court is justified in concluding that it would, if brought into Court, not support the case of the party omitting to produce it.
19. Recently, the Supreme Court in G. Narayana Raju v. G. Ckamaraju (1968) 2 S.C.J. 749 observed that if it was not explained as to why the documents were not produced to disprove the case of the opponent, it was not unreasonable to draw an inference from the conduct of the person in those circumstances, that the account books, if produced in Court, would not have supported his case.
20. The first defendant who was and should have been in possession of the account books relating to the joint family business conducted by Vaithilinga had not offered any acceptable explanation as to why those books were not produced before the Court excepting a bare denial that he did not have the account books with him. It will, therefore, be reasonable to infer that if the first defendant had produced those books, they would not support his case. We agree with the learned Subordinate Judge that item 3 is the joint family property purchased with the joint family funds in which the plaintiff is entitled to a moiety.
21. In respect of item 1, the learned Subordinate Judge, for the reasons mentioned in paragraph 11 of the judgment, held that item 1 is a self-acquisition and that the plaintiff was estopped from disputing the title of first defendant in item 1 in view of the attestation in Exhibits B-15 to B-I7. Item 1 was purchased in the name of the first defendant under the original of Exhibit B-14 dated 25th June, 1949 for Rs. 4,000. The first defendant would have it that he utilised his own funds for purchasing the property and that, therefore this property was his, self-acquisition. Exhibit B-14 disclosed that only a part of the consideration was paid at the time of the execution and that the balance of consideration was provided for discharging certain debts mentioned therein. The first defendant would have it that he utilised his own funds for purchasing the property. We have already found while discussing in respect of item 3 that he (1st defendant) did not have funds of his own and that he commenced his business only subsequent to 1950. He would say that he also borrowed from his father-in-law. This has not been substantiated. In discussing about this item of property, the learned Judge positively found that the first defendant had no funds when he purchased item 1 and observed as follows:
We have already referred to his evidence regarding the income he derived from the 4 carts and observed, that the said evidence cannot be accepted. It seems to me that these carts were owned by him only for the soda business, which he commenced subsequent to 1950. It is his own case that at the time of the original of Exhibit B-14 (in the year 1949), he was not doing any business of his own. He commenced the Thiruvidaimarudur business only in 1950 and that too with borrowed funds.
But, however, he relied upon Exhibits B-15 to B-I7, which according to him disclosed that item 1 was the self-acquisition of the first defendant and that, therefore, it was likely that the first defendant purchased the property with his own funds and not with the aid of the joint family funds. We have, therefore, to examine the relevant recitals in Exhibits B-15 to B-I7 for the purpose of finding out the effect of those recitals. Exhibit B-15 dated 22nd November, 1949, is a registered mortgage deed executed by defendants 1 and 2 and their father Vaithilinga Padayachi and the plaintiff in favour of the Secretary, Urban Bank, Limited, Chidambaram, for Rs. 2,000. Exhibit B-16, dated 29th February, 1952 and B-I7 dated 2nd June, 1954, are the renewals of the mortgage deed Exhibit B-15 executed by defendants 1 and 2, Vaithilinga and the plaintiff. In these documents, the following recital is found:
This recital, according to the learned Subordinate Judge would amount to an admission on the part of the plaintiff and his father that item 1 was the self-acquisition of the first defendant. The plaintiff, when he was confronted with this recital admitted that he signed these documents and that out of confidence in his brother, he subscribed the signature and the latter abused the confidence in making clandestine addition of certain self-serving recital. In the absence of the proof that this item was purchased with the funds of the first defendant and from the fact that we have found that there was sufficient joint family nucleus to purchase this item, we have to consider whether this recital by itself could constitute an admission against the interests of the plaintiff and whether the principle of estoppel would, in the circumstances, apply. Sri N.R. Raghavachari, the learned Counsel for the plaintiff contended that since Exhibit B-14 stood in the name of the first defendant alone, the mortgagee being the co-operative society, the authorities of the society should have insisted upon the first defendant alone executing the mortgage as it stood in his name and to protect their interests and to avoid complication and further litigation, and to avoid any subsequent claim by the minors, and should have further insisted on the plaintiff and his father to state that the property was a self-acquired property of the first defendant and to attest the document. The statement and the attestation, according to the learned Counsel, were taken by the mortgagee as a matter of abundant caution. He further contended that as between the first defendant and the plaintiff, as both of them knew the truth at the time of the execution of Exhibit B-14, that the said item was not purchased with the funds of the first defendant and that it was purchased with the joint family funds, the aforesaid recital, in the circumstances mentioned above, would not constitute estoppel.
