This is an Appeal against a judgment and decree of the Subordinate Judge of Nadia in a case brought by the present Appellants, as Plaintiffs, to recover possession of 2 darputni holdings with mesne profits.
It appears that the present Appellants are purchasers of the putni right at a sale for arrears of rent, and that, under sec. 167 of the Bengal Tenancy Act, they served notices on Rajabala Debi, the daughter and heir of Radhaballav Gossain, annulling the darputni tenures and requiring her to give up possession. The notices were served on the 4th June, 1901, but she refused to give up possession; and the present suit was instituted on the 13th April, 1904. On the 31st July, 1905, the suit was dismissed. The suit was instituted against Rajabala Debi, and after it had been dismissed in the Court of the Subordinate Judge, she died. There, was an appeal to the High Court by the Plaintiffs; and the three sons of Rajabala were substituted for her as Respondents. The appeal was decreed on the 28th August, 1907, and the suit was remanded for retrial by the Court of first instance. On the 30th July, 1908, the Court of first instance decreed the Plaintiffs' claim for possession and for mesne profits from the 4th June, 1901 up to the date of delivery of possession. In the judgment the Subordinate Judge distinctly stated that, as the original Defendant Rajabala was dead, her legal representatives would be liable for mesne profits which had accrued prior to the death of Rajabala to the extent only of Rajabala's assets which had come into their hands at her death, and that for the mesne profits subsequent to her death they would be liable personally. In the decree, as originally drawn up, mesne profits were awarded, with interest at six per cent per annum, against the 3 sons who had been substituted as Defendants; but on an application made to the lower Court, the decree was amended, on the 7th November, 1908, in the following terms:—“If there be any property left by Rajabala and which has come into the hands of her heirs, then that property will be liable for mesne profits for the period from the date of service of notice up to the date of the death of the Defendant Rajabala. The heirs will be personally liable for mesne profits for the period subsequent to the aforesaid period.”
The Plaintiffs have now appealed to us and in support of their appeal the main contention advanced is that the decree for mesne profits ought to have been against the sons for the whole period during which the Plaintiffs were kept out of possession.
It is suggested that Rajabala in refusing to give up possession was acting for the benefit of the estate and therefore that the whole estate of Which she was in possession with a widow's interest would be liable for the mesne profits, and not merely her personal estate which came into the possession of the sons, the substituted Defendants. In support of this contention the learned pleader for the Appellants has relied upon the case of Katama Natchiar v. The Raja of Shivagunga, and the case of Hari Nath Chatterjee v. Muthur Mohun Gosswami. These two cases are not, however, applicable to the facts of the present case, and cannot in any way govern our decision in the present matter. The learned pleader for the Appellants has also relied on the three decisions of this Court in Lalji Sahaya Singh v. Kurki Jha, Sadasi Koer v. Ram Gobind Singh, and Harihar Pershad v. Bholi Pershad. The question, however, whether these judgments can be taken to apply to the present case must depend upon whether or not the act of Rajabala in the present instance can be taken to be an act done by her as representing the estate of which she was in possession as widow, and done for the benefit of that estate. After giving our best consideration to the matter, we think it is not possible to hold in the present case that the act of Rajabala can be so regarded. The notice was addressed to her to give up possession, after the darputni tenures had been annulled, and her failure to deliver possession was a personal tortious act on her part, rendering her personally liable to an action for mesne profits or damages, and not an act which can be regarded as one done in the interests of the family estate. The learned Pleader for the Appellants has invited our attention to the fact that the elder son of the lady carried on the litigation on her behalf and that she was merely a nominal Defendant; but we are unable to hold that circumstance would be sufficient to convert the act of Rajabala into anything different from a tortious act for which she personally would be liable for damages. In the case of Grish Chunder Lahiri v. Shoshi Sekhareshur Roy(6), it was pointed out by their Lordships of the Privy Council that “mesne profits are in the nature of damages which the Court may mould according to the justice of the case”. In the present instance the profits accruing from the wrongful possession prior to Rajabala's death may be taken to have gone to the person wrongfully in possession, namely, the widow; and we do not think that it can be held that they have gone for the benefit of the estate.
Under these circumstances we hold that the view taken by the lower Court was correct and that, so far as the Plaintiff's claim lay for mesne profits realised up to the date of Rajabala's death, they could only in law be entitled to recover those profits from the widow, or from the personal estate of the widow, which had passed on her death to her heirs. It may be unfortunate in the present case that little or no property belonging to the widow has passed for the heirs; but we do not think that on that account it is possible for us to give the Plaintiffs any relief. In our opinion the view taken of the law and of the justice of the case by the lower Court is correct; and we must therefore affirm the judgment and decree of the lower Court and dismiss this Appeal with costs.
We assess the pleader's fee at five gold mohurs.
Appeal dismissed.