he could have collected-Thakoor Doss Roy vs. Nobin Kristo, 22 W. R., 127; Baboo Lucky Narain Roy vs. Kally Puddo, 4 C. L. R., 60; I. L. R., 4 Cal., 883; and the usual rule is to ascertain what would be a fair and reasonable rent for the land if the same had been let to a tenant during the period of the unlawful occupation of the wrong-doer-Rugho Nath Dobey, 1 Agra, 17; but see Soudaminee Dabee vs. Anund Chunder, 13 W. R., 37, and this, indeed, is the only rule on which to proceed where the person in wrongful possession has himself occupied and cultivated it, specially if the cultivation is carried on at a great risk-Asmut Koer vs. Inderjeet Koer, F. B. R., 1003; Gunga Prosad vs. Gojadhar Prosad, I. L. R., 2 Alla., 651.

Profits. But in other cases mesne profits were held to cover whatever profits the wrong-doer might, with ordinary diligence, have received from an occupation similar to that of the party wrongfully dispossessed-Teluck Chand vs. Soudaminee Dossee, 23 W. R., 108; Rookumee Kooer vs. Ram Tuhul, 17.W. R., 156, whether it be that of a culti vating ryot-Nursingh Roy vs. Anderson, 19 W. R., 125; Gooroo Dyal vs. Gopal Singh 24 W. R., 271, landlord or zemindar-Bhurub Chunder Mozoomdar vs. Huro Prosunno, 17 W. R., 257 (but see Madhub Chunder Dutt vs. Haradhun Paul, 14 W. R., 294); and to determine the amount it would be sufficient to shew the profits for the years preceding dispossession or afterwards-Bhawaneedeen Sahoo vs. Mohun, 1 Alla., 273.

Annual Rents.-Where the rents are taken as the test, then, unless the tenant's leases contain a contract to pay rent by defined instalments which, independently of any failure to pay on demand, might be made the subject of an action at a certain date within the year, the rents (i.e., mesne profits) must be taken to fall due annually and at the end of the year-Thakoor Doss Roy vs. Nobin Kristo, 22 W. R., 126; Thakoor Doss Archarjee vs. Shoshee Bhooshun, 17 W. R., 203; Byjnath Pershad vs. Badhoo Singh, 10 W. R., 486; for the right to mesne profits accrues only from the date on which the plaintiff would have received them if he had not been dispossessedLukhee Kant Doss vs. Deen Dyal, 14 W. R., 82.

Deductions.-Deductions, usually 10 per cent., are made for collection expensesGooroo Doss Roy vs. Anund Moyee, 15 W. R., 203; but see Attaf Ali vs. Lalji, I. L. R., 1 Alla., 518, and also for Government revenue, losses by desertion and death of ryots, brought, &c.-Dinobundhoo Nundee vs. Keshub Chunder, 3 W. R., Mis., 25; but charges for management are not allowed, unless the party accounting has bona fide believed himself to be in rightful possession-Shitab Dei vs. Ajudhia, I. L. R., 10 Alla., 13; see, however, McArthur vs. Cornwall, App. Cas. (1892), 75. Lands of such a nature as would, under ordinary circumstances, yield no profit, should not be taken into account, unless it has been shewn that the judgment-debtor could have gained a profit from them-Becharam Doss vs. Brojonath, 9 W. R., 369.

Where there are cross-demands for wasilat under the same decree, the entire profits should be calculated and divided rateably, and then there should be a set-off to the extent of the profits actually received by each sharer, and the deficit in each year on any share made up by the party who received the excess-Bijoy Gobind vs. Kalee Prosunno, 16 W. R., 294.

A got a decree for possession and wasilat of an estate consisting of villages, and in execution it was found that five of these villages were in one district and two in another, and the Court, unable to apportion the Government revenue, determined the wasilat for the two villages outside its jurisdiction, as well as for the five within it. It was held that the Court was wrong in determining the wasilat of the two villages, but a deduction of the whole Government revenue was allowed, with a declaration that when execution would be taken out in the proper Court for the two villages, no deduction should be made for Government revenue-Puran Chunder vs. Juggesur Mukerjee, 17 W. R., 298. As to the present law, see section 19, ante, and section 223, post.

