Rasammal vs K. Subbaroya Goundar and Others

This second appeal arises from the judgment of the Additional District Judge, Salem, dismissing the suit instituted by the appellant''s father,

Muthuswami Gounder, (since dead, deceased) for recovery of mesne profits. Muthuswami Gounder was the son of Chinnakutti Gounder. He

instituted the suit O. S. No. 167 of 1950 for partition and separate possession of his one-third share in the family properties. There was a

preliminary decree on 25-9-1952 under which the appellant''s father''s right to a third share was declared; the other two-thirds was to be taken by

Chinnakutti Goundan and his other son Sub-baraya Gounder, the latter of whom is the first respondent in this appeal. Under the plaint in the

partition suit Muthuswami Gounder did not pray for recovery of subsequent mesne profits. A final decree was passed on 14-3-1956. That decree

did not provide for taking of accounts of the income of the family properties and allotting to the appellant''s father his legitimate share of the income

from the suit properties received by the defendants therein subsequent to the institution of that suit. Possession of the properties in accordance with

the terms of the final decree was delivered to Muthuswami Gounder on 21st July 1956. Shortly thereafter, that is, on the 10th December 1956

Muthuswami Gounder instituted the suit, out of which the present appeal arises, for recovery of Rs. 3000, his share of the income realised from the

date of the plaint in O. S. No. 167 of 1959 to the date of delivery of possession, after remitting a portion of the claim. Both the Courts below have

dismissed the suit on the substantial ground that it will not be open to the plaintiff to agitate in this suit any claim for mesne profits or accounts, he

having failed to include that claim in the partition suit. The learned Additional District Judge who confirmed the judgment of the trial Court,

accepted that the provisions of Order II, Rule 2 of the CPC would not apply to a claim like the present; but yet he held that where once there was

a suit for partition, all claim by way of accounts in respect of the income received by the co-sharer in possession subsequent to the institution of the

suit for partition, should have been made in that suit itself. I am afraid that there is no support for such a proposition. It is true that it has been laid

down, and that point is well settled, that so long as the partition suit is pending, it will be open to any co-sharer to request the Court to enquire into

the subsequent income from the family properties and ascertain the shares of the respective sharers and pass an appropriate decree in that suit

itself. It is enough in this connection to refer a recent decision of this Court in Ponnuswami Udayar and Another Vs. Santhappa Udayar and

Others, . That however gives only an option to the co-sharer to make a claim in the partition suit, the existence of such an option cannot prevent

him from agitating his claim, which arose subsequent to the filing of the partition suit, by filing a separate suit. The principle on which the Court

passing the final decree in the partition suit is allowed to take an account of the subsequent income from the properties and divide the same

between the sharers is, that the subsequent income forms part of the assets of the family and it will always be open to the Court passing the decree

in the partition suit to divide all the assets of the family that may be disclosed, right upto the time of the passing of the final decree thereby avoiding

multiplicity of suits. This is but an application of the twin principles namely of the Courts competence to take note of subsequent events and the

essential character of a partition suit. Once it is held that the income received from the family properties subsequent to the institution of the suit for

partition, will also form part of the assets of the family, the sharers being co-tenants it would be open to the sharers to file a separate suit in regard

to division of that income, as it will be nothing more than a case of property being omitted from the previous partition. That this point is almost well

settled, can be seen by a reference to the judgment of the Full Bench of this Court in Doraisami Aiyar and Others Vs. T. Subramania Aiyar and

Others, , where it was held that where in a suit no relief was given with respect to the subsequent mesne profits, a fresh suit to recover them would

not be barred under the provisions of Section 11 of the Civil Procedure Code. The learned District Judge has brushed aside this decision of the

Full Bench on the ground that it related to a suit for possession and not one for partition. I am unable to see any force in the distinction. If it can be

accepted the case of a suit for possession, that the claim for subsequent mesne profits can be laid by a separate suit, it will all the more be proper

for such a claim being agitated in a subsequent suit in a case of a partition suit. But the mistake committed by learned District Judge is more

fundamental. There is no doubt that he has merely looked at the headnote of the decision without actually going through the decision itself. The

headnote unfortunately refers to the suit as one for possession, but a reference to the order of reference to the Full Bench will show that the suit in

that case was one for partition. It would therefore follow that the decision cited above is a complete authority for the question raised in the present

case. Mr. V. Krishnan who appears for the respondents contends that the decision in Doraisami Aiyar and Others Vs. T. Subramania Aiyar and

Others, albeit it might be of a Full Bench ought not to be accepted by this Court as according to him, the rule laid down in Udekar Vs. Chandra

Sekhar Sahu and Others, is more in consonance with the accepted principles of procedure and it should therefore be preferred. In that case the

Orissa High Court held that a claim for accounts being implicit in every partition suit, it should be settled at the time of the preparation of the final

decree. The claim for a share of profits received subsequent to the date of suit was therefore held as not furnishing a separate cause of action so as

to confer on the party a right to bring a separate suit subsequently. With great respect to the learned Judges who decided that case, I am unable to

share that view. It is now well settled that the claim by one co-sharer against another for compensation in respect of his share of the income

received by the other, will arise only after the income had been received. There cannot therefore be any prospective accounting. That would show

that the cause of action will arise only on the receipt of the income, that is, subsequent to the date of suit. Such cause of action cannot possibly exist

even before it accrued. Therefore, it will not be obligatory on the plaintiff in a suit for partition to ask for accounts in respect of future income, when

he files the suit. The omission to do so will, therefore, not entail the application of the provisions of Order II, Rule 2 or Section 11 of the Civil

Procedure Code.

The decree and judgment of the lower appellate Court will be set aside and the appeal (A-S. No. 34 of 1959) will be remanded to the lower

appellate Court for disposal on the merits of the claim. The Court-fee paid on the Memorandum of appeal will be refunded. The respondents will

pay the appellant the costs in this appeal.