Arshad Ali Laskar and Others vs Tahir Ali Laskar and Another

Ram Labhaya, J.—Appeal No. 251/45 is from the judgment and decree of the Subordinate Judge, Cachar, dated 11-6-1945 in Title Suit No. 29 of 1940 Defendant. No. 1 is the Appellant. Plaintiffs-Respondents Tahir Ali and his mother instituted the suit against Mubeswar Ali Laskar and his son Arsad Ali Laskar as the principal Defendant. 20 others were impleaded as pro forma Defendants.

First Misc. Appeal No. 26 of 1946 arises from the proceeding in execution of the decree passed in suit No. 29 of 1940. One question is common to the two appeals. They shall be disposed of by this order.

Briefly stated the facts leading to the suit are as follows : One Hira Miah died leaving six sons, namely Abdul Rahman, Mubeswar Ali (Defendant No. 1), Abdul Gafur, Mandai, Kala, Osman Gani and two daughters Nena Bibi and Jalekha Bibi. Kala Mia and Abdul Gafur separated from the other co-sharers during the life time of Osman Gani, father of Tahir Ali, Plaintiff. Abdul Rahman, Mandai, Osman Gani, Hira Miah and Kala Miah died one after other. Osman Gani died on 30-6-1917. Plaintiffs, the son and widow respectively of Osman Gani, deceased, instituted Suit No. 29 of 1940. This suit was characterised as an administration suit in respect of the assets of the deceased Osman Gani. Plaintiff''s case was that, after the separation of Abdul Gafur the five brothers acquired considerable property by their exertions. They had extensive business in forest produce. Not only was their business and properties joint but they messed jointly too. After Abdul Gafur, Kala Mia separated. From the remaining brothers Abdul Rahman died first, after him Mandai Miah and then Osman Gani. When Mandai Miah and Osman Gani died, their father Hira Miah was alive. Mandai Miah''s share was inherited by Plaintiffs in suit No. 23 with which we are not concerned. The bulk of Osman Gani''s share devolved on the Plaintiffs of the present suit. Hira Miah also was one of his heirs. The joint business however continued and the parties also continued messing jointly. During this period there Were accretions to the properties jointly acquired. Some 2 or 3 years before the institution of the suit Plaintiffs were asked to live separately. They asked for their share of the properties which Defendant would not give. He declined to maintain them also. They instituted the suit and prayed that all joint properties in the hands of Defendant No. 1 be administered by the court, accounts be taken and shares of the Plaintiffs in the assets of Osman Gani be separated and made over to them. Plaintiffs could not state the nature and the extent of the assets left by Osman Gani. They also prayed for the appointment of a receiver after removal of the Defendants 1 and 2 from the management of the properties. The suit was contested by Defendants 1 and 2. The preliminary decree was passed in the suit on 14-2-1942. The judgment on which the preliminary decree is based covers also suit No. 23 of 1940. The issues in the two suits were common.

The issues which were disposed of by the preliminary decree are as follows:

Is there any cause of action?

Can the two suits lie in their present form and are they maintainable in view of the provisions of Section 69, Partnership Act?

Was there any joint and ejmali property among Defendant No. 1 and his brothers, and did his brothers die leaving joint properties? If so, what are those properties and who managed those properties after the deaths of Mandai Miah Laskar and Osman Gani Laskar?

Did Defendant No. 1 and Defendant Arsad Ali manage the properties left by Mandai Miah Laskar and Osman Gani Laskar after their death?

Did Defendant No. 1 and Defendant Arsad Ali purchase any properties in their names with money from the common fund? If so what are those properties?

Is the suit barred by limitation?

Are Defendant No. 1 and Defendant Arsad Ali liable to render accounts and to pay dues, if any, to the Plaintiffs?

Are the Plaintiffs entitled to partition and possession of their shares in the properties in the two suits?

Issue No. 1 was found in Plaintiff''s favour. Issue No. 2 in the case was as to whether the suit was maintainable as laid. This was also found in Plaintiff''s favour. The learned judge however expressed the view that the plaint was defective to the extent that it embraced a claim of the administration of the entire joint property and decided to give effect to the prayer for administration of the assets of Osman Gani deceased declining to throw out the suit on the ground of the technical defect in the plaint. He further found under issues 3 and 4 that Osman Gani had left landed properties, some elephants and some assets of the forest business and that it was necessary that these assets be administered by the Court. An enquiry into the extent of these assets was also found necessary. Defendant No. 1 was found to have been in possession of the assets all along. Arshad Ali, son of Defendant No. 1 was found to be looking after the assets in the hands of Defendant No. 1 as he himself had become very old, though he alone (Defendant No. 1) was found accountable to Plaintiffs in respect of assets left by Osman Gani deceased. The liability of Defendant No. 2 was limited to the portion of the assets of Osman Gani that may have been made over to him by Defendant No. l. It was, also held that if any of assets left by Osman Gani deceased, had been converted, to the use of Arshad Ali, Defendant No. 1 would be primarily responsible. If the properties could be traced to Defendant No. 2, they could be taken from him. He was considered to be a necessary party in view of the allegation in the plaint that some of the properties in which the Plaintiffs were; interested were in his possession. The finding on issue No. 5 was that it was difficult at that stage-to find out what assets were utilised by Defendant. No. 1 for acquiring properties in his name or in. the name of his son Arshad Ali.

This matter was left to be determined after proper enquiry into the extent of the assets left by Osman Gani. The enquiry, it was held, shall be directed to discovering the location of those assets, the conversion made in respect of any portion of those assets and to diversions, if any, of any portion of those assets to the uses of Defendant No. 1 and to those of Arshad Ali. Under issue No. frit was held that if oh enquiry it was found that the predecessor in interest of the Plaintiffs was entitled to any portion of the joint properties, in that case it will be the duty of the court to effect partition of the properties between the legal representatives of the deceased. On the question as to whether and. how far subsequent acquisitions made by Defendant No. 1 in the course of his business : should be considered as part of the assets of the deceased, it was held that if Defendant No. 1 or his son entered into business on his own account, the profits if any could not be shared by the Plaintiffs, though they would be entitled to compensation if their assets were employed by Defendant No. 1 in his business. The quantum of compensation was left to the decision by the Commissioner-to be appointed later. It was therefore ordered'' that it will have to be found out after necessary enquiry what portion of Plaintiff''s assets was utilised for the business of Defendant No. 1 by him.

As a result of these findings the preliminary decree which was passed was to the effect that the suit for administration of the assets left by Osman Gani was decreed. Defendant No. 1 was directed'' to render accounts in respect of the assets left by Osman Gani. He was further directed to deposit a sum of Rs. 400/- within a month of the order to meet the costs of the Commissioner who would be-appointed to take accounts and investigate into the matters in dispute. The Commissioner to be appointed was ordered to find out by scrutinizing the accounts the extent of the assets left by Osman Gani deceased to find out the location of those-assets and also to find out how much of those assets were converted into other properties and how much was diverted to the personal uses of deft. No. 1, Tahir Ali & Arshad Ali, and to distribute the assets of the deceased so discovered amongst the heirs. It was further ordered that if in the course-of enquiry it was found that any portion of the assets was also used by Defendant No. 1 for his-own uses, he will have to pay compensation for the use and that compensation will be determined by the court on the report of the Commissioner. If any portion of the assets left by the deceased" was found in the hand of Arshad Ali, he will have to hand it over to the Plaintiff.

