MARIYUMMA Vs. KUNHAMBU NAIR
HIGH COURT OF KERALA
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V. Balakrishna Eradi, J. -
(1.) DEFENDANTS 4 to 6 in O.S. 207 of 1950 have preferred this Civil Miscellaneous Appeal. The aforesaid suit was instituted by one Kunhiraman Nambiyar and another for a partition of the plaint schedule properties and for recovery of the plaintiff's 1/3 share with future profits at the rate of Rs. 30/-per year. The suit had been originally dismissed by the trial court and though the said decree of the trial court was confirmed by the lower appellate court, the High court in S. A. No. 932 of 1956 set aside the decrees of the courts below and passed a preliminary decree for partition holding that Kunhiraman Nambiyar was entitled to a 1/3 share. This preliminary decree was, however, silent about the plaintiffs' claim for future profits and did not contain any provision relating thereto.
(2.) THE respondents herein who are the legal representatives of Kunhiraman Nambiyar filed R.I.A. 878 of 1962 in the trial court for passing a final decree. THE trial court by order dated 29.9.1964 passed a final decree implementing the valuation and allotment suggested in the Commissioner's report which was accepted by it. Although in their application for final decree the respondents herein had specifically made a prayer that they should be awarded their share of the properties with effect from the date of suit, the trial court did not advert to this matter at all in its final judgment and consequently, the final decree passed by it did not also contain any provision relating to the aforesaid claim. Defendants 4 to 6 filed A. S.134 of 1964 in the Sub Court, Kasaragod, challenging the aforesaid final decree on the ground that the valuation of the properties and the division effected by the trial court were incorrect and unfair. Respondents herein who were respondents before the Sub Court in the aforesaid appeal filed a memorandum of objections contending that the trial court should have awarded them their share of the profits from the date of the plaint. THE lower appellate court allowed the appeal as well as the memorandum of objections and remanded the final decree application to the trial court for fresh disposal in the light of the directions given by it. THE Subordinate Judge overruled the contention taken before him by defendants 4 to 6 that the respondents are precluded from putting forward their claim for profits in the final decree proceedings on account of the absence of a provision in that regard in the preliminary decree. He held that the plaintiffs-respondents are entitled to profits from the date of suit and directed the trial court to ascertain and fix the quantum thereof and incorporate it in the fresh final decree to be passed by it. Defendants 4 to 6 have come up to this court with this Civil Miscellaneous Appeal, challenging the aforesaid decision of the appellate court in so far as it has directed the award of profits to the plaintiffs.
The only point raised before us by the learned counsel for the appellant is that the lower appellate court had no jurisdiction to adjudicate on the claim for future profits put forward by the plaintiff in the final decree proceedings when the preliminary decree did not contain any provision entitling the plaintiffs to such future profits. It is contended that eventhough a claim for future profits had been put forward by the plaintiff in the plaint such claim must be deemed to have been impliedly negatived when a preliminary decree was passed in the suit by the High Court which did not contain any declaration of the plaintiffs' right to future profits. It is further urged that under O.20 R.12 CPC in suits for recovery of possession of immovable property and for mesne profits, whenever the claim for mesne profits from the date of institution of the suit is upheld by the court the preliminary decree should contain a specific provision recognising such right and directing an inquiry as to the quantum of such profits and it is only in such event that a final decree can subsequently be passed in respect of the claim for future profits. The contention of the learned counsel for the appellant is that the same principle must apply to suits for partition also and that if the preliminary decree in a partition suit does not recognise a party's claim to mesne profits nor specifically directs an inquiry as to mesne profits from the date of institution of the suit the court would have absolutely no jurisdiction in the final decree proceedings to adjudicate upon the claim for future profits. In support of the above proposition reliance was sought to be placed by the learned counsel on the observations of the Supreme Court in the decisions reported in Subbanna v. Subbanna (AIR. 1965 SC. 1325); and Madanppa v. Chandramma (AIR, 1965 SC. 1812). In Subbanna v. Subbanna (AIR. 1965 SC. 1325) the question that arose for decision was whether it was competent to a court in decreeing a suit for recovery of possession with mesne profits to award future mesne profits to the decree-holder for any period subsequent to the expiry of three years from the date of the decree. Their Lordships held that O.20, R.12 CPC. does not empower a court to direct an inquiry and pass a final decree with respect to mesne profits for a period exceeding three years from the date of the decree. It was further held that even if the decree did not expressly contain specific mention that the future profits awarded by it was limited to a period ending with the expiry or three years from its date the decree has to be construed in conformity with the provisions of O.20 R.12 CPC. and the direction regarding.mesne profits restricted by implication to the period of three years from the date of the decree. The question whether future profits can be awarded by a final decree in the absence of a provision in the preliminary decree recognising the plaintiffs' right to future profits did not come up for consideration before the Supreme Court in the above case and hence this decision is really of no assistance to the appellant.
