Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the Subordinate Judge of Berhampore, arising out of a reference with regard to mesne profits.
2. The facts may be shortly stated as follows:--The plaintiff claimed a third share of an estate which was left by a man called Bam Lal Singha, and he brought a suit against a relation, who was called Shyama Charan Singha, to have it declared that after the death of a female relation called Bhagabati Barmania he would be entitled to a third share. It appears that Shyama Charan Singha had gone into possession of the whole of the estate about the year 1901. The plaintiff in that suit got a decree in the Court of first instance. There was an appeal to the High Court, and the decree in favour of the plaintiff was upheld by the High Court in June 1905. Then there was an appeal by Shyama Charan to the Judicial Committee of the Privy Council and that appeal was not heard and decided until the year 1911, when the Judicial Committee of the Privy Council affirmed the decision of this Court, thereby declaring, as I have already said, that the plaintiff would be entitled to a third share of the estate after the death of Bhagabati Barmania. Before the decision of the Judicial Committee was given Bhagabati Barmania had in fact died, but the declaration was made in accordance with the prayer in the suit. Bhagabati died on the 3rd of December 1905. Shyama Charan died on the 1st of April 1906 and he was supposed to have left a Will, and under that Will two men called Ashu and Surendra were appointed executors; and in June 1916, they obtained Probate of the Will, and remained in possession of the property from that time until September or October of 1909, when the defendant in this case Kiranbala, the widow of Shyama Charan, applied to the Court and obtained revocation of Probate. It was declared by the learned Subordinate Judge in this case that Kiranbala was executrix. It was stated during the course of the argument that that was a mistake, and that she never was executrix, It was then stated that she was administratrix. It then turned out that she never applied for Letters of Administration and she was never appointed administratrix. She was the heir, and after Probate of the alleged Will was revoked she went into possession of the estate, and was sued in this suit as representing the estate. I ought to have mentioned that the revocation of Probate was obtained on the ground that the Will was a forgery.
3. This suit was commenced on the 29th of July 1907. It was brought against the executors of the alleged Will, Ashu, Surendra and Satisb, and it was also brought against the defendant Kiranbala and two other ladies. The decree in the case was passed on the 27th of April 1911, after the decision of the Judicial Committee, which, as I have already mentioned, was given on the 14th of February 1911. After that decree there was no defence to this suit for possession brought by the plaintiff, and, therefore, a decree for possession was passed in favour of the plaintiff. Now no question arises with reference to the decree for possession. But in addition to the claim for possession, the plaintiff naturally made a claim for mesne profits in respect of the third share, from which he had been ousted from the date of the death of Bhagabati Barmania; and the decree was framed in this way; after decreeing possession of the property in favour of the plaintiff it went on as follows:--'it is further ordered that the mesne profits of the immoveable properties mentioned in Schedule (ka) of the plaint from the date of death of Bhagabati Barmania till the date of institution of this suit as well as the mesne profits from the date of institution of this suit till the date of recovery of possession of this property be enquired, into and determined subsequently.' Now, the point arises in this way Shyama Charan was in possession of this property from 1901. The date from which mesne profits are claimed is from 1905 when Bhagabati died. From that time until April 1906, Shyama Charan was in possession. From April 1906 to October 1909, the executors under the forged Will of Shyama Charan were in possession. From October 1909 to April 1911, the date of the decree, Kiranbala herself was in possession and Kiranbala does not dispute her liability for mesne profits in respect of the first period from December 1905 to A.pri'1 1903, or in respect of the last period from October 1909 to April 1911. But she disputes her liability for mesne profits in respect of the second period, namely, from the 1st of April 1906 to the 17th of October 1009. The learned Judge referred the question to the Commissioner to ascertain what were the mesne profits in respect of each one of those three periods, and after the Commissioner had made his. report the learned Judge proceeded to discuss the question as to whether Kiranbala was liable for mesne profits in respect of the second period. Now, it has been argued by Mr. Chuckerbutty on behalf of the appellant, first of all, that that point was really not open to the defendant Kiranbala, because, he said, the decree which was passed in April 1911 was to the effect that the plaintiff was not only to have. possession, but the decree was a decree for mesne profits for the whole of the period from 1905 down to 1911, not only against the defendants Nos. 2 to 4 but also against Kiranbala who never appealed, and the only question left open to be decided was the amount of these mesne profits.
