Shakir Hussain and Others vs Shariful Hasan and Another

Deoki Nandan, J.—This is a Defendant''s second appeal in a suit for accounting between co-sharers in respect of the profit of a Kothi for the period 28th June, 1959 to 8th February, 1960. The Plaintiff claimed that he and his sister Bilkish Fatima were co-sharers to the extent of 1/2 in the Kothi through their father Mir Mazhar Husain, while the Plaintiff was entitled to a further 1/4th share in the 1/18th share of Smt. Malka Begum, his wife who died on 28th June, 1959. The Plaintiff claimed that he has fully received his share of the profits in the rental income of Rs. 160/-of the Kothi upto 28th June, 1959 but had not been paid the share due to him as the heir of Malka Begum, which was l/40th of the whole. The trial court substantially upheld the Plaintiff''s case but found that the rental income of the kothi was Rs. 77.50P. per month and that Defendants Nos. 1 and 2 were liable to pay Rs. 13.56P. as the Plaintiff''s share in the profits in respect of 1/40th share of Smt. Malka Begum his deceased wife. The lower appellate court confirmed the decree of the trial court.

The main point urged before me was that a suit for accounting between co-sharers was not maintainable and in support of this contention two decisions, one of the Calcutta High Court in Panmal Lodha and Another Vs. Omraomal Lodha and Others, and the other of the Bombay High Court in Doma Ghusi Patil Vs. Jagana Fagu Patil, were cited. On the other hand a Division Bench decision of this Court in Nand Kishore v. Kunj Behari Lal 1933 ALJ 86 was relied upon by the Learned Counsel for the Plaintiff-Respondent.

The present case is not one where several co-sharers may be in possession of different portions of common land. The present is a case where the Defendant-Appellant have been in possession of the entire Kothi and have been managing it and deriving all its profits. He must account for the Plaintiff''s share therein as held by this Court in Nand Kishore''s case (supra), A suit like the present one cannot be said to be not maintainable. Another point pressed by the Learned Counsel for the Defendant-Appellants was that the award of 17th January, 1887 was unenforceable because it was not made a rule of the court. He relied on Section 32 of the Arbitration Act, 1940. The short answer to the contention is that the Arbitration Act, 1940 was not in force in the year 1884 and the courts below found it as a fact that the award was acted upon by the authorities. The other points raised by the Learned Counsel relate to questions of fact and since it has not been shown that any of the findings of fact recorded by the court below suffer from any error of law, it is not possible to entertain them in second appeal.

The appeal fails and is dismissed with costs.