From what date Allowed.-The general rule is, that mesne profits are demandable from the date on which they become annually due-See Kooer Ramapul vs. Furlong, 3 W. R., 38; and each sum gives a separate cause of action-Surnomoyee vs. Unonda Gobind, W. R., 1864, p. 163. To this there is an exception: a purchaser for valuable consideration without notice of plaintiff's title is not liable for mesne profits from any date earlier than the institution of the suit, if the plaintiff has been guilty of lachesJuggurnath Sahoo vs. Shah Mahomed Hossein, 14 B. L. R., 386; though slight delay in bringing the suit will of itself be insufficient to remove the liability-Kaleenath Doss vs. Rajah Meah, 22 W. R., 406; and see on this point the following cases in which mesne profits were only allowed from the date of suit-Shere Bahadur Singh vs. Darioa Kuar, I. L. R., 3 Cal., 645; Raghunadha vs. Brozo Kishoro, 3 Ind. App., 154; Sarkies vs. Prosonomoyee Dossee, I. L. R., 6 Cal., 794; Juggurnath Sahoo vs. Shah Mahomed Hossein, 14 B. L. R., 386, or from notice of claim-Shumboo Chunder Surmah vs. Issur Chunder, 2 Sev., 4.

Proof Necessary.-To establish a claim for wasilat, the plaintiff must shew that he was entitled to possession-Radha Churn vs. Zumuroonissa, 11 W. R., 83; and that he was wrongfully kept out of it by the defendant-Dwarkaram Misser vs. Jogessur, 21 W. R., 276; Ghooghly Sahoo vs. Čhundee Pershad, 21 W. R., 246; but a declaratory

decree stating that a person is entitled to property without previous possession is not sufficient-Kalidas vs. Vallabhdas, I. L. R., 6 Bom., 79. Thus a lessor preventing ryots from paying his lessee is liable-Bheekumber Singh vs. Raj Chunder, 15 W. R., 196; Shama Sunkur Chowdhry vs. Sreenath Banerjee, 12 W. R., 354; so a mortgagor who, after the mortgagee had foreclosed and got a decree, neither gave up possession to the mortgagee, nor told his lessee to pay the latter rent, was cast in mesne profits-Surrup Chunder Roy vs. Mohender Chunder, 22 W. R., 539; but the Court in execution cannot go beyond the decree or execution-proceedings to ascertain the lands-Gobinda Chunder Gooha vs. Bella D'Silva, 1 Shome, 154.

Entry Unnecessary.-All parties in wrongful possession, irrespective of how they got in, are liable-Pearun vs. Ahmed Ali Khan, 4 W. R., Mis., 7; Suttyo Nundo vs. Suroop Chunder, 14 W. R., 76. Thus an auction-purchaser whose purchase is declared invalid-Roy Narain vs. Sheik Forabun, 4 Agra, 216, a mortgagor after the year of grace -Suroop Chunder vs. Mohender Chunder, 22 W. R., 539; but see Raisuddin vs. Khodee Newaz, 12 C. L. R., 479, a bona fide holder-Gugun Chunder vs. Surbessur, 8 W. R., 479; Byjnath Persad vs. Badhoo Singh, 10 W. R., 486, an izaradar with his zemindar-Biddya Moyee vs. Ram Lall Misser, 17 W. R., 148, an under-tenant is liable for mesne profitsRam Chunder Surmah vs. Ram Chunder Pal, 23 W. R., 226; but ryots are not bound to pay rent before the decree-holder is put in possession-Woomesh Chunder vs. Markund Mookerjee, 12 W. R., 35. See note under section 258, post.

Enjoyment of Profits.-It is also unnecessary to shew that the defendant has enjoyed 1 the mesne profits, instead of the plaintiff. It is enough to shew that he has been active in keeping the plaintiff out of possession and enjoyment of the property. If he has done so wrongfully, he is bound to pay to the plaintiff consequential damages, whether he derived any profit himself from the possession of the land or not-Ghooghly Sahoo vs. Chundee Pershad, 21 W. R., 246.

