Somiah Naidu and Others vs Chinna Boosiammal and Others

Raju, J.—The above second appeals arise out of the final decree proceedings in one and the same suit, O.S.No.59 of 1963, on the file of

the Court of the District Munsif, Krishnagiri, wherein the first respondent herein has filed the suit for partition of the suit properties by metes and

bounds into two equal shares and for allotment of one such share for the plaintiff, for future mesne profits and for costs. The trial court passed a

preliminary'' decree dated 31.3.1965 in the following terms:

(1) That of the suit property item 13 (house property), item 1 and S.Nos.278/3 and 278/4 shall be divided by metes and bounds into two equal

shares and that the plaintiff shall be allotted one such separate share of the same;

(2) That the suit, in regard to other items be and is hereby dismissed;

(3) That mere be no order as to costs (Plaintiffs cost Rs. 169- 00; costs of defendants 6 to 8, Rs. 102.25;) and

(4) That the plaintiff is at liberty to apply for appointment of commissioner for division of the properties decreed in parallel above;

There is no controversy that the said preliminary decree has become final after termination of further proceedings, which were said to have been

taken upto this Court.

Thereupon, the plaintiff filed I.A.No.442 of 1973 under Order 26, Rules 13 and 14 read with Section 151, C.P.C. for appointment of a

Commissioner to divide the properties into two shares and for allotment of one such share and for putting the plaintiff in possession of one such

share. l.A.No.1591 of 1974 came to be filed under Order 20, Rule 18, C.P.C. for ascertaining the mesne profits payable to the plaintiff. The trial

court passed a final decree after taking into account the report of the Commissioner and the plan submitted by him and on the basis of the joint

memo filed by respondents 2 and 3 in the trial Court regarding the shares to be allotted to the plaintiff. As to the question of ascertainment of

mesne profits, the trial court held as hereunder:

The 4th respondent should pay mesne profits at the rate of Rs. 200 per annum from the date of suit in respect of the petitioner''s share in item 1 of

the suit properties. The respondents 2 and 3 should pay mesne profits at the rate of Rs. 1,000 per annum from the date of suit in respect of items

7, 8 and 9 of the suit properties.

Aggrieved, respondents 2 to 4 in the trial Court have filed A.S.No.4 of 1981 on the file of Sub-Court, Krishnagiri, against the final decree

passed in I.A.No.442 of 1973 and A.S.No.5 of 1981 against the final decree passed in I.A.No.1591 of 1974. The lower appellate court agreed

with the final decrees passed as referred to above and dismissed the appeals by its judgment and decree dated 23.3.1982. So far as A.S.No.4 of

1981 is concerned, the lower appellate court allowed a modification and it is not necessary to deal with the same at length or in detail for

considering the issues raised before me. Not satisfied, the appellants in the lower appellate court pursued the matter before this Court.

S.A.No.1669 of 1982 has been filed against A.S.No.5 of 1981 and S.A.No. 1670 of 1982 came to be filed against A.S.No.4 of 1981.

At the time of admitting the appeals, in S.A.No. 1670 of 1982 this Court thought fit to formulate the substantial question of law for the decision

in the said appeal as follows:-

Whether the advocate for the appellant is empowered to sign a joint memo agreeing to the allotment of properties for the share of the appellant

and whether the final ''decree, passed on that basis is sustainable?

In S.A.No.1669 of 1982, the substantial question of law that was formulated was as follows:-

Whether the decision of the trial court negativing the claim for mesne profits is a bar to the first respondent claiming mesne profits in the final

decree proceedings?

Mr. Vanchinathan, learned counsel for the appellants reiterated the claim so far as S.A.No. 1670 of 1982 is concerned contending that the

courts below had committed an error in granting the final decree by allotting items of properties to the respective share of the plaintiff and others on

the basis of the joint memo. Learned counsel for the respondents contended mat there is nothing illegal in the procedure adopted and that the final

decree passed cannot be assailed on the ground that the advocate alone has signed the joint memo.

On a careful consideration of the respective submissions of the learned counsel appearing on either side, I am of the opinion that by now it is

well settled that the joint memo filed by the counsel engaged could be a valid piece of material binding upon the parties and that the Courts can

legitimately act on the basis of such joint memo and the authority given to the counsel engaged would enure for such purpose also. No decision or

any provision of law has been produced to substantiate the contra stand and consequently, I see no merit whatsoever to the challenge made to the

final decree passed for allotment of respective shares to the parties on the basis of the joint memo. Second Appeal No. 1670 of 1982, therefore,

fails and shall stand dismissed.