4. In my judgment I do not think that that is a right interpretation to put upon the decree. I think the words of the decree are pretty plain. I have read them once, and I will just refer to them quite shortly again: They are 'that the mesne profits of the immoveable properties * * * * be enquired into and determined subsequently.' 1 do net think that means that the learned Judge decided the liability of the defendants, but that he intended to leave the whole question open not only as regards the amount of mesne profits, but also as regards the liability of the respective defendants: and, that conclusion, to my mind, is corroborated in a very material respect by the course of the proceedings. This point which haw now been urged by the learned Vakil, as far as I can make out, was not taken before the learned Judge before the commission was issued or after the return of the Commissioner's report; and if we refer to the judgment at page 143, it is clear that it could not have been taken, because there it is stated that the learned Vakil for the plaintiff argued that Kiranbala as the widow and sole heiress of Shayama Charan Singha was liable for mesne profits for the whole period from April 1906 to October 1909, which was the period during which the so-called executors by virtue of the forged, Will were in possession, because Shyama Charari Singha at first kept the plaintiff out of possession and the tortuous act begun by him was continued after his death by his executors and heir; and hence as there was one cause of action and not successive causes of action, the estate of the deceased ShyamaCharan Singha wasliable for the mesne profits, although the decree did not show that the estate of Shyama Charan Singha would be liable for wasilat. It seems to me that the whole of that argument would have been entirely unnecessary if the plaintiff's Vakil had then been relying upon the point that the plaintiff had already got a judgment against these defendants for mesne profits for the whole period and the only question was the assessment of those mesne profits. Therefore, I think that the first point which the learned Vakil has urged before us fails.
5. Then comes the second point. That point is this, that inasmuch as this defendant Kiranbala is now in possession of the estate, and represents the estate of Shyama Charan Singha, and inasmuch as Shyama Charan was the person who first ousted the plaintiff from his lawful rights, she must be liable for mesne profits during this particular period.
6. It is only necessary, in my opinion, to recapitulate the facts with reference' to that period to show that that contention cannot succeed. During that period the people who were in possession were people who turned out to be wrongdoers--people who bad no right to be in possession of that share--they were supposed to be executors under the forged Will: and, even if this defendant, Kiranbala, is sued as representing the estate, I do not see how she can be made liable for mesne profits, during a time when she was not in possession, and during a time when wrongdoers were in possession'. The definition of 'mesne profits' given in the Civil Procedure Code is in these words; 'mesne pinfitt of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom.' How can it be said that Kiranbala was the person in wrongful possession of the property during the period in question? She herself certainly was not in possession. How can it be said that she was representing the estate and in such capacity was in wrongful possession during that period? There was no continuity between her and the executors of the forged Will, and there was no connection between herself and them, except the fact that she was a relation of theirs. I am at a loss to understand how it can be said that because the executors who were wrongfully in possession and who had in reality nothing whatever to do with the estate, were in possession at that time, she can be held liable for mesne profits even though she does now represent the estate. For these reasons I think the learned Subordinate Judge was right when he disallowed the plaintiff's claim for mesne profits in respect of this period against the defendant Kiranbala. Now, it may be said that the plaintiff has suffered hardship, as he has been kept out of this property for all this time, and he is not now going to recover any mesne profits in respect of this particular period. But it seems to me that that is his own fault. He had included the executors who were actually in possession during this period as defendants in this action; he got a decree against them for possession, and it was in the course of the proceedings with reference to mesne profits that the plaintiff himself, according to the Subordinate Judge, who said that he did not wish to proceed against those defendants in respect of mesne profits. Therefore, if he is deprived of the mesne profits for that period, in my judgment the plaintiff himself is responsible for the loss he has sustained.
7. For these reasons [think that this appeal should be dismissed with costs.
Asutosh Mookerjee, J.
8. I agree that the decree for mesne profits made by the Subordinate Judge is clearly correct and must be affirmed.
9. The decree-holder-appellant claims mesne profits in respect of an one-third share of an estate originally owned by one Ram Lal Singha, who died on the 3rd March 1868. The period covered by the claim extends from the 3rd December 1905 to the 13th' April 1911, and was sub-divided in the Court below as follows: first, from the 3rd December 1005 to the 1st April 1906; secondly, from the 2nd April 1906 tp the 17th October 1909; and thirdly, horn the 18th October 1909 to the 13th April 1911. The reason for this sub-division will be apparent from a brief recital of the history of .the litigation which has resulted in these proceedings.