Sri Ananga Mohan Deshmukhya, pleader, was appointed Commissioner. His report dated'' 12-8-1943 appears on page 51 of the printed record. In this report (vide page 52) he formulated the points which arose for decision from the directions given in the preliminary decree. These joints are as follows:

What is the extent of the assets left by the deceased Osman Gani?

Where are the assets so ascertained located?

Was any of those assets converted into other properties?

Was any of the assets diverted to the personal uses of Mubeswar Ali deft. No. 1 Arshad Ali deft. No. 2 and Tahir Ali, Plaintiff No. 1?

What compensation to the Plaintiffs, if any, may be recommended for the assets found to be diverted to the personal uses of Defendant No. 1?

What assets, if any, found to be taken by the Plaintiff No. 1 Tahir Ali, are to be debited against his account?

What asset, if any, found to be in the hands of Arshad Ali, Defendant No. 2 is to be made over and to whom it is to be made ever?

Who are the persons entitled to inherit the assets of Osman Gani, deceased and what is the extent of the share of each?

The parties agreed that all matters needing determination were covered by the points detailed above.

Points 3 to 5 arose from directions in the preliminary decree about assets which may be found to have been converted or diverted.

Defendant No. 1 failed to render accounts. Plaintiffs contended that their statements exhibits 14 and 15 which embodied a detailed description of the assets left by Osman Gani should form the basis of the finding on the point and that every presumption should be made against the Defendant as he had failed to render accounts. The Commissioner did not accept this contention and held that the two statements shall not be presumed to be correct unless corroborated by sufficient legal evidence.

In regard to exhibit 15 he found that the properties mentioned in it were not acquired as the result of any conversion of Osman Gani''s assets. These properties were treated as beyond the scope of the enquiry. It was further found that Osman Gani left assets in the shape of landed properties, elephants & cash as described in Schedule A to the report. It will appear from Schedule A that Osman Gani''s share in Joint lands came to 235B.9K.4CH.17G. A sum of Rs. 5,000/-represented the price of his share in timber. Elephants living at the time of Osman Gani''s death were found to be seen in number. Of these six were found to have died on different dates. Lalbahadur it was held had been disposed of by Defendant No. 1. Two calves were found to have been born after the death of Osman Gani. One of these calves died later. The other was living till the date of the enquiry and was in possession of Tahir Ali, Plaintiff. It was named Moyna Mukna. Its price was assessed at Rs. 6000/- on the admission of both the parties. Osman Gani''s share was found to amount of Rs. 1500/-. Lands in which Osman Gani had a share were found to have been under the management of Defendant No. 1. Plaintiff No. 1 was found to have been in possession of 36 B.A. sum of Rs. 5000/- was found to have remained with Defendant No. 1 since Osman Gani''s death. In regard to the elephants the finding was that the elephants which were in existence on Osman Gani''s death continued to be in possession of Defendant No. 1 till their deaths, and Lalbahadur was in his possession till its sale. Only Moyna Mukna was found to have been in possession of Plaintiff No. 1.

In regard to diversion of assets it was found that a sum of Rs. 6000/- was realised by Defendant No. 1 by the sale of Lalbahadur. Osman Gani''s share came to Rs. 1500/-. This sum was found to have been diverted by Defendant No. 1 to his own use. The total amount paid by Defendant No. 1 on account of the share of debts due from Osman Gani was assessed at Rs. 6,395/-. A sum of Rs. 750/- was found to have been spent on funeral expenses. The totals thus spent by Defendant No. 1 on Osman Gani''s account came to Rs. 7,145/-. Defendant No. 1 had to account for Rs. 5,000/- plus Rs. 1,500/-. After making allowance for this amount, it was found that Plaintiffs owed Rs. 645/- to Defendant No. 1. The joint debts for which Osman Gani was found liable jointly with six others were under exhibits P, P1 to P7, P28, P38 to P40.

Six elephants namely Gulap Sundar, Belmala, Bara Matimala, Banamala, Chota Matimala and Moyna Mukna were found to have been diverted by Defendant No. 1 to his personal uses. Compensation for the use of elephants was assessed at the rate of Rs. 800/- per annum. The period of user varied in each case.

Defendant''s case was that the compensation for the use of elephants ought to be calculated on the basis of the hire conditions of the elephants. His witness D.W. 9 stated that the annual hire of a good elephant would be about Rs. 700/- to Rs. 800/-. P.W. 8 put it at Rs. 800/- to Rs. 1000/-. The commissioner adopted the mean viz. Rs. 800/- per annum as the hire of a good elephant. This was to serve as the measure of compensation for the use of a good elephant.

Both sides objected to the Commissioner''s report. Objections raised by the Plaintiffs were as follows:

(a) The Commissioner was not justified in leaving out of account the properties included in Ext. 15 which were acquired by Defendant No. 1 from the income of the properties left by Osman Gani:

(b) The income derived from elephants had been wrongly assessed against the Defendant.

(c) Income from use of some of the elephants was wrongly excluded from consideration.

(d) The Commissioner had not given compensation on the amount wrongly appropriated by Defendant No. l.

Other objections also, were raised but these were not pressed at the hearing. The main objection of Defendant No. 1 was that the Income from the use of Moyna Mukna had not been taken into consideration even though it had been in the possession of Plaintiffs from 1935 to 1943. He also raised the point that Plaintiffs claim for more than six years before suit was barred by limitation. These objections were disposed of by the order of Mr. A.G. Chatterji, Subordinate Judge, dated 12-2-1944.

It was argued before the learned Judge on behalf of the Defendants that the properties acquired from the income derived from Osman Gani''s property after his death are not assets left by deceased and these properties cannot be taken into consideration. The learned Judge repelled this contention and held that income derived from properties of the deceased was nothing but part of the same assets, as it arose out of the estate of the deceased and any property purchased from such income was in his opinion conversion of the assets as contemplated by the order of the court. His view was that the Commissioner should have taken into consideration the properties enumerated in Ext. 15 as well as the calves of elephants named Goolpiary and Goolsundar. This omission he found necessitated the remission of the matter to the Commissioner for reconsideration. On the question of limitation he held that it had been decided by the court by its preliminary decree. He left over the determination of other questions till after the report of the Commissioner was received and directed the Commissioner to consider the objections raised and to rectify mistakes, if any. The revised report of the Commissioner is dated 26-6-44. This report deals mainly'' with properties mentioned in Ext. 15. The contention of the Plaintiffs in regard to the properties described in Ext. 15 was that lands and elephants referred to in that report had been purchased after the death of Osman Gani between 1918 to 1930 with joint funds and surplus income from the assets of Osman Gani.

