M.L. SUBBARA YA SETTY (DEAD) BY LRS. AND ORS. versus M.L. NAGAPPA SETTY (DEAD) BY LRS. AND ORS.

Citation: [2002] 3 S.C.R. 326 · Decided: 23-04-2002 · Supreme Court of India · Bench: U.C. BANERJEE · Disposal: Dismissed

Judgment (excerpt)

A 
B 
M.L. SUBBARA YA SETTY (DEAD) BY LRS. AND ORS. 
v. 
• 
M.L. NAGAPPA SETTY (DEAD) BY LRS. AND ORS. 
APRIL 23, 2002 
[U.C. BANERJEE AND Y.K. SABHARWAL, JJ.] 
Partition-Joint family property-Movable and immovable property-
Joint status severed in 1940-Suit for partition in 1948-Preliminary decree 
C ascertaining plaintiff's share as 2/19th-Direction that present possession of 
the parties shall be respected as far as possible-In proceedings for final 
decree movable property allotted to plaintiffs and immovable property to 
defendants-Appeal by ho.th parties-f>laintiff's appeal allowed and 
defendant's appeal dismissed by High Court-On appeal-Held, plaintiff 
entitled to 2/19th share ofjointfamily property including immovable property-
D The non-availability of shares and bonds etc. by itself will not deprive the 
plaintiff of his share if on valuation he is otherwise entitled thereto-The date 
of determinatic 1 of their valuation would be date of final decree-Parties in 
possession of joint family properties liable to give account for rents, income, 
profits and dividends in respect of joint family properties since the severance 
E of joint family, Status-Code of Civil Procedure, 1908-0rder 20, Rule 18, 
Order 26, Rules 13 and 14. 
The Joint family property in question consisted of movable and 
immovable property. The joint family status was severed on 11.7.1940 
whereafter members of the joint family became tenants in common. Shares, 
F bonds and other securities were in possession of respondents-plaintiffs. 
Respondents-plaintiffs filed partition suit in 1948 the preliminary decree 
that was finally passed by the court it was held holding that plaintiffs were 
entitled to 2/19th share and they shall be put in separate possession of 
properties coming to their share on partition by metes and bounds; and that 
G the parties in possession of the joint family properties were liable to give 
account for the rents, income, profits and dividends received after 11.7.1940 
till the date of final partition. The court further directed that "present 
possession of the party shall be respected as far as possible". 
In the proceedings taken up before Trial Court for passing of the final 
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326 
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M.L. SUBBARA YA SETTY v. M.L. NAGAPPA SETTY 
327 
_.,,. 
decree, the Court in purported compliance of the directions in the preliminary A 
decree and in view of the fact that respondents plaintiffs were in possession 
of assets ofa value of more than 2/19th share on 11.7.1940, allotted movable 
property to respondents-plaintiffs and immovable properties to appellant-
defendants. Respondents-plaintiffs were directed to deliver the excess of their 
share to defendants and defendants-appellants were directed to pay plaintiffs B 
2/19th share out of the income derived from the properties of the joint family 
from 11.7.1940. 
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Plaintiffs-respondents challenged the order of the trial court in appeal 
• 
before the High Court on the ground that it denied to them any share in the 
immovable property and the Appellants-defendants challenged the order to c 
the extent it directed that out of income derived from the properties of joint 
family from 11.7.1940, the respondents-plaintiffs should be paid 2/19th share 
of the income. The appeal of the plaintiffs and that of the appellant-defendants 
were dismissed by High Court 
Most of the shares, bonds and securities which were in possession of D 
the family were not available at the time of the present appeal. In appeal to 
this Court the questions for consideration were: 
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I. Whether the plaintiff was entitled to 2/19th share in the joint family 
properties? If yes, the relevant date for determining the value of the assets 
so as to ascertain the separate 2/19th share of the plaintiff. 
E 
2. The effect of non-availability of shares, bonds and securities. 
3. Whether parties in possession of joint family properties were liable 
to give account for rents, income, profits and dividends in respect of joint 
family properties to the others and if so the period thereof? 
F 
" 
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Dismissing the appeals, the Court 
HELD : I.I. The plaintiff is entitled 2/19th share in joint family 
properties. It cannot be said that the plaintiff is not entitled to a share in the 
joint family immovable property. Observation of the High Court that the G 
plaintiff is entitled to share in each of the joint family property does not mean 
the actual partition of all such properties by metes and boun

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