10. Ram Lal Singha had made a testamentary disposition of his properties, and on his death was succeeded by his widow Bhaga-bati Barmania. The widow executed a deed in favour of Shyama Charan Singha, a son of one of the sisters of her husband. A question thereupon arose as to the authority of the lady to deal in this manner with the estate left by her husband; and the result was the institution of a suit by the present appellant (who is a son of another sister of Ram Lal Singha) for construction of his Will, and for incidental reliefs. The relationship between the parties is made clear By the following genealogical table:
Chaiilaii Singh married Fudan Kumari,
| | | | |
Ram Lal Singh, Golap Sandari, Annapurna Ramdhan. Brojosundari.
died 3rd March. | |______________________________
1868; married |___________ |
Bhagabati Barmania, | __________|________
died 3rd December __________|_________ | |
1905. | | Shyama Charan, Jogmaya,
Jagabundhoo, Nilkantha died 1st April |
married Basanta | 1906, married Hariproaad,
Kumari, defendant Kali Cbaran, Kiranbala, |
No. 6. 4 plaintiff, defendant No. 5 _______|________
married | | |
Bhubaneswari, Bhubaneswari, Ashutosh, Surendra,
defendant No. (daughter, by defendant defendant
4. another wife) No. 1. No. 2.
11. This was framed as a suit for. a declaratory decree, as it was instituted during the lifetime of the widow of Ram Lal Singha. The plaintiff was successful in the Court of first instance, and obtained a decree on the 24th April 1903. That decree was confirmed by this Court on the 1st June 1905; and the view adopted here was ultimately approved by the Judicial Committee on the 14th February 1911. Meanwhile, Bhagabati Barmania died on the 3rd December 1905. Consequently, on the 29th July 1907, the plaintiff instituted the present suit for recovery of possession and mesne profits of an one-third share of the estate left by Ram Lal Singha. The claim for possession was decreed, practically without contest, as the title of the plaintiff had been already declared by this Court in the previous suit. The only question substantially in controversy between the parties was the liability for mesne profits. The judgment and decree of the Subordinate Judge, dated the 27th April 1911, plainly show that, .at that stage, the determination of the question of mesne profits was postponed. This, in my opinion, included the question, not merely of the amount of the mesne profits, but also of the respective liability of the several defendants. The decree-holder applied for assessment of the mesne profits on the 3rd December 1912, and the present appeal is directed against the final order of the 29th August 1914, made in the proceedings thus initiated. It appears from the order of the Subordinate Judge that, before him, the claim for mesne profits was abandoned, except against one person, namely Kiranbala Debi, the widow of Shyama Charan Singha. In this Court, it has been suggested that the Subordinate Judge misapprehended the situation and that the plaintiff-decree-holder did not really intend to abandon his claim for mesne profits against the other defendants. There is no force in this contention. If there was a misapprehension on the part of the Subordinate Judge, the obvious course to adopt was to apply to him for a review, for he had a personal knowledge of what had happened in his Court. It is further significant that the position now assumed was not taken up at any stage of the proceedings in the Court below; indeed, the point does not appear to have been even mentioned before the Subordinate Judge, either before the matter was sent to the Commissioner for investigation or after the receipt of his report. Upon a plain reading of the first judgment of the Subordinate Judge, I must hold that the entire question of mesne profits was left open, and that he was competent to consider, as he has considered, the question of the liability of the several parties.
12. It transpires that on the death of Bhagabati Barmania on the 3rd December 1905, Shyama Charan Singha continued in occupation of the estate of Ram Lal Singha till his death, which took place on the 1st April 1906. It is clear that in respect of the mesne profits for this period, the defendant Kiranbala Debi, as representative-in-interest of her husband, is liable to the extent of the assets received by her, for the estate of Shyama Charan Singha was enriched by the profits which he had derived by his unlawful possession of the estate of his maternal uncle Ram Lal Singha after the death of his maternal aunt Bhagabati Bar-mania. There is, in reality, no controversy as to her liability for the mesne profits of this the first period. As regards the mesne profits for the third period, that is, from the 18th October 1909 to the 13th April 1911, there is equally no dispute, because it is conceded that during this period Kiranbala Debi herself was in possession and is consequently bound to account for the profits received by her. The controversy centres round the second period, from the 2nd April 1903 to the 17th October 1909, and the facts material for the determination of the liability during this period may be concisely stated.
