Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Appeal No. 122 of 1907

Acts

article 62 of Schedule II of the Limitation Act.

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Smart Summary

Structured Summary of the Provided Judicial Opinion

Factual and Procedural Background

The proceedings arise from Original Suit No. 12 of 1898, in which a decree was entered that, according to the court, effected a complete division of the joint family status (a partition of the entire family property then known). The District Judge originally interpreted the decree more narrowly; the higher court rejected that narrower reading and treated the decree as effecting complete division of status even if some items were left out because they were not known at the time.

Following that determination, the High Court directed the District Judge of Kurnool to submit findings on Issues Nos. 4 to 8. The District Judge submitted detailed findings on those issues based on the evidence already on record (pleaders had proposed additional evidence, but the High Court's order called only for findings and did not direct further evidence to be taken).

The District Judge's findings addressed: mesne profits from items 1–10 of Schedule A (Issue 4); profits derived from lands in Schedule C (Issue 5); amounts collected in Schedule D (Issue 6); entitlement to interest on amounts realised by the defendant from family property (Issue 7); and the relief to which the plaintiff is entitled (Issue 8). The High Court then reviewed and adopted those findings subject to application of limitation law.

Legal Issues Presented

Issue 4: What mesne profits have been derived by the defendant during the last eight years from items 1 to 10 of schedule A?
Issue 5: Whether any and what profits have been derived from the lands mentioned in schedule C during the years mentioned in the same schedule by the defendant?
Issue 6: Whether any and what amounts of the items in schedule D have been collected by the defendant and when?
Issue 7: Whether plaintiff is entitled to claim interest on the amounts realised by the defendant from the family property?
Issue 8: What relief, if any, is plaintiff entitled to?

Arguments of the Parties

Plaintiff's Arguments

The plaintiff contends that various realisations (amounts collected or realised by the defendant) are especially within the knowledge of the defendant and that the burden of proving them is on the defendant.
The plaintiff sought recovery of shares of sums realised from family property and of mesne profits; the plaint (as interpreted by the District Judge) may claim interest particularly in item 1(a) of Schedule B.

Defendant's Arguments

The defendant (as reflected in his written statement and depositions) admitted certain receipts (e.g., Rs.70 from an item in Schedule D; Rs.32 for items 9 and 10 in Schedule A; Rs.100 from an item in Schedule C subject to kist deduction) but contested other claims for lack of satisfactory proof.
With respect to interest, the defendant contended that the plaintiff's claim for interest was limited to item 1(a) in Schedule B and that interest was not otherwise claimed in the plaint.
Concerning the alleged sale of the family house eight years earlier, the defendant contended that the plaintiff could not recover half the sale price (arguing instead that the plaintiff's remedy would be to sue for half the house) and that such a claim was barred by limitation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vaidyanatha Aiyar v. Aiyasamy Iyer, MANU/TN/0232/1908 : 32 M. 191 : 19 M.L.J. 94 : 5 M.L.T. 49 : 1 Ind. Cas. 408	The decision that where members of a joint Hindu family become divided in status, and thereafter one member recovers debts due to the family, the applicable article of limitation is Article 62 of Schedule II of the Limitation Act.	The court applied this authority to hold that Article 62 governs the plaintiff's remedy as regards outstandings recovered by the defendant after the family became divided.
Tellis v. Saldanha, MANU/TN/0186/1886 : 10 M. 60	An earlier decision (referred to as followed) involving parties who were Native Christians living together as a joint family both before and after the Succession Act.	The court noted that the Vaidyanatha Aiyar decision followed this earlier decision; it was cited as precedent history supporting the application of Article 62 in analogous contexts.
Muhammad Habibullah Khan v. Safdar Husain Khan, 7 A. 25 (Allahabad High Court)	Held that Article 120 was applicable to a suit against a joint purchaser to recover possession of a share of certain property and to have an account taken of the profits.	The court observed this decision but concluded that the circumstances of the Madras case (and the present case) were more similar to the Madras precedent; nevertheless, the court chose Article 62 as governing the plaintiff's remedy in the present litigation.

