Mahadeorao vs Laxman

A.P. Sen, J.—This judgment will dispose of Second Appeals Nos. 732 of 1970, 54 of 1971 and Civil Revision No. 51 of 1971 also.

These cases were heard together as they involve common question of law.

The plaintiff, Mahadeorao, is a non-alienating co-parcener. All the other members of the joint Hindu family of which he is a member, his brothers, Khushalrao, Ganpatrao, Shamrao and Vasantrao, and his mother Mst. Savitribai, joined in alienating certain items of joint family property. The plaintiff thereupon brought suits to impeach the alienations, claiming a declaration that the alienations were not binding on him as they were not for legal necessity. He therefore, claimed possession of the alienated property from the purchasers. Those suits were dismissed by the trial Court on the ground that there was no joint family in existence. That decree was affirmed in appeal in two the suits. In the other two suits, the decree was, however, reversed. Both the parties, therefore, appealed to the High Court. Naik, J., in Narayan and others Vs. Mahadeorao, held that there was no disruption of the joint status, anil as the alienations were not for legal necessity, the plaintiff was entitled to be placed in possession of the whole of the property. The learned Judge, however, stayed the execution of the decree for a period of three months to enable the purchasers to file a suit for general partition, and work out their rights in such a suit. Admittedly, the purchasers have now filed a general suit for partition.

After the decision of this Court, the plaintiff brought suits claiming mesne profits for the years 1964-65, 1965-66 and 1966-67, i.e., for the period during which the second appeals in title suits were pending in this Court. The learned trial Judge in Second Appeals Nos. 714/70, 732/70 and 54/71 decreed the plaintiff''s suit in its entirety. On appeal, the learned Additional District Judge has, however, modified that decree and made the mesne profits payable proportionately to the share of the plaintiff in the joint family property, i.e., to the extent of l/6th share. The learned trial Judge in the small cause case, where the plaintiffs were Mahadeorao and Vasantrao, decreed proportionate mesne profits according to their share, i.e., to the extent of 1/3rd. That is the subject-matter of Civil Revision No. 51 of 1971 in this Court.

The short question involved in these cases is, whether a non-alienating co-parcener, who succeeds in his suit for possession against the purchaser on the ground that the alienation is not supported by any legal necessity, is entitled to claim full mesne profits from the purchaser. The learned Additional District Judge, relying upon the principles laid down in AIR 1955 300 (Nagpur) , has held that the plaintiff was only entitled to claim mesne profits to the extent of his share, as the alienation was binding on the other co-parceners and, therefore, valid to that extent. It is urged on behalf of the plaintiff that there is unity of ownership in a Hindu co-parcenery and, therefore, the principles laid down in Rambir Narhargir Gosai v. Prabhakar Bhaskar Gadhaway and others (supra) are not applicable to a claim of a non-alienating co-parcener for mesne profits against the purchaser. It is further urged that that was a case of co-sharers, where the shares were defined and, therefore, there was proportionate liability of the purchaser. Reliance is placed on the decision in Digambar and others v. Himmat and others ILR 1955 Nag. 1042. But that principle cannot be extended to a Hindu co-parcenery. There can hardly be any dispute with the proposition that in a Mitakshara co-parcenery, there is community of interest and unity of possession and, therefore, no co-parcener can predicate the extent of his share. But it does not follow that that entitles him to claim the full mesne profits from a purchaser when the alienation is found to be not binding on him for want of legal necessity.

Under the Mitakshara School of Hindu Law, as applied in Madhya Pradesh, a co-parcener has the right to alienate his undivided share in the joint family property, even without any legal necessity. See Ganpatrao v. Kanhayalal and others 30 NLJ 300. It has been established by a long line of authorities that such a transaction is voidable and not void. The purchaser is, therefore, not in wrongful possession. Where there is no legal necessity, the alienation is only not binding on the non-alienating co-parcener and he is entitled as against the purchaser to be placed in possession of the property. The reason for this is that the purchaser cannot be placed in joint possession with the other co-parceners. He is neither a joint tenant nor a tenant in common. However, by virtue of the alienation in his favour, the purchaser stands in the shoes of the alienating co-parcener and is entitled to have the equities worked out in suit for general partition. In such a suit, the purchaser has equitable right to have the alienated property assigned to him if it can be done without injustice to the other co-parceners. The Court has to so marshal the family property amongst the co-parceners as to allot that portion of the family estate or so much thereof as may be just to the purchaser.

