Nand Kishore Prasad Singh and another vs Parmeshwar Prasad Singh and others

Courtney-Terrell, C.J.—A Hindu joint family consisting of three brothers owned a share in a certain estate. The plaintiffs in this suit obtained a money decree against two of the brothers and in execution of the decree put to sale and on 14th December 1918, purchased the undivided share of the two brothers not in the whole joint family property, but in that particular estate, and obtained delivery of possession. The third brother sued the plaintiffs to eject them and the High Court in Medni Prasad v. Nandkeshwar Prasad, 1923 Pat 451 = 85 IC 1014 = 2 Pat 386, decided that though the plaintiffs had a right to sue for partition of their interest acquired by purchase, they could not enter into possession with the third brother of the undivided interest of the two brothers. After remand it was ordered that the plaintiffs be ejected and that they should pay mesne profits in respect of the period during which they had been in possession.

On 8th September 1923 the plaintiffs started a partition suit impleading all the coparceners in the estate in question. They obtained a decree and a separate takhta was allotted to them in respect of the share of the two brothers which they had acquired, and they obtained delivery of possession of this takhta. On 28th June 1927, the plaintiffs began the suit out of which these appeals arise to recover from the representatives of the third brother mesne profits as from the date of their purchase but conceded that they could not recover in respect of a period of more than six years prior to the date of the suit. The Subordinate Judge granted a decree but not to the extent claimed. He held that the plaintiffs were entitled to compensation at the same rate as had been applied when the third brother recovered mesne profits against them and that such compensation was recoverable from the date when the partition suit was filed. Both sides appealed to the District Judge, who held that the plaintiffs were not entitled to mesne profits at all. He allowed, the appeal of the defendants and dismissed the appeal of the plaintiffs who had asked him to increase the amount decreed by the Subordinate Judge.

The plaintiffs appeal from this decision and the question before us is as to whether the plaintiffs are entitled to anything and if so, entitled to what amount.

A preliminary observation may be made as to the meaning of the term "mesne profits." It 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. In English Law the distinction between these two significations is preserved in the terms "damages" OR the one hand and "account of profits" on the other. In India the distinction is often forgotten.

Now, a coparcener who sues for partition is entitled only to a division of the property as from the date when the notice of separation was given. Until the actual determination of his share and the separation of a corresponding takhta, the karta or other coparceners in possession, being rightly in possession, are not liable to him for mesne profits in the sense of damages. The purchaser of a coparcener''s interest cannot be entitled to more than what his vendor had, and he no more than his vendor can claim mesne profits in this latter sense. The mesne profits, (i.e. damages) obtained by the third brother against the plaintiffs were recovered against trespassers who were held to have been in wrongful possession. They are not (as the Subordinate Judge seems to have supposed) relevant to the question as to what the plaintiffs are now, entitled to recover in the present case.

The purchaser from a coparcener being in no better position than his vendor cannot sue for mesne profits in respect of the period between the date of his purchase and, the date of his suit for partition, and this is so whether he claims mesne profits in the English sense of damages or in the sense of an account of profits received by a person rightly in possession. This was made clear in the case of Maharaja of Bobbili v. W.S. Venkataramanjulu Naidu, 1915 Mad 453 = 25 IC 585 = 39 Mad 265. But a coparcener suing for partition is entitled to have the co-parcenary divided as at the date of the suit and the person in possession must account for the share of the profits of the property allotted from that date as they came into his hands to the extent that he is not entitled to waste or make away with the co-parcenary property between that date and the date of the final partition although he is in rightful possession thereof, and his duty to take charge of the property continues until the actual delivery of possession of the takhta is allotted. To this extent only is he liable to account for profits.

Such accounting however is a matter to be considered in the partition suit and should be performed in that suit and should have been claimed if at all in the suit for partition brought by the plaintiffs in 1923. It was argued that a separate suit for mesne profits was available to plaintiffs notwithstanding- the decree for partition and reliance was placed on Loknath Singh v. Dwarika Singh, 1931 Pat 232 = 133 I C 76 = 10 Pat 329. That case however was a suit for mesne profits in the sense of damages against a trespasser and has no application in the present case.

An attempt was made to argue on behalf of the plaintiffs that they had been excluded from possession of the share purchased; but in fact this suit is for compensation for exclusion from a particular estate and not from a share in the joint family property and at the date of the suit for partition it did not follow that the whole or any portion of the particular estate would be allotted to the share of the coparcener purchased by the plaintiff. The coparcener''s vendor could not have sued for profits whether as damages or in the other sense in respect of such alleged exclusion.

In my opinion the suit fails entirely. The decision of the "District Judge was right and the appeals of the plaintiff must be dismissed with-costs.

Agarwala, J.

I agree.