T.S. Yasobadra Nainar vs T.S. Samanthabadran and Others

This is an appeal from the final decree in a partition suit passed by the learned District Judge of North Arcot. First defendant is the appellant.

The appellant raises eight points. He has been throughout the brother in possession of the family estate. The plaintiff is his younger brother. [Their

Lordships dealt with the several points and continued :]

There is also a memorandum of cross-objections filed by the plaintiff and under that two points arise. It is said that the first defendant has

collected outstandings, has thereby obtained sums of money and he should be made liable on equitable grounds for interest at equitable rates upon

such sums as from the date of collection and two cases were relied upon. A.W. Inglis v. Sarju Prasad Misser I.L.R.(1923) 3 Pat. 311 (Kunwar)

Abdul Jalil Khan and Another Vs. (Kunwar) Mohammad Abdul Salam Khan and Others and Yerukola alias Pentajogulu (dead) 2 Ors. Vs.

Yerukola alias Penta Tatayya alias Purushottam and Others, was sought to be distinguished. Had in fact interest been earned, no doubt the plaintiff

would have been entitled to his half share of that interest. But the question is whether there is any legal or equitable foundation for the giving of

interest to one member of a joint Hindu family who has brought a partition suit, upon sums collected but not invested by another member of the

family. If so is the interest that should be allowed that interest that would have been earned during the partition proceedings had the other member

of the joint family put out the moneys collected to interest? A.W. Inglis v. Sarju Prasad Misser I.L.R.(1923) 3 Pat. 311 makes it clear that the

Court there proceeded on the basis that it was entitled to presume that the person recovering the money had put that money out to interest. It

therefore does not touch the question as to what happens when in fact the conclusion is arrived at that he has not put the money out to interest. In

(Kunwar) Abdul Jalil Khan and Another Vs. (Kunwar) Mohammad Abdul Salam Khan and Others it was held that on equitable grounds interest

could be given where one of the co-sharers collects rent on behalf of himself and the other co-sharer and does not pay over in due time the share

to the other co-sharer. That case proceeded on the assumption that the co-sharer in question who has been made liable for interest was liable to

hand over, to the other co-sharer a sum of money at a given date. He was accordingly made liable when he failed to hand over such sum of money

at such date. In this case however it is clear that during the partition proceedings there was no item of property and no sum of money that the

plaintiff or indeed the defendants could say belonged to him, for whether it belonged to him or not, would depend upon what was given to him

under the final decree. As Kumaraswami Sastri, J. observed in Yerukola v. Yerukola (1922) ILR 45 Mad. 648 at 670 : 1922 42 M.L.J. 50

(F.B.):

Until the properties are actually divided) it cannot be predicated that any particular item of property would fall to any particular member of the joint

family nor can it be said that any particular member of the joint family has a right to insist that each item of property shall be broken UR into as

many shares as there are sharers and that he should get a particular share of each item.

As far as possible, in suits for partition, entire items of family property will be allotted to any of the members if it can be done without any

prejudice to the rights of the others. It may thus well be that where a co-sharer has received the whole or a portion of the moneys due on a debt

due to the family, that particular item might be allotted to the member who has so received or in taking accounts, it may well be, that one

Coparcener who lays claim to a particular item has overdrawn his share and is not entitled to any portion of the family pro perty. Under these

circumstances, if a co-parcener should file a suit for a specific share in an outstanding recovered, he will be met with the reply that not only is the

suit for that share not maintainable but that the liability of the parties should be; adjusted with reference to the taking of the general accounts.

It is clearly impossible in our opinion to hold ''the first defendant liable on any ground of an implied agency for, in this position he is in no way

different from a working partner who collects moneys for the partnership and does not re-invest those moneys but keeps them as money in the

partnership safe. Mr. Raja Aiyar quite properly admits that in such a circumstance the capitalist partner would not be able to claim interest on the

moneys so collected unless of course he could show that in the taking of the partnership accounts the moneys had been invested and had earned

interest. We therefore think that the cross-appeal on this point fails.

There is a second point. The first defendant was assessed in respect of the joint family income to Income Tax and has paid Rs. 2,288. He has

been allowed those payments. The plaintiff says that the accounts put in by the first defendant show an income which would carry an Income Tax

of Rs. 729 only and that if the first defendant paid Rs. 2,288 he did so at his own risk. The facts appear to be as follows. The first defendant made

no return to Income Tax and was accordingly assessed to Income Tax. At all material times the books were in Court. All that the first defendant

had got to do was to produce his books. Then the Income Tax authorities would either have accepted those books or they would not. If they had

accepted the books, the Income Tax would have been Rs. 729. We are of the opinion that where the person in possession of the books and

receiving the family income pays an Income Tax far in excess of what he would have to pay had he produced the books and those books had been

accepted by the Income Tax authorities, he should not be allowed the amount that he so paid but should be allowed the amount that he would have

paid if he had acted in a reasonable manner. The first defendant in this case did not act reasonably in two particulars. First of all he made no

Income Tax return and thereby called upon himself an official assessment and having become assessed he failed to contest that assessment which

he could easily have done by producing the family books. We therefore think that to the extent of the plaintiff''s half share of the difference between

Rs. 2,288 and Rs. 729 the cross appeal succeeds.

In the result therefore the appeal partly"" succeeds and the cross appeal partly succeeds and neither will carry costs.