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CASE NO.: Appeal (civil) 2892  of  2002

PETITIONER: M.BLY.LSRUSB.BA&RAOYRAS.SETTY (DEAD)

       Vs.

RESPONDENT: M.BLY.LNRASG.AP&PAORSSE.TTY (DEAD)

DATE OF JUDGMENT:       23/04/2002

BENCH: U.C. Banerjee & Y.K. Sabharwal

JUDGMENT:

[With CA Nos.2893-2895/2002 (@ SLP(C) Nos.7762-7764/2000)] J U D G M E N T

Y.K. Sabharwal, J.

       Leave granted.

       Applications for substitution allowed.

       The dispute in these appeals relates to the partition of the estate of the family of  one Lachiah Setty - one of the wealthiest families in the erstwhile Mysore State.      The  family had extensive business in Coffee and other commodities.  The family possessed conside rable movable and immovable properties including Coffee estates.  Lachiah Setty died in the  year 1936.      Despite the desire expressed by him that even after his death, his children  should live in harmony, united and without any difference as he felt that the vast propertie s had been acquired on account of the family remaining united, the disputes started between  brothers within about two years of his death, i.e., in 1938. The disputes were referred to three arbitrators for division of the family properties.  The  arbitrators entered upon reference on 1st April, 1940.  The arbitration proceedings were, ho wever, not very smooth.  Differences arose with regard to the management of the family prope rties business.  The elder brother Nagappa Setty was disinclined to remain in the family hou se along with other brothers.  He was on one side and other brothers and mother on the other .

       On 11th July, 1940, the arbitrators made a special provision, in agreement with the  parties, with regard to the business.  Securities of the value of Rs.1,49,833/- were found i n the hands of Nagappa Setty and of the value about Rs.1,45,616/- in the hands of his other  brothers.  The stock-in-trade was valued at Rs.1,32,495/-.      There was no partition as su ch of the securities and stock-in-trade, but, on an ad hoc basis, the arbitrators directed t hat Nagappa Setty should retain with him securities of the value of Rs.55,337/- and hand ove r the rest to other brothers.  The other brothers, on the other hand, were directed to make  over to Nagappa Setty stock-in-trade, worth Rs.24,840/-.  The parties, however, failed to ca rry out those directions although, in the first instance, they had agreed to the arrangement . During arbitration proceedings, one of the arbitrator died.  The other co-arbitrators were r equested to continue with the arbitration, but they could not make much progress.  Allegatio ns were made about the partiality against one or the other of the arbitrator and since the a rbitration was not completed by certain date, all attempts at arbitration aborted.

       In the year 1948, Nagappa Setty filed against his brothers and mother a suit for par tition of his share and the income of the joint family properties.      He claimed in that s uit 1/4th share on the basis of will of Lachiah Setty.  The will was challenged by other bro

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thers being inoperative either as a valid will or a valid family arrangement.  According to  them, the properties were ancestral joint family properties which Lachiah Setty was incapabl e of disposing of by will.  There was no occasion also for execution of a family arrangement  and, hence, it was pleaded that will could not be regarded as a family arrangement.

       In the aforesaid suit, it was held that the suit properties were the ancestral joint  family properties which could not be disposed of by Lachiah Setty by will and that there wa s no family arrangement and even if it were to be deemed to be a family arrangement, it was  void.  The High Court disagreeing with the District Court on the question of Nagappa Setty s hare being 1/19th held that he was entitled to 2/19th share in the properties and not 1/19th  share as held by the Trial court.      Nagappa Setty died on 20th February, 1949.  His heir s and legal representatives have been prosecuting the suits and the appeals.  The members of  the branch of Nagappa Setty are respondents in these appeals.   Defendants to the suit file d in 1948 are also represented by their heirs and legal representatives on account of deaths  from time to time.  They are appellants in these appeals.

The suit was decided in the year 1956.  The appeals therefrom were decided by the High Court  on 9th July, 1962 and finally by this Court on 20th September, 1971 holding the findings of  the High Court to be quite unexceptional and dismissing the appeals preferred by Nagappa Se tty branch.      The judgment is reported in M.N. Aryamurthy & Anr. V. M.D. Subbaraya Setty( dead) through LR. & Ors. [(1972) 4 SCC 1]. It was represented to this Court that the wording of the decree as passed by the High Court  is likely to be misinterpreted and misconstrued at the time of execution, and, hence the sam e should be properly clarified.  Therefore, this Court substituted for the decree passed by  the High Court, a decree as under :

"(1) It is declared that the original plaintiff Nagappa (now his heirs brought on record) wa s entitled to a 2/19th share in the joint family properties and liable for a similar share i n the joint family liabilities.