As far as S.A.No.1669 of 1982 is concerned, learned counsel for the appellants contended that on the facts and circumstances of the case, it

could be seen that the plaintiff has prayed for, apart from claiming partition and separate possession of her share specifically for the grant of

judgment and decree for past and future mesne profits, that the trial Court while passing the preliminary decree having rejected specifically the

claim for past mesne profits, the claim for future mesne profits must also be considered to have been impliedly rejected when no order granting the

same was made and mat, therefore, there was no scope for claiming any future mesne profits by filing a separate application at the time of final

decree proceedings. The learned counsel further contended that it should be all the more so in the present case wherein notwithstanding the

challenge by the present appellants to the decree passed, there was no challenge or grievance made by the plaint at any stage for non-granting of

the relief of future mesne profits in the preliminary decree. In support of the said claim on behalf of the appellants, learned counsel relied upon some

of the decisions, to which a reference may be made hereinafter.

In In Re: Bandi Butchaiah, a Full Bench of this Court had an occasion to deal with the question relating to the entitlement of the plaintiff to make

an application for inquiring into future mesne profits at the time of final decree proceedings. That was a case wherein the plaintiff obtained a

preliminary decree for partition of joint family properties and during the pendency of the partition suit, applied for an enquiry into the profits of the

properties realised by the defendants subsequent to the institution of the suit and a final decree for the share of such profits. The claim was

opposed by the defendants on the ground mat there was no prayer in the plaint for recovery of such profits and that the preliminary decree passed

in the suit did not direct any enquiry into the same, The need for consideration before the Full Bench in that case arose in view of an earlier decision

of a Division Bench in Ghulusam Bivi v. Ahamedsa Rowther, I.L.R.1918 Mad. 296 : 9 L.W. 669 , wherein it appears to have been held that if a

preliminary decree in partition suit either intentionally or inadvertently omitted to direct an enquiry into future mesne profits, the subsequent

application for directing such an enquiry was incompetent and the Court had no power to pass a final decree awarding such profits. The Full Bench

extensively reviewed the entire case law on the subject and came to the conclusion that a partition suit, in which a preliminary decree has been

passed, should be considered to be still a pending suit till the rights of the parties are finally adjusted as on the date of the final decree, that the

preliminary decree determines only the moieties of the respective parties and that there arc any number of other matters like realization of common

outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit etc. which require to be

considered and decided before an equitable final partition is effected, The Full Bench also pointed out that even after the passing of the preliminary

decree, it is open to the Court to give appropriate direction regarding all or any of the above matters suo motu or on the application of the parties

and that the provision contained under Order 20, Rule 18, C.P.C. does not prohibit the Court from issuing such directions even after the stage of a

preliminary decree. The Full Bench also held that the claim of the plaintiff suing for partition and his share of the profits accruing from the lands

pending suit is not, properly speaking, a claim for ""mesne profits''1 and Order 20, Rule 12, C.P.C. has no application to such a case. Finally, the

Full Bench expressed its disapproval of the decision in Ghuhusam Bibi''s case, I.L.R.1918 Mad. 296 ; 9 L.W.541.

Learned counsel also relied upon the decision in Ganesh Prasad v. J.S. Varma, AIR 1960 Pat. 260. That was a case wherein a learned single

judge of the Patna High Court has held that where in a suit for possession, the plaintiff expressly claimed future mesne profits but neither the

judgment nor the decree allowed the claim for mesne profits expressly or by implication, it must be deemed to have been refused and therefore the

plaintiff is not entitled to make an application for ascertainment of mesne profits under Order 20, Rule 12. In Rajdeo Pandey and Others Vs.

Rijhan Pandey and Others, , another learned single Judge of the Patna High Court has held that when a decree for recovery of possession of the

suit properties was silent on point of mesne profits, it is not permissible thereafter to institute a petition under Order 20, Rule 12 C.P.C. for

determination of mesne profits. That was also a case wherein the plaintiffs brought a suit for declaration of their title and for recovery of possession.

The above two decisions of the Patna High Court have been rendered in suits for recovery of possession and did not arise out of a suit for

partition. The judgment so the Patna High Court referred to above, in my view, will have no application whatsoever to cases of suits for partition

and other incidental reliefs. This aspect will be considered by me later at the appropriates stage.

In 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, , a Division Bench of this Court had dealt with the relevant principles to be applied in suits relating to

partition and possession in respect of the claim for profits. It is observed at page 728 as follows:

The question resolves itself into, was there any necessity in respect of these defendants, to pass two decrees for mesne profits: preliminary and

final? As we have shown, the procedure adopted has been so elaborate, that no sort of prejudice has been caused to them. As observed in Raja

Peary Mohan v. Manohar, 1923 Cri.L.J. 255, the cases mentioned in Order 20 of the Code are mere illustrations of preliminary decrees and arc

not intended to be exhaustive (Page 260), Ordinarily, the learned Judges say, there should be in certain classes of cases a preliminary and final

decrees, but there arc exceptions to this rule and the case before them was an instance in point"".

