Venugopal Pillai and Others vs Thirugnanavalli Ammal

Pandrang Row, J.—This is an appeal by defendants 1 and 3 to 6 from the decree of the Subordinate Judge of Cuddalore dated 11th

October, 1937, in O.S. No. 4 of 1933, a suit to recover mesne profits for fasli 1333 in respect of certain properties together with interest thereon.

There was an earlier suit between the parties which related to these very properties for cancelling a certain lease granted in respect of them by the

plaintiff''s great-grandmother (second defendant) on the 8th of. August, 1923, for three years in favour of the first defendant. The properties in

question belonged to the plaintiff who was. then a minor under the testamentary guardianship of the second defendant, the great-grandmother who

had been appointed to manage the properties by the will of the plaintiff''s father, one Thangaswami, dated 6th July, 1915. The testator died a few

days later and in the previous suit there was no dispute as to the genuineness of the will. That suit was decreed and the appeal from the decree of

the first Court was dismissed by the High Court on 30th August, 1932. There was some attempt made to take the matter to the Privy Council but

the idea was finally abandoned and the decree of the High Court which dismissed the appeal with costs was the final decision in that suit. The

present suit was instituted on the 14th of October, 1932, that is to say, one and a half months after the High Court had decided the suit in favour of

the plaintiff who claims to have attained majority, being till then a ward of the Court under the Guardian and Wards Act, only after attaining her

21st year which, according to her, was on the 15th October, 1929. The present suit was twits'' instituted just before the lapse of the period of

three years after attaining majority. The suit has been decreed by the Subordinate Judge and the present appeal is, as stated already, by defendants

1 and 3 to 6.

As in the Court below, in this appeal also, a good deal of argument bras been directed to the point of the alleged bar imposed by Order 2, Rule

2, Civil Procedure Code, to the present suit,, the appellants'' contention being that the present claim for mesne profits for fasli 1333 should either

have been included or had actually been included in the earlier suit inasmuch as it arose out of the same cause of action. This point has been

discussed by the Court below somewhat briefly and rightly so because the point is really concluded by the Full Bench decision in Ponnammal v.

Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38 Mad. 829 , which has been subsequently followed in S.M.A. Khuddus Vs. Sowdagar

Mahammad Hussain, and it may also be added that no other High Court has taken a different view, and on the other hand there are several

decisions of other High Courts which take the same view, namely, that a claim for past mesne profits need not be sued for in a suit for recovery of

possession of the property in respect of which mesne profits are claimed by reason of Order 2, Rule 2, Civil Procedure Code. The only important

reason given to us by the learned advocate for the appellants for not accepting the view of the lower Court on this point which merely followed the

Full Bench decision in Ponnammal V. Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38 Mad. 829 is, that in view of certain observations and the

decision in a later Privy Council case Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J. 294 , it must be held that the view taken by the

Full Bench in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38 Mad. 829 is not correct. N6 doubt, it was also argued that as a

matter of fact the claim to past mesne profits had been made in the earlier suit and therefore the present claim was not maintainable* There is,

however, no substance in this contention. A perusal of the plaint in the former suit makes it perfectly clear that in so many words the past mesne

profits due to the plaintiff in respect of the plaint properties was not included in the suit and that the plaintiff intended to bring a separate suit in

respect of the same. In view of this specific statement, and in the absence of any language in the prayer portion of the plaint to show that any claim

to past mesne profits was included in the plaint, it is impossible to accept this contention.

As regards the main argument, namely, that the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38 Mad.

829 is not good law, it is enough to say that nothing in the Privy Council judgment in Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J.

294 is really contrary to what has been stated'' by the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38

Mad. 829 . The Privy Council case does not deal with a claim to masne profits in the first place. Secondly, it is a case in which the prayer that was

made in the subsequent suit, namely, for taking accounts, was a prayer that could have been made on the same foundation of fact and law as the

claim in the earlier case which was to declare that a certain trust existed and for reconveyance of certain properties. It is not as if this contention

that the ; Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38 Mad. 829 is not correct in view of the Privy

Council decision in Naba Kumar. Hasra v. Radhashyam Mahis (1931) 61 M.L.J. 294 is a new argument put forward for the first time. A similar

contention appears to have been pressed in Ramiah v. Thathiah AIR 1937 Mad. 849 and repelled in that case; by Venkataramana Rao, J. It is not

necessary to repeat the reasons given by the learned Judge for repelling this contention. We are in general agreement with what he has said in that

case and we need only repeat some of the references which he has made in the judgment, namely. In re Kantheesparam Ekanathalingaswami Koil

through its trustee Vedandyagam Pillai (1936) 71 M.L.J. : ILR (1937) Mad. 284, Rama Kallappa v. Saidappa Sidrama I.L.R.(1934)Bom. 454

and Ram Karan Singh v. Nakchhed Ahir I.L.R.(1931) All. 951 . In the last of these cases, there is a comparatively full discussion of the subject. It

is enough to add that the law as laid down by the decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38 Mad. 829 merely

reiterated and reaffirmed the law prevailing in Madras since Tirupati v. Narasimha ILR (1887)Mad. 210; which is a case of 1888 and the Full

Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : ILR 38 Mad. 829 , which is a case of 1914 has held the field without

any judicial expression of any doubt regarding its correctness all these years. A further point is that no other High Court has sounded a different

note, and on the other hand there are several decisions which take the same view. In these circumstances and having regard to the state of the

authorities which are practically unanimous for so many years, it is impossible for us to accept the contention put forward on behalf of the

appellants in this case. We therefore find that there is no bar imposed by Order 2, Rule 2, Civil Procedure Code, on the plaintiffs claim for mesne

profits in this case.