13. On the death of Shyama Charan Singha, three persons, who were joined by/the plaintiff as the first three defendants in this litigation, propounded a Will alleged to have been executed by him, obtained Probate thereof and took possession of the estates left by Shyama Charan Singha and Ram Lal Singha. The genuineness of this Will was called in question by Kiranbala Debi, and her application for revocation of the Probate was ultimately granted on the 29th September 1909. But during the period which intervened between the grant and the revocation of the Probate, and for a short time afterwards, that is, from the 2nd April 1906 to the 17th October 1909, these three persons were in possession of the estates of Shyama Charan Singha and Ram Lal Singha, and appropriated the profits thereof. The plaintiff decree-holder now contends that he is entitled to recover from Kiranbala Debi, as the present holder of the estate of her husband, the mesne profits of this period. She repudiates the liability on the ground that during this period she was not in possession of the estate of Ram Lal Singha and cannot be justly called upon to account for profits not intercepted by her. The Subordinate Judge has accepted this contention, and, in my opinion, his view cannot possibly be assailed.
14. It is an elementary rule that in an action for mesne profits -when the ground of the action is the bare fact of possession, damages can only be recovered for the time possession was actually retained. As the Court of Common Pleas ruled in Stanynought v. Cosins Barnes 456 : 94 E.R. 1002, 'damages ought to be given for no longer time than defendant is proved to be in actual possession.' The law on the subject is accurately summarised by Sedgwick in his work on Damages, 1912, Volume III, Section 911: 'as to the period for which the defendant is liable, each occupant is answerable for the time he has been in possession: Holcomb v. Rawlyns (1596) Cro. Eliz. 540 : 78 E.R. 786, and a defendant cannot be charged in damages for a period when he was not in possession, in fact or in judgment of law, either personally or by agent or tenant: Doe v. Harlow (1838) 12 Ad. & Ed. 40 at p. 42 : 113 E.R. 724 : 54 R.R. 523; Hunter v. Britts (1813) 3 Camp. 455 : 14 R.R. 807; Burne v. Richardson (1813) 4 Taunt. 720 : 14 R.R. 647 : 128 E.R. 513; Girdlestone v. Porter (1799) Woodfall L. and T. 653 (7th Ed.).' This principle has been followed by this Court in a long line of cases: Haradhun Dutta v. Joy Kisto Banerjee 11 W.R. 444; Indurjeet Singh v. Baboo Radhey Singh 21 W.R. 269; Abbas v. Fassih-ud-din 24 C. 413 : 12 Ind. Dec. (N.S.) 943; Ishan Chandra Burdhan v. Ainuddin Mia 5 C.W.N. 720. In the first of these cases, Jackson, J., stated that it would be impossible to hold the defendant liable for profits which he had not received and never could have received. In the second case, Phear, J., observed as follows: Generally from the nature of the claim to mesne-profits, mesne profits ought not to be estimated for any period during which the defendant, who is to be made responsible for them, was not active in keeping the plaintiff out of possession.' In the third case, Trevelyan, J., held that even a wrongdoer is not responsible for the acts of another wrongdoer who is independent of him. In the fourth case, Hill, J., held that damages are claimable only for the period of the defendant's wrongful possession, actual or constructive. Substantially to the same effect are the decisions in Churn-Singh v. Rungoo Singh 15 W.R. 221 and Kishnanand v. Kunwar Partab Narain Singh 11 I.A. 88 : 10 C. 785 : 8 Ind. Jur. 335 : 4 Sar. P.C.J. 551 : Rafique & Jackson's P.C. No. 80 : 5 Ind. Dec. (N.S.) 526. Indeed, the very definition of the term 'mesne profits' given in Section 2(12) of the Civil Procedure Code shows that wrongful possession by the defendant is the foundation of his liability. It is clear that, in this case before us, Kiranhala Debi cannot be made liable for the profits of the second period, as she not only did not receive, but even with the utmost diligence could not (have received the profits, which were realised by the first three defendants and could have been realised by them alone; so long as they retained their character as executors under the Probate of the forged Will. In this view, it is- needless to consider whether the grant in favour of the three executors was only voidable or was void ab initio: Prayrag Raj v. Gouharan Pershad 6 C.W.N. 787; Sailaja Prosad v. Jadu Nath Bose 27 Ind. Cas. 715 : 21 C.L.J. 88 : 19 C.W.N. 240. Whether they were or were not entitled to represent the estate of Shyama Charan Singha and to impose a burden thereupon, during the subsistence of the Probate, it is manifest that their possession of the estate of Ram Lal Singha was entirely wrongful; and, I cannot appreciate on what conceivable principle of justice, equity and good conscience, Kiranbala Debi can be called upon to restore to the plaintiff-decree-holder the profits which she admittedly never received and which actually passed into the hands of the three persons who, on the pretence that they were executors to the estate of her husband, took wrongful possession of the estate of the maternal uncle of her husband.
15. On these grounds I hold that the order made by the Subordinate Judge is correct, and that this appeal must be dismissed with costs.