The Plaintiffs claimed their share as the heirs of Osman Gani in all the lands mentioned in Exts. 15(b) and 15(c) which were purchased in the name of Defendant No. 1 only or benami in the name of Arshad Ali, Defendant No. 2 or his relatives Plaintiff No. 1 alone claimed his share in some lands mentioned in these exhibits which were purchased in his name jointly with others. Plaintiffs also claimed their share in elephants mentioned in Ext. 15(d) which were also alleged to have been purchased with joint funds. It was contended by Defendants that the lands purchased in the name of Defendant No. 1 belonged to him exclusively, he purchased the lands with his own money, the lands purchased in the names of Arshad Ali, his wife and his maternal uncle belonged to them and that Arshad Ali paid the purchase price for these lands. Defendant No. 1 further contended that Plaintiff No. 1 was not entitled to get any share of the lands which were purchased jointly in his name with others as he did not pay his share of the price which had been paid by Defendant No. 1. It was denied that elephants mentioned in Ext. 15(d) had been purchased with joint funds.

The commissioner found that Plaintiff No. 1 alone was entitled to the lands which stood in the name of Tahir Ali, Plaintiff No. 1, as on Defendant''s own admission these lands were purchased with the surplus income of his share. This finding was based not only on Defendant''s admission but also on entries in Ext. 5, Kabala Register. In regard to the rest of the properties detailed in Exts. 15(b), 15(c) and 15(d), the finding of the Commissioner was that the Plaintiffs had Jailed to prove that lands and elephants mentioned in these documents had been purchased with any surplus income of Osman Gani''s assets or any joint fund. But he treated the three calves namely Gul Sundar, Gul Pyari and Nageswar Mala as assets in which Osman Gani had a share though they were born after his death. The total sum of compensation for the three elephants Gul Pyari, Gul Sundar and Nageswar Mala amounted to Rs. 5 125/-. The share of the 2 Plaintiffs was worked out to Rs. 4270/13/4. He also assessed compensation payable by the Plaintiff for the elephant Moyna Mukna that remained in his possession for some years. The liability of two Plaintiffs out of this share was calculated at Rs. 1291/10/8. The schedule to the revised report described lands from Ext. 15 to which Plaintiff No. 1 was found entitled. The total area of these lands came to 117B. 14K. 4 Ch. 9 G.

Defendant No. 1 put in objections against the revised report. It was urged that in the absence of any statement showing the account of income and expenditure of the property there was no basis for; the report of the commissioner. The finding that Plaintiff 1 was entitled to land measuring 117 B. 14 K. 4 Ch. 9 G. was characterised as erroneous, unjust and illegal. Assessment of compensation for the use of Gul Pyari, Gul Sundar and Nageswar Mala was challenged as excessive. Plaintiff also was not satisfied and raised objections. The objections of the parties were disposed of by order dated 18-11-1944. The learned Judge remarked that the correctness of the Commissioner''s report as to elephants and landed property acquired after the death of Osman Gani had been assailed on both sides. He found that the Commissioner had omitted to take into consideration the income made from the use of one elephant name Surat Mala. He also came to the conclusion that there were reasonable objections as to the duration of the services of elephants Gulap Sundar, Belmala and Banamali Mala. In his view, reconsideration of the finding as to the income derived from elephants in the light of material on the record was necessary. He also decided to direct the Commissioner to as'' certain the income of the suit properties in order to find out whether any property subsequently acquired was purchased with the aid of surplus income, if any. In regard to the sum of Rs. 5,000/- received by the sale of timber of the share of Osman Gani, he noticed that no interest had been allowed to the Plaintiffs though this sum had been with the Defendant No. 1 for a very long time.

As the Commissioner who had made the first two reports was not available, he appointed Babu Sudhir Chandra Datta, pleader as the Commissioner directing him to study both the previous reports and then work out the income derived from the use of elephants in view of their existence, duration and fitness for service and award the same to the parties according to their shares under the preliminary decree. The commissioner was further directed to ascertain the landed properties and elephants subsequently acquired with the surplus income of the admitted joint properties, if any, work out the income from the same and apportion the same also among the parties and also to allow reasonable compensation, not exceeding 6 per centper annum on the sum of Rs. 5000/- and adjust it against the interest paid by the Defendant on the debts of Osman Gani. The Commissioner was also directed to base his calculations and finding on the material and evidence already on the record. Babu, Sudhir Chandra Datta submitted his report on 31-1-1945. Both parties again objected to the report.

The commissioner Babu Sudhir Chandra Dutta formulated 4 points which arose for decision at that stage. These are as follows:

(1) To calculate and work out the income derived from the elephants.

(2) To ascertain the landed properties and elephants subsequently acquired with the surplus income of the admitted joint properties if any.

(3) To find out the income of such subsequently acquired properties and apportion the same among the parties according to their shares.

(4) To allow compensation not exceeding 6 per cent. P.A. on Rs. 5000/- and adjust it against the interest paid on the debts of Osman Gani Laskar.

The commissioner found that Defendant No. 1 diverted to his personal business the six big elephants viz. Banamala, Golap Sundar, Baramatimala, Suratmala, Chhotamatimala and Belmala in which Osman Gani had a four anna share till the time of their deaths and another elephant namely Lalbahadur till its sale. Moyna Mukna the calf of Baramatimala in which Osman had four annas share was also diverted to the personal use of Defendant No. 1 till it was handed over to Plaintiff No. 1. The diversion commenced from the year 1918.

It was admitted that Belmala, Gulapsundar, Baramatimala, Suratmala, Banamala, Lal Bahadur and Chhotamatimala were first grade elephants. Compensation, so far as the use of these elephants was concerned, was recommended on the basis of the hire value of Rs. 800/- per annum for a good elephant. In regard to Baramatimala and Suratmala and Chhotamatimala the hire value was reduced to Rs. 600/- per annum as they gave birth to calves. As regards Moyna Mukna the calculation was to be at the rate of Rs. 500/- per annum for the 1st three years and at the rate of Rs. 800/- for the next 10 years. As regards Gulpyar and Gulap Sundar compensation was calculated at the rate of Rs. 500/- per year for the first 3 years and at the rate of Rs. 600/- per year for the next 3 years and at the rate of Rs. 800/- per year for six years that followed.

The shares of heirs of Osman Gani were given in para. 4 of the report. There is not dispute about these shares. Plaintiff No. 1 was shown entitled to 17/24 and Plaintiff No. 2 to 1/8.

