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Periaswamy Muthiriar Vs. Palaniammal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1976)2MLJ347
AppellantPeriaswamy Muthiriar
RespondentPalaniammal
Cases ReferredSoheshwar Mukherjee v. Bhubeshwar Prdsad Narain
Excerpt:
- .....filed the suit for general partition of the 'b' schedule properties and allotment of the 'a' schedule property to her share and also for the relief of accounting from 12th october, 1962, the date of the purchase of the 'a' schedule property from the first defendant for a sum of rs. 2,500. the first defendant did not contest the suit. the appellant's contention was that the proper court-fee has not been paid and that the appellant was not liable to account for profits. the respondent paid additional court-fee of rs. 158 and both the courts below have found that the court-fee paid thereafter was correct. the learned district munsif granted a decree of partition as prayed for and also for accounting from 12th october, 1962, without any discussion, although the appellant has contended.....
Judgment:

A. Varadarajan, J.

1. The second defendant, who is the son of the first defendant, is the appellant. The respondent, who purchased the 'A' schedule property, a vacant site, from the first defendant, filed the suit for general partition of the 'B' schedule properties and allotment of the 'A' schedule property to her share and also for the relief of accounting from 12th October, 1962, the date of the purchase of the 'A' schedule property from the first defendant for a sum of Rs. 2,500. The first defendant did not contest the suit. The appellant's contention was that the proper Court-fee has not been paid and that the appellant was not liable to account for profits. The respondent paid additional Court-fee of Rs. 158 and both the Courts below have found that the Court-fee paid thereafter was correct. The learned District Munsif granted a decree of partition as prayed for and also for accounting from 12th October, 1962, without any discussion, although the appellant has contended that he is not liable for the profits claimed by the respondent, which would mean that the respondent was not entitled to any relief of accounting as against him.

2. The learned Subordinate Judge has observed in his judgment that under law one co-owner in occupation of the property is Bound to account for the income of the same to the other, who is out of possession and, therefore, it is plain that the 2nd defendant-appellant has to account to the plaintiff for the income of the property.

3. The learned Counsel for the appellant relies upon the decision in Nandula Bhavani Sankaram v. Saladi Mangamma and Ors. : (1948)2MLJ412 , and contends that Court-fee has to be paid on the value of the alienee coparcener's share in the property. The decision arose out of an application for amendment of the plaint and is not ii point. In the decision referred to in the trial Court's judgment Nagendram v. Appayya : AIR1947Mad235 it has been held specifically that the alienee could in no sense be described as a person in joint possession actually or even constructively along Wit1 the other members of the family and the the proper course on transposition of to original plaintiff as a defendant is to ca upon the transferee-plaintiff to pay a valorem Court-fee on the share of the properties which he was claiming. I view of the decision cited, I agree wit the finding of the Court below regarding the Court-fee.

4. Admittedly, the 'A' schedule property is a vacant site. There is no allegation in the plaint that any income w derived from that property. In the absence of any allegation that the appellant was deriving any income from the 'A' schedule property, no relief of accounting could be granted against the appellant. The learned Subordinate Judge has observed in his judgment that under law one co-Owner in occupation of the property is bound to account for the income from the property to the other who is out of possession and that it is therefore, plain that the appellant has to account to the respondent for the income from the property. This view is erroneous, having regard to the facts of this case, where the respondent is a stranger-purchaser. The Supreme Court has observed in Satyanarayana v. Narasimha : [1966]1SCR628 thus:

Now it is well settled that the purchaser of a coparcener's interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favour : Soheshwar Mukherjee v. Bhubeshwar Prdsad Narain : [1954]1SCR177 . It would, therefore, follow that Sivayya was not entitled to possession till a partition had been made.

Therefore, I find that the respondent is entitled to possession only after allotment is made in the partition suit and he is not entitled to profits until then.

5. The appeals, therefore, allowed only in respect of the relief of accounting and is otherwise dismissed, but without costs. No leave.


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