Court's Reasoning and Analysis

The court's analysis proceeds in several discrete steps, reflecting both jurisdictional/interpretive determinations and fact-finding on monetary items:

Interpretation of the 1898 Decree: The court held that the decree in Original Suit No. 12 of 1898 effected a complete division of joint family status (i.e., partition of the entire family property then known) and was not limited to only the items being partitioned at that time. The court observed that parties may effect complete division of status even if metes-and-bounds division is executed only for certain items.
Remand for Findings: Because the appellant did not dispute the findings on Issue 3, the court called for findings on Issues 4 to 8 to be submitted by the District Judge of Kurnool (the District Judge submitted detailed findings based on the evidence on record).
Procedural Limitation on Evidence: The District Judge noted that pleaders proposed additional evidence but the High Court did not direct further evidence; no evidence had been excluded in the original trial, so findings were to be based on evidence already on the record.
Burden of Proof on Realisations: Although the plaintiff contended the burden of proof for realisations lay on the defendant (because such realisations were within the defendant's knowledge), the District Judge found the burden of proof to be on the plaintiff.
Detailed Findings on Schedule D (Issue 6): The District Judge evaluated testimony and documentary proof item by item. He found that items in Schedule D were not all satisfactorily proved; specifically he found the defendant had collected Rs.70 (item 2), Rs.26 (item 3), and Rs.110 (item 4), totalling Rs.206, and that other items in Schedule D had not been proved as collected by the defendant. These amounts were collected seven or eight years before suit.
Findings on Schedule C (Issue 5): The District Judge found no evidence for some items; for one item the defendant admitted collection of Rs.100 but claimed an Rs.18 kist deduction; the judge concluded that for 1899–1900 the defendant realised Rs.82 from the mango tope and nothing from other lands in Schedule C during the relevant years.
Findings on Schedule A Mesne Profits (Issue 4): The District Judge estimated net annual profits for each Schedule A item on the evidence (leases, witness testimony, admissions). He made conservative computations (e.g., Rs.25 p.a. for item 1 since defendant's later lease and kist indicated lower yield than plaintiff's witness suggested) and aggregated eight-year totals, arriving at specific totals (the opinion records totals and per-item computations and ultimately states that the defendant derived Rs.422 from items in Schedule A during the last eight years — this figure appears in the findings summary).
Issue of Interest (Issue 7): The District Judge considered whether plaintiff was entitled to interest. He noted that Mr. Murphy (in his judgment in the suit) held defendant liable for interest on a certain item, but the District Judge concluded that the plaintiff was not entitled to interest generally, partly because the plaint did not claim interest on all items and because this was a suit for a share in joint property. The judge referred to a High Court judgment (Order No. 46, 1904) in which interest had been allowed from the date when liability was admitted; in the present case, however, no such admission existed.
Limitation Law and Application by the High Court: The High Court referred to precedent (notably Vaidyanatha Aiyar) to determine the appropriate article of limitation. The court concluded that Article 62 of Schedule II of the Limitation Act governs the plaintiff's remedy as regards outstandings recovered by the defendant after the family became divided. The court further observed that whether Article 62 or Article 109 is applied to rents collected upon lands in the defendant's possession, the term of limitation would be three years.
Effect of Limitation: Adopting a three-year limitation period, the High Court held that items referred to in Issues 5 and 6 (schedules C and D) were time-barred (because the collections occurred seven or eight years before suit). For mesne profits under Issue 4, the High Court accepted the District Judge's computations but limited recovery to mesne profits for three years prior to suit. The court computed the defendant's mesne profits for the three years prior to suit across Schedule A items to total about Rs.248, and awarded the plaintiff half of that amount, i.e., Rs.124.
Additional Observations: The court agreed with the District Judge that the plaintiff could recover a moiety of the immoveable properties in Schedule A and obtain partition by metes and bounds as to that moiety. With respect to the family house alleged to have been sold eight years earlier, recovery of money realised by the sale and interest thereon was held to be time-barred, though the court noted that this did not affect any remedy the plaintiff might have to recover her share of the house itself.

Holding and Implications

Core Ruling: The appellate court declared that the appellant is entitled to a decree recognizing her title to a moiety (half share) of the immoveable properties listed in Schedule A and for partition of that share by metes and bounds; the appellant is also entitled to recover Rs.124 as her share of mesne profits (being half of about Rs.248 computed for three years prior to suit) with interest at 6% per annum from the date of the institution of the suit until realization.

