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Judgment
Sankaran, J.—This second appeal has been preferred by Defendant 1, against the preliminary decree for partition passed in O.S. No. 1(37 of 1118 on the file of the Chengannoor District Munsiff''s Court. The parties are Nayars governed by the Travancove Nair Act, Act 2 of 1100. Defendant 2 is the sister of Defendant 1, and Plaintiff and Defendants 3 to 5 are her children. Defendant 6 is the son of Defendant 3. According to the Plaintiff, the suit properties are common sub-tarwad properties belonging to herself and Defendants 1 to 6, each of them being entitled to l/7th share. She has further stated that Defendants 2 to 6 had surrendered their 5/7 share to her and that she has thus become entitled to 6/7 share in these properties. The suit is for partition and recovery of the said 6/7 share. Defendant 1 resisted the suit and contended that the suit properties belonged to himself and Defendant 2 alone, that even if these properties are found to be sub-tarwad properties the building put up by him in item 1 as-well as the other items of improvements effected by him in that property have to be found to belong to him exclusively and that the Plaintiff is not entitled to claim the share of Defendants 2 to 6. The trial Court repelled these contentions except in respect of the bin attached to the building in the property. This bin was found to be the separate property of Defendant 1 and he was allowed to remove the same. This portion of the decree was reversed by the lower appellate Court which held that the bin also belongs to the sub-tarwad and as such is partible. In other respects the trial Court''s decree was confirmed and it was also held that Defendant 1 was liable for the past mesne profits as claimed in the plaint. Defendant 1 has accordingly preferred this second appeal.
Both the lower Courts have concurrently found that plaint item 1 is sub-tarwad property belonging to the Plaintiff and Defendants 1 to 6. This finding is fully supported by the documentary evidence furnished by Exts. A to C. Defendant 1 is a party to all these three documents wherein this property has been dealt with as the sub-tarwad property of these parties. It is thus clear that the concurrent finding that the property belongs to their sub-tarwad in common does not call for any interference.
Regarding the building and the other items of improvements claimed by Defendant 1 as his own, the finding of the lower Courts is again concurrently against him. Defendant 1 has admittedly been in possession and management of item 1 which has already been found to be sub-tarwad property. Planting of trees by him in this property can only be taken to have been done by him in the normal course of management of the property by him as the karnavan of the sub-tarwad. Ex. A decree mentions the existence of a building in this property. The same building is made mention of in the partition deed Ex. C also. The description of plaint item 2 is substantially the same as the description of the building mentioned in Exs. A and C. This will indicate that the building now existing in the property is practically the same old building which was in existence when Defendant 1 became karnavan of the sub-tarwad.
In his written statement he has pleaded that the building had tumbled down and that the present building was constructed by him. But at the evidence stage an entirely different story has been put forward by him. The evidence adduced is to the effect that the old building was destroyed by lire and that he put up an entirely new building in its place. This version cannot be accepted as true particularly in view of the fact that it is opposed to the version given by him in his written statement. At best it can only be taken that he has effected certain repairs and has made some additions to the old building that existed in the property. But these acts by themselves are not sufficient to support exclusive claim for the building. Exhibit 7 is a deed of settlement executed in favour of the present Plaintiff by Defendant 1 and the other adult members in the sub-tarwad in respect of the suit properties together with the building thereon. It is significant to note that at that stage Defendant 1 had no case that the property belonged to him exclusively and absolutely. On the other hand the property and the building were both treated as common sub-tarwad properties and these were settled on the Plaintiff, Defendant 1 reserving for himself a life estate only. In view of these facts and circumstances I uphold the finding of the lower. Courts that the building also belongs to the sub-tarwad in common. The Commission ''Report Ex. 6 and the Mahazar Ex. 5 show that the bin is attached to the main building and; forms part of it. Hence it cannot be detached so as to be treated as the separate property of Defendant 1. The bin also should go along with the main building and should be treated as common sub-tarwad property.
The Plaintiff''s claim for 6/7 share in the suit properties is opposed by Defendant 1 on two grounds. One is that she is bound by the settlement deed Ex. 7 and as such she cannot sue for partition. As already stated, Ex 7 is the settlement deed in her favour. It was open to her either to accept or to refuse to accept it. There is nothing to show that she had accepted it. The fact that she has instituted the present suit for partition and recovery of the share due to her, really indicates that she has elected not to accept Ex. 7. It follows, therefore, that there is no force in the contention that she is bound by Ex. 7. The second ground urged by Defendant 7 is that the plait tiff cannot in any way claim the shares of Defendants 2 to 6. It is stated that these Defendants have not attained a divided status and that they have no separate shares capable of being assigned or surrendered in favour of the Plaintiff. Defendants 2 to 6 have filed a written statement stating that they are surrendering their separate shares to the Plaintiff and that these shares may also be allotted to the Plaintiff. Their statement to that effect in the written statement certainly amounts to a declaration of their intention to become divided from the common tarwad. Such a declaration is sufficient to effect a status of division so far as these Defendants also are concerned. The separate shares to which they have thus become entitled could be claimed by their legal representatives even if any of them happen to die prior to the passing of the preliminary decree for partition. The Full Bench decision in -''Krishna Pillai v. Padmanaba Pillai'' 1948 Trav. L.R. 617 (A) is to that effect.
In the present case Defendants 2 to 6 have expressed their willingness to the allotment of their shares is also to the Plaintiff. Since they had already attained a status of division by filing the written statement containing a declaration of their intention to become divided from the common tarwad, there is nothing opposed to law in their transferring or surrendering their separate shares to anybody else. The effect of the surrender made by them as per their statement in the written statement is that instead of allotting properties to their individual shares separately at the time of the passing of the final decree in the case, such shares may also be included in the schedule of properties to be set apart to the Plaintiff and given to her. The necessary court-fee for effecting a partition and recovery of the shares clue to Defendants 2 to 6 has already been paid by the Plaintiff. It is thus clear that the Plaintiff''s claim for recovery of 6/7 share in the plaint properties is sustainable. The direction made by the lower Courts that the properties will be partitioned and 6/7 share allotted to the Plaintiff, is therefore upheld.
The only other point remaining to be considered relates to the direction made in the lower Court''s decree regarding the recovery of mesne profits due in respect of the share found to be due to the Plaintiff. The trial Court decreed mesne profits only from the date of suit onwards. The lower appellate Court held that the Plaintiff is entitled to past mesne profits also. This partition of the lower appellate Court''s decree is clearly unsustainable. The Plaintiff can be deemed to have become entitled to get the share claimed by her separately only from the date of the suit. Till then the tarwad remained joint and Defendant 1 was managing its affairs as karnavan. Ha was not liable to account for the income'' of the properties which had come into his hands as the managing karnavan of the tarwad. It could not be said that he was in wrongful possession of any portion of the properties until the institution of the present suit for partition. It follows, therefore, that he could, not be made liable for any mesne profits up to the date of the suit. In this respect the Appellant''s contention is upheld and to that extent the lower appellate Court''s decree is directed to be modified.
In the result this second appeal is allowed only to the extent indicated in the previous paragraph and is dismissed in other respects. The parties will get costs in proportion to their success in this appeal.