The Judgment of the Court was delivered by

Kumara Pillai, J.:— This appeal arises out of a suit for money. Plaintiff is the appellant.

2. Defendant 1 was the karnavan of a Moplah tarwad. In 1939 there were only two other members in the said tarwad, namely, the plaintiff and his mother, and they brought a suit, O.S No. 103 of 1939, in the court of the Subordinate Judge of South Canara against defendant 1 for partition and recovery of possession of their share in the tarwad properties. Plaintiff's mother died subsequent to the institution of that suit; and after her death a compromise was effected between the plaintiff and defendant 1 and preliminary decree was also passed in O.S No. 103 of 1939 on 20-1-1942 in pursuance of the compromise. By the preliminary decree ⅔ of the tarwad properties was awarded to the plaintiff and ⅓ to defendant 1, and it was also provided therein that until the final decree defendant 1 would be in possession and enjoyment of items 1 to 235 in the plaint schedule in O.S No. 103 of 1939 and the plaintiff was to be in possession and enjoyment of certain other properties. On 3-12-1948 a final decree was passed in the suit in accordance with the above preliminary decree, and in the division effected by the final decree plaintiff was given, among other items, five of the items specified in the preliminary decree to be in the possession and enjoyment of defendant 1 until the passing of the final decree. Those five items are garden lands planted with pepper-vines and are in the possession of tenants to whom leases have been granted by the tarwad and who had planted the pepper-vines in them. In Malabar, rent for pepper-vines planted by tenants is usually paid to the landlord at the customary rate of 2 per 10 units of the crop and is known as pathinurandu. The payment of this rent is not generally made at the time of the harvest of each crop, and the custom is for the tenant to take the entire crop in the garden for the first four years and for the landlord to take the entire crop in the fifth year. Under this custom the landlord gets nothing during the first four years and takes the entire crop once in a cycle of five years, while the tenant gets nothing during the year the landlord takes the crop, and the term pathinurandu is therefore generally used to denote the landlord's right to take the entire crop once in a cycle of five years. Plaint items 1 to 5 in the suit which has given rise to this appeal are the five items of garden land, planted with pepper vines, which the plaintiff got under the final decree in O.S No. 103 of 1939 and which were in the possession of defendant 1 till that final decree and the delivery thereunder. Defendants 3 to 7 are the tenants in occupation of those items, and defendant 2 is defendant is daughter.

3. According to the plaint allegations in this suit, the landlord was entitled in the Malabar year 1125 to take the entire pepper crop in plaint items 1 to 5 on account of pathinurandu right and, since the final decree in O.S No. 103 of 1939 was passed before that year and the plaintiff had also obtained symbolic delivery of possession of plaint items 1 to 5 in pursuance of that decree before 1125 M.E, he was entitled to take the entire pepper crop in plaint items 1 to 5 in the year 1125 M.E After he got symbolic delivery of possession of the properties he had also issued notices to defendants 3 to 7 informing them of the allotment of the properties to his share and his right to get the pathinurandu. But defendants 1 and 3 to 7 and the husband of defendant 2 colluded together and prevented plaintiff's agents from gathering the crop in plaint items 1 to 5 in 1125, and defendant 1 unlawfully gathered and misappropriated the said crop. Claiming that he was entitled to the whole of the said crop and defendants had, therefore, to make good to him the value thereof, plaintiff brought the present suit for recovery of a sum of Rs. 51200/- from them as the value of the crop which he was prevented by the defendants from taking and which, according to him, defendant 1 had actually taken. It was stated in the plaint that the plaintiff's kariasthan had gone to the properties before the time of the harvest and had estimated that the actual crop would be 16 Bharams (or Candies) of pepper. This was valued in the plaint at the rate of Rs. 3200/- per Candy. Defendant 1 has executed certain documents for his properties in favour of defendant 2. According to the plaintiff, these documents are fraudulent, executed with a view to defeat him, and are not therefore binding on him; and defendant 2 was impleaded by him in the suit on this allegation and the plaint amount was claimed from her also.