Direct consequences for the parties (as ordered by the court):

The appellant (plaintiff) receives a decree declaring title to one-half of the immoveable properties in Schedule A and for partition of that moiety by metes and bounds.
The appellant is awarded Rs.124 as her share of mesne profits for the three years prior to suit, with interest at 6% per annum from institution of the suit until recovery.
The appellant is entitled to recover proportionate costs of the suit in both this Court and the District Court in proportion to her degree of success regarding the items sued for; the remainder of her claims are dismissed with proportionate costs.
Items in Issues 5 and 6 (schedules C and D) are held to be time-barred under the three-year limitation period applicable (Article 62 or Article 109 yielding three years), and recovery of money realised by the alleged sale of the family house eight years prior is time-barred (though the decision does not affect any remedy to recover a share of the house itself).

No new precedent was announced in this opinion; the court applied existing precedent (including Vaidyanatha Aiyar v. Aiyasamy Iyer and Tellis v. Saldanha) and the Limitation Act articles to determine the applicable limitation period and relief.

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Segu Chidambaramma v. Segu Balayya

JUDGMENT

1. The terms of the decree in Original Suit No. 12 of 1898 make it clear, that the result of it was to effect a complete division of the joint family status. The Judge is quite wrong in holding that what was intended thereby was to effect a division only with respect to the property which was then sought to be partitioned. The suit was in fact to obtain a partition of all the family properties and the fact that certain items of property were left out because they were not known at the time to belong to the family would make no difference in the question. The decree was clearly one for partition of the entire family property then known without any reservation. We might add, it is quite competent to the parties to have completely divided status even though the division of the properties by metes and bounds is actually effected with respect to certain items of the family property only.

2. As regards the third issue, the appellant does not dispute the findings of the Judge. We must, therefore, call for findings on issues Nos. 4 to 8. The findings should be submitted in six weeks, and seven days will be allowed for filing objections.

3. To compliance with the above order, the District Judge of Kurnool submitted the following.

FINDINGS:--

I am required to submit findings on the following issues:--

Issue 4.--What mesne profits have been derived by the defendant during the last eight years from items 1 to 10 of schedule A?

Issue 5.--Whether any and what profits have been derived from the lands mentioned in schedule C during the years mentioned in the same schedule by the defendant?

Issue 6--Whether any and what amounts of the items in schedule D have been collected by the defendant and when?

Issue 7.--Whether plaintiff is entitled to claim interest on the amounts realised by the defendant from the family property?

Issue 8.--What relief, if any, is plaintiff entitled to?

2. At the outset I should state that Pleaders on both sides proposed to adduce additional evidence but the judgment of the High Court simply calls for findings and does not direct that additional evidence should be taken. In the original trial, moreover, it is admitted no evidence was excluded, and parties had full opportunity of adducing such evidence as they required. I am, therefore, submitting my findings on the evidence already on record.

3. I will deal first with issue No. G. The plaintiff contends throughout that the various realisations are specially within the knowledge of the defendant, and the burden of proving them is on him. I think the burden of proof is on plaintiff.

4. Item 1 of schedule D is Rs. 150 said to have been recovered from Chittepu. Linga Reddi, P.W. No. 2, says he was present when this amount was paid to defendant six or seven years ago. P.W. No. 7 also speaks to that payment. But such evidence is very vague, Linga Reddi himself was not examined. It is admitted that Baliah gave a receipt and this receipt has not been produced. I think, therefore, this item has not been satisfactorily proved. There is no evidence about item No. 2, but defendant in his written statement admits that he recovered Rs. 70 of this about eight years ago. He admits also having collected item No. 3.--In evidence he admits having collected Rs. 70--out of item No. 4, but the debtor examined as P.W. No. 7 proves payment of Rs. 110 and produced the receipt Exhibit A (4th July 1899). P.W. No. 4 speaks about a payment of grain worth Rs. 64 on account of item No. 5 of this schedule, but that is all the evidence about it, and it is vague and not acceptable. If true, it could have been properly proved by calling the debtor himself. P.W. No. 8 is the wife of the debtor of item No. 7, and she speaks about that item, but her evidence cannot be accepted. She says she took a receipt, but cannot find it. Of items Nos. 6 and 8 there is no proof.

