1. This is an appeal against he order in O.S.No. 5 of 38-39 on the file of the District Judge, Mysore, directing inquiry into and payment of defendant 2's share of the profits derived from the suit property till he is put in possession of it.
2. The suit was field by the plaintiff against defendant, his father and defendant 2 his cousin for recovery of his 1/4th share in the family properties and for his share of the income from them. The appellant was also impleaded as one of the properties was mortgaged with possession to him by defendant 1. The appellant pleaded that the debt was binding on the family as it was contracted for legal necessity but his contention was negatived and a preliminary decree was drawn up for division of the properties on the footing that the debt was binding only on 1/4th interest of plaintiff's father. The appellant filed an appeal against the plaintiff only and succeeded in showing that the mortgaged debt was binding not only on the share of his father, but also on plaintiff's 1/4th share as the latter was not born on the date of alienation. he did not implead to his appeal, defendant 2 and did not agitate against the finding that the alienation was not binding on defendant 2/s share as it was not contracted for legal necessity. The appellant is not disputing that defendant 2 can have is half share in the property mortgaged to him. he is contesting only that this defendant is not entitled to mesne profits now claimed by him.
3. The first point raised by him is that the preliminary decree for partition does not direct an inquiry into future means profits and as such the Court has no power to direct an inquiry into future mesne profits. The decision in 21 Mys. L.J.R. 270 is relied on. In that decision it was held that an application under Order 20, Rule 12 for future mesne profits was not maintainable when the decree did not award future mesne profits. In that case, a final decree had been passed for possession and past mesne profits but was silent on the question of future mesne profits claimed in the plaint. Order 20, Rule 12 is as follows:
'(1) Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court may passes a decree:
(a) for the possession of the property;
(b) for the rent or mesne profits which has accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits;
(c) directing an enquiry as to rent or mesne profits from the institution of the suit until:
(i) the delivery of possession of the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court,
(iii) the expiration of three ears from the date of the decree whichever event first occurs
(2) Where an enquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such enquiry.'
4. According to Clause (2) a final decree in respect of rent or mesne profits can be passed in accordance with result of the inquiry directed under Clauses (b) and (c) of Order 20, Rule 12(1). It is possible to construe that under Order 20, Rule 12, a Court can direct an inquiry into mesne profits only when there is a direction in the preliminary decree under Order 20, Rule 1. That there is room for reconsideration of this aspect of the matter is clear by the decision reported in Kalidas v. Saraswati : AIR1943Cal1 , but that is not the matter now under consideration. Order 20, Rule 18, Civil P.C. at any rate does not circumscribe the limits within which an inquiry for a share in the mesne profits of the property to be divided can be ordered to be held in the sense in which the ordering of such an inquiry is limited under Order 20, Rule 12, Civil P.C. according to Ghulusam Beevi v. Ahmadsa Rowther, 42 Mad. 296 : (A.I.R. (6) 1919 Mad. 998). The reasoning in Ghulusam Beevi v. Ahmadsa Rowther, 42 Mad, 296 : (A.I.R. (6) 1919 Mad. 998) to the extent it applies to cases under Order 20, Rule 12, is followed in 21 Mys. L.J. 270. The correctness of the extension of same principles to Order 20, Rule 1S, Civil P.C. as found in the above madras decision did not arise for consideration in 21 Mys. L.J. 270 and it cannot therefore be taken as an authority on that point.
5. Before considering the desirability of extending the principles recognized in 21 Mys. L.J. 270 for ordering of an inquiry as to mesne profits under Order 20, Rule 12 to the ordering of an inquiry as to mesne profits after a decree as per Order, 20, Rule 18, the provisions of the two orders have to be compared. Order 20, Rule 18 is as follows:
'Where the Court passes a decree for the partition of property or for the separate possession of a share therein then,--
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Deputy Commissioner or any revenue officer not below the rank of a Deputy Amildar deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;
(2) if and in so far as such decree relates to any other immovable property, or to movable property the Court may if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.'
6. The first point to be notice din Order 20, Rule 18 is the absence of reference to any inquiry as to mesne profits as found in Order 20, Rule 12. The second point is that the decree for partition of immoveable properties assessed to the payment of revenue to the Government under Clause (1) is a final decree. Clause (2) alone contemplates a preliminary decree or final. The Court has been given the discretion to pass a preliminary decree, if the properties mentioned in Clause (2) cannot conveniently be partitioned without further inquiry. The inquiry contemplated in this clause is only to find out the convenient method of dividing the property and to ascertain what directions have to be given to divide it. it is not possible to construe has been done in Ghulusam Beevi v. Ahamedsa Rowther, 42 Mad. 296 : (A.I.R. (6) 1919 Mad. 998) that the directions contemplated here could refer to mesne profits. The language is not capable of such construction and when a final decree cannot be drawn up in respect of properties mentioned in Clause (2) without any inquiry a preliminary decree declaring the rights has to be passed with directions required for effecting a partition. If these directions have to include a direction for inquiry as to the profits it will be notice that such a provision is made in respected of properties referred to only in Clause (2) and no such direction is contemplated in respect of profits of properties mentioned in Clause (1). It follows that there is no need to infer from the wording in Clause (2) that directions required to be made under that clause necessarily include a direction to ascertain mesne profits. At any rate the absence of a direction in decree under Order 20, Rule 18, can under no circumstances be construed as negativing a claim for a share in the profits of the properties directed to be divided.