Under the head ''conversion'' the Commissioner found that Lal Bahadur was sold at Rs. 6000/-. Osman Gani''s one-fourth share in it yielded Rs. 1500/-. Plaintiffs 1 and ''2 were found entitled to Rs. 1250/-. Plaintiff No. 1 was found owing to the share-holders a sum of Rs. 3950/-for the use of Moyna Mukna. The total sum recoverable as compensation for the use of elephants was calculated at Rs. 64,032/-. Osman Gani''s share came to Rs. 16,002/-. The share of Plaintiff No. 1 came to Rs. 11,339/- and share of Plaintiff No. 2 to Rs. 2001/-. From share of Plaintiff No. 1 a sum of Rs. 3950/- was deducted and his share was reduced to Rs. 7398/-. He further found that Defendant No. 1 was not entitled to any deduction from compensation on account of maintenance and training of elephants as it was the net compensation payable that had been found and not gross. The measure of compensation had been determined after taking into account all relevant factors. In this connection he also referred to the fact that Defendant No. 1 gained to a very considerable extent by using untrained calves during the period of training.

In regard to the landed property held jointly by Osman Gani arid his brothers there was no dispute. The finding of the previous Commissioner was therefore adopted. In regard to properties shown in Exts. 15(b)(c) and (d) he also agreed with the conclusion arrived at by the previous Commissioner and found Plaintiff No. 1 entitled to lands which were admittedly purchased in his name. These lands were purchased in the name of Tahir Ali and others. tahir Ali''s share is indicated in Schedule B attached to the report of the Commissioner.

The commissioner further found that he was competent to investigate what items of debts really due from Osman Gani had been repaid by Defendant No. 1, as without ascertaining debts he could not allow any adjustment of interest to Defendant No. 1 or to Defendant No. 1 on payments made under this head. The direction from the court was for adjustment of interest on Rs. 5000/- at a rate not exceeding 6 per cent per annum against interest paid for the debts of Osman Gani. Objection taken against investigation into the debts on the ground that the direction of the court did not include within its ambit any further enquiry into the payments alleged to have been made by Defendant No. 1 on account of debts of Osman Gani was overruled.

Defendant No. 1 claimed that the total amount of joint debts paid by him came to Rs. 31,271/8/- and that Osman Gani''s share amounted to Rs. 10,121714/8. He relied on Exhibits P, P1, P2, P3, P4, P5, P6, P7, P28, P39 and P40 in support of the claim made by him. The Commissioner found that he had paid debts due on Exhibits P4, P40, P38, P39 and P28. After adjusting payments on account of principal and interest on these documents the Commissioner found that Plaintiff No. 1 was entitled to Rs. 5,056/8/2 and Plaintiff No. 2 to Rs. 892/5/2. These 2 sums were found owing to the Plaintiffs from the sum of Rs. 5000/- principal and interest due thereon, after deduction of payments of debts with interest thereon. The calculation is given in Schedule D attached to the report. The shares of the heirs of Osman Gani in lands, compensation on elephants, sale proceeds of the elephant Lal Bahadur and in cash were given separately in Schedules C, E. and D. Plaintiffs 1 and 2 were found entitled to lands measuring 166 B. 15 K. 12 Ch. 3 G. and 29 B. 8 K. 10 Ch. 12 G. respectively from the lands of Schedule C. Plaintiff 1 alone was further found entitled to lands measuring 117B.14K.6Ch.8G. representing lands purchased in his name. Plaintiff No. 1 was found entitled to Rs. 7389/- by way of compensation for the use of elephants in which he had a share. Plaintiff No. 2 was found entitled to Rs. 2151/- under this head. Out of the sale proceeds of Lal Bahadur Plaintiff No. 1 was found entitled to Rs. 1062/8/ and Plaintiff No. 2 to Rs. 187/8/. Out of the cash Plaintiff 1 was found entitled to Rs. 5056/8/2 and Plaintiff 2 to Rs. 892/5/2.

Defendant No. 1 raised objections to this report also. The finding that land measuring 117 bighas. 14K. 6 Ch. 8 G. had been purchased from the surplus income of the property left by Osman Gani was challenged by and similarly the finding of the Commissioner in regard to payment of debts. In regard to the last item it was specifically urged that the Commissioner was in error in not allowing payment made on Exhibits P, P1, P2, P5, P6 and P7. The correctness of the figure in regard to compensation for the use of elephants by Defendant No. 1 was also assailed. Plaintiff also raised objections. All these were considered'' and disposed of by order of the learned Subordinate Judge dated 11-5-1945. By this order the report of Babu Sudhir Chandra Dutta Roy, Commissioner was accepted in its entirety and it was ordered that the final decree be passed in terms of that report.

It appears from the order that at the hearing the first question that was raised was about payments of debts of Osman Gani by Defendant No. 1. The first Commissioner Ananga Babu had found that Defendant 1 had paid Rs. 6,395/- on account of debts of Osman Gani on 11 bonds and Rs. 750/- as funeral expenses. The second Commissioner Sudhir Babu found that Defendant No. 1 had paid Rs. 2561/10/8 only towards the debts of Osman Gani. The learned judge found that Sudhir Babu was justified in ascertaining what debts had been paid by Defendant No. 1. The direction of the court contained in its order of 18-11-1944 was to the effect that Plaintiff be allowed compensation not exceeding 6 per cent on the sum of Rs. 5,000/- and that Defendant No. 1 could claim adjustment against it of any interest paid on the debts of Osman Gani. Reading the order as a whole the learned Judge came to the conclusion that enquiry into the payment of debts was authorised by that order.

Objections to the disallowance of payments made on bonds were limited to 6 bonds. These were exhibits P, P1 and P5 and exhibits P2, P7 and P6. In regard to all these bonds, the learned Judge after a consideration of the arguments advanced on behalf of Defendant No. 1 found that the conclusion of the second Commissioner Sudhir Babu was correct. In regard to exhibits P2, P7 and P6 the finding was that the amounts due on these bonds were the debts of Kala Mia alone. Osman Gani and Abdul Latif, the other 2 executants of these documents were merely sureties. The debts were actually paid by Defendant No. 1 but Kala Mia had given to Defendant No. 1 an elephant Ruhiti by name for the discharge of these debts and therefore Defendant No. 1 was not entitled to any adjustment on account of payments made for debts due on these bonds.

In regard to compensation for elephants the first Commissioner allowed to the Plaintiffs Rs. 10,583/- as compensation for the use of 9 elephants. The second Commissioner awarded Rs. 16,008/- as compensation for 10 elephants. After a consideration of the evidence bearing on this item the learned Judge held that the conclusions arrived at in the report of Sudhir Babu were correct. It appears from the discussions on this point the rate at which compensation was calculated was not in dispute. The dispute mainly related to the dates of the deaths of various elephants.

The third objection was that Plaintiffs could not claim compensation for the use of elephants; the claim to land by Plaintiff No. 1 was also disputed. These objections did not prevail. Plaintiffs were found entitled both to compensation for use of elephants and the lands purchased in the name of the Plaintiff No. 1. It is noteworthy that no objection was taken to Plaintiff''s claim to land purchased in his name on the ground that such a claim could not be included in an administration suit. Allowance of interest on Rs. 5000/- was also objected to by the Defendant No. 1 but this objection was also overruled.

Plaintiff''s claim to land purchased in the name of Defendants 1 and 2 was also disallowed.