5. On issue 6, therefore, my finding is that defendant collected Rs. 70 out of item 2 in schedule D, Rs. 26 which is item 3, and Rs. 110 out of item No. 4, and that the amounts of other items in schedule D were not collected by defendant. I find that Rs. 70 plus 26 plus 110 or 206 in all, was collected seven or eight years before suit.

6. I will now take up issue 5. As to item 1, it is admitted there is no evidence for plaintiff. As to item No. 2, defendant admits collection of Rs. 100, but claims a deduction of Rs. 18--on account of kist, which must be allowed.

On issue 5. My finding is that for 1899--1900 defendant-realised Rs. 82 from the mango tope, and he derived nothing from the other lands mentioned in scheduled during the years mentioned therein.

7. Now, I come to issue 4.--The amounts which, according to the plaintiff, were derived by way of mesne profits from items 1 to 10 of schedule A have been set forth in schedule B eight years profits in item 1 of schedule A are shown to be Rs. 960, i.e., at Rs. 120 per annum. Item 1 consists of 3½ acres. P.W. No. 2 was once owner of the land. He says that when he had it, the produce would be a putti of paddy per acre, and the price of a putti is Rs. 50. He says that Baliah has been collecting tent for this land for the last four years, the rent being 15 looms the first year, one putti the second, one putti the third and one putti and 5 towns the fourth. He says that before that period some Mala cultivated it and paid Rs. 40 rent. This sort of evidence is not very much to go by. Defendant in his deposition says that he got possession of this land only since 1901. He leased it by Exhibit IV. The rent according to that is Rs. 36-8-0. What exactly the Government kist, thereon amounted to is not clearly proved. As per Exhibit IV the kist is Rs. 8-4-0. Defendant says that afterwards he leased out the lands for Koru and got ten or twelve looms, and the value of the Koru would be about Rs. 20. Under these circumstances, I think Rs. 25 per annum is a safe estimate of the net profit from this land, and Rs. 100 was therefore, the amount obtained by defendant since 1901-1902.

8. Item 2 of schedule A.--Plaintiff says the profits were Rs. 12 per annum. The leases Exhibits 5, 6 and 7 show Rs. 8 was the rent per annum and Rs. 3 must be deducted on account of kist. Rupees 5 per annum is the net profit, and therefore, Rs. 40 for the eight years.

Items 3, 4 and 5 of schedule A.--Plaintiff has no evidence to show what defendant collected. Defendant says he collected only Rs. 14 per annum for four years. This statement must be accepted. Rupees 56 is the amount, therefore, derived by defendant from items 3, 4 and 5.

Item 6 of schedule A.--This is only 25 cents in extent. The evidence of P.W. No. 6 shows that defendant only got rent for two years at 18 looms, Rs. 22 per annum. But his whole extent was 6.0 cents. The rent for the portion of land under consideration must therefore be taken to be about one-third, or say Rs. 7 per annum. The amount collected by defendant therefore comes to only Rs. 14.

Items 7 and 8 of schedule A.--The defendant says the crop failed for four years but the Reddi and Karnam say only two years and one year respectively. From their evidence it appears defendant got rent for six years at one putti and two looms of paddy. The assessment is about Rs. 10 (vide evidence of defendant). Taking the value of a putti at about Rs. 40--we get annual yield of Rs. 30 i.e., Rs. 180 for six years.

Items 9 and 10.--There is no evidence for plaintiff. But defendant admits receipt of Rs. 32 in his written statement.

9. I find, therefore, on issue No. 4 that from items 1 to 10 of schedule A during the last eight years defendant derived.--

10. Issue 7 is whether the plaintiff is entitled to claim interest on the amounts realised by the defendant from the family property. Mr. Murphy in his judgment in this suit holds that defendant is liable to pay interest. I have, however, been directed to submit a finding on this issue also. Defendant now contends that plaintiff's claim for interest is only item 1(a) in B schedule and that interest is not otherwise claimed in the plaint. I am inclined to think he is right. Assuming, however, interest is claimed on all items, I consider plaintiff is not entitled to interest since this is a suit for a share in joint property. I have been referred to the judgment of the High Court in appeal against. Order No. 46, 1904 dated 20th October, 1904, in which interest was allowed upon a certain item from the date when Balayya admitted his liability to account for that sum. But in this case he has not admitted his liability. My finding on the 7th issue is that plaintiff is not entitled to claim interest.

