CHANNAMMA HENGSU v. RAGAVA BONTRA — 1973 DIGILAW 139 (KAR)

VENKATARAMIAH, J. ( 1 ) PLAINTIFFS 3 to 15 in O. S. No. 26 of 1965 on the file of the Civil Judge, udipi, are the appellants in this appeal. The said suit was originally instituted by Annappa Pujari, plaintiff 1, as the yajaman of an aliyasanthana family. On his death, Seethu Hengsu, plaintiff 2, continued the proceedings as the yajamanthi of the family. She too died during the pendency of the suit. After her death, Seshu Pujari became the yajman of the family. As he was not willing to continue the suit for and on behalf of the family immediately after the death of plaintiff 2, plaintiffs 3 to 14 applied to the Court below to be brought on record as supplemental plaintiffs and to permit them to continue the suit on behalf of the family. They also prayed that Seshu Pujari and Meenakshi, the other two members of the family, may be impleaded as supplemental defendants 7 and 8. The court below accordingly permitted plaintiffs 3 to 14 to be impleaded as supplemental plaintiffs and Seshu Pujari and Meenakshi as supplemental defendants 7 and 8. Thereafter Seshu Pujari was transposed as plaintiff 15 and allowed to prosieeute the suit as the yajman of the family. The plaintiffs and one Veerappa Pujari were members of an undivided family governed by the Aliyasanthana Law. During the life-time of Veerappa pujari, the properties described in the plaint schedule had been given to the exclusive possession of Veerappa Pujari under a maintenance arrangement amongst the members of the family which took place in the year 1949. Veerappa Pujari however continued to be an undivided member of the family. He died on 25-10-1962. On his death, defendants 1 to 6 who were his children continued to be in possession and enjoyment of the family properti. es which had been entrusted to the possession of veerappa Pujari under the maintenance arrangement. The above suit was, therefore, filed on behalf of the members of the family for possession of the plaint schedule properties and past mesne profits from 25-10-62 till the date of suit and future mesne profits till date of delivery of possession. es which had been entrusted to the possession of veerappa Pujari under the maintenance arrangement. The above suit was, therefore, filed on behalf of the members of the family for possession of the plaint schedule properties and past mesne profits from 25-10-62 till the date of suit and future mesne profits till date of delivery of possession. The case of the plaintiffs was that on the death of Veerappa pujari, defendants 1 to 6 who were not members of the family according to the Aliyasanthana Law, could not remain in possession of the properties of the family which had been given to Veerappa Pujari, and, therefore, it was open to the plaintiffs to recover possession of the same along with mesne profits. ( 2 ) DEFENDANTS 1 to 6, among other pleas, pleaded that they were entitled to remain in possession of the properties as they had become co-owners of the properties along with the other members of the family by virtue of sub-sec. (2) of S. 7 of the Hindu Succession Act (hereinafter referred to as the Act), under which they succeeded to the interest of Veerappa pujari in the joint family properties. Their principal ground of attack was that the, suit for possession and mesne profits was not maintainable against them as they had become the co-owners of the suit properties and other properties of the family along with the plaintiffs. We find it unnecessary to refer to the other pleas raised by the defendants in this case, because no contention was urged before us on the basis of those pleas. ( 3 ) THE trial Court dismissed the suit, Aggrieved by the decree of the trial Court, plaintiffs 3 to 15 have filed this appeal. Plaintiff 15 has preferred the appeal in the capacity of the yajman of the family representing not merely plaintiffs 3 to 14, but all the other members of the family who are not parties to the suit. ( 4 ) THE admitted facts of the case are that Veerappa Pujari was an undivided member of the family at the time of his death and that defendants 1 to 6 who were not members of the family succeeded to his interest in the family properties under S. 7 (2) of the Act. ( 4 ) THE admitted facts of the case are that Veerappa Pujari was an undivided member of the family at the time of his death and that defendants 1 to 6 who were not members of the family succeeded to his interest in the family properties under S. 7 (2) of the Act. It is also not disputed that defendants 1 to 6 are in possession of the properties which are described in the schedule attached to the plaint and that the said properties originally belonged to the family of the plaintiffs and Veerappa Pujari. ( 5 ) THE case of the plaintiffs is that notwithstanding the fact that defendants 1 to 6 have succeeded to the interest of Veerappa Pujari in the family properties on his death, the manager of the family is entitled to recover possession of the family properties from defendants 1 to 6 who are not members of the family and to claim mesne profits from them till the date of delivery of possession. It is also their case that the only remedy available to defendants 1 to 6 in the circumstances of the case being a suit for partition and separate possession, the manager of the family would be entitled to remain in posession of all the properties including the share of Veerappa Pujari to the exclusion of his