4. All the defendants contested the suit. Defendants 3 to 7 denied that they had colluded with defendant 1 and contended that as they had allowed defendant 1, the karnavan of the tarwad, to take the pathinurandu pepper in ignorance of the plaintiff's right and as the pepper was actually taken by defendant 1 they were not liable for any amount to the plaintiff. Defendant 2 also denied liability for the amount claimed by the plaintiff and contended that the documents executed by defendant 1 in her favour were not fraudulent or invalid. Defendant 1 admitted that he had taken the crop of 1125 M.E and contended that no final decree has been passed in O.S No. 103 of 1939, that the plaintiff had therefore no right at all to take the pathinurandu pepper, that there was no delivery of possession of the properties to the plaintiff as alleged by the latter, that under the terms of the preliminary decree defendant 1 was entitled to take the pathinurandu which became payable in 1125 M.E, that in any event he was entitled to take 4/5 of the crop of 1125 and the plaintiff would be entitled only to the balance 1/5 as during the cycle of five years ending with the year 1125 M.E defendant 1 was entitled to the rent and profits of the plaint properties for four years and plaintiff was entitled only to the rent and profits of the one year which had elapsed after the date of the alleged final decree and delivery, that the estimate of the quantity of pepper in the plaint was wrong, and that the value of pepper claimed by the plaintiff was also exaggerated.

5. The lower court found that both a final decree had been passed in O.S No. 103 of 1939 and a symbolic delivery of the properties in pursuance of that decree had also been given to the plaintiff. But it held that during the cycle of five years ending with 1125 M.E defendant 1 was entitled to the pathinurandu of the plaint properties for four years and the plaintiff was entitled only to the pathinurandu of one year and that the estimate of the crop for 1125 M.E given in the plaint was exaggerated. The total quantity of pepper, according to the lower court's finding, was only 5 Candies 30 Paras and 1 1/5 Seers and not 16 Candies as alleged in the plaint. Accepting the plaintiff's case regarding the average price of pepper and holding that defendant 1 was liable on the above findings to make good to the plaintiff 1/5th of the pepper taken by him in 1125 M.E from plaint items 1 to 5 the lower court gave the plaintiff a decree for recovering Rs. 3593-7-0 and proportionate costs from defendant 1 and dismissed the suit as against the other defendants. It also directed the plaintiff to pay the entire costs of defendant 2 as well as the proportionate costs of defendant 1. The other defendants were directed to bear their costs.

6. The present appeal is against the above decree, and the plaintiff is claiming in it a decree for the entire amount asked for in the plaint and seeks to make defendants 2 to 7 also liable for the amount claimed by him.

7. The first question raised in the appeal is as regards the quantity of pepper gathered by defendant 1 from the plaint items in 1125 M.E In support of his case that 16 Bharams (or Candies) of pepper was available for collection and has been gathered by defendent 1, plaintiff relies upon Ext. A3, the estimate made by his kariasthan, Pw. 3, before the harvest. Pw. 4 is another kariasthan of the plaintiff, and he and Pws. 5 and 6 have been examined to corroborate the evidence of Pw. 3 that he went to the properties and made the estimate before the harvest. The evidence of these witnesses has been considered at length by the lower court in paragraphs 50 to 54 of its judgment; and having gone through their depositions we do not consider that we can usefully add anything to what has been said in these paragraphs. We entirely agree with the opinion of the lower court that the evidence of these witnesses is totally unreliable. From the commission report it is clear that the yield from the properties could not have exceeded more than five candies 30 paras and 11/5 seers of pepper. It would appear from the evidence in the case that during the year the pathinurandu is taken by the landlord, the tenant does not pay such attention to the pepper-vines and that therefore the crop in the pathinurandu year is likely to be poorer than the crops in the other four years. As the commissioner inspected the properties and prepared the report after the suit was filed and not during the pathinurandu year the estimate given in his report, if accepted, will only be more favourable to the plaintiff than an estimate made during the pathinurandu year itself. After having considered all the circumstances of the case, the lower court has accepted the commissioner's report as affording the best criterion for making an estimate of the yield during the pathinurandu year also; and the respondents also had no complaint in this court against that report. As we are of the opinion that the actual yield during the pathinurandu year was likely, if at all, only to be less than the commissioner's estimate we do not consider that the plaintiff has in any way been prejudiced by the lower court fixing 5 Candies 30 Paras 11/5 Seers as the actual yield in 1125 M.E In the circumstances, we hold that the pepper which defendant 1 has actually gathered from the plaint items in 1125 M.E was 5 Candies 30 Paras 11/5 Seers.