In this Court, the correctness of the decree of the trial court has been assailed on 4 grounds, namely:

(1) That the land measuring 117B. 14K 6Ch. 8G described in Schedule B attached to the report of the second Commissioner could not be decreed to the Plaintiff No. 1 in the present suit;

(2) That Plaintiffs were not entitled in law to any compensation for the use of elephants and that the compensation allowed was excessive;

(3) That refusal to adjust payments made in discharge of debts due under bonds exhibits P, P1, P5 and P2, P7 and P6 was unjustified; and that in any case no interest should have been allowed on the sum of Rs. 5,000/-;

and

(4) That the court failed to realise deficit court fees on the value of the property decreed.

As regards land decreed to Plaintiff No. 1 alone the contention is that the suit is for the administration of the assets left by deceased Osman Gani. The land in question formed No. part of those assets as it was subsequently acquired. It is also emphasised that acquisition" being in the name of Plaintiff No. 1, the property could not possibly be regarded as forming part of the assets of the deceased. This contention should not'' prevail. The finding arrived at by the Court, below as also by the two Commissioners was that land acquired in the name of Tahir Ali was purchased with Tahir Ali''s share of the surplus income derived from the assets left by the, deceased. This finding was based on the admission of Defendant No. 1 made by him in his deposition made in court. He stated that he had purchased some lands in the name of Tahir Ali with the surplus income of his share. This admission was supported by entries in Ext. 5, a Kabala register. The finding is not questioned. Reliance only is placed on the fact that the lands in question were acquired after the death of Osman Gani and therefore could not form part of the estate left by him. This contention does not receive any support from principle or precedent. Mr. Ghose has not been able to show that property acquired with the income derived from the estate of a deceased person cannot be regarded as part of the estate. Income from the estate is part of estate and if income is converted into other property, that property would represent accretion to the estate and therefore should normally form part of the estate. If by the simple device of converting income into property liability to account for income in an administration suit can be defeated, an administration suit would lose its significance. It will be converted merely into a suit for partition of property as it stood on the date of the death of the deceased. It cannot be conceived that this should be the law Mr. Lahiri has drawn our attention to a decision of their Lordships of the Privy Council reported in--''Tata Iron and Steel Co. Ltd. v. Chief Revenue Authority of Bombay'' AIR 1923 PC 148 (A) in which it was held that legacies of one-third of an estate meant the estate as it stood with acquisitions made out of it till the date of suit and not as it was at the date of death. In this case the dispute arose from the manner in which the estate of one Aza Yacoob Ali had been administered. He died on 15th May 1865 having made a will by which he left one-third portion of the property, of which he was competent to dispose, to be dealt with for charitable purposes. It was held that the charity was entitled to one-third of the entire estate in addition to Rs. 1,64,600/- representing one-third of the proceeds of the property which was realised with interest on that sum at 6 per cent from that date. The suit was for a declaration that the gift to the charity was void. In addition to this, relief for partition of the estate had also been asked for. It was found that the legacy included accretions to the estate made from the proceeds of the property, The principle of this decision should apply to the facts of the present case.

Income from the property left by the deceased was no doubt part of that estate. Conversion of that income into land would not convert the character of the property so substituted. It will still be part of the estate of the deceased. The preliminary decree in this case does definitely and in express terms directs the Commissioner to ascertain what part of the assets was converted into other properties. The assets ascertained according to the direction contained in the decree are held divisible amongst the heirs''. Any Income received and converted into other property being divisible, amongst the heirs of Osman Gani under the terms of the decree also, the contention should have been raised in an appeal from the preliminary decree. That decree was not appealed from. The adjudication made therein has become, final. The contention of Mr. Ghose if given effect to does necessarily involve reversal of the directions contained in the preliminary decree and therefore cannot be given effect to at this stage of the case even if it had some force.

It is worthy of note that though the land has been purchased in the name of Tahir Ali jointly with others and Tahir Ali''s share represents acquisition made with the surplus income of his share, the land was not in the possession of Tahir Ali exclusively or jointly with others. His case was that after the death of his father the estate left by him remained in the possession of Defendant No. 1 and that no accounts had been rendered to him. He therefore prayed for administration of the estate, rendition of accounts and partition. The mere fact that some lands stood in his name would not debar him from claiming them when they were being withheld from him. Even during the investigation by the Commissioners and notwithstanding his admission made in court, Defendant No. 1 contended that these lands had been purchased with borrowed money and the Plaintiff not having contributed his share of the capital was not entitled to them. Defendant No. 1 was thus trying to resile from an admission made earlier in an unguarded moment. His contention was overruled. In the circum-stances it is obvious that Plaintiff No. 1 should not be precluded from including these lands in his claim as they represented acquisitions from his share of the income of the estate left by his father. I think the decree for land in his favour is unquestionably correct.

In regard to the compensation for the use of elephants Mr. Ghose has urged that the elephants belonged jointly to the parties to the litigation. Defendant No. 1 had a share in the elephants. They were not being used by other co-sharers. By his user of the elephants which belonged to him jointly with others, he did not incur any liability to pay compensation to other co-sharers. This user did not involve ouster of any other co-sharer. Nor was there any denial of their title. He has further contended that the use though solely by him, may not even be characterised as exclusive. In support of his contention he has relied on--''Ashutosh v. Amal Chandra'' 54 CWN 2 191 (B)-- Raj Ranjan Prasad Sinha and Others Vs. Khobhari Lal and Others, and--''Midnapur Zamindari Co. v. Naresh Narayan Roy'' AIR 1924 P.C. 144 (D). This contention it must be said is wholly inadmissible. The preliminary decree as has been said in relation to the first contention, is binding now. Any contention that involves a challenge to the preliminary decree cannot be permitted at the stage. There is now no going behind the preliminary decree. If therefore Defendant No. 1 has been found to be liable to pay compensation to the Plaintiffs for use of the elephants by him by the preliminary decree, it will not now be open to him in an appeal from the final decree to challenge the adjudication embodied in the preliminary decree. If the learned Counsel is permitted to show that the preliminary decree or any direction in it is illegal, it would be permitting an appeal against the preliminary decree now after the lapse of some years. The preliminary decree was passed in February, 1942.

There is no manner of doubt that the question was dealt with and disposed of by the order of the court dated 14-2-1942 on which the preliminary decree was based. The particular question relating to the diversion of the assets of Osman Gani to the uses of Defendant No. 1 and his son was dealt with under issue No. 8. The learned Judge found that an enquiry into the assets of the deceased will necessarily involve an investigation into the question whether any part of those assets were diverted to the use of Defendant No. 1 and his son. Plaintiffs claimed all profits of the business in which any property left by Osman Gani was utilised. This contention was negatived. What the learned Judge found was that if Defendant No. 1 or his son entered into any business on their account, the profits if any could not be shared by the present Plaintiffs although they were entitled to proper compensation if their as-sets were employed by Defendant No. 1 in his business. He also held that if Tahir Ali used any portion of joint assets for his own business, he will also be liable to compensate the other co-sharers. The direction regarding this matter, in the decree was that the Commissioner shall find out how much of the assets was diverted to the personal uses of Defendant No. 1 and Tahir Ali and of Arshad Ali. In this connection the learned Subordinate Judge observed as follows:

If, in the course of the enquiry, it is found that any portion of the assets has been used by Defendant No. 1 for his own uses, he will have to pay compensation for them and that compensation will be determined by the Court on the report of the Commissioner. If Tahir Ali took any portion of those assets, they will have to be debited against his account.