heirs until such suit for partition is filed. ( 6 ) S. 7 (2) of the Act which arises for consideration in this case reads as follows :"when a Hindu to whom the Aliyasanthana Law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a kutumba or kayaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the Aliyasanthana Law. Explanation:-For the purposes nf this sub-section, the interest of a Hindu in the property of a kutumba or kavaru shall be deemed to be the share in the property of the kntumba or kavaru, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the Aliyasanthana Law, and such share shall be deemed to have been allotted to him or her absolutely. " ( 7 ) IN support of the case of the plaintiffs, three contentions were urged by sri B. P. Holla, the learned Counsel for the appellants, namely : (i) that a manager of an undivided family can continue to exercise the same powers in respect of the share of a deceased member of the family in the family property which is inherited by his heirs under S. 7 (2) of the Act, as he was doing before the death of such member, until a partition is effected; (ii) that the manager can maintain a suit for possession against the heirs of an undivided member on his death in respect of family properties in their possession; and (iii) that in any event the manager can file a suit on behalf of the joint family for accounts against such heirs if they are found to be in possession of family properties in excess of their share. Elaborating the first contention Sri Holla contended that under the aliyasanthana Law the manager or the yajaman was entitled to exclusive possession of the family properties and that the junior members could enjoy them only with the consent or permission of the manager. Reliance was placed on the following passage at pages 40 and, 41 in "a Treatise on Malabar and Aliyasanthana Law " 1922 Edn. by Sri Sundara Aiyar : "in all the dealings of the family he (the manager of karnavan) alone can represent the family. In him is vested the entire executive authority of the family so much so that any restriction on his powers in these matters will not be given effect to against a stranger without notice. by Sri Sundara Aiyar : "in all the dealings of the family he (the manager of karnavan) alone can represent the family. In him is vested the entire executive authority of the family so much so that any restriction on his powers in these matters will not be given effect to against a stranger without notice. He is entitled to the possession of family properties as against an anandravan. . His possession is of such a superior character to that of the other members that it can be protected as against them under Section 145 of the Criminal Procedure Code. " ( 8 ) IT was urged that even in, the case of a family governed by the Mitakshara school o Hindu Law, the manager was entitled to exclusive possession of the family properties relying upon the following passage at page 367 in Mayne's Hindu Law and Usage (11th Edn.) :"the managing member is entitled to full possession of the joint family property and is absolute in its management. . . . . . The other members, as long as the family is undivided, have only a right to maintenance and residence. " ( 9 ) ON the above basis it was argued that the powers of the manager would remain unaffected notwithstanding the fact that the, heirs of a deceased undivided member succeed to his share under the proviso to S. 6 or sub stcs. (1) and (2) of S. 7 of the Act. According to Sri Holla, thje position of the heirs of the deceased undivided member could be assimilated to the position of a stranger who had purchased an item of family property from an undivided junior member of a joint family governed by the mitakshara, Law, and hence the only remedy of such heirs was to file a suit for partition and that until such suit was filed, the manager could' retain possession of the family properties. He relied on the decision of govinda Bhat, J. (as he then was) in Kalyani v. Pacimappa, SA. 404/61 dt. 14-11-1963. The facts of that case which are almost similar to the facts in the present case were these: One Nanu Pujari who was an undivided member of an Aliyasanthana family died leaving behind him his wife and children who were entitled to succeed under S. 7 (2) of the Act. 404/61 dt. 14-11-1963. The facts of that case which are almost similar to the facts in the present case were these: One Nanu Pujari who was an undivided member of an Aliyasanthana family died leaving behind him his wife and children who were entitled to succeed under S. 7 (2) of the Act. He was in possession of certain items of the family properties under a temporary arrangement arrived at by the members of the family for enjoyment of the family properties. The question for consideration was whether on his death, his heirs were liable to be dispossessed of the said properties. Dealing with the above question, th,e Court observed as follows : "on the assumption that the suit properties were held by Nanu pujari under a maintenance allotment, the properties did not cease to be in the possession of the family. When a member of an Aliyasanthana family dies having at the time of his or her death, an undivided interest in his or her kutumba or kavaru property, his or her interest determined in the manner provided by the explanation to sub sec. (2) of S. 7, devolved on his or her heirs. That right is a special right conferred by the, Hindu Succession Act, and it does not correspond with the rights of a junior member of an Aliyasanthana family, either under the customary law, or the law as modified by the Madras aliyasanthana Act, 1949. The heirs, under sub-sec. (2) of S. 7, have no right to claim maintenance from the family. Their right is to enforce partition and claim their share. The right to maintenance is a right conferred on the co-parceners in a kutumba or kavaru. Since the heirs of Nanu have no right to claim maintenance from the kutumba or kavaru of Nanu, they have na right to the possession of the suit properties allotted to Nanu for his maintenance. ( 10 ) IN my opinion, the right of the heirs under S. . 