1. This was a suit for partition and delivery with mesne profits of one-third of the permanent lease-hold village of Pacharahalli. The suit was decreed by the District Munsif. On appeal to the learned District Judge of Salem it was held that the plaintiff was not entitled to one-third of the village but only to one-third of the income. On the hearing of the second appeal Mr. K.V. Krishnaswami Iyer appeared for the plaintiff-appellant, and Mr. Somayya for the respondents Nos. 1 to 4 intimated that his clients had no interest and took no part in the argument. I have accordingly heard the appeal as an ex parte decree matter. The plaint agreement of the 4th September 1845 has apparently disappeared and we are thrown back for its terms on a recital in the judgment in O.S. No. 569 of 1887 in the District Munsif's Court of Tiruppattur. The District Munsif there says:-- 'Its contents are to the effect that in consideration of the advances made in kind and in money to the tenants of the villages by Sesha Iyengar, Krishna Iyengar agreed to divide the income in cash and waram of the said villages with Sesha Iyengar, in the proportion of two to one, to give the latter accounts as to produce, waram etc., of the two villages and in the result to conduct the affairs of the villages in consultation with Sesha Iyengar. The document closes with a final clause to the effect that the contracting parties should divide between them any loss relating to these villages in the proportion mentioned.' Krishna Iyengar's interest is now vested in the defendants and Sesha Iyenger was the appellant's father. In Second Appeal No. 1307 of 1890, Ex. A (2), Wilkinson and Handley, JJ., held that with regard to this agreement. 'We see no reason to doubt that the grantor who was the uncle of the grantee intended to alienate and did alienate in perpetuity to his nephew a one-third share of the village which he held on permanent lease in consideration of services rendered and in all probability out of natural affection.' In Ex. L, Varadachari, the son of Krishna Iyengar, the grantor, refers to the present plaintiff as our co-parceners Venkatachari and others. 'That is a deed of collateral security dated 1896. In a plaint Ex. D in O. S. No. 663 of 1901 on the file of the District Munsifs Court of Tirupattur the present plaintiff and others brought a suit claiming one-third share in the villages and in Ex. D. (1) the written statement of the first defendant Varadachari in the same suit he pleaded. ''In any case the plaintiffs are entitled only to one-third share in the said villages.' In an affidavit Ex. F. (1) in O.S. No. 530 of 1907, E.P. No. 1038 of 1908, in the same District Munsif's Court Varadachari refers to the two-thirds share belonging to him in the said village and also in the same document states 'after excluding the one-third share belonging to the plaintiffs in the permanent, ijara village of Pacharahalli, I sold etc. This seems to me to be sufficient to show that what was really granted was not only one-third share in the income but one-third of the village itself and that was what both parties in the past have thought was the meaning of the agreement. The learned District Judge refer to a certain suit O.S. No 2 of 1913, Ex. I, and says that 'the present plaintiff and the present defendants were arrayed as against each as rival purchasers in a Court-auction of that two-third share right which was admittedly the property of their mutual judgment-debtor, the vendor of the present defendants in this case' and held that the rights in the present village are not concluded by Ex. E. He did not consider the Exhibit 1 have referred to The law that a gift of the income may under circumstances amount to a gift of the corpus maybe seen, for example in Mayor, Aldermen and Burgesses Co. of Southmolton v. Attorney-General 23 L.J. Ch. 567 : 18 Jur. 435 where Lord St. Leonards said : 'As regard3 the law, if the rents of the estate are given, they represent the estate. If the rents are given in certain proportions, so as to exhaust the whole of the present rents, and if no one is entitled to be benefited more than another beyond that which is specifically given, that is a representation of the estate itself in those proportions' And in Mannox v. Greener 27 L.T. 408 Vice Chancellor Malins said. 'Now it has been argued in this case that a gift of the income of real estate does not pass more than a life-estate, but I think it is thoroughly settled that before the Wills Act a devise of the rents and profits passed a real estate for life. That being the case, that which would give a life-estate before the Wills Act, by the 28th Section of that Act, gives now a fee simple.' These two English authorities have been referred to in a judgment of this Court reported in Waithinatha Aiyar v. Thayagaraja Aiyar 68 Ind. Cas. 631 : 11 M.L.J. 20 when it was held that a gift of the income of property without any limitation is a gift of the property itself.
2. A question has been raised as to the applicability of Section 54 of the C.P.C. The learned District Judge held that it was a right to income only that was to be partitioned; I fail to see why it should affect the question that the leases were not registered when the estate was so registered In the District Judge's view Section 54 had no application. I think in this respect the learned District Judge was wrong in my view expressed above and that, therefore, Section 54 could apply.
3. The lower Appellate Court's decree must be reversed and that of the District Munsif restored (as modified below) with costs in this Court against 5th respondent. Respondents Nos. 1 to 4 who were the only appellants in the lower Appellate Court must pay the present appellant's costs in the lower Appellate Court. As to future mesne profits, respondents Nos. 1 to 4 will be liable to plaintiff up to date of sale by them to 5th respondent--from that date the latter will be liable to plaintiff.