Lancelot Sanderson, C J - (1.) This is an appeal from the judgment of the Subordinate Judge of Berhampore, arising out of a reference with regard to mesne profits.
(2.) The facts may be shortly stated as follows:--The plaintiff claimed a third share of an estate which was left by a man called Bam Lal Singha, and he brought a suit against a relation, who was called Shyama Charan Singha, to have it declared that after the death of a female relation called Bhagabati Barmania he would be entitled to a third share. It appears that Shyama Charan Singha had gone into possession of the whole of the estate about the year 1901. The plaintiff in that suit got a decree in the Court of first instance. There was an appeal to the High Court, and the decree in favour of the plaintiff was upheld by the High Court in June 1905. Then there was an appeal by Shyama Charan to the Judicial Committee of the Privy Council and that appeal was not heard and decided until the year 1911, when the Judicial Committee of the Privy Council affirmed the decision of this Court, thereby declaring, as I have already said, that the plaintiff would be entitled to a third share of the estate after the death of Bhagabati Barmania. Before the decision of the Judicial Committee was given Bhagabati Barmania had in fact died, but the declaration was made in accordance with the prayer in the suit. Bhagabati died on the 3rd of December 1905. Shyama Charan died on the 1st of April 1906 and he was supposed to have left a Will, and under that Will two men called Ashu and Surendra were appointed executors; and in June 1916, they obtained Probate of the Will, and remained in possession of the property from that time until September or October of 1909, when the defendant in this case Kiranbala, the widow of Shyama Charan, applied to the Court and obtained revocation of Probate. It was declared by the learned Subordinate Judge in this case that Kiranbala was executrix. It was stated during the course of the argument that that was a mistake, and that she never was executrix, It was then stated that she was administratrix. It then turned out that she never applied for Letters of Administration and she was never appointed administratrix. She was the heir, and after Probate of the alleged Will was revoked she went into possession of the estate, and was sued in this suit as representing the estate. I ought to have mentioned that the revocation of Probate was obtained on the ground that the Will was a forgery.
(3.) This suit was commenced on the 29th of July 1907. It was brought against the executors of the alleged Will, Ashu, Surendra and Satisb, and it was also brought against the defendant Kiranbala and two other ladies. The decree in the case was passed on the 27th of April 1911, after the decision of the Judicial Committee, which, as I have already mentioned, was given on the 14th of February 1911. After that decree there was no defence to this suit for possession brought by the plaintiff, and, therefore, a decree for possession was passed in favour of the plaintiff. Now no question arises with reference to the decree for possession. But in addition to the claim for possession, the plaintiff naturally made a claim for mesne profits in respect of the third share, from which he had been ousted from the date of the death of Bhagabati Barmania; and the decree was framed in this way; after decreeing possession of the property in favour of the plaintiff it went on as follows:--"it is further ordered that the mesne profits of the immoveable properties mentioned in Schedule (ka) of the plaint from the date of death of Bhagabati Barmania till the date of institution of this suit as well as the mesne profits from the date of institution of this suit till the date of recovery of possession of this property be enquired, into and determined subsequently." Now, the point arises in this way Shyama Charan was in possession of this property from 1901. The date from which mesne profits are claimed is from 1905 when Bhagabati died. From that time until April 1906, Shyama Charan was in possession. From April 1906 to October 1909, the executors under the forged Will of Shyama Charan were in possession. From October 1909 to April 1911, the date of the decree, Kiranbala herself was in possession and Kiranbala does not dispute her liability for mesne profits in respect of the first period from December 1905 to A.pri 1 1903, or in respect of the last period from October 1909 to April 1911. But she disputes her liability for mesne profits in respect of the second period, namely, from the 1st of April 1906 to the 17th of October 1009. The learned Judge referred the question to the Commissioner to ascertain what were the mesne profits in respect of each one of those three periods, and after the Commissioner had made his. report the learned Judge proceeded to discuss the question as to whether Kiranbala was liable for mesne profits in respect of the second period. Now, it has been argued by Mr. Chuckerbutty on behalf of the appellant, first of all, that that point was really not open to the defendant Kiranbala, because, he said, the decree which was passed in April 1911 was to the effect that the plaintiff was not only to have. possession, but the decree was a decree for mesne profits for the whole of the period from 1905 down to 1911, not only against the defendants Nos. 2 to 4 but also against Kiranbala who never appealed, and the only question left open to be decided was the amount of these mesne profits.;