JUDGMENT
G.V. Seethapathy, J.
1. This appeal is directed against the judgment and decree dated 9-6-1998 in OS No. 177 of 1991 on the file of Senior Civil Judge, Machilipatnam, wherein the suit filed by the first respondent herein for partition and separate possession and rendition of accounts was decreed granting a preliminary decree declaring that the plaintiff is entitled for 3/32nd share in plaint schedule property and defendants 1 to 3 and defendants 5 to 7 are each entitled for 3/32nd share and defendant No. 4 is entitled for l/4th share besides 3/32nd share and further directing defendant No. 1 to render accounts of the profits received by him.
2. The first respondent herein filed the suit with the following averments:
The plaintiff and defendants 1 to 3 are the sons and defendants 5 to 7 are the daughters of the fourth defendant. Defendant No. 4 is adopted son of Yenduri Somaiah @ Rama Swamy and his wife Bala Sesha Nancharamma. Somaiah died intestate in 1970 leaving behind defendant No. 4 and his adoptive mother Bala Sesha Nancharamma as his legal heirs. The plaint schedule property, which belongs to Somaiah devolved on his wife Bala Sesha Nancharamma and her adopted son defendant No. 4. Nancharamma executed a registered Will in 1983 in respect of her undivided half share in the plaint schedule property in favour of the plaintiff and defendant No. 1 bequeathing equal shares. She died in October 1986. The property is under the management of defendant No. 1. Defendant No. 1 let out the schedule property to defendants 8 to 18 and has been collecting rents and enjoying the same. Defendants 1 and 4 refused to effect partition and pay plaintiff’s share of the rents. Defendant No. 1 got issued a registered notice dated 2-3-1991 to which the plaintiff got issued reply dated 12-3-1991 demanding partition. As per the Will of Nancharamma, plaintiff and defendant No. 1 get 1/4th share each and in respect of the other half share, plaintiff, defendants 1 to 7 get 1/8th share each and 1/16th share each. In all, the plaintiff is entitled for l/4th + 1/16th + 5/16th share in the plaint schedule property. As defendants 1 and 4 did not come forward to effect partition, the plaintiff filed the suit.
3. Defendant No. 1 filed a written statement stating no objection for decreeing the suit but with modification in the shares. He further pleaded that Bala Sesha Nancharamma executed Will in 1983 in favour of himself and plaintiff and the property is under his management at the request of all the sharers. He further pleaded that he incurred debts to a tune of Rs. 40,000/- to effect repairs to the building and he is getting only Rs. 800/- per month as rent but spending Rs. 1,000/- per month towards maintenances as the building is above 100 years.
4. Defendant No. 2 filed a written statement contending that the Will alleged to have been executed by Bala Sesha Nancharamma is not genuine and she died intestate in the year 1987. The schedule property is joint family property of defendant No. 4 and his father Somaiah and after the death of Somaiah in the year 1977, defendant No. 4 became entitled for 3/4th share and his adoptive mother got l/4th share and on the death of adoptive mother in 1987, her l/4th share devolved on defendant No. 4 as his absolute property. The remaining 3/4th share is joint family property of fourth defendant and his sons and daughter Purnachandrika. The property is under the management of defendant No. 1 who has been collecting and enjoying the rents. Defendant No. 1 never effected repairs to the building. In case, the Court comes to the conclusion that the house is joint family property, it has to be divided accordingly in accordance with law with a direction to defendant No. 1 to account for the income therefrom.
5. Defendant No. 3 filed a memo adopting the written statement filed by defendant No. 2.
6. Defendant No. 4 filed a written statement contending that the schedule property is joint family property of defendant No. 4 and his father Somaiah and after the death of Somaiah, defendant No. 4 got 3/ 4th share in the schedule property and his adoptive mother got 1/4th share and after the death of his adoptive mother in 1984 intestate, defendant No. 4 became entitled to her share also as absolute owner and remaining 3/4th share is joint family property of defendant No. 4, his sons and last daughter Puma Chandrika, who was married in 1989. He further pleaded that the Will alleged to have been executed by Bala Sesha Nancharamma in 1983 is not genuine. The schedule property is under the management of defendants 1 and 2 and they have been collecting and enjoying the rents thereon. In 1980, defendant No. 4 along with defendants 3, 5 to 7 had to vacate the house leaving behind an iron safe, which contained gold jewellery of 23 sovereigns and silver articles of 750 tulas. Defendant No. 4 came to know that the iron safe along with valuables was sold and appropriated by plaintiff and defendants 1 and 2. It is further pleaded that if the Court comes to the conclusion that the schedule property is to be partitioned, then the said house being joint family property, has to be divided in accordance with law with a direction to defendants 1 and 2 to account for the income therefrom.