8. The next question is whether the plaintiff is entitled to the whole pepper crop in 1125 M.E, as claimed by him, or only a portion of it. It is admitted by both sides that the plaint properties are in the actual occupation of the tenants and that it is only subject to their occupancy rights that the partition in O.S No. 103 of 1939 has been effected. Both sides are further agreed that, on account of the provisions in the preliminary decree, defendant 1 was entitled to be in possession of the plaint properties for four years during the period of five years preceding the harvest of the pepper crop in 1125 M.E and that the plaintiff, who got the properties only under the final decree, Ext. A2, dated 3-12-1948 and the delivery in pursuance of it, was entitled to be in possession and enjoyment thereof only for one year. According to defendant 1, the crop of 1125, being the pathinurandu for the full Cycle of five years preceding the harvest of the crop, represents the rent of the plaint properties for five years and since the plaintiff had ownership of the plaint properties only for one year during the said period of five years, he was entitled to get only 1/5th of the said crop (i.e, 1/5 of the rent of five years). Reliance was placed in support of this contention on section 36 of the Transfer of property Act and certain decisions of the Madras High Court regarding the applicability of the principle embodied in that section even to cases not strictly coming under it. This contention has been accepted by the lower court.

9. The plaintiff's reply to this contention is two-fold. One is that the right of the landlord to take the pepper crop of the year 1125 M.E is not a right arising out of the claim for rent for all the years during the period of five years ending with 1125 but is only a right of the owner of the property to take the entire crop of a particular year under the terms of a contract. And the second is that section 36 of the Transfer of property Act and the principle of the decisions in the cases relied upon by defendant 1 have no application to cases of joint family partitions and that, in cases of such partitions, when there is no express provision or other circumstances showing a contrary intention, the presumption is that the right to receive the rent of any property which had accrued before the partition, but not realised till then, belongs to the co-sharer to whom that property is allotted. It was urged on behalf of the appellant that, if the right to take the pepper crop of 1125 is viewed as a right to receive the rent for the five years ending with 1125, the rent must be deemed to have become payable only in 1125 — after the final decree for partition, even though 4/5th of it had accrued before that year and that therefore the right to the entire crop of 1125 belonged to the plaintiff and not to defendant 1.

10. Exts. B3, A34, A35, A36 and A37 are the documents under which defendants 3 to 7 are in possession of the plaint items. Ext. B3 relates to item 1, and Exts. A34 to A37 relate to items 2 to 5 respectively. Ext. B3 is styled kuzhi-kanam, and the provision in it is that in each year the tenant should give a written consent to the landlord allowing him to gather 2 per 10 (pathinurandu) of the pepper crop of that year and obtain from the landlord a receipt for the same. By a subsequent arrangement it was agreed by the parties that the landlord's right to take 1/5th (2 per 10) of the annual crop in pursuance of Ext. B3 would be exercised by his taking the entire crop of one year in a cycle of five years. There can, therefore, be no doubt of the fact that so far as plaint item 1 is concerned the right of the landlord to take the whole crop in the fifth year arises from his right to get the annual rent. Exts. A34, A36 and A37 are marupats executed by tenants in favour of the landlord admitting that they are holding the properties under kuzhikanam rights, and Ext. A35 is a kuzhikanam document executed by the landlord in favour of the tenant. The provisions in these four documents relating to the landlord's right to take the crop of the fifth year are slightly different from the provision in Ext. B3. It is said in them that during every cycle of five years the tenant should take the entire pepper crops for four years and that on account of his pathinurandu rights the landlord should take the entire pepper crop in the fifth year. Although there is thus no provision in Exts. A34 to A37 for the annual exchange of documents between the landlord and the tenant admitting the landlord's right to the yearly rent, from the express statement in them that he was to take the entire crop of the fifth year “on account of pathinurandu right” it is clear that the right to take the entire crop of the fifth year was given to him by those documents only as a anode of payment of the rent accrued during the five years. The documents would show that the agreement between the parties was that payment of the pathinurandu of the yearly crop, which was the customary rent due to the landlord, was to be postponed till the fifth year and that in lieu of the rent accrued during all the five years together the landlord was to take the entire crop of the fifth year. On a construction of the five documents, we have absolutely no doubt of the fact that the right of the landlord to take the entire crop in the fifth year of the cycle of five years is only a right to obtain the rent for the five years, and that the landlord was given the right to take the entire crop of the fifth year only to ensure payment of the rent without disputes and evasion.