It is obvious that it is not now open to Defendant Appellant to reagitate the matter. It has been decided against him and the decision has become final. His liability to pay compensation for use of joint property has thus been irrevocably determined. Whether that decision is right or wrong is wholly immaterial. In these circum-stances, it does not appear necessary to examine this contention in any great detail. It is not necessary for the decision of this case. But if it had been necessary to decide it, I would have been inclined to uphold the direction in the decree in regard to liability of Defendant No. 1 for compensating Plaintiffs for use of the joint property in the circumstances of this case. ''54 CWN 2 191(B)'' on which the learned Counsel has relied is in my opinion distinguishable. It was held in this case that:

a co-sharer out of possession cannot complain of mere possession of the co-owner, so long as he refrains from setting up any claim to share in that possession. In order to give rise to a cause of action against the co-sharer, it must be proved that his act amounted to ouster. Consequently in a case between co-sharers mere proof of sole occupation of more than his share or even to the extent of the whole in respect of a particular parcel of land is not enough for success of another co-sharer in a suit of compensation, unless a case on facts showing actual ouster has been established.

The question of the liability of a co-sharer to compensate other co-sharers when he was in sole or exclusive possession of the property was first examined by their Lordships of the Privy Council in--''Robert Watson & Co. V. Ramchand Dutt'' 18 Cal 10 (PC)(E). In that case the Defendant company, a co-sharer of the Plaintiffs, was in actual possession of the part of the land held in common and was cultivating it as if it had been its separate property. When the Plaintiffs attempted to enter upon the same land, in order to carry on operations thereon inconsistent with the work already being carried on by itself, resisted and prevented this attempted entry. Their Lordships held that the resistance, being made by the Company in occupation simply with the object of protecting itself in the profitable use of the land, in good husbandry, & not in denial of the Plaintiffs'' title as co-sharers, did not amount to ouster, nor did it entitle the co-sharers so excluded (Plaintiffs) to a decree for joint possession or damages or an injunction. Compensation in respect of the exclusive use by the Company was allowed on grounds of justice, equity and good conscience in the absence of a specific rule governing the decision of the case.

The legal position was reaffirmed in--''AIR 1924 PC 144(D)''. In this case, it was held that:

where lands in India are held in common by co-sharers, each co-sharer is entitled to cultivate in his own interest in a proper & husband-like manner any part of the lands which is not being cultivated by another of his co-sharers,'' but he is liable to pay to his co-sharers compensation in respect of such exclusive use of lands. Such an exclusive use of lands, held in common by a co-sharer is not an ouster of his co-sharers from the proprietary right as co-sharers in the lands.

In--''Lachmeswar Singh v. Monowar Hossein'' 19 Cal 253 (F) however ''Robert Watson''s case (E)'', was distinguished on the ground that it was a case where the Plaintiff co-sharers had been excluded from the use'' of joint property. In-- Chandra Kishore Chakravarty Vs. Biseswar Pal and Sachindra Kumar Goswami, executor to the estate of Bashiram Pal and Another, the view taken was that their Lordships of the Privy Council in the ''Midnapur Zamindary Co.''s case, (D)'', could not have intended to lay down a co-sharer''s liability to compensation whether or not he had resisted his co-sharers or acted in defiance of a claim to joint possession made by them. Dhavle, J. in- Raj Ranjan Prasad Sinha and Others Vs. Khobhari Lal and Others, , agreed with this interpretation of the ''Midnapur Zamindary Co''s case, (D)''. He observed as follows:

It seems to me impossible, after the Privy Council decision in ''Lachmeswar''s case, (F)'', to take the passage from ''Midnapur Zamindary Co''s case, (D)'', apart from the facts of the case and to hold that Plaintiffs would have been entitled to compensation even if they had never objected to the Defendants'' exclusive use and occupation of these bakasht lands.

The proposition deduced from a consideration of the cases bearing on the point was that a co-sharer who is in separate possession of the common land (irrespective of what his share of such land would be upon partition) without ouster or exclusion of, or without objection from, the other co-sharers is under no obligation either to account or to pay compensation to them in respect of the profits earned by him by his own industry. It was further held that compensation in such cases is a matter of justice, equity and good conscience and is to be moulded according to the facts of each particular case. The decision in-- Raj Ranjan Prasad Sinha and Others Vs. Khobhari Lal and Others, has been referred to with approval in--'' 54 CWN 2 191 (B)''. I am in respectful agreement with the view expressed in the ''Patna case, (C)''. Whether there is exclusion or ouster would depend on the facts and circum-stances of the case under consideration. Separate occupation by one co-sharer is not necessarily exclusive occupation. It may or may not be, according to the circumstances that are proved and each case has to be decided on its own facts vide-- Chandra Kishore Chakravarty Vs. Biseswar Pal and Sachindra Kumar Goswami, executor to the estate of Bashiram Pal and Another, The question is one of fact. If there is separate occupation it has to be decided on facts proved whether it amounts to exclusion or ouster; vide-- Durga Sankar Sarma Roy Vs. Kamini Kumar Sarma Roy and Others,

This view however is of no assistance to the Appellant. It has no application to the facts of this case. The case of the Plaintiffs was that Osman Gani died in 1917. His assets consisted of moveable and Immovable property--elephants, horses, cows, lands and logs of wood. All these assets were under the supervision, custody and management of Defendant No. 1. Plaintiff No. 1 was'' a minor. Defendant No. 1 alone kept in his own hands the management and supervision of the entire assets of Osman Gani. He collected the assets. He applied to be appointed guardian of Plaintiff No. 1. He was appointed guardian on condition of his furnishing security. But he did not furnish security to the satisfaction of the court. Notwithstanding this he continued to re-main in charge of the properties. It was further averred that he acquired properties and elephants-with the income derived from the assets left by Osman Gani. When Plaintiff No. 1 attained majority he was not permitted to take part in the management of the properties and the business; nor was he given any accounts of income and expenditure. It was admitted that during the period of management Defendant No. 1 was giving to the Plaintiffs maintenance, allowance though it was alleged that the maintenance allowance was not given regularly.