(2) The joint family properties, as mentioned in the suit, shall comprise all the movable an d immovable properties including stocks, shares and valuable securities in the possession an d control of the plaintiff and defendants 1 to 9 as, on July 11, 1940.  The family liabiliti es as on that date shall be ascertained with a view to determine the net assets.  The plaint iff shall have 2/19th share in the same.

(3) The parties are liable to account for the rents, income, profits and dividends received  by them after July 11, 1940 till the date of final partition in respect of the joint family  properties in their respective possession on and after July 11, 1940.  If, on taking account s, the plaintiffs are found to have received less for their 2/19th share in such rents, inco me, profits and dividends, the deficiency shall be made good by the defendants.     It is, however, clarified that the parties are not accountable for the profits or acquis itions made in the course of the separate business or business carried on by the parties aft er July 11, 1940.  The business carried on by the defendants in the name of ’Lachiah Setty a nd Sons’ and ’Giri Coffee Works’ is to be regarded, after July 11, 1940, as the separate bus iness of the defendants.

(4) The plaintiffs shall be put in separate possession of the properties coming to their sha re on partition by metes and bounds.  The partition shall be effected by a commissioner appo inted by the Court in respect of all properties not required under the law to be partitioned  by the Deputy Commissioner.  In respect of properties, partition of which is required under  the law to be effected by the Deputy Commissioner, the partition shall be effected by the D eputy Commissioner or his Subordinate Gazetted Officer.  The present possession of the parti es shall be respected as far as possible.

(5) The order of costs made by the High Court is confirmed and the appellants shall pay the  costs of the respondents in these appeals."

(Emphasis supplied by us)

       The aforesaid judgment brought to an end the controversy regarding the share of the  original plaintiff in the joint family properties.      There is no dispute now that the sha re of original plaintiff in the joint family properties is 2/19th.      There is also no dis pute as to which are the joint family properties.  Despite this as also the aforesaid direct ions which were issued with a view to obviate misinterpretation and misconstruction of the d

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ecree as passed by the High Court, the litigation has continued for more than three decades  after the aforenoticed reported decision between the parties.  Litigation in courts is alrea dy more than half a century old. Commenced in the year 1948, the end does not appear to be n ear as yet. One of the controversy now is the construction and interpretation of the aforesaid underline d words ’The present possession of the parties shall be respected as far as possible’ in the  decree substituted by this Court.

       In the proceedings that were taken up before the Trial court for passing of the fina l decree, after conclusion of preliminary decree proceedings on passing of decree as aforeno ticed, the Trial court framed 10 issues.  One of the issue relevant for our purpose is Issue  No.6 which reads as under :

"If the Plaintiffs were found to have been in possession of the assets of the value of more  than 2/19th share as on 11.7.1940, are they not entitled to the other reliefs of partition a nd accounting as alleged by the Defendants."

       The findings on issue No.6 are as under :

       "The plaintiffs were in possession of assets of a value of more than 2/19th share as  on 11.7.1940 and they are entitled to other reliefs of partition and accounting."

The aforesaid findings are recorded in the order dated 3rd October, 1979 passed by the Trial  court.  The Trial court directed in view of the findings on issues 1 to 6 and also in view  of the directions given by this Court in Special Leave Petition (C) No.3554/78 (Civil Appeal  No. 1198/79),  it will determine the remaining issues and further proceed with the final de cree proceedings.  The order passed in CA No.1198/79 reads as under: "S.L.P. granted.

The judgment of the High Court is suspended so far as the direction relating to the Deputy C ommissioners of Hassan and Chickmagalur is concerned.  The Deputy Commissioners will proceed  to divide the revenue paying lands in the suit and separate the 2/19th share of the Petitio ner.  There will be stay of delivery of possession.      The parties agree that the trial co urt will proceed with the final decree proceedings to enable them to effect a final decree i n terms of the direction of this Court.  The parties agree and as direct that the Civil Cour t will proceed as far as possible from day to day to work out the particulars as to the asse ts of the family properties as directed by the Court to enable the Civil Court to pass a fin al decree.      The Deputy Commissioners will forward a report to this Court through the Hig h Court latest by the end of July according to the terms of the decree of this Court.  The C ivil Court shall also send a report through the High Court with regard to the progress of th e proceedings before it by the end of July, 1979."

