Sankara Iyer Subramania Iyer vs Ramachandra Iyer Venkitadri Iyer and Others

Menon, J.—This is an appeal from the decree of the learned District Munsiff of Trivandrum in O.S. No. 34 of 1122, a suit for partition, granting the Plaintiff a third share in the plaint property together with "mesne profits" from the date of suit at the rate claimed in the plaint. The main contention of the first Defendant, the Appellant before us, that the Plaintiff is entitled only to a "1/4 share" and not a "1/3 share" has been conceded by the learned Advocate for the first Defendant and no further question regarding the same arises for consideration.

The only questions that remain are the Appellant''s contention that the "mesne profits" awarded by the court below are excessive and the ground raised in the memorandum of objections on behalf of the 1st Respondent that the Plaintiff is entitled to "mesne profits" from 3-10-1109 as claimed in the plaint.

The lower Court fixed the "mesne profits" at Rs. 180/- per year and awarded the Plaintiff a third thereof. We do not consider the figure arrived at by the lower Court as in any way excessive but in the light of what is stated in para. 1 about the Plaintiff''s share will be a fourth of Rs. 180 and not a third as decreed by the lower Court.

The period for which the Plaintiff will be entitled to get his share of the income will depend upon the nature of his claim and the period of limitation applicable thereto. It was contended on behalf of the Appellant that the article applicable is the article of the Travsncore Limitation Act corresponding to Article 109 of the Indian Limitation Act, 1908, which stipulates a period of three years from the date the profits were received. We are unable to agree. This is a case for a of the profits received by a co-sharer in possesion of property in excess of his own share, possession is not wrongful, even if inclusive the liability cannot be considered as one for "mesne profits". As held in, 9 Cochin 165 (A) it is the residuary article of the. Limitetion Act which applied to such cases and the Plaintiff will hence be entitled to his share of the profits not merely from the date of suit as decreed by the lower Court but also for six years prior to thet date. This view has also the support of the decision of their ships of the Privy Council in AIR 1925 93 (Privy Council) read with ''Midnapur Zamindari Co. v. Naresh Narayan Roy'' AIR 1924 PC 144 (C).

A revised preliminary decree will be drawn up on the above lines. As it is agreed that it will not be possible to divide the plaint item of property by metes and bounds the final decree will be framed and worked out in accordance with the provisions of the Partition Act, 1893, as made applicable to Travancore-Cochin by the Part B State (Laws) Act, 1951.

The appeal and the memorandum of objections are allowed to the extent indicated above but in the circumstances of the case we shall make no order as to costs.