Effect of a Decree for Mesne Profits.-The decisions declaring the incidents of the liability imposed by a decree for wasilat are not uniform. In a suit for damages against several persons for keeping plaintiff out of possession, they are all equally liable to him, and no one can restrict his liability to that portion of the property in his possession-Jhoonkee Paurey vs. Ajoodhya, 19 W. R., 218; but if the plaintiff abstains from suing any one of them, probably a decree against the others would bar a new suit against him, though in one case it was held that, unless the plaintiff sued all the defendants under a decree for possession, this suit would be dismissed, because if he did not do so, the parties cast would have no remedy against the other wrong-doers, whereas this would not be the case if the decree bound them all, and only some of them paidSuttya Nundo vs. Suroop Chunder, 14 W. R., 76.

Contribution-Form decree.-In some cases in an action for damages, the whole liability has been divided in proportion to the amount of profits that each has derived from the wrongful possession-Fuzul Mahomed vs. Raj Coomaree, 6 W. R., 113; and this rule has been followed, even though there was no such limitation in the decreeBulwunt Singh vs. Sheo Sahoy, 2 W. R., Mis., 52, on the ground that a person's "liability to satisfy a joint and common decree would in equity extend no further than to the particular land" he was in possession of-Gunesh Dutt vs. Bulwunt Singh, 14 W. R., 175.

Interpretation. A decree for interest on mesne profits from the date they are ascertained means the date they have been ascertained by the Court and not by the Ameen -Doorga Sundooree Debia vs. Sibessuree Dabia, 10 W. R., 391.

Shebait.-A decree for mesne profits against a person who claimed the lands as shebait of a Hindu idol, where the profits of the lands had gone into the idol's treasury, has been held not to be a decree against the person as an individual, but as shebait, and to be satisfied out of the idol's property-Shibeshuree Debia vs. Mothoornath Acharjee, 5 W. R., 202; the necessary expenses of the idol must be allowed-Thakoor Doss vs. Sho shee Bhoosun, 17 W. R., 208.

Interest-As to the distinction between mesne profits and interest thereon see Hurro Doorga vs. Surut Soondari, 9 Ind. App., 1; I. L. R., 8 Cal., 332; Brojendro Coomar vs. Madub Chunder, I. L. R., 8 Cal., 343.

General Rule.-The general rule in Bengal is that interest may be awarded as a matter of course from the date of suit, but if awarded from an earlier or later date, special reasons should be given-Hurro Persaud Roy vs. Shampersaud Roy, I. L. R., 3 Cal., 654, and see 4 C. L. R., 60; and this is in accordance with the latest decision of the Privy Council-namely that there is no rule obliging the Court to allow interest, but it is a matter of discretion to be granted or not according to the circumstances of the caseKrishna Nund vs. Kunwar, 11 Ind. App., 88, p. 93.

Bengal.-In practice, interest has been allowed annually-Hurroduga_vs. Sharrut Soondari, 3 C. L. R., 517; I. L. R., 4 Cal., 674. No difference should be made as regards

interest between wasilat paid in kind and paid in money-Roye Kishore vs. Bonomally Churn, 10 W. R., 209. In the following cases interest was not given before assessmentBengal Coal Co. vs. Darumbah, Marsh., 105; Mobaruk Ali vs. Boistub Churn, 11 W. R., 25.

Bombay.-Interest is allowed on wasilat in Bombay where the case falls under section 211, but not otherwise-Chaku Modan vs. Dullabh, 9 Bom., 7; Gundo Anandrav vs. Krishnarav, 4 Bom., 55. In the former case the Court expressed a doubt whether interest could be given on wasilat from the date of possession to the date of payment; though in the Privy Council case of Kirkland vs. Modee Pestonjee Khoorseojee, 3 Moore, 220, it was held that a sum found due for mesne profits was looked on in Bombay as a judgmentdebt, and carried interest by its own force, and their Lordships declared that such a practice was neither unreasonable nor unlawful. Where a purchaser was kept, for upwards of 20 years, out of the annual payment of a toda garashuk (a hereditary tenure in Bombay), their Lordships of the Privy Council decreed simple interest on each annual payment from when it became due-Sumbhoolall vs. Collector of Surat, 8 Moore, 1.

Administration-suit.

213. When the suit is for an account of any property and for its due administration under the decree of the Court, the Court, before making the decree, shall order such accounts and inquiries to be taken and made, and give such other directions, as it thinks fit.