Before the matter was finally decided by the Trial court on 15th July, 1999, on various occa sions, one or the other party approached the High Court or this Court challenging one or the  other order. The trial court by order dated 15th July 1999 decided the remaining issue Nos. 7 to 10 direc ting that the properties in possession of plaintiff can be conveniently allotted to the plai ntiff and the properties held by the plaintiff in excess of their share can be ordered to be  delivered to the defendants by the plaintiffs.  It held that since plaintiffs were in posse ssion of the property of Rs.1,92,496/- as on 11th July, 1940 as against the properties of th eir share valued at Rs.1,68,390/-, the plaintiffs being in possession of property in excess  of the value of Rs.24,085/-, he should hand over bond and securities worth that amount to th e defendants.  The Trial court held that this Court had observed that the present possession  of the parties shall be respected as far as possible and under these circumstances the prop erties that are in possession of the plaintiff shall remain with them and those in possessio n of defendants shall be retained by them.  The value taken was as on 11th July, 1940.   Sin ce plaintiff was held to be in possession of the property  of more value than his share, as  aforesaid, he was directed to hand over to the defendants the property of the excess share. The effect of the aforesaid direction of the trial court was that the Coffee estates in poss ession of the defendants were allowed to be retained by them on partition representing their  share of 17/19th.   Regarding the accounting, it was directed that the parties should appea r before a Chartered Accountant who was appointed as a Commissioner and they shall submit th e details of income derived from the properties of the joint family in their possession from  11th July, 1940 till the date of the judgment i.e., 15th July, 1999.  The Commissioner was  directed to submit the report, determining the 2/19th share out of the said income which sho

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uld be allotted to the share of the plaintiff.  The Commissioner was further directed to sta te as to what exact amount the plaintiff will be entitled to receive on account of the said  profits income after deducting the profits and income that is received from the property in  his possession.  The order of the Trial court also records that "The orders passed by my lea rned predecessor on I.A. 2 on 3.10.1979 which has not been challenged by any of the parties  so far, be read as part and parcel of this order".

       Both the parties challenged the order of the Trial court dated 15th July, 1999 by pr eferring first appeals before the High Court.  The plaintiffs challenged the order since it  denied to them any share in the coffee estate on the ground that value of property with them  as on 11th July, 1940 was more than 2/19th of their share.      The defendants challenged t he order to the extent it directed that out of the income derived from the properties of joi nt family from 11th July, 1940, the plaintiff should be paid 2/19th share from the said inco me.      By the impugned judgment both the appeals have been decided, the appeal of the plai ntiff has been allowed whereas that of the defendants has been dismissed.  The defendants ar e in appeal before us.

       Few admitted/established facts be first noticed as under :

1.      The share of the plaintiff in joint family properties is 2/19th. 2.      The joint family properties shall comprise all the movable and immovable properties,  as mentioned in the suit, including stocks, shares and valuable securities in possession of  the parties on 11th July, 1940. 3.      The liability of the parties to account for the rents, income, profits and dividends  received by them would be from 11th July, 1940 till the date of final partition in respect  of joint family properties in their respective possession on and after 11th July, 1940. 4.      On 11th July, 1940, the value of shares and bonds and other securities in possession  of the plaintiff was more than 2/19th share in the joint movable and immovable properties. 5.      Most of the share, bonds and securities which were in possession of the family are n ot now available.  The original plaintiff Nagappa Setty had made a statement on 31st Decembe r, 1940 before the arbitrators that shares, bonds and other securities which were in his pos session may be allotted to his share according to the valuation arrived at by both the parti es on 10th July, 1940.

