Periaswamy Muthiriar vs Palaniammal

A. Varadarajan, J.—The second defendant, who is the son of the first defendant, is the appellant. The respondent, who purchased the ''A''

schedule property, a vacant site, from the first defendant, filed the suit for general partition of the ''B'' schedule properties and allotment of the ''A''

schedule property to her share and also for the relief of accounting from 12th October, 1962, the date of the purchase of the ''A'' schedule

property from the first defendant for a sum of Rs. 2,500. The first defendant did not contest the suit. The appellant''s contention was that the

proper Court-fee has not been paid and that the appellant was not liable to account for profits. The respondent paid additional Court-fee of Rs.

158 and both the Courts below have found that the Court-fee paid thereafter was correct. The learned District Munsif granted a decree of

partition as prayed for and also for accounting from 12th October, 1962, without any discussion, although the appellant has contended that he is

not liable for the profits claimed by the respondent, which would mean that the respondent was not entitled to any relief of accounting as against

him.

The learned Subordinate Judge has observed in his judgment that under law one co-owner in occupation of the property is Bound to account

for the income of the same to the other, who is out of possession and, therefore, it is plain that the 2nd defendant-appellant has to account to the

plaintiff for the income of the property.

The learned Counsel for the appellant relies upon the decision in Nandula Bhavani Sankaram Vs. Saladi Mangamma and Others, , and contends

that Court-fee has to be paid on the value of the alienee coparcener''s share in the property. The decision arose out of an application for

amendment of the plaint and is not ii point. In the decision referred to in the trial Court''s judgment Kollipara Nagendram Vs. Chundru Appayya

and Others, it has been held specifically that the alienee could in no sense be described as a person in joint possession actually or even

constructively along Wit1 the other members of the family and the the proper course on transposition of to original plaintiff as a defendant is to ca

upon the transferee-plaintiff to pay a valorem Court-fee on the share of the properties which he was claiming. I view of the decision cited, I agree

wit the finding of the Court below regarding the Court-fee.

Admittedly, the ''A'' schedule property is a vacant site. There is no allegation in the plaint that any income w� derived from that property. In

the absence of any allegation that the appellant was deriving any income from the ''A'' schedule property, no relief of accounting could be granted

against the appellant. The learned Subordinate Judge has observed in his judgment that under law one co-Owner in occupation of the property is

bound to account for the income from the property to the other who is out of possession and that it is therefore, plain that the appellant has to

account to the respondent for the income from the property. This view is erroneous, having regard to the facts of this case, where the respondent is

a stranger-purchaser. The Supreme Court has observed in Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela

Narasimhaswami and Others, thus:

Now it is well settled that the purchaser of a coparcener''s interest in joint family property is not entitled to possession of what he has purchased.

His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the

coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favour :

Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, . It would, therefore, follow that Sivayya was not entitled to

possession till a partition had been made.

Therefore, I find that the respondent is entitled to possession only after allotment is made in the partition suit and he is not entitled to profits until

then.

The appeals, therefore, allowed only in respect of the relief of accounting and is otherwise dismissed, but without costs. No leave.