7 (2) of the Hindu succession Act, corresponds to the right of a purchaser of the undivided interest of a coparcener in the joint family properties. The purchaser of an undivided interest in the joint family properties in an execution sale or a private sale, has no right to seize any property of the joint family. His right is to enforce partition and obtain the share of the alienor. The purchaser of an undivided interest in the joint family properties in an execution sale or a private sale, has no right to seize any property of the joint family. His right is to enforce partition and obtain the share of the alienor. If the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole property for the benefit of the joint family. The purchaser is not entitled in such a suit to an order for partition; he must, if he wants to realise his vendor's interest bring a suit of his own for general partition. Vide Mulla's Hindu Law, 12th Edn. p. 389. On same principles, the right of the heirs under S. 7 (2) read with S. 8 of the Hindu Succession Act, 1956, is to enforce partition and obtain the share of the deceased coparcener. Until such a partition is made and a share is decreed to the heirs, the kutumba or kavaru, of the deceased member, is entitled to retain possession of all kutumba or kavaru properties, including the properties in the enjoyment of the deceased member for his maintenance. Therefore, the kavaru of Nanu pujari is entitled to remain in possession of the suit property and as against the kavaru, the possession of the heirs of Nanu Pujari is wrongful and they are not entitled to resist the suit for possession on behalf of the kavaru. " ( 11 ) IT is true that the above decision fully supports the case of the plaintiffs, but we are however not, with respect, in agreement with the view expressed therein. In our opinion there is no similarity at all between the position of a purchaser of an item of family property from a junior member of in undivided family governed by the Mitakshara Law and the position of aft heir succeeding under the proviso to Sec. 6 or sub-sees. (1) or (2) of s. 7 of the Act. It has to be borne in mind that the law governing the rights of a purchaser from a junior member is not the same throughout india,. (1) or (2) of s. 7 of the Act. It has to be borne in mind that the law governing the rights of a purchaser from a junior member is not the same throughout india,. Except in the States of Madras, Bombay and Mysore, in other parts of India where the stricter doctrine of the Mitakshara is followed it is not open to a coparcener to alienate his share without the consent of the other coparceners and an alienee under those circumstances is not entitled to claim any equity in his favour (See Lachman Prasad v. Sarnam singh, 44 IA. 163 and Anant Ram v. Collector of Etah, ILR 40 All. 171, PC In Madras, Bombay and Mysore, however, such alienations are valid to the extent of alienor's own interest in the property. But when the alienee takes exclusive possession of any specific portion of the joint property, he will be liable to be dispossessed at the suit filed by the non-alienating coparceners. His remedy thereafter is a suit for partition for the ascertainment of the share of the alienor and for allotment of an appropriate extent of the alienor's share to himself Whether the alienation is of a specific item of the family property or of an undivided share of the alienor in the family property, the alienee does not acquire any interest in the property or share so as to become a tenant-in-common with the members of the family entitled to possession, but only becomes entitled to an equity to file a suit for partition to work out his rights. The above is based on the principle that when there is such an alienation there is an implied representation on the part of the alienor that he has the consent of the other coparceners to do so which gives rise to an equity in favour of the alienee. It is, therefore, clear that it has no textual basis but has its source only in judge-made law. The position of the heirs succeeding under the proviso to S. 6 or sub secs. (1) and (2) of S. 7 of the Act is entirely different. It is, therefore, clear that it has no textual basis but has its source only in judge-made law. The position of the heirs succeeding under the proviso to S. 6 or sub secs. (1) and (2) of S. 7 of the Act is entirely different. Their right having received statutory recognition is of a superior character and we are of the opinion that they become tenants in common in respect of the family properties with the other members of the family on the death of the person under whom they claim. Dealing with a, case governed by sub-section (3) of S. 7 of the Act, the Supreme Court has observed in Inspecting asst. Commr. of