Judgment

BEG, J.:- This is an appeal by one of the defendants in a partition suit. It has come up before us after certification of the case under the unamended provisions of Article 133 as the decree of the Trial Court was modified, so that the requirements of Order 45 Rule 7 of the Civil Procedure Code had been fulfilled. Learned Counsel for the appellant (defendant No. 4 transposed on 5-11-51 as plaintiff No. 4) has confined his argument to liability of Rs. 42550/10/1 which resulted after the accounts which the appellant had to render on behalf of his branch of the family. The pedigree of the family is as follows:

2. A preliminary decree for partition was passed on 12th December, 1942, in the following terms:

"This suit coming on this day for final disposal in the presence of Shri M. Purushotham Naidu, advocate for the plaintiff, of Shri P. Lakshminarayana, pleader for the second defendant, of Shri T. Sreeramamurthi, advocate for fifth defendant, and of Shri B. Subba Rao, pleader for defendants 6 and 7, and defendants 3 and 4, appearing in person and defendants 1 and 8, being reported dead, this Court doth order and direct as follows:

(i) That the properties in plaint Schedules A and A-1 and items 1 and 1-a of the A Schedule filed along with the written statement of defendants 6 to 8 (Surasani Y anam lands) be divided into equal shares by metes and plaintiff and defendants 2 to 5 be put in possession of one such share and the other share be taken by defendants 6 and 7.

(ii) That half of the purchase price of items 2 and 3 of Schedule A filed along with the written statement of defendants 6 to 8 (i.e. Akulavari house and Challagalla Nagayyas lands) be paid by defendants 6 and 7 to plaintiff and defendants 2293 to 5 with interest thereon at 12 per cent per annum from the dates of the sale deeds.

(iii) That an account be taken of the outstandings due to the family as on 6-12-1925 and the plaintiff and defendants 6 and 7 do furnish accounts in respect of the collections or loans etc., on and after that date.

(iv) That plaintiff and defendants 6 and 7 do file accounts before the Commissioner in respect of the net income derived from the lands in plaint A and A-1 schedules which fell to their share prior to 1-7-1929 as mentioned in Exhibit XI, the account to be from 6-12-1925 till 1-7-1929.

(v) That defendants 6 and 7 do render accounts for first defendants management of all the properties subsequent to 6th December, 1925.

(vi) That defendants 6 and 7 do deliver item 51 of the plaint B Schedule to the plaintiff, the other items having been divided between the parties with their consent in Court on 30th November, 1942, as per memo filed by them on that date.

(vii) That Mr. N. Venkat Rao, Vakil, be hereby appointed Commissioner for the purpose of taking account and submitting a report as expeditiously as possible after taking of such accounts the outstandings as stated by the arbitrator in Exhibit 113 may be taken by him as showing prima facie a correct list of the outstandings and the account books produced and filed by the parties may be taken as prima facie correct accounts. The Commissioner will take into account the memo, dated 30-11-1942, filed by both parties into Court. He may take the directions of the Court as and when necessary."

3. On appeal, the High Court modified that preliminary decree and substituted it by the following decree:

"1. That for the words and figures occurring in clause 3 of the first paragraph of the decree of the lower Court namely "on 6-12-1925", the following words and figures namely on 30-9-1922" be and hereby are substituted;

2. That the finding of the lower Court regarding the properties mentioned in Schedule A of the plaint viz., that it forms part of the joint family properties be and hereby is set aside partitioned amongst the parties to the suit;

3. That for the words and figures in the decree of the lower Court viz., "plaint. A and A (1) Schedules" the following words and figures viz. "Item 1 of the plain