11. Coming to the appellant's second contention referred to in paragraph 10 above, section 36 of the Transfer of property Act reads as follows:

“In the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof”.

12. This section as such applies only to transfers inter vivos, and it is only on the ground of justice, equity and good conscience that the principle of that section has been applied to other cases. In the earliest of the cases referred to and relied upon by the lower court, namely, Rangiah v. Vajravelu (A.I.R 1918 Mad. 557) in which the auction-purchaser of the interest of a lessor in execution of a decree obtained against the lessor claimed the rent accruing after the date of the execution sale, it was said:

“Section 36, T.P Act, provides for such apportionment, and although it is no doubt true, under section 2(d) of the Act, that it does not apply to sales in execution yet the section embodies the rule of justice, equity and good conscience which we think should be applied”.

13. The second case referred to by the lower court, Y.S David v. Rangaraju (A.I.R 1944 Mad. 568) was also a case of execution sale in which the claim for apportionment of the rent was between the auction-purchaser and the receiver representing the estate. Following A.I.R 1918 Mad. 557, apportionment was allowed in that case on the ground that the principle of section 36 of the Transfer of property Act which embodies a rule of justice, equity and good conscience can be applied to cases of execution sales also. Yet another case relied upon by defendant 1's counsel in this court was Chinnathambiar v. Veerappa (A.I.R 1937 Mad. 219). That was a case in which apportionment was claimed by the person on whom there was a devolution of interest by succession as against the person representing the estate of the deceased holder of the property. In that case also it was held that the principle underlying section 36 of the Transfer of property Act would apply as it was a principle of justice, equity and good conscience. Various other cases were also cited before us by the defendant's counsel such as A.I.R 1924 Pat. 451, I.L.R 26 Mad. 501, A.I.R 1935 Cal. 39, and A.I.R 1951 Mad. 601, in all of which it was held that the principle of section 36 can be applied even to cases not strictly falling under that section on the ground that the section embodies a rule of justice, equity and good conscience. But it was to be observed that in all the cases relied upon by the respondent's counsel there was either a devolution of interest by succession on a person who till the date of that devolution had no right at all in the interest, or a transfer of interest, though not voluntarily, from one person to another who till the date of that transfer had no right in the interest. In the case of execution sales and devolution of interest by succession the auction-purchaser or the person on whom the interest has devolved had no right at all in the property or interest till the date of the execution sale or devolution of interest, as the case may be, and so, they are just like a voluntary transfer in which also the transferee had no right in the interest transferred till the date of the transfer and his right begains only from such date. As the right to the property or interest begins only from the date of the transfer, execution sale or devolution of interest, as the case may be, and the right to it belonged before that date to the transferor, judgment-debtor or the deceased holder, the transferee, auction-purchaser or successor-in-interest can have normally no right to the rent or profits of the property which had accrued before the date he became entitled to the property itself and will be entitled only to the rents or profits occuring after such date. So far as the right to the rent or profits of the property is concerned, voluntary transfers, execution sales and devolution of interest by succession therefore stand on the same footing, and the rule of natural justice, equity and good conscience, that a person can have no right to the rents and profits of a property which had accrued at a time when he was not entitled to the property itself, is applicable alike to all of them. Section 36 only embodies this rule of natural justice, equity and good conscience and says that it is applicable to transfers inter vivos.