Agrl. I. T. v. V. K. Eamunni Panikhar, AIR. 1971 SC. 2513 , as follows :"whatever might have been the customary law, S. 7 (3) of the hindu Succession Act the validity of which was not in issue before us by a fiction deems that the sthanam property stood divided amongst the stani and the members of his tarwad, a split second before his death. From the language of the section, it is clear that the members of the tarwad took the property as co-owners and not as the heirs of the deceased stani. " ( 12 ) THE position under sub-sec. (2) of S. 7 cannot be different. Under that sub-section, persons who could not have been the heirs of the deceased under the Aliyasanthana Law have been treated as the heirs of the deceased and they succeed to his or her share in the family property as if it had been allotted to him or her absolutely. The resulting position is that the tamily property becomes the subject of ownership of members of the family and some other persons who are not considered members of the family under Aliyasanthana Law. In law whenever a right is owned by more than one person, there arises a case of co-ownership. Such right is an undivided unity which is vested at the same time in more than one person. In law whenever a right is owned by more than one person, there arises a case of co-ownership. Such right is an undivided unity which is vested at the same time in more than one person. In such a case it becomes necessary to harmonise the interests of all the owners by imposing restrictions on the exercise of the right commonly owned and mutual obligation-one such restriction being that no one of them can claim exclusive possession of the property commonly owned to the detriment of the other, to which we shall advert later. In Commr. of I. T. , Mysore v. Nagarathnamma, 76 ITR. 352 , decided by Govinda bhat, J. (as he then was) and Venkataswami, J. , it was held by this court that on the death of the kartha of a Hindu undivided family alter the coming into force of the Hindu Succession Act, the joint family notwithstanding the death of one of its members would continue for the purpose of income-tax, but the income of the family would diminish to the extent of the share of the member dying. The above view was expressed on the basis that for the purpose of computation or determination of the income in the hands of the family, which was liable to tax, it had to be assumed that a notional partition, in the family had taken place immediately before his death. ( 13 ) FROM the foregoing it is clear that the manager of a joint family although he can exercise the powers of a manager in respect of the interests of the surviving members of the joint family in the family properties, he would not be entitled to claim the same right in respcet of the share inherited by the heirs of a deceased member under S. 7 (2) or the proviso to Seciton 6. Sri Holla however contended that the manager who was in possession of the family properties could not be deemed to have lost the powers of the manager only because succession under S. 7 (2) had opened, and that until a suit for partition was filed he would be entitled to exercise all the powers over the share of the deceased member also. Relying upon S. 4 of the Act it was argued by him that in the absence of any specific provision, in the Act expressly taking away his powers, it had to be held that all those powers were preserved. In this context he drew our attention to s. 19 of the Act which laid down that the heirs of an intestate succeeded to his property as tenants-in-common and argued that in the absence of similar express provisions regarding the mutual relationship between the members of the truncated joint family and the heirs of the deceased member of the family, the manager's powers should be held as remaining unaffected even with regard to the share of the deceased. We cannot subscribe to the above postulate of Sri Holla It may be that there is no provision declaring the nature of relationship between the surviving members of the family on the one hand and the heirs of the deceased member on the other. But that does not mean that the manager whose position is determined by status can claim to have dominion over the interests of those who were never under his authority. As already mentioned it would be reasonable to hold that in such a case they would hold the family property as tenants-in-common without accepting the supremacy of the manager over the share inherited by the heirs of the deceased. ( 14 ) THE above view receives support from a decision of the Bombay High court in Govindram Mihamal v. Chetumal Villardar, AIR. 1970 Bom. 251 in which the proviso to S. 6 of the Act came up for consideration. Deshmukh, J. observed in that case as follows :"the minimum that can be said, therefore, is that when the death of a coparcener takes place in a family falling under the proviso to s. 6, the female heirs like the daughters in the present suit inherit an interest in the joint family property by succession under the Hindu succession Act, and that interest or share becomes vested in them. When an outsider to a joint family gets vested interest in a part of the property, the fact that that share is yet to be worked out and a particular piece of property or share in every piece of property is to be handed over to him or her in lieu of the share, does not seem to be of any consequence. The property of the joint family is at that stage partly vested in members who are