Sarvothama Pai and Another vs Govinda Pai and Others

Varadachariar, J.—This is an appeal by plaintiffs 2 and 3 represented by their mother as next friend. They, with their elder brother plaintiff 1,

sued for partition and in the plaint they included (1) a claim for past mesne profits from 7th September 1923 up to date of suit and (2) a claim for a

small amount as representing the value of their share of moveable properties belonging to the family. So far as the right to partition was concerned,

defendant 1 who was the Ejman did not care to insist on any objection founded on the fact of the appellants'' minority. A partition has therefore

been directed by consent of parties. As regards the share of the move-ables claimed, the learned Subordinate Judge has held that the claim was

not proved. In dealing with the claim for mesne profits, he found that the plaintiffs had not been excluded as alleged in the plaint, but on the other

hand were being maintained by defendant 1 till shortly before suit. He also refers to the fact that under an order of that Court the plaintiffs were

being paid Rs. 30 a month during the pendency of the suit, for their maintenance. On these findings he refused to direct any account in respect of

profits.

In this appeal the plaintiffs have reiterated their claim for past mesne profits, for 3/8th share of the moveables and for an account of the income

during the pendency of the suit. On the first two questions we see no sufficient reason for differing from the conclusion of the lower Court. (Their

Lordships then discussed the evidence as to alleged exclusion of plaintiff with regard to claim for mesne profits and moveables and proceeded.) As

regards the third head of the claim, viz. an account of the profits from the date of suit, the position seems to us however to be different. It is true

that under an order of Court a sum of Rs. 30 per mensem was provisionally paid by defendant 1 to the plaintiffs but we are informed that this was

done only from about January 1928. This will no doubt have to be taken into account in determining the amount which the- plaintiffs may be

entitled to on the taking of accounts, but by the very terms of the order it cannot be taken as wholly satisfying their claim or depriving them of their

right to an account. Under the decision in Sri Ranga Thathachariar, late a minor by next friend Komalathammal, but now declared major and next

friend discharged Vs. Srinivasa Thathachariar alias Srinivasa Raghavachariar, the division of status between the parties must be held to take effect

as from the date of the institution of the suit. In this case it will be the date of the presentation of the pauper petition, i. e. 16th April 1926. The

appellants will be entitled to whatever may be found to represent their share of the income on accounts being taken as from the date of the petition

to the date when defendant 1 gave up possession, accounts being taken on the footing that on 16th April 1926 the parties had become tenants-in-

common.

The case will be sent back to the lower Court for the appointment of a commissioner or for other appropriate steps being taken to take this

account and for passing a final decree in respect of this part of the claim so far as. the appellants are concerned. As their claim for past mesne

profits and moveables has failed, the appellants will themselves pay the court-fee due to Government on the memorandum of appeal. As the

respondents'' counsel have reported no instructions, there will be no other order as to costs in the appeal.