The other points raised in this appeal on behalf of the appellants can be disposed of somewhat briefly because there is realty no substance in

them. One of the two points is one of limitation which was sought to be based on two grounds. These are dealt with in paragraphs 64 to 86 of the

lower Court''s judgment and paragraph 88 respectively, and there is little to add to what the lower Court has said on these points. The first ground

is a pure question of fact, namely, the date of the birth of the plaintiff. There is an extract from the Birth Register which is not attacked on the

ground of forgery or the like which shows that the plaintiff was born as alleged by her on 15th October, 1908. This practically unimpeachable

evidence and ether evidence which points in the same direction has been sought to be attacked on the ground that the Birth Register extract relates

not to the plaintiff but to a younger sister of hers who died a few days after birth. This story has been sought to be established by the evidence of

witnesses who were not accepted by the lower Court as witnesses of the truth. No attempt was made to file any extract of the Birth Register or

Death Register relating to this alleged younger sister of the plaintiff, and as the learned Subordinate Judge points out, if for any reason such an

extract could not be got, it was open to the appellants to have examined at least the Village Munsif of, the village in which the plaintiff, according to

the appellants, is alleged to have been born, namely, the village of Movur. On the whole, we see no reason to differ from the conclusion come to

by the trial Judge on this pure question of fact and in respect of which the unimpeachable documentary evidence is all on the side of the plaintiff and

there is only unreliable oral evidence on the side of the appellants.

As regards the other ground, very little was said to us in support of the contention and obviously the contention is without force. The contention

is that the suit is barred by limitation because the Court gave improperly and without sufficient cause time for payment of court-fee after the plaint

had been presented. Whatever might have been the reasons for the Court''s granting time, the effect of the grant of such time is clear, namely, that

the plaint takes effect as if it had been presented along with the full court-fee on the date of its first presentation, a proposition put beyond doubt by

Section 149 of the Code vide also the decision in Kolisetti Basavayya and Others Vs. Mittapalli Venkatappayya and Another, . The contention

therefore that this claim is barred by limitation has no substance and must be repelled.

The remaining point of any substance is that the value of paddy fixed by the Court below is excessive. The value has been fixed at Rs. 2-10-0

per kalam, a kalam being said to be 24 measures. This estimate is, in our opinion, in accordance with the weight of the evidence which has been

fully discussed. There has been no omission on the part of the Court below to deal with any material part of the evidence bearing on this point and

we do not see any error of judgment in assessing the value to be given to the evidence on both sides. It is a point w�rthy of mention that the first

defendant himself when he claimed rent in respect of these very properties from his sub-tenants claimed the value of paddy at Rs. 4 and at Rs. 3-

8-0. Even allowing for some exaggeration, it is impossible for it to be contended now that Rs. 2-10-0 is excessive. The estimate is mainly based on

the evidence given in the previous |uit by a clerk of a paddy merchant whose disinterestedness is not questioned and his evidence was obviously

based on the accounts which he had in his possession. That is really the best evidence available in the present case on this point, and the lower

Court could not be said to have gone wrong in relying mainly on that evidence.

Something was said to us on the award of interest on the amount of mesne profits, calculated-on this basis, namely, at Rs. 2-10-0 a kalam in the

lower Court''s decree. The definition of ''mesne profits'' in the CPC itself shows that interest is included; in other words, interest can rightly be

awarded by the Court as mesne profits.

It was also stated that by the delay in the filing of the present suit, the claim on the score of interest has proved to be much larger in amount than

it would otherwise have been. This does not, however, show that the plaintiff is not entitled to the interest which she claims. On the other hand, the

appellants, have, in our opinion, not the slightest claim on the indulgence of this Court. Their conduct as found in the previous suit was extremely

reprehensible. There was a conspiracy to defeat the rights of the plaintiff who was then a minor to which her testamentary guardian herself was a

party. A grosser case of fraud could hardly be imagined and the present suit is practically for mesne profits in respect of the very property which

was attempted to be alienated by means of a lease for a very low rent in favour of one of the appellants, namely, the first defendant.

We see therefore no reason whatever to interfere with the decree of the Court below. That decree is affirmed and this appeal is dismissed with

costs of the respondent (plaintiff). We are informed that an application has been made to scale down the decree debt in the Court below, and it is

enough to say in connection with this that the decree in this appeal will not prejudice in any way the disposal of the application, if any, to scale

down the debt.