LAKSHMI AMMAL Vs. SUBBARAJ

JUDGEMENT

(1.) THIS second appeal filed by the defendants in O.S. No. 4 of 1963, arises put of the final decree proceedings. The suit was filed by the plaintiff -respondents herein for partition and separate possession of their 23/48th share in the plaint A schedule properties. That suit was decreed on 31 -7 -1964. Neither the plaintiffs have prayed for past or future mesne profits in the plaint nor the preliminary decree directed an enquiry into the mesne profits under Order 20, Rule 12, Civil P. C. The plaintiffs filed I.A. 124 of 1966 for partition of the immovable properties and separate possession as directed in the preliminary decree. They also filed IA 205 of 1966 for determination of mesne profits for the suit items from fasli 1372 onwards and to incorporate the same in the final decree. The dispute in these proceedings related to the jurisdiction of the Court to go into the question of mesne profits in the absence of a prayer in the suit either for past or future mesne profits and in the absence of even a direction by the Court in the preliminary decree to enquire into the mesne profits under Order 20, Rule 12, Civil P. C. The defendants also questioned the quantum of mesne profits determined by the Commissioner in the final decree proceedings.

(2.) IT is the contention of Sri N. Veluswami, the learned counsel for the appellant that in the absence of a specific prayer in the plaint for past mesne profits or for future mesne profits, the Court had no jurisdiction even to provide for determination of the mesne profits subsequent to the suit in the preliminary decree, much less to direct the determination in the absence of a direction in the preliminary decree itself. In support of this contention the learned counsel relied on two decisions of the Supreme Court reported in Md. Amin v. Vakil Ahmed, AIR 1952 SC 358 at p. 362 corresponding to (1953) 1 Mad LJ 6 at p. 11, and Gopalakrishna Pillai v. Meenakshi Aval, AIR 1967 SC 155. In the first of these cases the plaintiff claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. But the preliminary decree directed an enquiry to be made under Order 20, Rule 12, Civil Procedure Code. In considering whether this direction was correct or not, the Supreme Court made the following observations:

(3.) ITEM 16 is an extent of 4 -36 acres of punja lands. This property was gifted under Ex. B.28 by Ramaswami, the father of the first plaintiff in favour of his two minor daughters through his second wife, defendants 3 and 5 in the suit. The plaintiffs claimed one third share in respect of these properties also. Defendants 1, 2 and 4 claimed that the property was managed by one Kondama Naicker as guardian of minor defendants 3 and 5 and that they were not liable to pay mesne profits in respect of the same. The courts below now held that the first defendant was in possession and management of this item and, therefore he is liable to account for mesne profits. In the suit it was found that though the gift by Ramaswami in favour of his daughters related to the entirety in respect of the share of the plaintiffs, it was not binding on them and that, therefore, they are also entitled to a share in those properties. The parties proceeded on the footing that minor defendants 3 and 5 were in possession of the entire properties through their guardian. But the courts below held that the first defendant was in possession of the properties as the guardian of the minors on the sole ground that in the plaint the plaintiffs showed the first defendant as the guardia of the minors in the cause title and sued the minors with the first defendant as the guardian. But this was not objected to by the first defendant and in fact the first defendant filed a written statement as the guardian. The suit related to number of items. In all the items minor defendants 3 and 5 also claimed a share. Therefore, when the first defendant did not demur his being described as the guardian of the minors, it could not be stated that with reference to the specific property covered by the gift deed Ex. B.28, he accepted his position as the guardian or that he was in possession of that property. His specific case was that in respect of that item Kondama Naicker was in possession on behalf of the minors, and, therefore, he was not liable to account for the profits received from the same. The learned counsel for the appellants is well founded in this contention. In the absence of any other positive evidence to show that the first defendant was in possession and management of this 4 -36 acres on behalf of the minors, no decree for profits arising out of the same could be made against the first defendant. But that will not disentitle the plaintiffs to claim their share of the profits from those properties from minor defendants 3 and 5, because admittedly either Kondama Naicker as guardian or any body else as guardian, defendants 3 and 5 had been in possession and enjoyment of the properties. The application filed by the plaintiffs did not specifically ask that the first defendant alone is liable to account for the profits arising from these lands. They asked for a decree generally against all the defendants. In these circumstances, defendants 3 and 5 alone are liable to account for profits arising from item No. 16. There is no dispute as to the quantum of profits determined by the courts below. Therefore, the final decree will have to be modified to the effect, that in so far as the profits arising from item No. 16 is concerned, it is defendants 3 and 5 that would be liable to pay the plaintiffs' share of the profits.