KUNHIRAMAN Vs. APPA KUNHI
LAWS(KER)-1968-1-20
HIGH COURT OF KERALA
Decided on January 13,1968

KUNHIRAMAN Appellant
VERSUS
APPA KUNHI Respondents

JUDGEMENT

M. Madhavan Nair, J. - (1.) THE appellant is the defendant in a suit for redemption of a mortgage, where the reliefs claimed are: (a) a preliminary decree for redemption of the properties. (b) payment of future mesne profits at Rs.300/ - a year, and (c) costs of the suit with interest thereon. The defendant contended inter alia that, the mesne profits claimed is too high and exaggerated and the plaintiff is not entitled to mesne profits before redemption. The preliminary judgment in the suit is dated August 24, 1953. It reads: In the result, there will be a preliminary decree for redemption, and possession of the suit properties on the plaintiff depositing into Court for payment to the defendant Rs. 1450 The plaintiff will be entitled to future mesne profits from date of suit till date of recovery at a rate to be determined in the final decree proceedings. The parties will bear their own costs redemption 3 months. the plaintiff took out a commission to assess the yield of the property; and he reported the annual yield of the property to be 1925 coconuts and 2475 are canuts and 3/2 Mura of cashewnuts, which, when converted at the market price of the commodities in the relevant years, would be far above Rs. 300/ - claimed by the plaintiff. The defendant then contended that the plaintiff having made a specific claim of Rs. 300/ - only per annum is not entitled to a decree for anything higher. The Munsiff, Kasaragod, repelled that contention and held: The decisions reported in Jedoomony Debeo v Usfer Mohamed Ali Khan, I.L.R, 6 Cal 295 and Gauri Prasad Yoondoo v Belly, I. L. R. 9 Cal 112 are authorities directly in point. They have laid down that where the plaintiff approximately estimate the amount of mesne profits at a certain sum he is not bound down to the amount if more is found due to him............I therefore find that the correct rate of mesne profits will be as estimated by the commissioner and the value will be calculated at the Gazette rates available for the dates in the respective years. and that has been affirmed by the Subordinate Judge in appeal, who held also: that the respondent is not entitled to claim a deduction of 10 per cent towards the collecting charges. There cannot be any dissent to the proposition of law stated by the Munsiff that where the plaintiff approximately estimates the amount of mesne profits at a certain sum he is not bound down to the amount if more is found due to him. Order VII Rule 2 C. P. C. contemplates the plaint in a suit for mesne profits, to "state approximately the amount sued for". The Court Fees Act also provides that in suits for mesne profits where the amount is stated approximately the fee shall be computed on such amount and that if the profits ascertained by the Court are in excess of the profits as approximately estimated and sued for, the difference between paid and the fee that would have been payable on the profits found shall be levied and collected. That obviously is on the principle that an "approximate estimate cannot conclude a party. That is exactly what the Munsiff has deduced from the two Calcutta decisions cited by him. But, the case here is different. The plaintiff has not made an approximate estimate of the mesne profits due to him but has categorically claimed a specific sum as mesne profits. The plaint is clear, definite and precise that he should be awarded a decree for "payment of future mesne profits at Rs. 300/ - a year". No higher award in any contingency is contemplated in the plaint, or in any subsequent pleading by him. As observed by the Supreme Court in Measrs. Trojan & Co., v. K.T. Nagappa Chettiar : A. I. R. 1953 S. C. 235: It is well settled that the decision of a case cannot be based on grounds outside the Pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. That observation of the Supreme Court applies in all force to the facts in the present case. Even after the commissioner's report on the yield of the property had come to Court the plaintiff made an attempt to amend the plaint or to claim mesne profits at an enhanced rate. The controversy in the case was only whether the claim for mesne profits at Rs. 300/ - per annum made by the plaintiff was excessive as contended by the defendant. The courts below have found that the defendant's contention in this regard has no substance and that the plaintiff's claim is only a very modest one. In the circumstances, the court has only to accept and decree the claim made by the plaintiff. The propriety in awarding a higher rate of mesne profits than claimed in the plaint arises only when the plaintiff states an approximate estimate of the mesne profits and leaves its correct amount to be fixed by the Court as contemplated in Rule 2 of Order VII C. P. C. As this case is distinguishable in that a specific claim of a precise amount only has been made in the plaintiff's pleadings the principle enunciated by the Munsiff and affirmed by the Subordinate Judge does not come to play here. The plaintiff here is therefore not entitled to mesne profits above that claimed by him in his pleadings.
(2.) COUNSEL for appellant claimed deduction of 10 per cent of the yield towards collection charges in the calculation of mesne profits. As a general rule it has been so laid down by the Privy Counsel in Secretary of State v. Saroj Kumar Achariya Choudhury : A. I. R. 1936 P. C. 49 at 52. But it cannot apply to suits in redemption in view of clauses (h) and (i) of Section 76 of the Transfer of Property Act, 1882, which expressly disallow to the mortgagee expenses of management or collection of the rents and profits of the mortgaged property after the mortgage amount has been tendered to him directly or through court. Further, it is conceded at the bar that even if 10 per cent be deducted out of the yield of the property reported by the commissioner the mesne profits claimed by the plaintiff would be due to him. The plaintiff could not have claimed mesne profits in this suit redemption except from the date of deposit of the mortgage amount; but he has been awarded mesne profits from the date of suit by the preliminary decree and that has become final and above challenge, under Section 27 C. P. C. in this appeal from the final decree. In the result, this appeal is accepted in part, to limit the mesne profits decreed to the claim made in the plaint, viz., Rs. 300/ - per annum; and is dismissed in other respects. As the appeal has succeeded in part the parties will suffer their respective costs here and in the court below.;


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