       Having noticed the facts as aforesaid, the questions to be determined in these appea ls are :

1.      Is the plaintiff entitled to 2/19th share in the joint family properties? 2.      If the answer to the aforesaid question be in affirmative, what is the relevant date  for determining the valuation of the assets so as to ascertain and separate 2/19th share of  the plaintiff? 3.      What is the effect of the non-availability of most of the shares, bonds and securiti es which were in possession of the plaintiff in the year 1940? 4.      Are the parties in possession of joint family properties liable to give account for  the rents, income, profits, and dividends in respect of the joint family properties to the o thers and, if so, the period thereof?         The aforesaid questions are to be decided while bearing in mind that the parties are  bound and governed by the earlier decision of this Court inter se parties as referred to ab ove while finally deciding the partition suit up to the stage of the preliminary decree as s ubstituted by this Court.  The present litigation arises out of the final decree proceedings .   The parties in these proceedings are governed and bound by the terms of the preliminary  decree.  The matters decided up to that stage cannot be reopened and readjudicated.

       In view of the earlier decision, it stands settled that there was severance of joint  status from 11th July, 1940 and the members of the joint family became tenants in common of  the family property from 11th July, 1940.  The parties were not liable to give account to e ach other for the profits earned by them respectively in their own business or for the acqui sitions made by them in that business.  Property acquired by a member of the joint family af ter severance of the joint status had to be treated as his individual property and the said  property could not be regarded as one acquired for the family. Regarding joint family properties, it has been directed that where rents and profits are rec eived by members from joint family property in his possession, he would be liable to account  for such rents and profits received by him.  Regarding acquisition of property after severa nce of joint status, it was directed that if a member acquired some property with the funds  in his possession, the other members could claim no share in that property.  It is clear tha

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t the liability to account to each other for the income derived from the joint family would  continue.  The parties are liable to account for the family assets in their possession is ap parent from para 20 of the earlier decision reported in M.N. Aryamurthy’s case which reads a s under :

"That being the position, the question arises whether the defendants would, in law, be liabl e to account to the plaintiff for the profits earned by the defendants in their own business  or for the acquisitions made by them in that business.  We agree with the High Court that t hey were not so liable.  On a partition by severance of the joint status, the members of the  family become tenants-in-common of the family property.  If one of the members remains in p ossession of the entire properties of the family, there is no presumption that the property,  which as acquired by him after severance of the status, must be regarded as acquired for th e family.  See Gulabrao Fakirrao v. Baburao Fakirrao & Anr. [AIR 1960 Bom.159].  Where rents  and profits are received by the member in possession, he would be liable to account for the  rents and profits received by him.      But the funds in the hands of that member do not be come impressed with any trust in favour of the other members.  See John Kennedy v. Mary Anne tte De Trafford & Ors. [1897 AC 180].  Therefore, if such a member acquired some property wi th the funds in his possession, the other members could claim no share in that property.  He nce we agree with the High Court that the business carried on by the defendants on and after  July 11, 1940 should be considered as the exclusive business of the defendants, and the pla intiffs would have no right to claim any share in the profits or the acquisitions made out o f that business.  What is true about this business carried on by the defendants is also true  of the business carried on by the plaintiff.  The defendants have not claimed and cannot cl aim any share in the business run by plaintiff after July 11, 1940 or in the profits and acq uisitions made by him in that business.  This finding, however, is not to be understood to m ean that the securities and stock-in-trade already referred to are not to be taken into acco unt as family assets for the purpose of partition, nor can the parties decline the liability  to account to each other for the income derived by them from the family assets in their pos session."

       In view of the above, the Trial court has rightly decided that the parties are liabl e to give account to others in respect of profits earned from the joint properties in their  possession.  Accordingly, the High Court correctly dismissed the appeal of the appellants/de fendants.  There is, thus, no merit in the submission of Mr. Shanti Bhushan, learned counsel  for the appellants, that the defendants are not liable to account for the rents, income, pr ofits and dividends received by them after 11th July, 1940 till the date of the final partit ion in respect of the joint family properties in their respective possession.  This is also  clear from direction No.3 in para 21 of the earlier judgment reproduced above.

       Learned counsel for the appellants also submitted that the status of the plaintiff w as that of a trustee and, thus, the principle of trust would be applicable.      The content ion is that the plaintiff as a trustee had been given custody and possession of the valuable  securities, on behalf of the members of the family and as a trustee, he had no right to dea l with those assets treating them as his own and misappropriating the share of the other mem bers of the family in those assets and such a situation is governed by Section 90 of the Ind ian Trust Act.  Relying upon the factum of non-availability of most of the shares, bonds and  securities which were with the plaintiff, it is contended that the plaintiff committed a br each of trust by disposing of those valuable assets and appropriating the entire sale procee ds to himself.  In support reliance has been placed on Section 90 of the Trust Act and a pas sage from Hanbury and Maudsley on Modern Equity, 13th Edition (1989) in Chapter XII dealing  with "Constructive Trusts" which read as under :