In Maddanappa v. Chandramma (AIR. 1965 SC. 1812) the point raised before the Supreme Court was whether it was open to a court to award future mesne profits to a party who had not claimed them in the suit. Relying on the observations contained in an earlier decision of the Supreme Court in Mohd Amin v. Vakil Ahmad (AlR. 1952 SC. 358) it was contended before their Lordships that future mesne profits could not be awarded even in a suit for partition unless a claim in that behalf had been put forward in the plaint. Their Lordships held that it was not necessary to make any final pronouncement on the question since the plaintiff in the case before them had claimed in the plaint not only partition and separate possession of her half share but also mesne profits and the first defendant in her written- statement had also prayed for a similar decree in her favour. Their Lordships have, however, expressed the view that when a suitable occasion arises it may become necessary to reconsider the decision in Mohd Amin v. Vakil Ahmad (AIR. 1952 SC. 358) in so far as it concerns future mesne profits. Thus, in Madappana v Chandramma (AIR. 1965 SC. 1812) also the question whether the final decree court can award future mesne profits in the absence of a provision in the preliminary decree did not come up for consideration before the Supreme Court, and we find nothing in the above judgment which would in any way lend support to the contention raised before us by the appellant's counsel. The appellant's counsel referred us to yet another decision of the Supreme Court dealing with O.20, R.12, C.P.C. reported in Gopalakrishna Pillai v. Meenakshi Ayal (AIR. 1907 SC. 155). But this decision also does not touch the question mooted before us by the appellant. All that has been held by their Lordships in this case is that in a suit to which the provisions of O.20, R.12, CPC. apply, the court has discretionary power to pass a decree directing an inquiry into future mesne profits even though it is not specifically prayed for in the plaint, and the observations in Mohd Amin v. Vakil Ahmad (AlR. 1952 SC. 358) were explained and distinguished.
(3.) THUS none of the cases relied on by the appellant throws any real light on the question raised before us regarding the jurisdiction of the court passing a final decree in a partition suit to award future profits in favour of a party in the absence of any provision in that behalf in the preliminary decree. This point has, however, been directly considered and decided by a Full Bench of the Madras High Court in the decision reported in Basavayya v. Guravayya (AIR. 1951 Mad. 938 FB.). The case before the Full Bench arose out of a suit for partition of joint family properties wherein a preliminary decree had been passed which did not contain any specific provision relating to profits. At the final decree stage the plaintiff applied for an inquiry into the profits of the properties realised by the defendants subsequent to institution of suit and prayed that provision should be made in the final decree for payment of his share of such profits. The defendant opposed the application on the ground inter alia that the preliminary decree passed in the suit did not contain any direction for inquiry into future profits. The trial court having over-ruled this objection of the defendants they approached the High Court with a Civil Revision Petition questioning the jurisdiction of the trial court to conduct an enquiry regarding future profits in the final decree proceedings. The Full Bench held that the claim of a plaintiff suing for partition for his share of the profits accruing from the suit property pending the suit, is not, properly speaking a claim for "mesne profits" and O.20, R.12, CPC. has no application to such a case. It was further held that the profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree and that a right to an account of such profits being implicit in the right to share in the common properties, both rights have to be worked out and provided for in the final decree for partition. In this view, the Full Bench held that a direction for an inquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and that there is nothing in O.20, R.18 CPC. interdicting such procedure. The contention that in the absence of specific provision in the preliminary decree declaring the right of a party to future profits the final decree court has no jurisdiction to award future profits by the final decree was therefore, rejected by the Full Bench.
The above Full Bench decision of the Madras High Court has been followed by the Andhra Pradesh High Court in Atchamma v. Rami Reddi (AIR. 1958 A. P. 517); Krishnamma v. Latchumanaidu (AIR. 1958 A. P. 520) and Satyanarayana v. Mallikarjuna (AIR. 1960 A. P. 45).;
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