The trial Judge found that Osman Gani left some lands, forest business, elephants and timber worth about Rs. 15,000/- in which he had one-third share. It was also found that there were acquisitions made with the surplus income of the properties left by Osman Gani. These as sets were in the hands of Defendant No. 1 and that an enquiry was necessary to ascertain the extent of those assets and acquisitions made with surplus income from Osman Gani''s share. In the circumstances of the case it was found that the suit as laid was competent. These findings are contained in the judgment on which the preliminary decree is based. They are final. The position then is that Defendant No. 1 was holding charge of the property of a minor and a widow who are the Plaintiffs. He was managing the property and assets left by Osman Gani on their behalf more or less in a fiduciary capacity. The joint business ceased according to the showing of Defendant No. 1, soon after Osman Gani''s death. But the management of the assets of Osman Gani remained in his hands till after Plaintiff No. 1 attained majority and asked for accounts and possession of the assets left by his father. During the period of the management of Defendant No. 1 there, was diversion of some of the assets left by Osman Gani e.g. elephants to the, personal use of Defendant No. 1. The use was exclusive. It was not with the permission express or implied of the Plaintiffs or with their know-ledge. They were being given maintenance at the time and were not even aware whether elephants in which Osman Gani had a share were being diverted to the exclusive business of Defendant No. 1. The authorities commencing from the case of--''Robert Watson & Co. v. Ramchand Dutt'' (E) and ending with the decision in--''54 CWN 2 191(B)'' do not cover cases of: this description. The Plaintiffs undoubtedly were entitled to institute an administration suit to these circumstances. They could ask for accounts and were entitled to income derived from their share of the property.

Mr. Lahiri has also relied on Section 88, Trusts Act, in support of the Plaintiff''s claim for compensation for use of their share of the property by Defendant No. 1 for his personal uses. According to that section, if a trustee or partner is bound in a fiduciary character to protect the interests of another person, he is to hold for the benefit of such other person any pecuniary advantage gained by him by availing himself of his fiduciary character or by entering into dealings under circumstances in which his own interests were adverse to those of the other person. The Plaintiffs in this case have not been allowed) the benefit that accrued to Defendant No. 1 by the diversion of elephants in which Plaintiffs had a share. They have only been allowed hire money which Defendant No. 1 would have had to pay if he had used in his business elephants belonging to others. The plea that he was not liable to pay hire for the elephants in which Plaintiff had a share on the ground that he was a co-sharer, was not raised at any stage of the case before the preliminary decree was pass-ed. The preliminary decree was not assailed on this ground. Continued diversion of elephants after the demand of Plaintiffs for accounts and possession of the assets, would be covered even by the decision in-- Raj Ranjan Prasad Sinha and Others Vs. Khobhari Lal and Others, relied on by Mr. Ghose. Compensation for diversion before that period is due to the Plaintiffs on equi-table grounds in view of the fact that the Defendant held the estate of Osman Gani in his charge in a fiduciary capacity and made use of it for personal purposes to their exclusion without their knowledge or consent express or implied. Another distinguishing feature of this case is that it was not only a part of the property that was used by a co-sharer. It was the entire property belonging to the Plaintiffs that was under the management of the Defendant No. 1. Plaintiffs had no part of it in their possession. The powers of management which Defendant exercised did not include the right to use Plaintiff''s property for property for his personal purposes. Compensation thus is due to them on the equitable grounds.

Mr. Ghose has also urged that the Commissioner failed to make an allowance for money spent on training the elephants and also for feeding them from the judgment of the learned Subordinate judge it appears that no objection was taken before him as to the rate at which compensation was allowed to the Plaintiffs. In fact the decision as to the measure of compensation was, practically a virtual mean between the measure of compensation proposed by Plaintiffs on one side and Defendant on the other. It was nearer to what a witness of the Defendant proposed. It may also be observed that there is no evidence showing that Defendants spent anything from his personal assets on training the elephants belonging jointly to the parties before diverting them to his exclusive use; nor did he give any evidence of any expenditure incurred on feeding the elephants during the time that he utilised them. That annual hire money should form the basis of compensation was proposed by Defendant No. 1 himself. The commissioner''s finding was that the measure of compensation was determined after due consideration of all factors bearing on it. I am not satisfied that any injustice has been done to Defendant Appellant by the determination of the measure of compensation by the two Commissioners and agreed to by the learned Subordinate Judge.

In regard to bond Exts.'' P, P1, and P5, the learned judge agreed with Sudhir Babu whose conclusion was that Defendant No. 1 had failed to show that he had made any payments on account of these bonds. We see no reason to differ from the finding arrived at by the learned judge. No account books were produced by the Defendant to prove alleged payments. There were no endorsements on the bonds showing repayments. The creditors were not examined. The possibility of Osman Gani having paid debts on these bonds during his life time is not excluded. D.W. 7, one of the executants of Ext. P5 was not examined on this payment. Ext. P5, the original bond even was not produced. The finding in regard to these bonds has not been seriously questioned before us. This is unquestionably correct and unassailable.

Defendant No. 1 also claimed that he had paid Rs. 6000/- due on bonds Exts. P2, P7 and P6 dated 18th, 19th and 20th January respectively. The bonds were for Rs. 2000/- each. The contention of Defendant No. 1 was that these were debts for which Osman Gani was liable and he paid them. Plaintiffs urged that these debts were not of Osman Gani. Kala Mia was the debtor. Osman Gani merely stood surety for him. The learned Subordinate Judge has found relying on the report of the second Commissioner that the bond debts were not for joint business. The money was borrowed by Kala Mia, and Osman Gani was merely a surety. In Ext. P6 he allowed his property to be mortgaged because Kala Mia''s property had been given as security in mortgage bonds Exts. P2 and P7. In coming to this conclusion he also relied on an admission of Kala Mia. It was contended before him on behalf of Defendant No. 1 that the statement was a mistaken one. This contention did not prevail with him. The subordinate judge also agreed with the Commissioner in finding that the amount due on the three mortgage bonds was paid by the sale of elephant Rohiti which Kala Mia had given to Defendant No. 1. According to him Defendant No. 1 made no payment on account of Osman Gani''s debts.

Osman Gani was one of the three executants of these bonds. According to recitals contained in them he along with two others was the principal debtor. These recitals go to indicate that money was being borrowed for business in which the executants were jointly interested. In Ext. P2 the first Clause of the document is as follows: We borrow from you a sum of Rs. 2000/- in cash for our business in logs of wood." In Exts. P6 and P7 also the same statement was repeated. The finding that Kala Mia was the principal debtor and Osman Gani was surety only is based on the fact that Kala Mia had separated "before these bonds were executed and had his separate business. That circumstance alone would not justify the conclusion that the money which was borrowed on the security of these bonds was needed for some business in which Kala Mia alone was interested. That would be contrary to the statements contained in the three mortgage deeds. These recitals bind the representatives of Osman Gani. On the documents Osman Gani would be liable jointly and severally with the other executants of the document. The debts have been admittedly discharged. Defendant No. 1 obtained the discharge. He could produce the discharged bonds. In these circumstances the only question that remains to be answered is whether Kala Mia gave any elephant to Defendant No. 1 and he paid the amount due on the 3 bonds by the sale of that elephant.