"90. Where a tenant for life, co-owner, mortgagee or other qualified owner of any property,  by availing himself of his position as such gains an advantage in derogation of the rights o f the other persons interested in the property, or where any such owner, as representing all  persons interested in such property, gains any advantage, he must hold, for the benefit of  all persons so interested, the advantage so gained.... (H) Constructive Trusts of a New Model: Justice and Good Conscience. Some modern development s indicate a wide extension of the operation of constructive trusts by the introduction of w hat Lord Denning M.R. has called ’a constructive trust of a new model’.  The broad principle  is that a constructive trust may be imposed, regardless of established legal rules in order  to reach the result required by equity, justice and good conscience.  The principle was thu s articulated in Hussery v. Palmer.      It is a trust imposed by law whenever justice and g ood conscience require it.      It is a liberal process, founded on large principles of equi

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ty......  It is an equitable remedy by which the Court can enable an aggrieved party to obta in restitution".

       The submission of Mr. Shanti Bhushan is that the disposal of the joint properties in  possession of the plaintiff as a trustee and appropriation of the sale proceeds shall be re garded as final acceptance by him of the allotment of those properties for which he himself  had made a prayer in the arbitration proceedings and, therefore, he had no right to claim an y share in the remaining properties.  On this basis, the allotment of the shares and securit ies to the plaintiff by judgment of the Trial court dated 15th July, 1999 was sought to be s upported.         More than a century ago, House of Lords in  John Kennedy v. Mary Annette De Trafford  & Ors. [1897 AC 180] held that there is no fiduciary relation between tenants-in-common.  A  tenant-in-common by leaving the management of the property in the hands of his co-tenant ca nnot impose upon him an obligation of a fiduciary character.  This judgment has been cited w ith approval in the earlier decision inter se parties.  The contention of being a trustee wa s rejected.      It is a different matter that at that stage, the contention of a co-tenant  being trustee was urged on behalf of the plaintiff to claim a share in the properties acquir ed by the members of joint family with the funds in their possession after severance of the  joint family status.  We are, therefore, unable to accept the contention that the status of  the plaintiff was that of a trustee and on that ground, the allotment of shares to him in te rms of the judgment of the trial court dated 15th July, 1999 was justified.         The Trial court for allotting the Coffee estate and other immovable properties only  to the defendants relied upon the underlined sentence in direction No.4 of the earlier decis ion.  The direction has been misconstrued and misinterpreted by the trial court.  It is true , as contended by Mr. Shanti Bhushan, that the direction that the plaintiff is entitled to 2 /19th share in the joint family property and that he shall be put in separate possession of  the properties giving him share by metes and bounds does not mean that every item of the pro perty is to be divided between co-sharers.  It is correct that the only requirement is that  property allotted to each co-sharer should bear approximately the same value as corresponds  to his share.  It may also not be necessary that if the properties consist of movable and im movable properties then each party must necessarily be given a share in all movable and immo vable properties.  While effecting partition of joint family properties, it may not be possi ble to divide every property by metes and bounds.  The allocation of properties of unequal v alue may come to the share of a member of a joint family at the time of effecting partition  but for that necessary adjustments have to be made.      It can also happen that some of the  co-sharer on partition may not get any share in immovable property.  No hard and fast rule  can be laid.  It depends upon the facts of each case.  It depends upon the nature of the imm ovable property and number of such properties as also the number of members to whom it is re quired to be divided.  Properties of a larger value may go to one member.  Property of lesse r value may go to another.      What is necessary, however, is the adjustment of the value b y providing for payment by one who gets property of higher value.  In short, there has to be  equalization of shares.  But that is not what has been done by the Trial court in the prese nt case.  The Trial court going by the valuation of July, 1940 has allotted shares and bonds  to the plaintiff and immovable property to the defendants and for this partition support wa s also sought to be drawn from the aforequoted sentence from direction No.4.   That was cert ainly not the intention.  It was a case of a total misinterpretation and misconstruction of  the decree passed by this Court which has been set right by the High Court in judgment under  appeal.  It was not the direction of this Court that in each and every survey number of the  Coffee estate, the plaintiff should be given 2/19th share by metes and bounds.  We do not t hink that the impugned judgment of the High Court also directs that.