14. Cases of partition of joint family properties stand on an entirely different footing. The parties to a partition of joint family properties are not persons who had no right at all to the property or interest before the date of the partition. Each and every one of them, according to his share in the joint family assets, was as much entitled to the property as any of the others even before the date of the partition, and he was also entitled as much as every one of the others to the rents and profits which had accrued before the date of the partition. What really takes place by the partition is that “each co-sharer renounces his right in the other common properties in consideration of his getting exclusive right to and possession of specific properties in which the other co-owners renounce their rights”— see Jatru Pahan v. Ambikajit Prasad (A.I.R 1957 Pat. 574). This mutual renunciation of rights does not involve, as pointed out in A.I.R 1948 Mad. 505 and A.I.R 1957 Pat. 574, any transfer by one co-sharer of his rights or interest in the properties to another co-sharer or other co-sharers. In such cases by the mutual renunciation each co-sharer gets all the rights which the joint family had on account of its ownership or interest in the properties allotted to him in consideration of his renunciation of his rights in the joint ownership of, or joint interest in, the properties allotted to their co-sharers. As the rent which had accrued before the date of the partition belonged to the joint family and the joint family's rights to receive it arose because of its ownership of, or interest in the properties concerned, by the partition by which all the other members of the family relinquished in favour of one of the co-sharers all their rights in respect of the properties allotted to him in consideration of his renunciation of his rights in the properties allotted to them, the co-sharer to whom any property is allotted would naturally get all the rights which the joint family had pertaining to or springing from that property, including the right to the rent which had already accrued, unless there are circumstances showing that such was not the intention of the parties at the time of the partition. We are, therefore, of the view that the principle of section 36 of the Transfer of property Act is not applicable to cases of partition of joint families and that, in the absence of a contract or other circumstances showing a contrary intention, the presumption in such cases ought to be that any rent or profit accrued to the joint family even before the date of the partition but not realised till then would belong to that co-sharer to whom has been allotted the interest of the family in the property in respect of which such rent or profit has accrued.

15. According to the appellant, even if the right to take the crop of 1125 is viewed as the right to obtain the rent for the five years ending with 1125, since the right is only to take the crop of 1125 although the major part of it had accrued before that year, on account of the presumption referred to in the above paragraph it was the plaintiff and not defendant 1 who was entitled to that crop. Defendant 1's case is that as, under the preliminary decree in O.S No. 103 of 1939, he was entitled to be in possession of plaint items 1 to 5 from the date of that decree until the passing of the final decree he was also entitled to the rents and profits of those properties arising during the period he was entitled to be in possession of them; and this case has been accepted by the lower court. We are, however, unable to uphold this contention. From the terms of the preliminary decree and the compromise petition in pursuance of which it was passed, it is abundantly clear that the arrangement under the preliminary decree regarding enjoyment of some of the properties by the two co-sharers during the interval between the preliminary and final decrees was intended to be a mere temporary arrangement and that the clause relating to the enjoyment of the rents and profits by the respective persons to whom the properties had been allotted thereunder without liability to account conferred on them only the right to receive the rent and profits which had actually become payable during the period they were in possession of the properties and not the right to the rent which had accrued but not become payable during that period. The provision exonerating defendant 1 and the plaintiff from the liability to account for the rents and profits received by them during this period is very significant in this connection. It would not have been made, if the rents and profits referred to in the compromise petition and the preliminary decree were not the rent and profits which had become payable but included also the rent and profits which had accrued. The necessity to make the provision arose because some rents and profits which had accrued even before the compromise and the preliminary decree would have become payable during the time between the preliminary and final decrees, and if there was no such provision defendant 1 would have had to account for such rent and profits. If the reference was to the rent and profits accruing during the time between the preliminary and the final decrees there was no necessity at all to make the provision, for from the mere direction that defendant 1 was to be in possession and enjoyment of the properties till the final decree it would have followed that the rent accruing during the time between the two decrees would belong to him. We are, therefore satisfied, and we hold, that, both, on account of the presumption referred to in paragraph 13 above and under the terms of the preliminary decree in O.S No. 103 of 1939 (the final decree is silent on the point), defendant 1 was entitled only to such of the rents of plaint items 1 to 5 as had become payable before the date of the final decree and that such of the rents of those items as became payable after the final decree belongs to the plaintiff even though portions of it might have accrued before the final decree.