It was contended on behalf of Defendant No.(sic) that the sale of Rohiti which was evidenced by entry Ext. 6(d)(3) came on 2-2-1930. The debts had been paid long before that. This transaction thus (sic) no connection with the discharge of the debts on the bonds. Reliance was placed also on the statement of Plaintiff made before the Commissioner to the effect that he had paid these debts. We have not been referred to any admission of Defendant No. 1 to the effect that Kala Mia was alone the principal debtor or that Rohiti his elephant made the discharge of debts on these bonds possible. The only admission which I have been able to trace is that contained in the statement of Defendant No. 1 dated 10-2-41. This is to the following effect : "I purchased Rohiti elephant from Kala Mia. I sold it in satisfaction of debts." This statement is no admission of the fact that the debts on these disputed bonds were of Kala Mia alone or that he gave the elephant for the discharge of these debts. It is difficult to dismiss the statement as relating to some other elephant. It is nobody''s case that Kala Mia gave two elephants to Defendant No. 1 or had two elephants of the same name. It would appear that on available evidence there is really no reliable basis for a finding that the debts on these three bonds were discharged by the sale proceeds of an elephant supplied by Kala Mia. If money for the discharge of the debts did not come from Kala Mia, the discharge of the debt ought to be taken as having been made by Defendant No. l. In this view of the matter he would be entitled to an adjustment of the amount to an extent which would represent the Plaintiffs'' share of the liability against the sum of Rs. 5000/- which will be taken as reduced to the extent of that amount on the date of its payment.

The learned Counsel for the Appellant has next contended that no interest should have been allowed on the amount of Rs. 5000/-. It is obvious that this sum remained with Defendant No. 1 for a very long period. After making allowance for payment of debts and interest there was still a balance with him. This amount he was utilising for his own purposes without the knowledge of the Plaintiffs. He withheld the amount though he had it in a fiduciary capacity. Interest on this amount on equitable grounds could be allowed. As held in-- Raj Ranjan Prasad Sinha and Others Vs. Khobhari Lal and Others, both mesne profits and compensation as between mere co-sharers are in the nature of damages for exclusion from common property. Interest therefore would be payable by law within the meaning of the proviso in the. Interest Act, 1839 on compensation due from a co-sharer no less than on mesne profits strictly so called. The contention is untenable and must be repelled.

The last contention raised on behalf of the Appellant is that in the plaint the claim was valued at Rs. 5,100/-. It was stated in the plaint that Plaintiffs were not aware of the extent or the value of the assets. The value of their claim was admittedly tentative. The value of what has been decreed far exceeds the tentative value of the claim. It is pointed out that the court fee was payable on the amount or the value of the claim which was in excess of the sum of Rs. 5,100/- on which ad valorem court fee had been paid. It is urged that the court fee which may have been recovered before passing of the decree, has to be paid by the Plaintiffs before they are permitted to execute the decree. This question has also been raised in the Misc. First Appeal No. 26/46. Plaintiffs applied for execution of the final decree. Appellant raised several objections. One of these was that the decree could not be executed till full "court fee on the value of the claim decreed had been paid. This objection was overruled on the ground that the executing court could not go in-to the question after the decree had been signed and sealed. Other objections raised by the judgment-debtor were also overruled and execution was directed to proceed. The contention raised now is that the executing court is under an obligation to realise court fee due before it proceeds with the execution of the decree and reliance is placed on Section 11 of the Court-Fees Act. Clause (1) of Section 11 provides, that:

in suits for mesne profits or for immovable property and mesne profits, or for an account, if the profits or amount decreed are or is in excess of the profits claimed or the amount at which the Plaintiff valued the relief sought, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.

If the provisions of Clause (1) of Section 11 apply to this suit, there would be an obligation on the executing court to recover the deficient court-fees. Section 11 covers cases of suits ''for mesne profits and suits for immovable property and mesne profits or for an account. The present suit though characterised as an administrative suit includes reliefs for immovable property, accounts, and compensation for assets used by the Defendants. Both mesne profits and compensation are in the nature of damages for exclusion from common property vide-- Raj Ranjan Prasad Sinha and Others Vs. Khobhari Lal and Others, In this view of the matter, the claim decreed is clearly within the am-bit of Section 11. In-- Vella Veeran Chetti Vs. V. Veeran Chetti and Another, it was held that where the claim is for possession of immovable property and past profits or where a claim is for possession of immovable property and for past profits and future profits, and future mesne profits are ascertained and decreed, court-fee will be leviable on such future profits u/s 11, Clause (1), Court Fees Act, before the decree in respect thereof can be executed. In--''Surajubala Dassi v. Jageswar Rai'' AIR 1918 Cal 895 (J) the suit was for the administration of the estate of the deceased by a daughter-in-law against the executors of the estate. Accounts and other consequential reliefs were also prayed for, and though the value of the estate was said to be Rs. 30,000/- the claim for ac-counts was valued at Rs. 100/-. An additional sum of Rs. 10/- was paid as Court-Fee apparently on the claim for administration. It was held that:

a suit for administration and account is in essence a suit for accounts within the meaning of Section 7 Clause IV(f) of the Court Fees Act (VII of 1870), and that in a suit of this description the Plaintiff was competent to value the claim for accounts approximately and to pay court fees thereon....If ultimately a decree should be passed in favour of the Plaintiff for larger amount than that covered by the Court-fees already paid, the Plaintiff would be precluded by the provision of Section 11 of the Court Fees Act, from executing the decree until the fee payable on the whole amount of the decree had been paid.

The learned Counsel for the Respondent has made no effort to show that the present case is not with-in the scope of Section 11. In these circumstances agreeing with the view in the cases above referred to I hold that the decree was not executable till full court fee on the value of the claim decreed had been paid.

The result of the foregoing discussion is that the appeal No. F.A. 251/45 succeeds partially. The decree of the trial'' court has to be modified by reduction of the decretal amount after the adjustment of the amount found to have been paid by Defendant No. 1 on Exts. P2, P7 and P6, which the Commissioner had disallowed. As a result of this adjustment, the sums found due to Plaintiffs 1 and 2 in Schedule D attached to the report of Sudhir Babu will be reduced to Rs. 920/13/- and Rs. 162/8/- respectively. The rest of the decree of the trial court including the sums allowed for compensation for elephants used and sold shall stand. Plaintiffs shall be entitled to costs incurred in both the courts on the value of the claim as now decreed. The trial judge did not allow full cost to Plaintiffs. He did not give any reason for partial disallowance of costs to Plaintiffs who were successful. The costs should follow the event and in this view, I think that plain-tiffs are entitled to costs in both the courts on the value of the claim decreed.

In the First Misc. Appeal No. 26/46 also the appeal is allowed partially. The executing court shall not execute the decree until the court fee on the value of the property decreed in excess of the amount of Rs. 5,100/- has been paid. Other objections raised to the execution of the decree have not been pressed. The success of the Appellant even in this case has been to a limited extent. But in view of the question of law involved, it would be just if parties are left to bear their own costs in this appeal and it is ordered accordingly.

Sarjoo Prosad, C.J.

I agree.

Deka, J.

I agree.