11. So far as I can see, item 1 of B schedule is not referred to in the issues on which I have to give findings. Defendant admits sale of the house, but contends that plaintiff cannot seek to recover half the sale price. He contends that all that the plaintiff could do would be to sue for half the house, and that in any case that claim is barred by limitation. I think these contentious are sound.

12. The last issue is What relief, if any, is plaintiff entitled to? Plaintiff is entitled to recover possession of half share of the A schedule immoveable properties after division.

I have found that defendant realised.

Rs. 206--From items in schedule D.

82--from items in schedule C.

422--from items in schedule A.

But, according to the finding on issue 3, which the High Court says in its judgment, has pot been disputed, plaintiff is only entitled to a share of mesne profits for three years prior to suit.

It is stated also that there is no limitation as regards sums realised or collected. Applying these principles, I think it must be held that plaintiff is entitled to recover half of Rs. 206 referred to in my finding on issue 6, and half of Rs. 82 referred to in my finding on issue 5. With regard to mesne profits (issue 4) it is extremely difficult to ascertain the exact amount realised within three years prior to suit.

Item No. 1 at Rs. 25 per annum for 3 years would give Rs. 75.

Item No. 2 would give Rs. 15 for three years.

Items Nos. 3, 4 and 5 would give Rs. 42 for three years.

Item No. 6 only Rs. 14 collected for two years.

Items Nos. 7 and 8 would give Rs. 90 for three years.

Items Nos. 9 and 10 would give Rs. 12 for three years. The total collected for three years prior to suit would therefore be about Rs. 248. Plaintiff is, therefore, entitled to recover only Rs. 124.

13. On the whole, plaintiff would be entitled to her half share of the immoveables in schedule A plus Rs. 268.

Judgment

4. Issues 4 to 8:--On the facts we agree with the findings of the present District Judge. We accept his conclusions on the evidence.

5. It has been held by this Court in Vaidyanatha Aiyar v. Aiyasamy Iyer MANU/TN/0232/1908 : 32 M. 191 : 19 M.L.J. 94 : 5 M.L.T. 49 : 1 Ind. Cas. 408, that, where the members of a joint Hindu family become divided in status, and thereafter one of the members recovers debts due to the family, the article of limitation applicable in such a case is article 62 of Schedule II of the Limitation Act. This decision followed an earlier decision, Tellis v. Saldanha MANU/TN/0186/1886 : 10 M. 60, where the parties were Native Christians living together as a joint family both before and after the introduction of the Succession Act. We have also been referred to a decision of the Allahabad High Court, Muhammad Habibullah Khan v. Safdar Husain Khan 7 A. 25 in which Article 120 was held to be applicable to a case of a suit against a joint purchaser to recover possession of a share of certain property and to have an account taken of the profits. The circumstances of the parties in the Madras case were more similar to the circumstances of the parties in the present litigation. We think that Article 62 is the Article that governs the plaintiff's remedy as regards outstandings recovered by the defendant after the family became divided.

6. As regards the items of rent collected upon lands in the possession of the defendant, whether Article 62 or Article 109 be applied, the term of limitation will be three years.

7. Adopting three years as the period of limitation applicable to the present case, all the items referred to in issues 5 and 6 which deal with schedules C and D are time-barred. Under issues 4 and 8 the District Judge has correctly found that plaintiff is entitled to recover Rs. 124 as mesne profits for three years. As regards the family house alleged to have been sold eight years ago, the recovery of the money realised by its sale and the interest thereon has became time-barred. Our decision in this respect will not however, affect any remedy the plaintiff may have for recovery of her share of the house.

8. The result is that the appellant will get a decree declaring her title to a moiety of the immoveable properties in A schedule and for partition by metes and bounds of her share, also for payment of Rs. 124 mesne profits with interest at 6 per cent per annum from date of the institution of the suit till realisation. She will also be entitled under the decree to recover her proportionate costs of this suit in this Court and in the District Court in proportion to the degree of her success in respect, of the items sued for. The rest of her claims are dismissed with proportionate casts.

Segu Chidambaramma v. Segu Balayya

Structured Summary of the Provided Judicial Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Segu Chidambaramma v. Segu Balayya

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