JUDGMENT
Tarkeshwar Nath, J.
1. This appeal by the defendants arises out of a suit for partition of the one-fifth share belonging to the plaintiff. Apart from this relief, the plaintiff wanted a decree for rendition of accounts from the defendants.
2. The plaintiffs case, in short, was that one Dinanath Gorai had five sons, namely, Satish, Amulaya, Ramratan, Gour and Gokul. The first-four sons are defendants 1, 2, 3 and 4, respectively, in this action. The plaintiff is the widow of the fifth son Gokul. Dinanath died on the 3rd of March, 1949, leaving his widow Makhanmani. Dinanath died in a State of jointers with the defendants and his other son Gokul with the result that each son got one-sixth share and the widow as well got one-sixth share. Gokul, husband of the plaintiff, died on the 30th of June 1950. Subsequently, Makhanmani also died on the 7th of September 1953, and after her death her share devolved on the defendants and the plaintiff with the result that the plaintiff got one-fifth share in the properties belonging to this family. The plaintiff, further asserted that the defendants were misappropriating the joint family property and they did not give her due share, to these circumstances she filed the suit giving rise to this appeal on the 22nd August 1956 for partition in respect of the properties described in the various schedules of the plaint.
3. The case of the defendants, on the other hand, was that the family was not joint and Dinanath was the sole and exclusive owner of the properties during his lifetime. The only income from the properties was royalty from coal lands and paddy from agricultural lands. The royalty received from the coal lands had to be spent in paying the dues of the superior landlords. After the death of Dinanath on the 3rd of March 1949 all his sons separated from one another and occupied separate, portions of the residential houses. The defendants had separate business and they acquired properties separately with which the plaintiff had no concern. According to them, the plaintiffs husband died before the death of Makhanmani with the result that Makhanmani’s one-sixth share was inherited by the defendants alone to the exclusion of the plaintiff, and in this manner their contention was that in any event the plaintiff had only one-sixth share and not one-fifth. They further asserted that the plaintiff was not entitled to a decree for rendition of accounts inasmuch as she failed to make out a case of misappropriation and fraud.
4. In view of these pleadings the main issue in
the case was as to whether the plaintiff had one-fifth
store and which properties, were liable to partition. There was another issue as to whether there was partition of moveables belonging to Dinanath and his widow inasmuch the defendants had asserted that there was a partition
of the moveables.
5. The Subordinate Judge held that the plaintiff had one-fifth share and there was no partition of the imoveables. He, however, passed no decree with regard to the partition of moveables described in Schedule 1 of the plaint, as their existence was not proved and apart
from that he excluded items 3 and 5 of Schedule 4 from partition on the same ground. He further held that the plaintiff was entitled to a decree for accounts since the date of death of Dinanath which occurred on the 3rd of March 1949. In view of these conclusions he decreed the suit in part for partition of the plaintiff’s one-fifth share of the family property as mentioned in the schedules
of the plaint except Schedule 1 and items 3 and 5 of Schedule 4. The defendants were directed to put the plaintiff in separate possession of the said share within a month of the order failing which the plaintiff
was entitled to get her share demarcated by metes and bounds through the aid of a pleader commissioner. The
defendants were further directed to render accounts before a pleader commissioner appointed by the Court and
they had to pay Rs. 150/- per month to the plaintiff till the final decree. The said payment was to be accounted
for and adjusted at the time of the final decree. Being
aggrieved by this decree the defendants have preferred this appeal.
6. Learned Counsel for the appellants challenged of the outset the finding of the trial Judge with regard to the share of the plaintiff. The dates of deaths of Makhanmani and Gokul are beyond dispute and it appears that Gokul died on the 30th June 1950, whereas Makhanmani died on the 7th September 1953. On the death of Dinanath which occurred on the 3rd March 1949 his widow
(Makhanmani) had one-sixth share in the family properties. Similarly, defendants 1 to 4 and Gokul also had
one-sixth share each. After the death of Makhanmani, which occurred on the 7th September 1953, her one-sixth share would devolve on defendants 1 to 4 and Gokul’s
widow, the present plaintiff. Section 15 of the Hindu Succession Act 1956 will not apply inasmuch as Makhanmani died before the passing of the Act. In this view of the matter, the position is obvious that the plaintiff had one-fifth share and not one-sixth as contended by
the defendants. I would, therefore, affirm the finding of the trial Court that the plaintiff was entitled to a
decree for partition of one-fifth share.
7. Another point taken by learned counsel was that the defendants were not at all liable for the rendition
of accounts inasmuch as the plaintiff never, alleged any misappropriation of the family income. It will be useful to refer to Art. 238 of the Principles of Hindu Law by D.F. Mulla, 12th Edition, which provides:
“In the absence of proof of misappropriation or
fraudulent and improper conversion by the manager of a joint family estate he is liable to account on partition only for assets which he has received, not for what he ought or might have received if the family money had been profitably dealt with…….”
So, apart from misappropriation, a manager is liable to account on partition in respect of the assets which he
had received. It was alleged by the plaintiff that Amulaya, defendant No. 2, was managing the properties with the help of other defendants and in this view of the matter the defendants are liable to furnish an account to the plaintiff. Article 239 of the same book reads thus:
“It has been held in Bengal that any coparcener may, without bringing a suit for partition, require the manager to account for his dealings with the co-parcenary property and the income thereof. If the manager refuses to render the account he may be compelled by suit to render such account.”
The (earned author has referred to Benoy Krishna Ghosh v. Atul Krishna, ILR (1940) 1 Cal 183 : (AIR 1940 Cal 51). In a case of Dayabhaga family it was open to a member to seek only for the rendition of account, but the plaintiff in this suit has joined both the reliefs, namely, partition and rendition of account. The reliefs thus sought for cannot be held to be non-maintainable,
8. Learned Counsel further contended that the decree for accounts should be only from the date of death of Gokul and not from the date of death of Dinanath. I find great force in this contention inasmuch as so long as Gokul (husband of the plaintiff) was alive, it was his right to claim or press for a decree for accounts as against the other members of the family; but after his death the plaintiff can claim a decree for accounts only from the date of her husband’s death and not for a period earlier to that. Learned Counsel for the respondent could not contest this proposition. In these circumstances the trial Judge was not right in passing a decree for accounts from the 3rd of March 1949, with the result that his conclusion in this respect must be varied to this extant that the decree for accounts will be only from the 30th of June 1950.
9. In the result, the appeal is dismissed subject to this modification that the defendants will be liable to account only from the 30th of June 1950 and not from the 3rd of March 1949. The judgment and decree of the trial Court are modified only to this extent but they are confirmed in other respects. The suit and appeal were valued at rupees ones lakh each, respectively, and as ‘t was a suit for partition the plaintiff had to pay only a declaratory (fixed) court-fee. It happens in most of the cases that as only a declaratory court-fee has to be paid the plaintiff exaggerates the value of the properties which are the subject-matter of partition. This being the position the defendants should not be saddled with the entire cost of this appeal and it would be fair to allow besides other costs a sum of Rs. 500/- only against them so far as the hearing fee of this appeal is concerned. The decree for costs passed by the trial court is not being interfered with.
Mahapatra, J.
10. I agree.