16. The clauses in Exts. A34 to A37 and B3 relevant for decision of the question when the rent accrued would become payable have already been referred to in paragraph 11 above. From Ext. B3 it is clear that the rent for each year was to be treated as payable in that year itself and documents were to be exchanged each year by the landlord and the tenant on that footing. From the terms of Exts. A34 to A37 it can be seen that the intention of the parties was that the rent for the entire cycle of five years should be treated as payable together or in one instalment by allowing the landlord to take the whole crop of the fifth year. It would follow that, so far as plaint item 1 is concerned, defendant 1 was entitled to 4/5th of the crop of 1125 and the plaintiff to the remaining 1/5th and that, so far as plaint items 2 to 5 are concerned, the plaintiff was entitled to the whole crop of 1125 and defendant to nothing out of it.

17. We have already found in paragraph 8 above that the commissioner's estimate of the quantity of pepper can be safely accepted. According to the commissioner's report, the pepper yield of the several items are as follow:

Item 1 - 2 candies 17 paras 10 1/5 seers Item 2 - 1 candy 4 paras 11 seers Item 3 - 27 paras 2 seers Item 4 - 17 paras 8 seers Item 5 - 28 paras 12 seers

18. As the plaintiff was entitled to the entire yield of plaint items 2 to 5 and only to 1/5th of the yield of item 1, the quantity of pepper he was entitled to get in 1125 M.E was 3 Candies 29 Paras 1 11/25 seers of pepper in all. The price of this pepper at the rate of Rs. 3200 per candy, which is the rate accepted by the lower court and which is not objected to by the plaintiff, would be Rs. 12421 and 90 nP. The plaintiff is entitled to recover this amount from defendant 1 who has wrongly taken the entire crop of 1125 M.E We are unable to grant the plaintiff's prayer to make defendants 2 to 7 also liable for the amount due to him. Defendant 1 was admittedly the karnavan of the tarwad, and under the terms of the preliminary decree he was entitled to be in possession of the properties. There is no satisfactory evidence to show that defendants 3 to 7 had received the notice which the plaintiff claims to have issued to them after the final decree and the symbolic delivery in his favour. In the circumstances they cannot be said to have acted wrongly in allowing defendant 1 to take the yield of 1125 M.E Likewise, there is no reason for making defendant 2 liable for the amount due to the plaintiff. She has not rendered any help to defendant 1 in the matter of taking the yield; nor has she received the money realised by the sale of the pepper. The contention that defendant 1 has executed sham documents in her favour for properties standing in his name fraudulently and for the purpose of defeating the plaintiff is foreign to the scope of this suit and would arise for consideration only when the plaintiff seeks to attach the properties, in respect of which those documents have been executed, in execution of the decree he obtains. Nor has the plaintiff adduced any reliable evidence in support of that contention.

19. For the reasons stated above, we give the plaintiff a decree to recover from defendant 1 the sum of Rupees Twelve-thousand four hundred and twentyone and Ninety naya paise (Rs. 12421.90) with interest at four per cent per year from the date of suit, and dismiss the suit so far as the other defendants are concerned. Plaintiff and defendant 1 will give and take proportionate costs in the lower court, such costs being calculated on the basis of the amount awarded to the plaintiff by this decree. The plaintiff will pay defendant 2's full costs in the lower court. The appeal is allowed to the above extent and dismissed in other respects. In this court also plaintiff and defendant 1 will give and take proportionate costs; and plaintiff will pay defendant 2's costs. The other defendants will bear their costs in both courts.