7. Defendants 5 to 7 filed a memo adopting the written statement of defendant No. 4.
8. Defendants 8 to 18 remained ex parte.
9. On the strength of the pleadings, the trial Court framed the following issues:
(1) Whether the debts to a tune of Rs. 40,000/- are true?
(2) Whether the Will executed by Bala Sesha Nancharamma is true, valid and binding?
(3) Whether D4 has got 3/4th share in the plaint schedule property?
(4) Whether the plaint schedule house is joint family property of D4 and his father?
(5) Whether the plaintiff is entitled to partition?
(6) Whether the plaintiff is entitled to profits?
(7) To what relief?
10. PWs.1 to 4 were examined and Exs.A-1 to A-4 were marked on the plaintiffs side. DWs.1 to 3 were examined and Exs. B1 to B13 were marked on the defendants’ side.
11. On a consideration of the evidence on record, the trial Court gave a finding on issue No. 4 that the plaint schedule property is joint family property of defendant No. 4 and his father Yenduri Somaiah. On issue No. 2, the trial Court gave a finding that the plaintiff failed to establish that Ex.A2 is a genuine document. On issue No. 1 the trial Court gave a finding that defendant No. 1 is not entitled to seek contribution of any amount from other sharers regarding the expenditure purported to have been incurred by him in a sum of Rs. 40,000/- for effecting repairs to the building. On issues 3 and 5, the trial Court held that the plaintiff and defendants 1 to 3 and defendants 5 to 7 each are entitled to 3/32nd share and defendant No. 4 is entitled for 3/32nd share besides 1/4th share, which he got with absolute rights from his mother. On issue No. 6, the trial Court held that defendant No. 1 is in possession and enjoyment of the property and receiving the rents and therefore he is liable to render the account of mesne profits and the plaintiff is directed to file separate application for ascertainment of the profits derived by defendant No. 1. Accordingly, the suit was decreed granting a preliminary decree as stated above.
12. Aggrieved by the same, the first defendant filed the present appeal. During the pendency of the appeal, the first defendant-appellant died and his legal representatives are brought on record as appellants 2 to 4 as per orders dated 2-9-2002 in CMP No. 16207 of 2002. The 4th defendant filed cross-objections.
13. Arguments of the learned Counsel for the appellants and respondents are heard. Records are perused.
14. Learned Counsel for the appellant contended that the trial Court erred in disbelieving the Will, though it was duly proved by the evidence of scribe PW-3 and attestors PWs.2 and 4 and thus the shares allotted to the parties by the trial Court are incorrect. The learned Counsel for the contesting respondent-defendant No. 4 who is also the cross-objector contended that the property was originally acquired by defendant No. 4 and his father from out of joint family funds generated from joint family business and after the death of his father, the half share pertaining to his father devolved on defendant No. 4 and his adoptive mother equally and thus the said 1/4th share which he got from his father constitute self acquired property and the other l/4th share of his mother Nancharamma also devolved on him as his absolute property as Nancharamma died intestate and therefore plaintiffs, defendants 1 to 3 and 5 to 7 are entitled for a share only in the remaining half share which defendant No. 4 got as coparcener.