22. Section 115 of the Evidence Act does not apply to a case where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement and there can be no estoppel where the truth of the matter is known to both parties - vide the decision of the Privy Council in Mohari Bibee v. Dharmodas Chose I.L.R. (1903) Cal. 539
23. From the bare recital in Exhibit 15 and in the absence of other evidence, we cannot hold that item 1 is the self-acquisition of the first defendant. It is a joint family property acquired with joint family funds, in which the plaintiff is entitled to a moiety.
24. Items 4 and 5 relate to the soda and cigar business conducted by the first defendant. There is clear evidence that from 1950 onwards, this business was conducted by the first defendant and he borrowed moneys for conducting the business, from third parties. The learned Counsel for the plaintiff is unable to challenge the findings of the lower Court in respect of items 4 and 5. We agree with the learned Subordinate Judge that items 4 and 5 were the separate and independent businesses of the first defendant, which he started in 1950 after the business run by the joint family was stopped.
25. Item 4-A Schedule properties were purchased under Exhibit B-22 dated 20th May, 1962, in the name of the fourth defendant Kanakammal, the wife of first defendant, for Rs. 1,300. This property was purchased long after the plaintiff issued notice to first defendant demanding partition. The plaintiff has not discharged his burden of establishing that item 4 was purchased with the joint family property. As rightly pointed out by the learned Subordinate Judge, on the date of the issue of notice, namely, 10th November, 1957, the severance in status between the plaintiff and the first defendant was effected. We have found that from 1950 onwards, the first defendant was doing independent business. The soda factory at Neducheri was run by the fourth defendant and it is very likely that her own funds had been utilised for purchasing item 4. We agree with the learned Subordinate Judge that this item does not belong to the joint family. There is no dispute in this case in respect of item 5 as the defendant had not obtained possession of the same and it was not with the joint family. There was a suit in respect of this item, in which a compromise was effected under which the first defendant gave up his rights in the property receiving Rs. 1,000 from the defendant in the suit. Item 5 is not a joint family property.
26. So far as the items mentioned in Schedules B and C are concerned, the learned Subordinate Judge held that items 1 to 10 of the B Schedule do not exist and that items 11 to 18 of the B Schedule belong to the fourth defendant. We do not have materials to disagere with the learned Subordinate Judge on this aspect. In respect of the C Schedule properties, namely, movables, the learned Subordinate Judge found, on the admission made by D.W. 1 that the first defendant had items 6 to 8, 16 and 18 worth Rs. 320 and the plaintiff would be entitled to half of the amount, namely, Rs. 160. The plaintiff is unable to show that the finding by the learned Subordinate Judge on this aspect is incorrect.
27. Agreeing with the learned Subordinate Judge, we hold that items 2 and 3 are joint family properties, but in respect of item 1, we do not agree with the finding of the learned Subordinate Judge and we hold that item lalso is joint family property, to which the plaintiff will be entitled to a moiety.
28. The learned Subordinate Judge found in respect of a sum of Rs. 2,000 borrowed from one Sadagopa Naidu on the security of item 2 under the original of Exhibit B-8 dated 27th October, 1953, that since the plaintiff has been given a share in item 2, he was bound to pay a moiety of the debt due under Exhibit B-8. We agree with him and hold that the plaintiff is entitled to pay his share of the debt due under Exhibit B-8.
29. The only question which now remains to be considered is whether the plaintiff will be entitled to past mesne profits.
