1. This was a suit brought by the plaintiff who attained his majority in 1918 for an account of the properties left by his grandfather, Kasturi Chetty, who died on 1912, and for division of the same between the plaintiff and the defendant and for accounts and mesne profits. Kasturi Chetty left self-acquired properties which he divided equally between his grandson, the plaintiff, and his own third son the defendant. The defendant raised a number of pleas including a prior division and the issues were 46 M. 190; 31 M. L. T. 221. whether the division pleaded by the defendant is true? (1823) 37 E. R. 1169; Turn. & R. 438; 24 R. R. 95. whether the defendant, is accountable to the plaintiff as claimed in the plaint? If so, to what extent and 8 Ind. Cas. 189; 12 Bom. L. R. 881. is the claim to mesne profits barred by limitation.
2. It appears from the judgment of the Subordinate Judge that there was no final division of the immoveable properties as alleged by the defendant and that as to the 2nd issue a plea was taken that the defendant was the guardian of the plaintiff and kept him under his protection. This is found against.
3. On the 3rd issue, the question was whether Art. 123 of the Limitation Act applied to the facts of this case and the learned Subordinate Judge held that as the defendant must be held to be at best an intermeddler or an executor de son tort and as Art. 123 of the Limitation Act does not apply to an executor de son tort the plaintiff was only entitled to recover mesne profits from the defendant for three years prior to suit. On appeal to the District Judge he held that Art. 123 did apply to the facts of the case, that the defendant was an executor de son tort and, therefore, liable to account for 12 years mesne profits. Two points have been taken before me on second appeal, namely, (1) that the District Judge was wrong in holding that the defendant was an executor de son tort. It is admitted that, if he was an executor de son tort, Art. 123 applies by reason of the recent Privy Council ruling which has confirmed the decision of this Court reported as Parthasarathy Appa Rao v. Venkatadri Appa Rao (1)
4. The second point taken is that if he is not an executor de son tort he is in the position of a mere accountant and, therefore, he is only liable to account for six years under Art. 120 of the Limitation Act, no reliance being placed on Section 10 of the Limitation Act before me. It has been somewhat strenuously contended that this defendant is not an executor de son tort, or at any rate, if he was, he certainly was not such between 1912, the date of Kasturi Chetty's death, and 1915, the date of his widow's death. There is no question but that the widow Venkamma was appointed executrix by the testator, but I rather doubt if she really entered on her duties at all. It is pointed out that the Subordinate Judge found that she took charge of the estate and managed it till her death in 1915 being helped by her sons in the collection of rents from houses and lands. The learned District Judge finds that the evidence shows that the defendant has been managing the estate of Kasturi Chetty since his death. I cannot say he is wrong. 1 have been referred to the evidence and it appears that the widow was in a poor state of health very scon after the death of her husband and unable to move about. A legal point is taken that the defendant cannot be an executor de son tort as long as the widow is alive. Reliance is placed on the Succession Act, Section 265, which, of course, does not apply to a Hindu Will. The section says: 'A person who intermeddles with the estate of the deceased...while there is no rightful executor or administrator in existence.' As I said the section has no binding character in the present case; but what I think the section really means is not that the executor has to be alive but must not have disclaimed; and that, of course, is the difficulty in a Hindu Will in the mofussal where there are no means of finding out whether an executor or an executrix has formally disclaimed or not. It was further attempted to be argued that on, the finding of the learned Subordinate Judge the defendant had in fact acted as an agent or under the authority of the rightful executrix. I very much doubt if this point has been agitated in either of the lower Courts and the finding of the District Judge is certainly against it. There is, of course, no doubt that where a person has been permitted by the executor to obtain possession of part of the assets of the testator he will not be executor de son tort to the original testator or of the executor even if he retained those assets after the executor's death when there is no personal representative of either. See Tomlin v. Beck (2). It is further urged that under the circumstances of this case the defendant is only liable for mesne profits for six years; and a number of cases were referred to beginning with Gajanan Vinayak v. Waman Shamrao (3). That is a decision by a Single Judge. There the contest was between Section 10 and Art. 120 of the Limitation Act. It was held that the plaintiff could not take advantage of Art. 123 but was restricted to accounts for six years only. The main argument seems to have been on the applicability of Section 10. The suit brought by the plaintiff for a share in the estates in question was brought 21 years after the death of the testator. ln the present case, it is said that the fact that for some little time the Will was disregarded and the legatees and others lived toga there as a joint Hindu family, must have the effect of depriving the plaintiff of the benefit of Art. 123 and must reduce him to six years' mesne profits under Art. 120. I am quite unable to see on what; principle of law and justice this can be effected provided the defendant is an executor de son tort, and as to this I am unable to say that the District Judge is wrong either in his view of the evidence or in his decision on the law. If the defendant was an executor de son tort from, the death of the testator I cannot see any reason why he Should be allowed to put several years' mesne profits into his pocket by virtue of availing himself of the provisions of the residuary Art. 120. In a case of pure accounting such will, of course, be the consequence, as for instance in Baroda Prasad Banerji v. Gajendra Nath Banerji 1 Ind. Cas. 289 : 13 C. W. N. 557 : 9 C. L. J. 383., where the Judges refer to the suit as 'a suit for accounts pure and simple of the description now before us', and they held that it could not be treated as a suit against, the trustee for the purpose of following the trust property. There again Section 10 came up for consideration in Hemangini Dasi v. Nobin Chand Ghose 11 C. L. R. 370 : 7 Ind. Jur. 17 :4 Ind. Dec 509., there was a period of l6 years between the death of the testator and the institution of the suit by one of the annuitants claiming a share under the Will and asking for a partition. There it was held that in taking the accounts only six years would be allowed on the authority of Saroda Pershad Chattopadhya v. Brojo Nath Bhuttacharjee 5 C. 910 : 6 C. L. R. 195 : 2 Ind. Dec. 1188.; Parsotam Rao Tantia v. tiadha Bat 28 Ind. Cas. 953 : 37 A. 318 : 13 A. L. J. 407. a similar decision was come to, but the facts of the case- seem to be peculiar. There a widow of one of the members of the family sued to recover from the manager of the family, and the term 'manager' is used not in the sense in which we usually use it but in reference to the individual to whom this particular family entrusted the management of its affairs. The question was whether it was a'. suit for money hai and received or a suit to which Art. 120 applied. It remains to note that the case in Parlhasarathy Appa Rao v. Venkatadri Appa Rao (I), which has been approved by the Privy Council, was followed by a Bench of the Lahore High Court in Gurbakhsh Singh v. Bhagwan Singh (8), and in the Madras Law Journal case Parthasarathy Appa Rao v. Venkatadri Appa Rao (I)] Schwabe, C. J., said: 'In my view, Art. 123 applies to suits for legacies against any person rightly. or wrongly in possession of the estate under such circumstances that he is bound to deal with it as the estate of the deceased.' I think on the finding of the learned District Judge that exactly describes the position of the defendant in this case. The defendant will, of course, be accountable for sums that have actually come into his hands under the ruling in Ponaka Subba Rani Reddi v. Vadamadi Seshachellam Chetty (9), and will be entitled to all due allowances for payment made to or on behalf of or for the benefit of the grandson of the testator. With these modifications of the testator, I think the District Judge was right. I think, as the appellant has failed he must pay costs in this Court.
5. The second appeal is dismissed with costs.