15. The plaintiff and defendants 1 to 3 are the sons and defendants 5 to 7 are the daughters of 4th defendant. Yenduri Somaiah @ Rama Swamy and his wife Bala Sesha Nancharamma are the adoptive parents of defendant No. 4. Somaiah died intestate in 1970 leaving behind the plaint schedule house property situate in Godugupet, Machilipatnam, which devolved on his heirs, namely wife Nancharamma and adoptive son defendant No. 4. According to the plaintiff, the suit property was self acquired property of Somaiah and on his death, Nancharamma and defendant No. 4 got half share each therein and Nancharamma executed a registered Will. Ex.A2 dated 14-12-1983 bequeathing her half share in favour of plaintiff and defendant No. 1 equally and the remaining half share is joint family property of defendant No. 4 and his sons. Defendant No. 1 supported the case of the plaintiff that the suit property was self acquired property of Somaiah and after his death, his wife Nancharamma got half share therein and she executed Will Ex.A2 bequeathing her half share in favour of plaintiff and defendant No. 4 equally. The plaintiff and defendant No. 1 therefore claim l/4th share each as their absolute property by virtue of the Will Ex.A2. Defendant No. 1 further pleads that he effected repairs to the house by incurring debts to a tune of Rs. 40,000/- and the said liability is also to be borne out by all the sharers. The plaintiff disputes the said claim made by defendant No. 1. Defendants 2 and 4 contend that the suit property was joint family property of defendant No. 4 and his father Somaiah having been acquired with joint family income generated from out of joint family gold business. For improving his business, defendant No. 2 and his sons sold the ancestral lands and house property also. They further dispute the genuineness of the Will Ex.A2 propounded by plaintiff and defendant No. 1. According to them, the suit house being joint family property, defendant No. 4 was having half share and the remaining half share of his father Somaiah devolved on Nancharamma and defendant No. 4 equally and after the death of Nancharamma, who died intestate in 1987, her 1/4th share devolved on defendant No. 4 and constituted his absolute property and only the remaining 3/4th shares in the suit property constituted joint family property of defendant No. 4 and his sons. Defendants 2 and 4 also opposed the claim of defendant No. 1 that he effected repairs to the suit building spending over Rs. 40,000/-and the same is liable to be shared by all the sharers. Defendant No. 3 supported the contentions of defendant No. 2.
16. In view of the rival contentions of the parties, the questions, which arise for consideration, are:
(i) Whether the suit property was self acquired property of Somaiah @ Rama Swamy as claimed by plaintiff and defendant No. 1 or whether it was joint family property as contended by defendants 2 to 4?
(ii) Whether the Will Ex.A2 alleged to have been executed by Balasesha Nancharamma is true, valid and binding?
(iii) Whether the first defendant’s claim of spending Rs. 40,000/- for effecting repairs to the suit building is true;
(iv) To what shares the parties are entitled to in the suit schedule property; and
(v) Whether the decree and judgment dated 9-6-1998 passed by the trial Court granting a preliminary decree for partition is liable to be interfered with?
Point No. 1:
17. Except making an averment in the plaint that the suit property was the property of Somaiah, no details were furnished as to how it was acquired by him and by what means. In the evidence, PW-1 deposed that the suit property is self-acquired property of Somaiah and he purchased the same from Madhugupta in 1955 under sale deed Ex.A1. In the cross-examination, PW-1 admitted that he does not know whether his father and grandfather jointly carried on gold shop business during the lifetime of his grandfather. He however admitted that the suit property was purchased by his grandfather from out of the income in the business. He does not know whether his grandfather and his father sold the ancestral property of Ac.6-7 cents for the purpose of improving the business. He denied the suggestion that himself, defendants 1 and 2 and their father and his grandfather sold again a tiled house on 28-7-1960 and utilized the sale proceeds for the purpose of business. He categorically admitted that he does not know whether his father and grandfather improved business after disposing of the ancestral properties. PW-1 further admitted that after his grandfather became sick and confined to bed, his father Somaiah continued the said business, which shows that the business was done jointly by Somaiah and his son defendant No. 4 as members of the joint family.