The position of a stranger purchaser of the undivided interest of a co-parcener who has not obtained possession of the property alienated to him, is that he is not entitled to mesne profits from the date of his purchase and the date of a suit for partition (See : Mulla''s Hindu Law, 13th Edn. p. 297), In Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, their Lordships of the Supreme Court have held that he is not entitled to institute a suit against the other co-parcener for recovery of a share of the income of the family properties from the date of his purchase. He can work out his rights only by a suit for partition and his right to possession would commence only from a period when a specific allotment is made in his favour. From this it does not follow that where the purchaser has been placed in possession, he is liable to pay mesne profits. The purchaser takes the undivided interest of a co-parcener subject to equities, i.e., subject to the liability attaching to that interest etc. It would be highly unjust to saddle him with a liability to pay mesne profits between the date of his purchase and the date when the sale is held to be not binding.

The term "mesne profits" may be used to denote compensation (that is to say damages) recoverable from a person who has been in wrongful possession, and in such circumstances means that which the plaintiff has lost by reason of the tortuous act of the defendant, and is not the profit actually made by the defendant but that which the plaintiff might reasonably be expected to have made, had his possession not been wrongfully disturbed. On the other hand, it may be used in the sense of the profits actually received by the defendant which he is bound to hand over to the plaintiff towards whom he owes some fiduciary duty. As already stated, the sale in favour of the purchaser is voidable and not void. Therefore, his possession is not wrongful from the date of purchase.

In Banwarilal v. Mahesh and others AIR 1918 PC 118, an alienation by the father was allowed to be set aside at the instance of the son on condition that the son should pay back the purchase money to the vendee. Their Lordships held that the vendees must be deemed to be lawfully in possession until the sale was set aside and, therefore, not accountable for mesne profits. Applying the principles to the facts of the present case, the purchasers could be deemed to be lawfully in possession until it was finally held by this Court that the aliena-tions were not binding on the plaintiff, i.e., until 23-3-1968. That decision came after the period for which the mesne profits had elapsed. The plaintiff has not claimed any mesne profits from the date of his earlier suits, but for the period during the second appeal in title suits were pending in this Court. Even if we take the date of decision of the learned Additional District Judge in two of the suits which succeeded, i.e., prior to the year 1964-65, the plaintiff can only claim his share of profits and nothing more. In such circumstances, the mesne profits must mean that which the plaintiff has lost by reason of the wrongful alienation by the other co-parceners, and not the profits actually made by the purchasers. The purchasers were not bound to hand over to the plaintiff the profits actually received towards whom they owed no fiduciary duty. In the circumstances, there is no reason why the principles laid down in Rambir Narhargir Gosai v. Prabhakar Bhaskar Gadhaway and others (supra) should not apply. The decree passed by the learned Additional District Judge in these second appeals awarding to the plaintiff proportionable mesne profits is eminently just.

The decision in Digambar and others v. Himmat and others (supra) is distinguishable on facts. There, a transfer was made by the father in contravention of section 15(2) of the C.P. and Berar Relief of Indebtedness Act, 1939. The Court held that the transfer was absolutely void and there was no necessity to have it set aside before obtaining possession. The possession of the alienee was, therefore, wrongful from the date of alienation itself. Under these circumstances, the alienee was made liable for mesne profits. So also, in Mummareddi Nagi Reddi and Others Vs. Pitti Durairaja Naidu and Others, where the reversioners brought a suit for recovery of possession of the property alienated by a widow, their Lordships allowed mesne profits from the date of the widow''s death.

The result, therefore, is that the appeals fail and are dismissed with costs. Counsel''s fee according to schedule or certificate whichever is less. So also, Civil Revision No. 61 of 1971 fails and is dismissed with costs. Counsel''s fee Rs. 15.