In the administration by the Court of the property of any person who dies after this Code comes into force, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being with respect to the estates of persons adjudged insolvent ;

and all persons who in any such case would be entitled. to be paid out of such property may come in under the decree for its administration, and make such claims against the same as they may respectively be entitled to by virtue of this Code.

38 and 39 Vic., C. 77, section 10. This section applies to H. C. The last paragraph of this section was repealed by Act IV of 1886, section 2, which is in force in the town of Mandalay-See Act XX of 1886, section 6, and Schedule II, Part II.

The second paragraph of this section was passed in England to assimilate the practice in Chancery to that in Bankruptcy. In Chancery a secured creditor could, in an administration-suit, prove for the full amount of his debt; in Bankruptcy he must realize his security and prove for the balance. This is now the law-In re Coal Consumers' Association, 4 C. D., 625; Kellock's case, L. R., 3 C. D., 769. A creditor may sue for the administration of the estate of his deceased debtor, but he must bring the suit on behalf of himself and the other creditors-Worraker vs. Pryer, 2 C. D., 109. See as to partiesDowdeswell vs. Dowdeswell, 9 C. D., 294; as to costs, In re Jones, 10 C. D., 40; executor's expenses-Sharp vs. Lusk, 10 C. D., 468; as to subsequent action after administration judgment-Laming vs. Gee, 10 C. D., 715; as to right of relatives-Richmond vs. White, 10 C. D., 727.

Insolvent.-See Soobul Chunder vs. Russick, I. L. R., 15 Cal., 202, p. 208.

Stamp.-For the stamp on such an application, see Ladhubhai Premchand vs. Revichand Venichand, I. L. R., 6 Bom., 143; Bhogilal vs. Popatbhai, I. L. R., 7 Bom., 125; Erakshah vs. Adarji, I. L. R., 7 Bom., 535.

Decree.-See Forms 130, 131, Schedule IV, infra.

Suit to enforce right of pre-emption.

214. When the suit is to enforce a right of pre-emption in respect of a particular sale of property, and the Court finds for the plaintiff, if the amount of purchase-money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase-money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid the suit shall stand dismissed with costs.

This section applies to H. C.-See note under section 11, ante, and 221, post.

Practice. It is the practice of the Courts to allow claims to pre-emption to be asserted on the grounds both of contract and custom in one and the same suitNehchul vs. Than Singh, 2 Alla., 222; but the claim must be, if possible, for the whole of the property included in the sale, and if a claimant is disqualified to sue as to part he cannot claim the remainder-Mahommed Welayut Ali vs. Abdul Rab, I. L. R., 11 Alla., 108. Where a party, through an execution-proceeding, obtains possession of land which is bound by right of pre-emption, he ought to have the benefit of the purchase-money which the pre-emptor is to pay-Buksha vs. Ali Tofer Ali, 20 W. R., 216, and if the right is based on contract, it does not arise where the sale is not by the contracting party, but by a third person under a decree-Shaikh Ferasut Ali vs. Ashootosh Roy, 15 W. R., 455.

A and others held land at a fixed rent, the malikana of which was paid to other parties as proprietors: A sold some land to B; C claimed by pre-emption, obtained a decree, and paid the money, which was handed over to B. In the meantime, the land was resumed, and a settlement made with the proprietors, thus ousting the several parties to the preemption transaction. Held, C could not recover the purchase-money from B-Sheik Soopun, Petitioner, S. D. Sum. Decis., May 4, 1841.

One coparcener has no right of pre-emption against another-Lalla Nowbat Lat vs. Lalla Jewan Lall, I. L. R., 4 Cal., 831. See, however, Digambur Misser vs. Ram Lal, I. L. R., 14 Cal., 761; Saligram vs. Raghu Zardyal, I. L. R., 15 Cal., 224.

Purchase-money.-See as to the amount of it Ajaib Nath vs. Mathura Prasad, I. L. R., 11 Alla., 104, and the cases cited. The plaintiff may deduct his costs-Ishri vs. Gopal, I. L. R., 6 Alla., 352.

234.