       Another question to be determined is as to the date of valuation of the properties i n a suit for partition.  Ordinarily, it has to be the date of the passing of the final decre e and not the date of filing of the suit for partition.  In a given case, however, there may  be exception of this general rule.      It is a matter of common knowledge that such suits  for partition take considerable time for disposal.      There is a big time lag between date  of filing of the suit and date of the decision thereof.  There is also considerable lapse o f time between passing of preliminary decree and passing of final decree.  Take the present  case, suit was filed in the year 1948, preliminary decree proceedings were finalized in 1971  by decision of this Court.  Thereafter more than 30 years have lapsed,  the parties are sti ll no way near the final partition.      It would be absurd if it was to be held that the va luation of 1940 or 1948 should be taken.  It is also possible that in a given case, the valu e of one property may appreciate drastically while not so in the case of other properties or  it may even decline and some of the parties may be in possession of those properties.  It h

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as been the endeavour of the Courts in such suits to protect, preserve and respect the posse ssion of the parties as far as possible.  While so protecting, there has to be equalization  of shares which has been recognized in law "by making a provision for payment of Owelty". Reverting to the present case, regarding the shares etc. in possession of the plaintiff, it  already stands settled between the parties that it was an ad hoc arrangement.  If the plaint iff has dissipated those shares, then he is required to account for it.  The value of those  shares said to have been dissipated may have to be worked out.  It is not possible, at this  stage, to hold that such valuation is not practicable.  Assuming the plaintiff has dissipate d those shares that cannot result in denial of 2/19th shares to him in the joint family prop erties in terms of the decree finally passed by this Court as referred to hereinbefore.  If  that had been so, it would have resulted in dismissal of plaintiff’s suit for partition inst ead of passing of partition decree as substituted by this Court.  The question of sending th e case for effecting partition of Coffee estate being revenue paying land to the Deputy Comm issioner would arise after the Court has come to the conclusion on the basis of principles l aid in this judgment that the plaintiff is entitled to a share in the said estate which may  in turn depend upon the valuation of the shares, bonds and securities which are said to have  been dissipated by the plaintiff.      We are expressing no opinion upon the alleged dissip ation.

       The legal position is well settled that on mere severance of status of joint family,  the character of any joint family property does not change with such severance.  It retains  the character of joint family property till partition.  In Bhagwant P. Sulakhe v. Digambar  Gopal Sulakhe & Ors.  [AIR 1976 SC 79 (para 14)] this Court held that the character of any j oint family property does not change with the severance of status of the joint family and a  joint family property continues to retain its joint family character so long as the joint fa mily property is in existence and is not partitioned amongst the co-sharers.

       The effect of the plaintiff holding excess of 2/19th share would be that the plainti ff would be accountable for the value of those shares as on the date of the final decree.

A contention was also urged that there is generally a time gap between the report of the Com missioner submitted pursuant to the directions in the preliminary decree and passing of the  final decree and it would not be practicable to value the assets as on the date of the final  decree.  There is no impractibility.  Ordinarily, though it is the date of the final decree  but in reality the date of valuation which the Commissioner takes into view in the report,  that is taken into consideration by the Court.  But that would again depend on the facts of  each case;  In a given case, there may be gap of years between the date of the report of the  Commissioner and the date of the final partition.      In the meanwhile, there may have bee n a sharp increase or decrease in the value of the property or properties.      In such even t, the Court may have to balance the equities and pass other directions in order to partitio n the properties between the parties as per their respective shares.  The preliminary decree  declares the shares of the parties and the properties which are joint and are required to b e divided between the co-sharers.  Regarding valuation, reference may also be made to Order  20 Rule 18 and Order 26 Rule 13 and 14 of the Code of Civil Procedure, which read as under :

"Order 20. Rule 18. Decree in suit for partition of property or separate possession of a sha re therein.-Where the  Court passes a decree for the partition of property or for the separa te possession of a share therein, then,-

(1)     if and in so far as the decree relates to an estate assessed to the payment of reven ue to the Government, the decree shall declare the rights of the several parties interested  in the property, but shall direct such partition or separation to be made by the Collector,  or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance wi th such declaration and with the provisions of Section 54;

(2)     if and in so far as such decree relates to any other immovable property or to movabl e property, the Court may, if the partition or separation cannot be conveniently made withou t further inquiry, pass a preliminary decree declaring the rights of the several parties int erested in the property and giving such further directions as may be required.