18. Defendant No. 4, who is examined as DW-3 testified that the suit property is joint family property belonging to himself and his father and they purchased the same with the income derived from the joint family business. It is also in his evidence that the joint family owned 6 acres of land at Gudur and himself and his father sold the same in the year 1948 under the original of Ex.B1 dated 14-2-1949. He further deposed that himself and his father and his sons plaintiff and defendants 1 to 3 jointly sold the joint family house situate at Jawarpet, Machilipatnam in 1960 under the original of Ex.B2 and utilized the sale proceeds for the purpose of improving the business. Ex.B1 recites the purpose of sale as investment in the business. The sale under Ex.B1 was effected by defendant No. 4 and his father regarding the extent of Ac.6-07 cents of land belonging to their joint family. Ex.B2 shows that the sale of the house in Jawarpet, Machilipatnam was effected by Somaiah and his undivided adopted son Prabhakar Rao defendant No. 4 and his sons, i.e., plaintiff and defendants 1 to 3 herein. The purpose of sale is also recited in Ex.B2 as improvement of the business. The recitals in Ex.B1 and B2 support the contention of defendant No. 4 that himself and his father constitute joint family and they were doing joint family gold business and for the purpose of investment in an improvement of the business, they sold away ancestral lands under Ex.B1 and ancestral house under Ex.B2. No doubt, Ex.A1 was executed in the name of defendant No. 4’s father Somaiah. It is not as though Somaiah got divided from defendant No. 4 by the date of Ex.A1. The recitals in Ex.B2, which was long subsequent to Ex.A1 show that Somaiah and his son defendant No. 4 continued to be the members of the joint family and were doing joint family business in gold. It is not the case of the plaintiff that Somaiah had any other individual and independent source of income, so as to purchase the suit property under Ex.A1. Apart from the land of Ac.6-07 cents sold under Ex.B1 and the tiled house at Jawarpet sold under Ex.B2, the joint family had no other properties. The said land and house were sold away only for the purpose of investment in the gold business. Whatever I property was acquired was only from out of! the income derived from the joint family gold business. In the absence of any evidence to show that Somaiah had any other property or income of his own which formed the nucleus for acquisition of the suit property under Ex.A1, and in the light of the evidence discussed supra, the irresistible conclusion to be reached is that the suit property was acquired by Somaiah with the income from the joint family business and therefore it constituted joint family property. It is but natural that the sale deed Ex.A1 was taken in the name of Somaiah, who is kartha of the joint family. Under those circumstances, the finding of the trial Court that the plaint schedule property is joint family property of defendant No. 4 and Somaiah does not call for any interference.
Point No. 2:
19. According to the plaintiff and defendant No. 1, Nancharamma wife of Somaiah executed a Will Ex.A2 in respect of her half share in the suit property bequeathing half share each to plaintiff and defendant No. 1. Defendants 2 and 4 seriously disputed the genuineness of Ex.A2. The burden squarely lies on the plaintiff to establish the truth and validity of Ex.A2 beyond any shadow of suspicion.
20. The fact that Ex.A2 was registered document has no bearing on the question of its genuineness or otherwise. In order to prove the execution of Ex.A2, the plaintiff examined PW.3 the scribe and PWs.2 and 4 the attestors of the Will. PW.3 deposed that Nancharamma requested him to get the Will scribed and he wrote the document at the house of Chakka Narasimha Rao who has associated and Nancharamma herself furnished all the particulars for drafting the Will. In the cross-examination, PW.3 admitted that he had no prior acquaintance with Nancharamma prior to the date of Ex.A2 and he came to know her only on that day. He also does not know personally whether the contents of Ex.A2 are true or false. But, he admitted that in Ex.A2, it is recited that testatrix was suffering from disease since quite sometime and since about an year, she was not in a position to move about and was bed ridden. PW.3 denied the suggestion that as Nancharamma was bed ridden since one year prior to the date of Ex.A2, there was no occasion for her nor any possibility of her coming to him for the purpose of getting the Will scribed.
21. PWs.2 and 4 also asserted in their evidence that Nancharamma was hale and hearty and was moving about by the date of Ex.A2. PW.2 is co-brother of defendant No. 1. According to PW.2, Nancharamma was moving about and attending to her works on her own and at her request, she accompanied her to Registrar’s Office on the date of Ex.A2. PW.4 is practitioner of Ayurvedic medicine and he claims to be the family physician of Nancharamma. According to him, Nancharamma was keeping sound health till her death except that she was complaining of joint pains now and then. According to him, the Will was scribed at Sub-Registrar’s Office whereas the scribe PW.3 stated that he wrote the Will at the house of Chakka Narasimha Rao. PW-4 also asserts that the recital in Ex.A2 that Nancharamma was bed ridden since one year prior to the date of Ex.A2 is false and he volunteers to say that Nancharamma was moving about freely and attending to her works on her own. The evidence of PWs.2 to 4 therefore shows that Nancharamma was hale and hearty and was moving about and was able to attend to her routine without any suspicion. However, in Ex.A2, it is recited that for quite sometime, the testatrix was suffering with ailment and since one year, she was totally bed ridden and unable to move about. It was reiterated at a later stage also in the Will by reciting that since one year, she is unable even to walk as she lost control over the legs and she is totally bed ridden. The said recitals regarding the state of health of Nancharamma are totally false according to PWs.2 to 4. The trial Court has rightly observed that when the Will contains such recitals, which are shown to be false, it heavily impinges on the genuineness of the document. When Nancharamma was hale and hearty and was able to move about, she would not have allowed contrary recitals to be made in the Will which circumstance supports the contention of defendants 2 and 4 that the contents of Ex.A2 were not to the knowledge of the testatrix.