It is then contended, the preliminary decree of 1924 being silent on the question of mesne profits, the Court was precluded at a later stage from

going into it. That such a contention cannot prevail, has been held in several decisions, with which we agree. Hussain Sahib v. Hameed Sahib AIR

1923 Mad. 43; T. Ramaswami Aiyar Vs. T. Subramania Aiyar and Others, and Ramanathan Chetty v. Alagappa Chetty 1929 59 MLJ 102 As

observed in the second of the cases referred to above by Sadasiva Aiyar, J. (with whom Napier, J. concurred), in all ""adjudications which are not

intended to be final, there is, and ought always to be, an implied reservation of leave to all parties, to apply for further directions, necessary for a

complete disposal of the litigation.1''

As a matter of fact, this decision has also been noticed by the Full Bench of this Court in In Re: Bandi Butchaiah, . In Ponnuswami Udayar and

Another Vs. Santhappa Udayar and Others, the plaintiffs prayed for partition and separate possession of their share in the suit property, for which

a preliminary decree for partition of 1/10th share in all the suit items came to be passed. After the conclusion of further proceedings against them,

the plaintiffs filed an application under Order 20, Rule 12, CPC for enquiry and determination of the profits payable to them by the defendants

from the date of the institution of the suit till delivery of possession and to pass final decree after such assessment of profits. Such claim of the

plaintiffs was contested by the defendants on the ground that the application was not maintainable. The plea of the defendants had the acceptance

of the trial Court. The lower appellate Court reversed the judgment off the trial Court in the final decree proceedings and remanded the matter for

consideration afresh and it is the said order of remand that came to be challenged in appeal before this Court. The learned Judge while following

the Full Bench decision of this Court in In Re: Bandi Butchaiah, held that in a partition suit, an application for ascertainment of future mesne profits

can be filed so long as the suit is pending and so long as no final decree has been passed, even though the plaint does not specifically pray for the

granting of such relief and the preliminary decree does not provide for it. It was also held that the mesne profits accruing from the properties

forming the subject-matter of the division and referable to the properties which are eventually allotted to the share of the successful plaintiff, part

and parcel of the corpus itself, and are as much in the hotchpot as the lands themselves and consequently, it would be most inequitable and unjust

to compel the plaintiff to sue separately for future mesne profits. Learned counsel for the appellants would contend with reference to this decision

that unlike the present case, there was no specific claim made for future mesne profits also in the case considered by this Court in Ponnuswami

Udayar and Another Vs. Santhappa Udayar and Others, and that should make all the difference.

In Lakshmi Ammal and Others Vs. Subbaraj and Others, , this court was once again concerned with the question arising out of the suit for

partition and separate possession of the plaintiffs'' share of the properties, which came to be decreed as prayed for. It is seen from the said

decision that neither the plaintiffs had prayed for past or future mesne profits in the plaint; nor the preliminary decree directed any enquiry into

mesne profits under Order 20, Rule 12, CPC. When the plaintiffs filed an application for determination of mesne profits for the suit items, falling to

the share of the plaintiffs, the maintainability of such claim was questioned in view of absence of any prayer in the suit for past or future mesne

profits and in the absence of even a direction relegating the claim for enquiry under Order 20, Rule 12, C.P.C. The learned single Judge not only

adverted to the decision of the Full Bench of this Court in In Re: Bandi Butchaiah, but also referred to three others decisions of the Supreme Court

and ultimately held that the Court had jurisdiction to enquiry into and award profits. In coming to such a conclusion, it was observed as hereunder:

But the ratio of these judgments, in my opinion, is that it is not the tact, that past mesne profits are claimed in the suit, that enables the Court to

awarded future mesne profits. But it is the legal position that with regard to future mesne profits, the plaintiff has no cause of action on the date of

the institution of the suit and that it was not possible for him to plead the cause of action or to value it or to pay court- fee thereon at the time of

institution of the suit that relieves the plaintiff of the necessity of claiming specifically future mesne profits in the suit itself. This was the view of the

Full Bench of this Court in In Re: Bandi Butchaiah, also. The Full Bench specifically considered this question with reference to a case where there

was no claim of past mesne profits and held that the court can decree future mesne profits to the plaintiff even in such a case. I am, therefore, of the

opinion that the Courts below had the jurisdiction to enquire into it and award the mesne profits from the date of suit."" (Italics supplied)

