JUDGMENT
1. Appeal No. 6 is an appeal by the defendants against a decree in a partition suit with reference to certain sums of money which the Subordinate Judge held were payable by the defendants to the plaintiff under the decree. Appeal No. 23 is an appeal by the plaintiff against the same decree. In Appeal No. 2i the plaintiff raised the general question whether he was entitled to an account as incidental to his suit for partition. In his plaint he asked for an account as from October 1884, the date when the first defendant became the managing member of the family. An issue was taken as to whether the first defendant as managing member was liable to render accounts to the plaintiff for any and what period. The Subordinate Judge held that the plaintiff had not made out a case to be entitled to call upon the first defendant to render an account of past transactions. The plaintiff appealed against this finding. There is considerable conflict of authority on the question whether a member of an undivided family who sues for partition is entitled as of right to call upon the managing’ member to render an account of his dealings with the family property. Mr. Mayne observes (paragraph 294) that the right of each member of an undivided Hindu family to require an account of the management has been both affirmed arid denied in decisions which are not very easy to reconcile. The view which has been adopted in Bengal is that a member who sues for partition is so entitled see Abhay Chandra Roy Chowdhry v. Pyarimohan Guho 5 B.L.R. 347 : 13 W.R. 75 (F.B.). In Bombay the decisions are not uniform, but in the latest reported case an authority on which the Subordinate Judge relied Narayan bin Babaji v. Nathaji Durgaji 28 B. 201 it was held that in a partition suit no co-parcener has a right to an account of past transactions. The question is somewhat bare of authority so far as this Presidency is concerned, but the view which has prevailed would seem to be the same as that taken in the Bombay case just referred to. In Krishna v. Subbanna 7 M. 564 the actual point decided was that in the case of an infant who has been excluded from the enjoyment of the family property the manager is bound to account to the infant for mesne profits from the date of his exclusion. The learned Judges, however, expressed an opinion (see page 569) that if an adult member is not excluded but chooses to live apart from the manager, as he did not choose to enforce partition, it might be reasonable, apart from any question of fraud or misappropriation by the manager, to apply the principle that unless something is shown to the contrary, every adult member of an undivided family, living in commonality with the manager must be taken to be a participator in, and authorizer of, all that has been done in the management of the property. The learned Judges who decided this case were apparently prepared to extend the principle to which they referred to the case of an adult member who chose to live apart from the manager without enforcing partition. In the case before us the plaintiff who lived as a member of the family at any rate until the end of 1902 claims an account in respect of transactions entered into when he was living with the family as an undivided member thereof.
2. In the case of Rama Iyer v. Duraisami Iyer Appeal No. 185 of 1899 (unreported) Davies and Moore JJ. set aside a decree ordering an account of past transactions in a suit for partition. The case of Raja Setrucherla Ramabhadra v. Raja Setrucherla Virabhadra Suryanarayaha 22 M. 470 : 26 I.A. 167 : 3 C.W.N. 533 was decided by the Privy Council with reference to the special agreement which had been entered into by the members of the family, but it appears to be assumed in the judgment that the managing member is only liable to account as to the state of the property existing at the date of partition. The observation made by the Privy Council in their judgment in Annamalai Chetty v., Murugasa Chetty 26 M. 544 : 13 M.L.J. 287 : 5 Bom. L.R. 494 : 7 C.W.N. 754, that the relation between the managing member and the members of the family is not that of principal and agent, or of partners, but is more like that of trustee and cestui que trust, was, of course, made with reference to the question under consideration in that case and cannot be relied on as expression of opinion by the Privy Council on the question as to how far the managing member may be called on to account. In our opinion the decision in Abhay Chandra Roy Chowdhry v. Pyarimohan Guho 5 B.L.R. 347 : 13 W.R. 75 (F.B.) which appears to have been a case decided under the Dayabhaga Law is not applicable in the case of a family governed by the Mitakshara law as administered in this Presidency.
3. A member of a Mitakshara family cannot predicate at any given moment “what his share in the family estate is. His share only becomes defined when a partition takes place. It is otherwise under the Dayabhaga Law where the law is that applicable to tenants-in-common and the position of the managing owner approximates more closely to that of a trustee than in the case of a family governed by Mitakshara Law. In our opinion a member of an undivided family who sues for partition and who has not been excluded from the family is not, unless he establishes fraud or misappropriation, entitled to call upon the managing member to account for his past dealings with the family property. All he is entitled to is an account of the family property at the time he asks for partition.
4. Even if, as regards the general question, we “were prepared, to accept the view taken in Abhay Chandra Roy Chowdhry v. Pyarimohan Guho 5 B.L.R. 347 : 13 W.R. 75 (F.B.) it seems to us that in the present case the plaintiff has put himself out of Court so far as any right to claim a general account from the first defendant is concerned. Besides the issue as to whether the plaintiff was entitled to a general account, a specific issue was raised as to whether the first defendant had in his possession Rs. 20,000, as savings out of the income of the family. In the third schedule to his plaint the plaintiff set out specific items of which he alleged he was entitled to a moiety. The first item is the Rs. 20,000 which the plaintiff estimated as the net income of the family during the period of the management by the first defendant.
5. The plaintiff sought to make out his case in two ways-first by showing that having regard to the family income and the family expenditure, the first defendant ought to have had in hand, when the suit was brought, this sum of Rs. 20,000. and secondly by showing that the first defendant had in fact received, on behalf of the family, sums of money in excess of Rs. 20,000 for which he was accountable to the plaintiff. It was contended on behalf of the plaintiff that as he could not anticipate what the finding of the Court would be on his claim for a general account he was entitled to show that specific sums had been received by the first defendant. In the Court below the plaintiff called evidence to show that the specific sums had in fact been received by the first defendant, and the items were in part allowed and in part disallowed.
6. It seems to us that the plaintiff having undertaken to show, item by item, that specific sums had been received by the first defendant on behalf of the family, which sums, in the aggregate, exceeded Rs. 20.000 which the plaintiff alleged the first defendant ought to have in hand as representing family savings, it was not open to him to ask for a general account. The Court below in effect took an account on particulars furnished by the plaintiff. This was done at the plaintiff’s instance. In his appeal to this Court the plaintiff makes it one of his grounds of appeal that he is entitled to an account as incidental to a decree for partition; but the specific items which the plaintiff alleges were wrongly disallowed are made the basis of the valuation of the appeal. This being so then there is considerable force in Mr. Krishna-swami Aiyar’s contention that the plaintiff is not in his appeal entitled to raise the question of his right to a general account before this Court. It seems to us manifestly unreasonable that the plaintiff, because he is dissatisfied with the amounts awarded to him, should ask us to send the case back for a general account on the ground that the finding of the Subordinate Judge that the plaintiff was not entitled to a general account of past transactions was wrong.
7. There is evidence in this case that the rendering of a general account by the first defendant is impossible by reason of the fact that the family accounts are in the possession of the plaintiff. In the view we take on the general question of the right of a member of an undivided family to an account from the manager in respect of past transactions, and on the question of the plaintiff’s rights in this connection in this particular case, we do not think it necessary to discuss this evidence.
8. We now proceed to consider the evidence with-regard to the specific items which the plaintiff alleges were received by the first defendant, and for which the first defendant is accountable to him.
9. [Their Lordships then went into the evidence, and allowing Appeal No. 6 of 1906, modified the decree of the lower Court.]