22. Yet another circumstance, which raises any amount of suspicion over the genuineness of the Will Ex.A2 is total exclusion of defendant No. 4 and his other sons defendants 2 and 3 and daughters D5 to D7. The bequests contained in the Will Ex.A2 are only in favour of plaintiff and defendant No. 1. Defendant No. 4 is the adopted son of Nancharamma. There is nothing on record to show that there were any disputes between Nancharamma and her adopted son defendant No. 4. There is absolutely no reason as to why Nancharamma has chosen to exclude defendant No. 4. Further, defendant No. 4 had four sons and three daughters. It is not the case of the plaintiffs that Nancharamma was having any disputes with her grand children. There is absolutely no reason or explanation as to why Nancharamma had preferred only two of her grandsons, i.e., plaintiff and defendant No. 1 leaving out the other grandsons defendants 2 and 3 and granddaughters defendants 5 to 7. Admittedly, Nancharamma executed an earlier Will on 22-1-1981 which is referred to in Ex.A2 as having been cancelled. Under the earlier Will, Nancharamma is said to have made a bequest of cash in favour of plaintiff and defendants 1 to 3. Ex.B13 is the RC of the earlier Will. In Ex.B13, it is recited that Nancharamma was having disputes with defendant No. 4, but however her grandsons were treating her with all love and affection and therefore, she was bequeathing deposit of Rs. 30,000/- lying in her name with Andhra Bank Employee’s Co-operative Limited in favour of her four grandsons, i.e., Rs. 7,500/- each. When Nancharamma was receiving all love and affection from all her grandsons in 1981 and therefore she wanted to bequeath cash of Rs. 7,500/- to each of them, it is not known why she had to change her mind within three years and give a preferential treatment to only two of them, i.e., plaintiff and defendant No. 1 to the extent of bequeathing her share in the plaint schedule house in their favour. In Ex.A2, while cancelling the earlier Will Ex.B13, the bequest of deposit of Rs. 30,000/- in favour of the four grandsons equally is retained. But, in addition to the same, plaintiff and defendant No. 1 were conveyed equal shares from out of the share of Nancharamma in the suit property to the total exclusion of other grandsons or granddaughters, let alone defendant No. 4 himself. There is absolutely no reason or explanation forthcoming in the evidence adduced by the plaintiff for the preferential bequest in favour of plaintiff and defendant No. 1 and the change of mind on the part of Nancharamma. In the absence of any such explanation, the suspicion looms large over the genuineness of Ex.A2. Plaintiff who is propounder of Will Ex.A2 has miserably failed to clear the suspicious circumstance afflicting the Will, which admittedly contains false recitals. The testimony of PWs.2 to 4 is rightly rejected by the trial Court and the finding recorded by it that the plaintiff failed to establish the genuineness of the Will Ex.A2 also does not call for any interference.
Point No. 3:
23. It is not disputed that defendant No. 1 has been in possession and enjoyment of the suit house and has let out the same to tenants defendants 8 to 18 and has been collecting the rents. Though he has not opposed the idea of partition, he claims that he spent Rs. 40,000/- for effecting repairs and therefore pleads that all the sharers have to contribute equally in that regard. The plaintiff and defendants 2 and 4 categorically denied that defendant No. 1 has spent any such amount for effecting repairs. Even in the notice Ex.A3 got issued by defendant No. 1, it is merely stated that defendant No. 1 had to incur debts of Rs. 40,000/- in order to effect repairs. The particulars of the alleged debts and as to how much was borrowed from whom and when, are not disclosed in Ex.A3. In the reply notice Ex.A4, the plaintiff stated that defendant No. 1 never spent any such amount for effecting repairs and defendant No. 1 is on the other hand liable to render account for the rents received by him from the tenants. In spite of it, defendant No. 1 has not furnished details of the alleged debts even in his written statement except reiterating that he spent Rs. 40,000/- for repairs. In the evidence, DW-1 deposed that the rent is sufficient for maintenance of the building and for taxes payable to the Municipality. He however claims that he spent Rs. 40,000/- for repairs. According to him, the accounts maintained by him regarding the repairs got damaged due to rain. In the cross-examination, he stated that he effected repairs in the year 1988, 1990 and 1992 and maintained accounts for the same and account books were damaged. He has not chosen to file any bills or receipts or vouchers showing the expenditure in connection with the alleged repairs. He has also not adduced any evidence either oral or documentary in support of his claim that he borrowed money for the purpose of effecting repairs to the house. The claim of DW.1 that account books were damaged due to rain appears to be a lame excuse. In the absence of any supporting evidence, his claim that he borrowed money to the extent of Rs. 40,000/- and effected repairs to the house remains totally unsubstantiated and therefore the suit claim was rightly rejected by the trial Court.
