Gnanaprakasa Mudaliar and Others vs B. Anandathanadavan and Others

S. Jagadeesan, J.—The defendants 1, 5 and 6 in O.S. No. 152/1960 on the file of the District Munsif, Villupuram are the appellants herein.

The respondents herein had filed the said suit, claiming partition of 2/3rd share. A preliminary decree was passed by the trial Court on 31-3-1962.

Subsequently a final decree was also passed on 15-4-1964 in LA. 828/1962. The respondents took possession of the properties on 26-12-1974.

So far as items 4 to 8, 15, 17, 25 and 26 of the plaint schedule properties are concerned, because of the pendency of the second appeal which

was disposed of in the year 1967, the final decree was passed separately on 15-7-76 in LA. 542/1969. The respondents took possession of their

share in the above said items on 22-9-1976.

After taking delivery, the respondents filed an application I.A. 3183/82 for ascertainment of the mesne profits from 25-11-59 to 22-9-76. The

trial Court granted a decree for mesne profits subject to payment of court fees. Aggrieved by the same, the appellants filed an appeal A.S. 70/ 83

on the file of the Sub-Court, Villupuram. In and by his judgment dated 31-3-84 the learned subordinate Judge confirmed the decision of the trial

court. Hence the present second appeal has been filed.

The following substantial question of law was formulated at the time of admission of the second appeal:

Whether the finding of the lower appellate Court on the question of maintainability is correct in view of the decision of the Supreme Court

reported in Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, ?

The case was heard by K. Sampath, J. during the final disposal. Before the learned single Judge, the counsel for the appellants contended that

the trial Court did not provide for the mesne profits and therefore the respondents would not be entitled to claim mesne profits. Even otherwise, at

the time when the final decree was passed, the application for mesne profits had not been made and in as much as there could not be more than

one final decree. The claim of the respondents could have been negatived by the Courts below. For this proposition, he has relied upon the

judgment of this Court reported in Mohamed Habibullah Vs. Rahimath Beevi, .

The learned counsel for the respondents seems to have contended that the respondents had claimed only future mesne profits and as such

subsequent to the final decree it is open to them to seek for such relief on the basis of the decision of the Supreme Court reported in R.S.

Madanappa and Others Vs. Chandramma and Another, .

After referring to a number of judgments cited by both the counsel, the learned single Judge has entertained a doubt as a whether subsequent to

the passing of the final decree, the mesne profits can be asked for and referred the following question for the Full Bench to answer :

Whether in a partition action the lis got terminated for all purposes even with regard to future profits, not provided for in the final decree in the

absence of any indication therein that something more remained to be done.

Though the learned Judge referred to number of judgments of the learned single Judges of this Court, we are of the opinion that it is unnecessary

to refer all the cases, in view of the fact that the question referred had already been discussed by a Full Bench of this Court reported in Babburu

Basavayya and Others Vs. Babburu Guravayya and Another, as well as the Supreme Court in the judgment reported in R.S. Madanappa and

Others Vs. Chandramma and Another,

In the present case, though the preliminary decree provided for enquiry into the mesne profits no such enquiry was held and the final decree

came to be passed. Pursuant to which the respondents also took possession of the properties on 22-9-75. After nearly six years subsequent to the

taking delivery of possession the respondents have filed the application in I. A. No. 3183/82 for ascertainment of mesne profits.

Hence the question is whether a decree for mesne profits can be granted?

We will refer the Full Bench Judgment of this Court in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, wherein the

learned Judges have held whether the plaint contained or not a claim for future profits, the Court has the power to grant them when the legislature

has expressly empowered the Court to grant relief for future mesne profits, that is to say, in respect of a cause of action arising subsequent to the

suit, there is no reason to circumscribe this power by importing a qualification that there must have been a specific prayer in the plaint for the

recovery of such unascertainable and unpredictable profits and as such future mesne profits could be awarded as part of the general relief. Having

said so the learned Judges further entered into the discussion on the question as to whether this power to direct an enquiry into future mesne profits

can be exercised only at the stage when a preliminary decree for possession is passed or at a later stage of the suit. The learned Judges have held

as follows (at pp. 940 and 941 of AIR) :--

Ordinarily, there will be one preliminary and one final decree but, as pointed out in Kasi alias Alagappa Chettiar and Others Vs. Rm.A.RM.V.

