Judgment:
1. Appellant-plaintiff filed an application under Order 20, Rule 12, C. P.C. to ascertain mesne profits in a final decree proceedings at a partition action. He claimeda sum of Rs. 3,265/-, The trial Court granted a sum of Rs. 1,880-89 Ps. dissatisfied therewith, he filed this appeal.
2. The first respondent-first defendant was the manager of the joint family. The appellant avers that pendente lite, the first respondent kept fallow Ac. 1-44 cents of land that fell to his share to wrongfully deprive him pf his share of profits therefrom. The suit was laid on December 2. 1963 from which date there is severance in status of the joint family. The manager is thereby liable to pay the mesne profits from that date till July 4, 1971 the date on which the lands were allotted. It is an admitted fact that the lands remained fallow during that period. The trial Court negatived the contention holding that a manager of the joint family is liable to account for the profits actually derived but not liable to mesne profits and dismissed the petition to the above extent. Assailing the legality thereof, the appeal has been filed.
3. Sri N. V. Ranganadham, learned counsel for the appellant has strenuously reiterated the stand. The question, therefore, is whether the manager of the joint family is liable to pay mesne profits to be derived on the lands, the subject-matter of the appeal, pending suit.
4. The concept of mesne profits defined in Section 2(12) of the Code of Civil Procedure (1908), envisages that the person who would be mulcted with the liability to pay mesne profits should be in wrongful possession of the property and he must have actually received or might with ordinary diligence has received profits therefrom. The rightful person would be entitled to receive such mesne profits from the person in wrongful possession of such property. The question, therefore, would be whether the Manager of a Hindu joint family is in a wrongful possession of the joint family property from the date of institution of the suit till date of delivery of possession. The manager of the Hindu joint family occupies a unique position under the Hindu Law. N. R. Raghavachariar's Hindu Law, Principles and Precedents, Eighth edition (1987) at page 239, paragraph 276,edited by Prof. S. Venkataraman, has stated that in a Hindu family the karta or manager occupies a position superior to that of the other members in so far as he manages the family property or business or looks after the family interests on behalf of the other members. He is primus inter pares -- first among equals. The managership of the joint family property comes to a person by birth and is regulated by seniority. In Perrazu v. Subbarayudu, ILR 44 Mad 656 : (AIR 1922 PC 71) it was held that though the manager is likened to a trustee or agent of the joint family, he is not under the same obligation to economise and to save as would be the case if he were a trustee or agent. The same is the view of the Allahabad High Court in Muhammad v. Radhe Ram, (1900) ILR 22 All 307. In P. Suryanarayana v. P. Sugunavathi, : AIR1961AP393 , Satyanarayana Raju, J. (as he then was) speaking for himself and for Kumarayya, I (as he then was) held that no coparcener is envied to call upon the manager to account for his past dealings with the joint family property, unless he establishes fraud, misrepresentation or improper conversion. In Narayanaswami v. Ramakrishna, : [1964]7SCR490 , Das Gupta, J. speaking for the Court held that the Karta of a joint family is liable in the absence of fraud or other improper conduct, to account for the existing state of the property divisible and to render account for the profits actually, derived, In paragraph 280 of N. R. Raghavachariar's Hindu Law (supra) at page 241, it is stated that the manager is liable to account only for what he received and not for what he ought to or might have received if the said monies had been profitably dealt with. The rules applicable to strict accounts between trustees and cestui que trust that exist in England do not apply to the relationship that exists between the manager and the other members of the joint family. In Ramanath v. Goturam (ILR 44 Bom 179) : (AIR 1920 Bom 236) it was held that the manager is not bound to keep accounts. In Sri Ranga v. Srinivasa, ILR 50 Mad 866 : (AIR 1927 Mad 801) it was held that the manager cannot be held liable for his negligence. In Balakrishna v. Muthusami, (1909) ILR 32 Mad 271, it was held that acoparcener seeking partition is entitled to an account from the manager of the joint family assets as they exist at the time he demands partition. In Shudanand v. Bonomalee, (1866) 6 WR 256 (Cal), it was held that though a coparcener has a joint interest in the joint family estate with the manager, he cannot as long as that estate remains joint, call upon the manager for an account of his management of that estate and a suit for mere account or for mesne profits for the period during which it was under his management was incompetent. At page 242, the learned author further states that the liability for accounting on the part of the manager in the matter of disclosure or discovery of the available assets is entirety different from the general liability for accounting for the past transactions which cannot be ordered except on the pleas of fraud and misappropriation or (improper conversion) on the part of the Karta. In Mulla's Hindu Law, 13th Edition, in Section 238, Paragraph (2) at page 271, it is stated thus :
'Since the institution of a suit for partition amounts to a severance of joint status, the manager is, from and after the date of such a suit, strictly bound to account for all receipts and expenses, and can take credit only for such expenses as have been incurred for the benefit or necessity of the estate, and the net income after deducting such expenses is to be divided among the coparceners according to their shares.'
