1. This is an appeal against a judgment and decree of the Subordinate Judge of Nadia in a case brought by the present appellants, as plaintiffs, to recover possession of two darpatni holdings, with mesne profits.
2. It appears that the present appellants are purchasers of the paini right at a sale for arrears of rent, and that, under Section 167 of the Bengal Tenancy Act, they served notices on Rajabala Debi, the daughter and heir of Radha Ballabh Gossain, annulling the darpatni tenures and requiring her to give up possession. The notices were served on the 4th June 1901, but she refused to give up possession; and the present suit was instituted on the 13th April 1904. On the 31st July 1905, the suit was dismissed. The suit was instituted against Rajabala Debi and, after it had been dismissed in the Court of the Subordinate Judge, she died. There was an appeal to the High Court by the plaintiffs and the three sons of Rajabala were substituted for her as respondents. The appeal was decreed on the 28th August 1907, and the suit was remanded for re-trial by the Court of first instance. On the 30th July 1908, the Court of first instance decreed the plaintiff's claim for possession and for mesne profits from the 4th June 1901, up to the date of delivery of possession. In the judgment, the Subordinate Judge distinctly stated that, as the original defendant Rajabala was dead, her legal representatives would be liable for mesne profits which had accrued prior to the death of Rajabala to the extent only of Rajabala's assets which had come into their hands at her death, and that for the mesne profits subsequent to her death, they would be liable personally. In the decree as originally drawn up, mesne profits were awarded with interest at six per cent, per annum, against the three sons who had been substituted as defendants; but on an application made to the lower Court, the decree was amended on the 7th November 1908, in the following terms: 'If there be any property left by Rajabala and which has come into the hands of her heirs, then that property will be liable for mesne profits for the period from the date of service of notice up to the date of the death of the defendant Rajabala. The heirs will be personally liable for mesne profits for the period subsequent to the aforesaid period.'
3. The plaintiffs have now appealed to us and in support of their appeal, the main contention advanced is that the decree for mesne profits ought to have been against the sons for the whole period during which the plaintiffs, were kept out of possession.
4. It is suggested that Rajabala in refusing to give up possession was acting for the benefit of the estate and, therefore, that the whole estate, of which she was in possession with a widow's interest, would' be liable for the mesne profits, and not merely her personal estate which came into the possession of the sons, the substituted defendants. In support of this contention, the learned Pleader for the appellant has relied upon the case of Kattama Nauchear v. Rajah of Shivagungah 2 W.R. (P.C.) 31 : 9 M.I.A. 539 and the case of Hari Nath Chatterjee v. Mothur Mohun Goswami 20 I.A. 183 : 21 C. 8. These two cases are not, however, applicable to the facts of the present case and cannot in any way govern our decision in the present matter. The learned Pleader for the appellants has also relied on the three decisions of this Court in Lalji Sahaij Singh v. Karki Jha 2 Ind. Cas. 654 : 14 C.L.J. 90; Sadasi Koer v. Ram Oobinda Singh 11 Ind. Cas. 90 : 14 C.L.J. 91 : 15 C.W.N. 857 and Harihar Pershad v. Bholi Pershad 6 C.L.J. 383. The question, however, whether these judgments can be taken to apply to the present case must depend upon whether or not, the act of Rajabala in the present instance can be taken to be an act done by her as representing the estate of which she was in possession as widow, and done for the benefit of that estate. After giving our best consideration to the matter, we think it is not possible to hold in the present case that the act of Rajabala can be so regarded. The notice was addressed to her to give up possession, after the darpatni tenures had been annulled; and her failure to deliver possession Was a personal tortious act on her part which rendered her personally liable to an action for mesne profits or damages, and not an act which can be regarded as one done in the interests of the family estate. The learned Pleader for the appellants has invited our attention to the fact that the eider son of the lady carried on the litigation on her behalf and that she was merely a nominal defendant; but we are unable to hold that that circumstance could be sufficient to convert the act of Rajabala into anything different from a tortious act for which she personally would be liable for damages. In the case of Girish Chunder Lahiri v. Shoshi Shikhareswar Roy 27 C. 951 at pp. 959; 967 : 27 I.A. 110 : 4 C. W.S. 631 it was pointed out by their Lordships of the Privy Council that mesne profits are in the nature of damages which the Court may mould according to the justice of the case.' In the present instance, the profits accruing from the wrongful possession prior to Rajabala's death may be taken to have gone to the person wrongfully in possession, namely, the widow; and we do not think that it can be held that they have gone for the benefit of the estate.
5. Under these circumstances, we hold that the view taken by the lower Court was correct and that, so far. as the plaintiffs' claim lay for mesne profits' realised up to the date of Rajabala's death, they would only in law be entitled to recover these profits from the widow, or from the personal estate of the widow, which had passed on her death to her heirs. It may be unfortunate is the present case that little or no property belonging to the widow has passed to the heirs: but we do not think that on that account it is possible for us to give the plaintiffs any relief. In our opinion, the view taken of the law and of the justice of the case by the lower Court is correct; and we must, therefore, affirm the judgment and decree of the lower Court and dismiss this appeal with costs.
6. We assess the Pleader's fee at five gold mohurs.