Ramanathan Chettiar alias Srinivasan Chettiar through his next Friend, AV.Pl.Ct. Ramanathan Chettiar and Another, there is nothing in the CPC

which can be construed as a prohibition against the Court in prior case, passing more than one preliminary decree and one final executable decree

in a suit. The relevant provisions of the Code and the earlier rulings of this and the other High Courts are reviewed in the Judgment of Patanjali

Sastri J., with which we are in respectful agreement. A judicial determination of the amount of future profits has to be made with reference to any

one of the three events specified in Order XX, Rule 12, Sub-Rule (I) (c), whichever event first occurs. If a preliminary decree awarding possession

contains a direction for enquiry into future mesne profits, the suit or that part of the suit relating to future mesne profits continues to be pending and

the decree-holder might move the Court to hold an enquiry and pass a final decree awarding such profits without the necessity of filing an

application within the period prescribed by Articles 181 of the Limitation Act. This is the effect of the decision in Ramasubramanya Pattar Vs.

Karimbil Pati and Others, and the Madras amendment of Order XX, Rule 3. If, to use the language of Ghulusam Bivi v. Ahamadza Rowther ILR

(1918) 42 Mad 296 : AIR 1919 Mad 998 the preliminary decree ""intentionally omits"", that is to say, refuses to direct an enquiry into future mesne

profits, that decision will, subject to the result of any appeal, be binding, on the parties in all the subsequent stage of the suit and no application can

thereafter be made in the course of the suit for an enquiry into such profits. Whereas a decree awarding possession is silent with regard to an

enquiry into future mesne profits and the decree has not completely disposed of the suit which, for one reason or another, continues to be, pending

there is nothing in the CPC Prohibiting the decree-holder from applying to the Court during the pendency of such suit for an enquiry into future

mesne profits or the Court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the decree-

holder to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree. Unlike Order XX, Rule 13

and 16 and Order XXXIV, Rules 2, 4 and 8, CPC Order XX, Rule 12, is not mandatory and does not insist on a preliminary decree containing all

the directions referred to in Rule 12. There is no express or implied prohibition in the CPC against awarding possession and directing an enquiry

into future mesne profits by successive adjudications in a pending suit though the normal and ordinary procedure would be to pass a preliminarily

decree awarding possession and also direct an enquiry into future mesne profits; T.S. Swaminatha Odayar, lately a minor by guardian Meenakshi

Achi but now declared a major and guardian on record discharged Vs. T.S. Gopalaswami Odayar and Others, . In any case an order directing an

enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit, cannot be said to be without

jurisdiction.

From the above discussion, it is very clear that either the preliminary decree should contain the relief of mesne profits; even if it is not so, it is

open to the parties to ask for the enquiry with regard to the mesne profits during the pendency of the suit which is till the passing of the final decree.

This is very clear from the finding of the learned Judges that where a decree awarded possession is silent with regard to an enquiry into future

mesne profits and the decree has not completely disposed of the suit, which, for one reason or another continues to be pending. A preliminary

decree is the general declaration of the rights of the parties and the critical allotments which have to be worked out with due regard to the

regularisation of the profits and drawing by the parties subsequent to the institution of the suit till the passing of the final decree. This aspect is also

clear from the following passage of the Full Bench judgment in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, :

If Order XX, Rule 12, or the analogy of that rule is to be applied to suits for partition, as was done in Ghulusam Bivi v. Ahamadsa RowlherILR

(1918) 42 Mad 296 :AIR 1919 Mad 998 a direction for an enquiry into profits, past or future, can be given only at the time when a decree for

possession of the property is passed, that is to say, at the time of the passing of a final decree for partition of the properties, when alone the shares

would be entitled to get possession of their respective allotments. On the completion of such enquiry a future final decree in respect of profits will

have to be passed, This was the view taken by Oldficld J., in Mahalakshmamma v. Rajamma (I) (1917) 43 IC 458. We might mention that the

conclusion of the learned Judge was affirmed in Letters Patent Appeals Nos. 116 and 58 of 1917.

The Full Bench, in the above referred judgment further concluded as follows (at p. 943 of AIR):

We may now summarise our conclusions. A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the

parties have to be adjusted as on the date of the final decree; AIR 1940 11 (Privy Council) . In such a suit the Court has not only to divide the

common properties but has also to adjust the equities arising between the parties out of their relation to the common property the property to be

divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the

property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an

equitable final partition can be effected. Among them are the realisation of common outstandings the discharge of common liabilities, the distribution

of the profits of the properties realised pending the suit either in cash or by allotment of property of the requisite value, the grant of owelty, the

provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected, to the sharer who has

improved them, the allotment of alienated lands to the share of the aliener and other similar matters. Even after the passing of the preliminary decree

it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order

XX. Rule 18, Civil Procedure Code, does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to

the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties

among the parties, to direct an enquiry to into the profits received or realised by one or some of them during the pendency of the suit and to award

the others their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or

subsequently as a step towards the passing of the final decree, as in either case the result of the enquiry has to be incorporated in the final decree"".