Point No. 4:
24. In view of the findings recorded to the effect that the plaint schedule house property constituted joint family property of defendant No. 4 and his father Somaiah, defendant No. 4 was having half share and other half share pertaining to Somaiah devolved on his death upon his wife Nancharamma and adopted son defendant No. 4 in equal shares and thus Nancharamma was having 1/4th share and defendant No. 4 was having 3/4th share in the suit property. In view of the finding that the Will Ex.A2 said to have been executed by Nancharamma is not proved to be genuine and the earlier Will not pertaining to the suit property, on the death of Nancharamma, her 1/4th share devolved on her adoptive son defendant No. 4 which share was held by defendant No. 4 as his absolute and separate property. The remaining 3/4th share constitutes joint family property of defendant No. 4 and his sons and daughters.
25. In the written statement, defendant No. 4 admitted in Para 4 that he became absolute owner of 1/4th share of Nancharamma as her legal heir and the balance 3/4th share is joint family property of himself and his sons and last daughter Puma Chandrika who was married in 1989. Defendants 5 to 7 filed a memo adopting the written statement of defendant No. 4. The averment contained in the written statement of defendant No. 4 that the last daughter Puma Chandrika (D6) was married in 1989 is therefore not disputed. However, in view of the amendment to the Hindu Succession Act (Amendment Act, 2005), defendant Nos. 5 to 7, who are daughters of D4 are also entitled to a share on par with their brothers, plaintiff and defendants 1 to 3 in the joint family property. Plaintiff and defendants 1 to 4 and defendant Nos. 5 to 7 are therefore entitled for 1/8th share each out of the 3/4th share of the joint family house property and the remaining 1/4th share constitutes separate and absolute property of defendant No. 4 he having inherited the same from his adoptive mother Nancharamma.
26. Defendant No. 4 filed cross-objections claiming that in addition to the l/4th share inherited by him from Nancharamma, the other 1/4th share, which devolved on him on his father’s death also constitutes separate and absolute property and only the remaining half share which he was having as a coparcenery in the joint family property (other half share pertaining to his father Somaiah) alone is liable for partition. He therefore contends that the shares have to be worked out within the half share of the suit property and not out of 3/4th share and the remaining half share constitutes his separate property (1/4th inherited from his mother Nancharamma and the other 1/4th inherited from his father Somaiah). However, in the written statement filed by him, defendant No. 4 has categorically pleaded that only 1/4th share which he got from Nancharamma constitutes his separate property and the remaining 3/4th share constitutes joint family property. In view of categorical pleading contained in the written statement of D4 to the effect that 3/4th share in the suit property constitutes joint family property, it is not open for defendant No. 4 to plead contra by saying that only half share constitute joint family property and the remaining half share is his exclusive property. At this stage, defendant No. 4 cannot be permitted to raise a new plea by way of cross-objections contrary to the original pleading in his written statement based on which the parties went to trial. The cross-objections filed by defendant No. 4 are therefore unsustainable.
27. In the circumstances and for the reasons stated above, it is held that the plaintiff and defendants 1 to 4 and defendant Nos. 5 to 7 are entitled for 1/8th share each, which comes to 3/32nd share each in the plaint schedule property in addition to the said 3/32nd share, defendant No. 4 is entitled for remaining 1/4th share also which constituted his separate property. The preliminary decree granted by the trial Court and the other directions contained therein regarding the liability of defendant No. 1 to render true and correct account of the profits received by him and further directing that the ascertainment of profits shall be determined on separate application by the plaintiff shall stand confirmed.
28. In the result, the appeal is dismissed. In the circumstances, no order as to costs.