already members of the coparcenary and partly in some heirs who have nothing to do with the joint family as such. At any rate, the unmarried daughters, who may be members of the family, inherit the interest by succession under the hindu Succession Act and not under the provisions of the customary hindu Law. To that extent, they have an independent right which is vested in them and may be continued to be enjoyed jointly until physical separation takes place. With that result following, one thing seems to be clear. The representative character of the karta is clearly affected. He cannot represent that property which vests in a person, other than a coparcener. " ( 15 ) A similar view is expressed by the High Court of Calcutta in Narayan prasad Rula v. Mutuni Kohain, AIR. 1969 Cal. 69 in the following words :"such then is the effect, by the conjoint operation of the proviso and Explanation I to S 6 What is seen, therefore, is a notional partition, coupled with devolution of such notionally partitioned property upon Surendra Kumar Ruia's mother What remains then of Narayan prasad Ruia as the karta ? A karta of a joint family property is quite an understandable concept. But a karta for a divided property, of property partitioned, notionally though appears to be incomprehensible so, the old karta theory cannot help matters forward for the petitioner before me and Naravar Prasad Ruja as karta cannon represent his deceased son's mother and necessarily his wife upon whom devolves the share of the property after partition. But a karta for a divided property, of property partitioned, notionally though appears to be incomprehensible so, the old karta theory cannot help matters forward for the petitioner before me and Naravar Prasad Ruja as karta cannon represent his deceased son's mother and necessarily his wife upon whom devolves the share of the property after partition. The very nexus of the joint family property is gone A conclusion as this is to be regretted, but cannot perhaps be helped" ( 16 ) IN view of the foregoing, we hold that the manager of an Aliyasanthana family cannot exercise the powers of a manager on the interest which devolves under S. 7 (2) of the Act on the heirs of the deceased undivided member We further bold that the surviving members of the, family and the heirs of the deceased undivided member hold the family properties as tenants-in-common until a partition takes place As a consequence we hold that the decision in S 4 404 of 1961 (1) does not lay down the law correctly and we overrule it the next Point for consideration is whether a manager or surviving members of a ioint family can file a suit for recovery of possession of the family properties in the possession of the heirs of a deceased member of the family. This question has to be examined in the light of our finding that all of them hold the family properties as tenant-in-common in Mahesh Narain v Nowbar Pathak, ILR. 32 Cal. 837 , Mookerjee, J. after quoting with approval the following passage from Freeman on Co-tenancy that"as each co-tenant has at all times the light to enter upon and enjoy every part of the common estate this right cannot be impaired by the fact that another of the co-tenants absents himself, or does not choose in claim his right to an equal and common enjoyment", concluded as follows : "upon a review of these authorities, I think the following propositions are deducible : - (1) A tenant-m-common cannot be held liable to his co-tenant for damages for use and occupation of the joint property, unless there has been waste or an ouster of his co-tenants; (2) When a tenant in possession has prevented his co-tenants from obtaining from the premises such profits as they were capable of yielding. or has taken possession of the whole and used them as his own, and. thereby made a profit, he must account either for the fair rental value or the profits, or be liable for mesne profits for one tenant is bound to account to another only as his bailiff, under contract express or implied; (3) Where one tenant-in-common occupies the joint property, without any assertion of hostile or exclusive title on his part, and without claim on the part of his co-tenants to be admitted into possession, he is under no obligation to account, for he has a right to such occupancy. " ( 17 ) IN the case of immovable property jointly owned each owner is in theory interested in every infinitesimal portion of the subject matter, and each has the right, irrespective of the quantum of his interest, to be in, possession of every part and pareel of the property jointly with the other. In the language of Lord Coke "their occupation is undivided, and neither of them knoweth his part in several. " (Co. Litt. Sect. 292 ). Pollock and wright have observed in their "an Essay on Possession in the Common law" (1888 Edn.) at page 87 as follows :"it is a peculiar incident of the estate of tenants-in-common that there cannot be a trespass as between themselves unless the act amounts to ouster; for each of them is alike entitled to use and enjoyment (subject, it may be, to a subsequent duty of accounting for profits), and all acts of use and enjoyment in an ordinary course and according to the nature of the subject-matter are presumed, in obedience to a well-known principle, to be done in exercise of that lawful right. " ( 18 ) SRI Holla has not been able to bring to our notice any authority in support of the view that one co-sharer can maintain a suit