I have carefully considered the submissions of the learned counsel appearing on either side in the light of the decisions referred to supra and the

ratio laid down therein. In a suit for partition, the Court is concerned at the stage of preliminary decree proceedings only with the question of claims

relating to title or share of the respective parties in the suit with reference to such items of properties and as held by the Full Bench decision of this

Court in In Re: Bandi Butchaiah, , there are several other matters like the realisation of common outstanding, discharge of common liabilities,

distribution of the profits of the properties realised pending suit etc., which have to be considered and decided only when the final decree is

passed. The development of law has gone to the extent of conserving power in the Court to pass more than one final decree if the circumstances of

the case warranted or necessitated such a course. While that be the position, relating to the jurisdiction and competency of courts dealing with suits

for partition, the question that requires to be considered on the facts of the case is as to whether the appellants are justified in disputing the right of

the plaintiff to claim for determination of share of profits due to her in respect of her share of properties for the period subsequent to the filing of the

suit, which is normally claimed as future profits as against past profits which may have relevance for the period prior to the filing of the suit. As

noticed earlier, there is no controversy over the position that the plaintiff claimed both past and future mesne profits in the plaint itself. But, at the

same time, the fact that the trial Court during the preliminary decree stage has chosen to frame an issue only in respect of past mesne profits and

omitted even to frame any issue with reference to the future mesne profits is not disputed. The relevant issue framed at that time as is gathered from

the judgment is as follows:

(4) whether the plaintiff is entitled to any past mesne profits after alleging joint possession of suit properties with defendants 1 to 5 and even if so,

entitled to how much?

The finding in respect of the above issue as has been rendered by the trial Court in paragraph 15 of the judgment is as follows:

Issue No. 4: The plaintiff has alleged that she was injoint possession of the suit properties. But the 2nd defendant deposition Court hat he is in the

possession of some of the items of the suit property. The 2nd defendant admits only with respect to certain items. As the plaintiff avers that she is in

joint possession of the properties she is not entitled to any mesne profits. Therefore, I hold she is not entitled to mesne profits I find this issue

against the plaintiff.

From the above it is clear that the claim considered by the Court in respect of past profits has been specifically rejected. From the above, can

it be legitimately claimed or pleaded on behalf of the appellants that the claim in respect of future profits also must be deemed to have been

impliedly rejected, is the only consideration to be next made. I am of the view, when in law the claim for future profits could not be made

legitimately at the time of filing of the suit or till the preliminary decree is passed and shares are ascertained, it is not permissible to apply the

principle of implied or deemed refusal or rejection of the claim merely taking into account the fact that there was a claim Apparently, the trial

Court, at the stage of preliminary decree proceedings, ought to have thought that the consideration in respect of future profits was not ripe at that

stage and therefore, ought to have refrained from framing issue No. 4 so as to comprehend the consideration with reference to future profits also.

In view of such position, I am of the view that it would not only be futile for the Court at the preliminary decree stage in a suit for partition to enter

into an adjudication of such issue, but it would be also improper for the Court to undertake such a venture at that stage. The fact remains that there

was no specific issue of specific adjudication in respect of future profits in this case. Therefore, I am unable to countenance the plea on behalf of

the appellants that notwithstanding the absence of any specific issue or consideration and rejection, the claim for future profits also must be

considered to have been impliedly or deemed to have been rejected or refused in this case. The principles laid down in cases for recovery of

possession simpliciter cannot be applied to the suits for partition. That is for the simple reason that in a suit for declaration of title and recovery of

possession or simpliciter for recovery of possession, the scope of consideration and adjudication is totally different than the one is respect of suit

for partition at the preliminary decree stage. Consequently, there can be no comparison of the same or application of the principles in a suit for

recovery of possession and the consequent claim for recovery of mesne profits with the one made, as in this case, in a suit for partition and

separate possession after the preliminary decree for partition came to be passed, but before the passing of the final decree and particularly during

the course of the final decree proceedings. Consequently, I do not see any error in the judgments of the courts below and the question of law

formulated in this appeal is answered against the appellants not only on the principles of law but also on the facts of this case that there is no

specific rejection of the claim for future profits also in the preliminary decree proceedings.

Learned counsel for the appellants contended that there was no proper or sufficient materials for the Courts below to come to a decision as

they have done on the quatum of profits. I have gone though the judgments of the Courts below and the reasons assigned. Both the Courts below,

in my view, have properly appreciated the question with reference to quantum having particular reference to the nature and character of the

properties and such findings of fact arrived at on appreciation of materials, in my opinion, are not matters of questions of law, leave alone being

substantial question of law, warranting interference by this Court in the second appeal. I do not find any patent error of law or perversity of

approach in the findings recorded by the Courts below on the quantum of future profits. Consequently, both the appeals fail and shall stand

dismissed. There will be no order as to costs.