30. In the plaint, no relief has been claimed for past mesne profits. But the learned Counsel for the plaintiff contends that when once the status of the joint family is severed, the assets to be divided will include the income derived therefrom and the income merges with the property itself and, therefore, even in the absence of a specific relief prayed for, the plaintiff will be entitled to the division of the assets including the mesne profits. The plaintiff specifically prayed for the properties mentioned in Schedules A, B and G to be divided into two halves and for allotment of half share to the plaintiff and for direction of an account to be taken of the soda and cigar business and to take an inventory of the said business and hand over half the profits and properties and half the materials and machines to the plaintiff. The learned Counsel would further contend that in the first relief for division of the properties, the past mesne profits must be deemed to have been included. The plaintiff has specifically asked for accounts in respect of the soda and cigar business and the division of profits from the said business. We are unable to agree with the contention of the learned Counsel that the income from the property merges with the property itself and it becomes a divisible asset and that the first relief asked for in the plaint would include the relief for mesne profits also. The past mesne profits have to be determined after due enquiry and without a specific demand for past mesne profits, the Court cannot grant such relief.
31. In a Full Bench decision of this Court in Basavayya v. Guravayya : AIR1952Mad61 the question arose whether an enquiry into the mesne profits can be directed in a final decree when such a direction is not given in the preliminary decree for partition. The Full Bench observed as follows:
A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree. In such a suit, the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property, the property to be divided. The preliminary decree determines the shares of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the shares of the parties that have to be considered and decided before an equitable final partition can be effected.
Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of such matters either suo motu or on the application of the parties. Order XX, Rule 18, Civil Procedure Code, does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree and in either case the result of the enquiry has to be incorporated in the final decree.
That was a case where the enquiry was directed into the profits received or realised by the parties during the pendency of the suit. That was not a case where either claim for past mesne profits or direction for such past mesne profits was made.
32. The Supreme Court in Mohd. Amin and others v. Vakil Ahmed and Ors. : 1SCR1133 held that when the plaintiff has not asked for specific relief for mesne profits, the Court cannot grant an unasked for relief. That was a case where the plaintiffs claimed their legitimate shares in the estate of the deceased in a suit for partition on the ground that a deed of settlement which had been brought about since the death of the deceased was invalid. The Supreme Court, while upholding the decree of the High Court in giving the plaintiffs their due shares in the properties, on a contention raised by the plaintiffs that the High Court should have passed a decree for the mesne profits even though such a claim was not specifically made in the plaint, observed as follows at page 1144:
It was however pointed out by Shri S.P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression 'awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto.' We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree.
33. In a subsequent case in Venkataswami v. Narasimhalu I.L.R. (1966) Mad. 151 the Division Bench while discussing the effect of the decision of the Supreme Court observed that it was not clear from the judgment of the Supreme Court whether the Supreme Court was dealing with the question of future mesne profits or income pendente lite. In that case, the question that arose was whether a direction for enquiry into the profits of the common property received or realised by one of the parties of the joint family during the pendency of the suit can be made even after the passing of the preliminary decree. In that case, the plaintiffs who claimed partition had in their plaint claimed accounts against the first defendant, the manager of the joint family during the period of his possession and a preliminary decree was passed by the trial Court appointing a Commissioner to ascertain the income derived by the first defendant from the date of his possession. On appeal to the High Court against the said decree, the High Court directed the direction given by the lower Court appointing the Commissioner to take accounts to be deleted is no accounts can be asked for from the Manager of the joint family unless under certain circumstances. In the proceedings for the passing of the final decree, the plaintiffs took out an Interlocutory Application for taking of accounts of profits from the joint family properties pending the suit and for a decree for their one-third share in the profits. The prayer in the application by the plaintiffs was granted and the High Court confirmed the order holding thatthe plaintiffs would be entitled to the mesne profits pendente lite.