As to the right to the accruing profits, see

Deokindan vs. Sri Ram, I. L. R., 12 Alla.,

Payment.-A person obtained a decree declaring him to be entitled to certain lands by pre-emption and ordering payment of the purchase-money within one month. He paid the money into Court, at the same time petitioning that it should be held by the Court and not made over to the defendant until mutation of names in the Government Registry had taken place. This prayer was allowed. Subsequently defendant refused to accept the moneys deposited, on the ground that the payment was clogged with a condition. It was held that, though the petition asked that the money might be held in deposit until mutation of names had been made, still it could not be said that he payment was saddled with a condition precluding payment before mutation, and that the objection could not prevail-Ajhoodhia Shookool vs. Jewbood Shookol, 6 Alla., 46.

Time.-The Appellate Court can extend the time allowed to deposit the priceParshadi Lall vs. Ram Dial, I. L. R., 2 Alla., 744; Kodai Singh vs. Jaisri Singh, I. L. R., 13 Alla., 376; but where the decree-holder failed to deposit the money within the time prescribed, a subsequent application with a tender of the money was refused— Shah Ahmed Ali, Petitioner, S. D. Sum. Decis., December 26, 1840.

The question whether the plaintiff has paid the purchase-money in time is not a matter relating to the execution of a decree under section 244, post-Muhammad Ali vs. Debi, I. L. R., 4 Alla., 420. Where a decree gave two months' after the decree became final, and the Appellate Court was closed on the day on which the period for appeal expired, held, the appeal could be filed on the first day it opened, and that the decree did not become final till then-Ram Sahu vs. Gaya, I. L. R., 7 Alla. 107; and even when after the period had expired an appeal was filed which was dismissed and no fresh period for payment expressly allowed, it was held that the period would run from the date of this appellate decree.-Supchand vs. Shamsh-ul-Jehan, I. L. R., 11 Alla., 346.

Appeal. As to the effect of non-payment within time on the grounds of appeal, see Kodai Singh vs. Jaisri Singh, I. L. R., 13 Alla., 376.

Form of Dec ee.-This section lays down no rules as to the form of the decree in cases where rival pre-emptors possessing equal rights of pre-emption come forward to enforce the right in respect of the same sale, or where one rival pre-emptor possesses a superior right of pre-emption over the other, and in such cases both claims should be decreed against the purchaser for the whole property, but in the weaker case, there should be a statement that the decree should not take effect if the superior pre-emptor should enforce the right decreed him-Kashi Nath vs. Mukta Prosad, I. L. R., 6 Alla., 370; Hulahsi vs. Sheo Prosad, I. L. R., 6 Alla., 455; Ajaib Nath vs. Mathura, I. L. R., 11 Alla., 164.

As to the case of several pre-emptors, each entitled to a share, see Arjun Singh vs. Surfaraz, I. L. R., 10 Alla., 182.

Execution.-The right is personal, and where a pre-emptor has transferred the property in any manner inconsistent with the object of the suit, his claim should be dismissed -Rajo vs. Lalman, I. L. R., 5 Alla., 180, and the transferree of a pre-emption decree cannot execute it-Sarja Prasad vs. Jamna Prasad, I. L. R., 7 Alla., 109; but the preemptor can execute the decree for the benefit of a vendee of the property after decree→→ Ram Sahi vs. Gaya, I. L. R., 7 Alla., 107.

partnership.

215. When the suit is for the dissolution of a partnerSuit for dissolution of ship, the Court before making its decree, may pass an order fixing the day on which the partnership shall stand dissolved, and directing such accounts to be taken and other acts to be done as it thinks fit.

This section is new. It applies to H. C.

Decree. —The usual forms of decree in such a suit are given in Forms 132 and 133, schedule IV, post.

Suit for account between principal and agent.

215A. When a suit is for an account of pecuniary transactions between a principal and agent, and in all other suits not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before making its decree, pass an order directing such accounts to be taken as it thinks fit.

Decree when set-off is allowed.

216. If the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount (if any) is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

Effect of decree as to sum awarded to defendant.

The decree of the Court, with respect to any sum awarded to the defendant, shall have the same effect, and be subject to the same rules in respect of appeal or otherwise, as if such sum had been claimed by the defendant in a separate suit against the plaintiff.

The provisions of this section shall apply whether the set-off is admissible under section 111 or otherwise.

Act VIII of 1859, section 195. This section applies to H. C. and P. S. C. C.