In sub-paragraph (1 ), of Section 238, it is stated that in the absence of proof of misappropriation or fraudulent and improper conversion by the manager of a joint family estate, a coparcener seeking partition is not entitled to require the manager to account for his past dealings with the family property. All that he is entitled is to account of the family property as it exists at the time he demands partition. In Mayne's Hindu Law and Usage (Twelfth Edition - 1986), in Chapter 12, paragraph 318 at page 570, it is also stated :
'The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that ofprincipal and agent, or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees. In the absence of proof of direct misappropriation, or fraudulent and improper conversion of the moneys to the personal use of the manager, he is liable to account only for what he has received and not for what he ought to or might have received if the moneys had been profitably dealt with.'
It is no doubt, true, as relied on by Sri Ranganadham, in paragraph 441, at page 687 of Mayne's Hindu Law and Usage, it is stated that the moment a severance takes place, whether by mutual agreement or by unilateral declaration of intention or otherwise, the right to claim mesne profits from that moment arises. But in view of the above discussion, the proposition laid does not appear to be well founded. With respect, I cannot accept it to be correct law. The possession of the manager of a joint Hindu family, after severance in status has been effected, does not become wrongful. He continues to be in possession and management of the same for and on behalf of the coparceners as Manager/Karta, till the properties are divided by metes and bounds and separate possession is allotted and taken by the respective coparceners. No doubt, he is duty bound to account for the profits derived pendente lite after giving credit to the expense incurred in management thereof or realisation of the outstandings. But that does not mean that he should be liable to pay mesne profits to be received or diligently derivable from the properties.
5. This Court had an occasion to consider a similar case in S. Sriramulu v. Sitamahalakshmi, (1970) 2 Andh WR 210. The facts therein are that the respondent filed a suit for partition against the appellant and a preliminary decree was passed. An application was filed for determination of the mesne profits due from the manager, from the date of the suit till the date of the decree alleging that the possession was wrongful. The trial Court granted mesne profits. On appeal, Narasinham, J. (as he then was), held that the possession of the manager of a jointfamily pending the suit i.e., from the date of suit for partition by a member to the date of decree could not be considered as wrongful. Accordingly the decree was set aside. The facts and the ratio in that case squarely apply to the facts in this case also.
6. A member of a joint Hindu family suing or partition and for profits of his share is really suing for an account of the profits received by the manager or the person in possession, so that the proceeds so received by the latter are also divisible among the sharers and he is entitled to a share to be given therein. A sharer has a clear right to an account of the profits. He is entitled to be awarded of his share thereof not as mesne profits received from a manager in wrongful possession but as appurtenant to the plaintiff's right in his share of the lands. In a suit for partition the sole cause of action stated in the plaint was a demand for and refusal of partition and not an exclusion from enjoyment of the joint family property. It is also relevant to note that since the institution of a suit for partition amounts to a severance of a joint status the manager is, from and after the date of such a suit, strictly bound to account for all receipts and expenses, and can take credit only for such expenses as have been incurred for the benefit or necessity of the estate and the net income after deducting such expenses is to be divisible among the coparceners according to their shares. Therefore, when a coparcener laid a suit, though there is severance in status from the date of the suit, the possession of the manager is not wrongful and that he continues to remain in possession till the actual partition and division by metes and bounds. He is liable only to render an account for the profits he has received from the estate till handing over the possession to the appellant pursuant to the final decree. Accordingly the possession of the manager cannot be considered to be wrongful. Unless it is alleged and proved that the manager has committed fraud, misappropriation and improperly converted the produce for his personal gain and to the detriment of the other coparceners, he is not liable to account for the profits reasonably and diligently derivable or ought to have or might havereceived from the property. The jural relationship of principal and agent, trustee and beneficiery or partners, in the legal sense, does not apply. Even the fiduciary relationship arising from trusteeship or cestui que trust does not, in the strict sense, involve of all the duties as a trustee. The manager, therefore, is not liable for payment of the mesne profits. As a consequence the coparcener also is not entitled to any interest on the mesne profits claimed. These are the only two claims the appellant has made. In view of the legal position, his claim was rightly negatived by the Court below. Therefore the decree is not vitiated by any error of law or fact, warranting interference. The appeal is accordingly dismissed, but in the circumstances, thereshall be no order as to costs.