From the above passage, it is clear that the learned Judges have held that it is open to the Court to give direction with regard to the enquiry into

mesne profits during the pendency of the suit and further construed that till the passing of the final decree the suit is pending. Hence when once a

final decree is passed, it interdicts the rights of the parties.

In fact the full Bench has observed that even though there is no prayer in the plaint, it is open to the Court to grant the relief of mesne profits

which is clear from the following passage in the judgment in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, :--

The absence of a specific prayer in the plaint was held to be no bar to the award of such profits in the final decree. The principle of this decision

was accepted and acted upon by Mack J. in Abdul Rahim Saheb v. Abdul Salam AIR 1949 Mad 743 and by a division bench of which one of us

was a member in Civil Revision Petition No. 700 of 1947 :

Hence we are very clear frails the above said Full Bench judgment that even though (he preliminary decree do not contain any relief with

regard to the mesne profits, it is open to the Court to grant the same, however, that should be incorporated in the final decree, which means, in the

absence of any relief in the final decree, then it is not open to the parties to claim the same.

The above said Full Bench judgment was relied upon by the learned Division Bench of the Andhra Pradesh High Court in Kasibhatla

Satyanarayana Sastrulu and Others Vs. Kasibhatla Mallikarjuna Sastrulu, in the following terms (at p. 49 of AIR) :

From the above observations contained in the decision of the Full Bench in Babburu Basavayya and Others Vs. Babburu Guravayya and

Another, and Rachepalli Atchamma v. Yeeragunta Rami Reddi (1957) 2 And WR 474 : AIR 1958 AP 517 which two bench decisions of this

Court have affirmed to be good law and unaffected by anything contained in the decision of the Supreme Court in Mohd. Amin and Others Vs.

Vakil Ahmed and Others, we are of opinion that the application filed by the plaintiffs is entitled to be considered on merits and not to be rejected

on the ground that ascertainment of profits since suit has not been asked for in the plaint. It is for the Court entertaining that application to

determine whether the discretion should be exercised in giving a direction in the partition suit itself or refer the parties to a separate suit.

The learned counsel for the appellants refers to the Supreme Court Judgment in Mohd. Amin and Others Vs. Vakil Ahmed and Others, and

contended that unless the mesne profits is asked for in the plaint, then it is not open to the Court to grant the relief.

The identical question was raised before the Division Bench of Andhra Pradesh High Court and contended that in view of the said Supreme

Court judgment in Mahommed Amin''s case, the Full Bench Judgment of this Court in Babburu Basavayya and Others Vs. Babburu Guravayya

and Another, is not a good law. In the case Kasibhatla Satyanarayana Sastrulu and Others Vs. Kasibhatla Mallikarjuna Sastrulu, , the Division

Bench referred to two earlier Division Bench Judgments of the Andhra Pradesh High Court in Atchamma v. Rami Reddy AIR 1958 AP 517 and

Simma Krishnamma v. Makka Latchuma NaiduAIR 1958 AP 520 wherein it has been observed that there is nothing in the decision of the

Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed and Others, to indicate whether their Lordships were referring of the future profits,

i.e. profits since the institution of the suit. Only on this basis, the learned Division Bench found that the Full Bench Judgment of this Court in

Babburu Basavayya and Others Vs. Babburu Guravayya and Another, is by no means been shaken or impair by the decision of the Supreme

Court in Mohd. Amin and Others Vs. Vakil Ahmed and Others, . In view of the above Full Bench judgment, we do not want to multiply the

authorities referred to by the counsels.

We are in agreement with the view taken by the earlier Full Bench of this Court in Babburu Basavayya and Others Vs. Babburu Guravayya

and Another, that till the final decree is passed, the Court is empowered to grant the relief of mesne profits. Once the final decree is passed,

thereafter it is not open to the Court to grant the relief of mesne profits. The simple reason being that the final decree is the one which is to be

executed. It is well known fact that the executing Court cannot go beyond the decree.

For the foregoing reasons, we answer the question referred to the Full Bench as follows:--

In a partition action, the lis gets terminated for all purposes at the time of passing of the final decree even with regard to the future mesne profits

and as such it is not open to the parties to claim to the relief of mesne profits beyond the date of passing of the final decree, unless the final decree

provides for such relief.

Admittedly in this case the respondents have filed the application for the mesne profits nearly six years after taking delivery of their share of the

properly pursuant to the final decree. The final decree in the suit is not before the Court to ascertain as to whether it provides for mesne profits

subsequent to the date of the final decree. As the respondents already took possession of their share of the properly pursuant to the final decree,

the application filed by them for the mesne profits is no( maintainable and as such the second appeal has to be allowed. There is no other question

involved in the second appeal to be decided and as such there is no need to send the second appeal back to the learned single Judge. Accordingly

the second appeal shall stand allowed.