34. This is not a case where the past mesne profits are claimed from the date of severance of status of joint family. This case confines only to the mesne profits pendent lite. In another earlier case in Atchamma v. Rami Reddy I.L.R. (1957) A.P. 52 : (1957) 2 A.W.R. 474 Subba Rao, C.J., as he then was delivering the judgment of a Division Bench, observed, after referring to the Full Bench decision in Basavayya v. Guruvayya : AIR1952Mad61 and the decision of the Supreme Court in Mohd. Amin and Ors. v. Vakil Ahmed and Ors. (1952) S.C.R. 113 : 1952 S.C.J. 539 : (1953) 1 M.L.J. 6 as follows at page 56 :
It is not clear from the aforesaid observations that the Supreme Court was dealing with the question of future mesne profits. That apart, their Lordships did not purport to lay down as a proposition of law that a Court had no jurisdiction to award future mesne profits if there was no demand for the same in the plaint. As the Full Bench of the Madras High Court pointed out, the relief of future mesne profits is a discretionary one and it is open to the Court to refuse to exercise the discretion in suitable cases. We cannot, therefore, hold that the Supreme Court in the aforesaid decision held that a Court has no jurisdiction to award future mesne profits unless there was a prayer for that relief in the plaint. In our view, the Full Bench decision still holds the field and no part of the judgment has been either expressly or impliedly overruled by the judgment of the Supreme Court.
This case is also concerned with future mesne profits.
34. The Full Bench decision and the other two decisions of the Division Bench of the Madras High Court and the Andhra Pradesh High Court cited above deal with the question of future mesne profits. These decisions distinguish the decision of the Supreme Court to the extent that the Supreme Court decision does not prohibit a direction to enquiry into the future mesne profits in final decree though such a claim is not made or such a direction is not given in the preliminary decree.
35. So far as past mesne profits are concerned, we have to give effect to the observations made by the Supreme Court quoted above. The Supreme Court must at least have meant that when a demand was not made for past mesne profits, the Court cannot direct an enquiry into the past mesne profits without such a demand. The learned Counsel for the plaintiff is unable to produce any authority for the proposition that even without a demand, the Court can direct the enquiry into the past mesne profits in a suit for partition. We hold that the plaintiff is not entitled to a direction for enquiry into the past mesne profits. The plaintiff, will however, be entitled to future mesne profits from the date of filing the plaint.
36. In the result, the appeal by the defendants is dismissed with costs. The cross-objections are allowed to the extent mentioned above. No. costs. C.M.P. No. 2716 of 1970 dismissed.
37. I respectfully agree, but I wish to add a few words as to why past mesne profits cannot be granted in the absence of a prayer in the plaint. In the first place, the claim for mesne profits prior to suit is a cause of action distinct from the prayer for partition and possession. This is clear from Order II, Rule 4 of the Civil Procedure Code, which says that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof, etc. This shows that a claim for mesne profits is a separate cause of action from a claim for recovery of immovable property and the former can be joined with the latter only because of the above said provision, In this respect a claim for mesne profits prior to the suit is different in character from a claim for mesne profits after the institution of the suit. The latter can be said to be appurtenant to a claim for partition and has to be taken into account before a final decree is passed.
38.Secondly, Order VII. Rule 2, Civil Procedure Code, states :
Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed :
But where the pleintiff sues for mesne profits or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for.
The plaintiff should also pay court-fee on the amount stated in the plaint. Section II of the Court-fees Act, VII of I87O, contained a provision for the recovery of the excess court-fee, where the amount decreed for mesne profits is in excess of the amount at which the relief was valued by the plaintiff. There is a corresponding provision in Section 44 of the Madras Court-fees and Suits Valuation Act, 1955.
39. Thirdly, whereas in the case of future mesne profits the plaintiff can be excused for not specifically asking for it on the ground that it would be difficult to anticipate for how long the suit would be pending, he could not put forward any such excuse in respect of mesne profits which had already accrued before the suit. No doubt, he may not be able to state the amount of mesne profits exactly, but there is no reason why he should not state if at least approximately.
40. The above three features, which distinguish a claim for past mesne profits from future mesne profits have also been indicated in the judgment of the Full Bench of this Court in Basavayya v. Gamvayya : AIR1952Mad61
Fourthly, there is the decision of the Supreme Court in Mohd. Amin and Ors. v. Vakil Ahmed and Ors. (1952) S.C.R. 113 ; 1952 S.C.J 539 : (1953) 1 M.L.J. 6.