Order 26 Rule 13. Commission to make partition of immovable property.-Where a preliminary de cree for partition has been passed, the Court may, in any case not provided for by Section 5 4, issue a commission to such person as it thinks fit to make the partition or separation ac cording to the rights as declared in such decree. Rule 14. Procedure of Commissioner.-(1) The Commissioner shall, after such inquiry as may be

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necessary, divide the property into as many shares as may be directed by the order under wh ich the commission was issued, and shall allot such shares to the parties, and may, if autho rized thereto by the said order, award sums to be paid for the purpose of equalizing the val ue of the shares.

(2) The Commissioner shall then prepare and sign a report or the Commissioners (where the co mmission was issued to more than one person and they cannot agree) shall prepare and sign se parate reports appointing the share of each party and distinguishing each share (if so direc ted by the said order) by metes and bounds.      Such report or reports shall be annexed to  the commission and transmitted to the Court; and the Court, after hearing any objections whi ch the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accor dance with the same as confirmed or varied; but where the Court sets aside the report or rep orts it shall either issue a new commission or make such other order as it shall think fit."

The actual partition is effected by passing of the final decree.  The valuation has, thus, t o be as on the date of final decree.

Learned counsel for the appellants, however, strenuously relies upon Khatoon Bibi v. Abdul W ahab Sahib & Ors. [AIR 1939 Mad.306].  That was a case where the entire movable property had  been dissipated by the defendants whose value far exceeded the value to which the defendant s were entitled.  As such no properties were available for the purpose of partition.  Under  these circumstances, it was held that the plaintiff was entitled to all the immovable proper ty though the value of immovable property was far less than the value of plaintiff’s share i n the joint family properties.  The said decision has no applicability in the present case.   The value of the property is to be ascertained as on the date of the partition and then alo ne the question as to whether the value of the shares said to have been dissipated by the pl aintiff was more than the value of the share in the hands of the defendants to which he may  be entitled or not, would arise.  Without ascertaining the value of the two, the principles  laid in the Madras decision will have no applicability to the present fact position. The acceptance of the contention now sought to be raised would amount to going behind the pr eliminary decree.  That is not permissible.      Before concluding, we wish to clarify that  the observation of the High Court that the plaintiff is entitled to share in each of the joi nt family property does not mean the actual partition of all such properties by metes and bo unds.  We may also clarify that the direction that the present possession of the parties sha ll be respected as far as possible also does not mean that if the plaintiff is not in posses sion of any immovable property and the same are in possession of the defendants, he could no t be allotted the immovable property even though he is so entitled as per his share.  If tha t was so, the words "as far as possible" in the said direction would become redundant.  When  the Court directs that the present possession of the parties shall be respected, it means t hat if partition of the property is to be effected, then as far as possible the person in po ssession of a property should be allowed to retain it by equalization of share but it does n ot mean that a person out of possession of all immovable properties should not be allotted a ny part of the immovable property whatsoever.  In view of the earlier decision and aforesaid  discussion, it is not possible to accept the contention that the plaintiff is not entitled  to a share in the joint family immovable properties.

       In view of aforesaid discussion, our answers to the four questions noticed in earlie r part of the judgment are as under : 1.      The plaintiff is entitled to 2/19th share in joint family properties. 2.      The date of valuation of shares is date of the final decree in terms of law laid her einbefore. 3.      The effect of non-availability of shares, bonds and securities by itself is not to d eprive the plaintiff of his 2/19th share if on valuation he is otherwise entitled thereto. 4.      Parties in possession are liable to give accounts for the rents, income, profits and  dividends in respect of the joint family property to others from 11th July, 1940 up to pass ing of the final decree.

Since more than 30 years have passed since passing of the preliminary decree and more than h alf a century since filing of the suit, the Trial court will do well to take up the matter,  as far as possible, on day to day basis and conclude the final decree proceedings in the lig ht of this judgment preferably within a period of six months.

       In view of the aforesaid, we find no infirmity in the impugned judgment of the High

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Court and, thus, appeals are dismissed.  Parties are left to bear their own costs.

..............................,J. [U.C. Banerjee]

..............................,J. [Y.K. Sabharwal]

April  23, 2002.

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