for possession against another co-sharer. But he, however, relied upon a decision of the high Court of Calcutta in Abu Shahid v. Abdul Hoque Dobhash, AIR. 1940 Cal. 363. " ( 18 ) SRI Holla has not been able to bring to our notice any authority in support of the view that one co-sharer can maintain a suit for possession against another co-sharer. But he, however, relied upon a decision of the high Court of Calcutta in Abu Shahid v. Abdul Hoque Dobhash, AIR. 1940 Cal. 363. in which B. K. Mukherjea, J. (as he then was), has observed as follows :"there is no fiduciary relation between co-owners of a property as such (vide 1897 AC 180) and if one co-sharer realises rents and profits, he does so in his capacity as an owner, for which no agency frorn the other proprietor is necessary. But for what he receives in, excess of his share, he must be under an obligation to account to the other co-sharer. I cannot therefore accept the proposition of Jaw formulated by Dr. Basak, that a suit for accounts is not maintainable by one co-owner against another unless there is a claim for partition. If however, there is actual ouster by one co-sharer of another different considerations arise. The remedy of the co-sharer who is dispossessed must be to sue the other for joint possession and he can claim along with it compensation or mesne profits. A pure action of account would not be an appropriate remedy under such circumstances. This is also the law in England. " ( 19 ) IT is clear from the passage extracted above that even when there is an ouster by one co-owner of another, the remedy of the ousted co-owner is to sue for joint possession and mesne profits or to file a suit for partition. He cannot file a suit claiming exclusive possession of the property and drive the other co-owner to a separate suit for partition and separate possession of his share. We, therefore, hold that the suit for possession of the suit properties cannot be maintained against defendants 1 to 6. What then is the relief to which the plaintiffs are entitled in this suit ? Sri Holla, submitted that the plaintiffs filed the suit for recovery of possession of the suit properties and for mesne profits on the basis of the decision which had been rendered by this Court in SA. 404 of 1961 (1), which has been held by us as not laying down the correct law. Sri Holla, submitted that the plaintiffs filed the suit for recovery of possession of the suit properties and for mesne profits on the basis of the decision which had been rendered by this Court in SA. 404 of 1961 (1), which has been held by us as not laying down the correct law. In the circumstances, it was contended that the Court should grant such relief as may be permissible in law against defendants 1 to 6. It was argued that while defendants 1 to 6 were entitled to a small fraction in the family properties, they were in possession of properties which were in extent much more than what they were entitled to. It was, therefore, prayed on behalf of the plaintiffs that defendants 1 to 6 should at least be directed to render an account of the income derived by them from the suit properties which were in their possession and to pay the plaintiffs any excess income derived by them. We feel that this is a fit case in which the Court in exercise of its discretion should grant the above alternative relief as we find that there is no impediment for doing so. ( 20 ) IN order to determine whether defendants 1 to 6 are liable to pay any amount to the plaintiffs, it is necessary for the Court to determine, (i) the extent of share to which defendants 1 to 6 are entitled to in the family properties; (ii) the total extent of the properties owned by the family at the time of the death of Veerappa, Pujari; (iii) the total income derived from all the properties of the family including those in the possession of the oth|er members of the family; (iv) the income to which defendants 1 to 6 are entitled on the basis of the extent of their share in the family properties; and (v) the income derived by defendants 1 to 6 from the properties in their possession. After determining the above questions, the Court below should find out whether defendants 1 to 6 have realised from the properties in their possession any income in excess of what they are entitled to. If it is found that they have realised any excess income, they should be directed to pay the same to plaintiff 15. After determining the above questions, the Court below should find out whether defendants 1 to 6 have realised from the properties in their possession any income in excess of what they are entitled to. If it is found that they have realised any excess income, they should be directed to pay the same to plaintiff 15. If they have not realised any income in 'excess of what they are entitled to, the claim has to be disallowed. ( 21 ) IN the result, we pass a preliminary decree, in substitution of the decree passed by the Court below, directing an account to be taken of the income of the properties belonging to the family in the manner indicated above for the period between 25-10-1962 and the date of the final decree and direct a final decree to be passed in accordance with law and the directions contained herein. ( 22 ) THE parties shall bear their own costs upto this stage, in the Court below as well as in this Court. The lower Court shall now proceed to pass a final decree as directed above. The appeal is accordingly disposed of. --- *** --- .