7. Order 20, Rule 12, Civil P.C. is a provision in respect of mesne profits. It is only when a person is in wrongful possession of the property that the rightful owner claims mesne profits. In a suit for partition of joint family property it cannot be said that any one is in wrongful possession. The claim in such a case is for a share not only in the property but also in the income realised bout of the property jointly owned, till the claimant is put in possession of his share of the property. As decided by the Privy Council in Pirthi Pal v. Jawahir Singh, 14 Cal. 493: (14 I.A. 37 P.C.):
'The sections of the Code of Civil Procedure relating to mesne profits were not applicable to a suit for partition or for an account of the proceeds of a family estate in which a plaintiff has no specific interest until decree.'
The opinion of their Lordships in this case that a sharer has a
'clear right to an second of the profits received by the person in possession of the whole and to be awarded his share thereof not as mesne profits received by a person in wrongful possession but as appurtenant to the plaintiff's right in his share of the lands'
is followed in Ramaswamy Iyer v. Subramania Iyer, 43 M.L.J. 406 : (A.I.R. (10) 1923 Mad. 147). The decision in Ghulusam Beevi v. Ahmadsa Rowther, 42 Mad. 296: (A.I.R. (6) 1919 Mad. 998; and Ramanath Chhoturam v. Goturam Badhakisan, 44 Bom. 179 : (A.I.R. (7) 1920 Bom. 236) support, as observed by Sadasia Iyer J. in Ramaswamy Iyer v. Subramania Iyer, 43 Mad. L.J. 406 : (A.I.R. (10) 1923 Mad. 147) at p. 411 the conclusion.
'(1) That Order 20, Rule 12, Civil P.C., does not apply to the claim of the plaintiff suing for partition of lands and the profits which are accruing on the lands which ultimately might fall to his share under the decree. (2) That unless a preliminary decree for partition refused or should be deemed to have refused to grant profits the court is not precluded from granting profits in final decree.'
This being a suit for partition Order 20, Rule 12, does not apply. As to the second point, as observed by Sadasiva Iyer J. at page 412:
'In all adjudications which are not intended to be final but only to be termination of some of the questions involved in a suit there is and ought always to be implied the reservation of leave to all parties to apply for further directions and adjudications necessary for the complete trial and complete disposal of the litigation.'
The mere fact that the preliminary decree is silent on the point does not come in the way of the Court directing an inquiry into ascertainment of profits realised from the properties directed to be divided. Ghulusam Beevi v. Ahamadsa Rowther, 42 Mad. 296: (A.I.R. (6) 1919 Mad. 998) has not been followed in the later decisions of the Madras High Court and it was held in Raghava Mannadiar v. Theyyunni Mannadiar, A.I.R. (34) 1947 Mad. 106 : (231 I.C. 295):
'The fact that the plaint in a partition suit does not contain a specific prayer for profits from the date of the suit and the preliminary decree in the partition suit does not provide for profits subsequent to the date of the suit and does not contain a direction that the defendant should be liable for profits does not preclude the Court from entertaining the plaintiff's claim for such profits at the stage of the final decree.'
8. As regards the decision of this Court, it has to be stated that while the decision in 21 Mys. L.J. 270, which interprets the scope of Order 20, Rule 12, Civil P.C. is not an authority on a point that arises under Order, 20, Rule 18, Civil P.C. there is a clear authority directly on the point in the decision of Venkataramana Rao C.J. and the present Chief Justice in R.A. No. 8 of 45-46 on the file of this Court. It has been observed in it as follows:
'The preliminary decree did not give any direction in regard to future mesne profits. The question is whether the direction in the preliminary decree can held to have negatived plaintiff's claim for mesne profits.....We are inclined to think that the preliminary decree could not be held to negative the plaintiff's claim for mesne profits.'
9. The second point raised in this appeal is that whatever might be the right of a plaintiff to claim a share in the profits of the property directed to be divided that cannot be the case of defendant. Defendant 2 in this case is entitled to half a share in the property in dispute in the possession of the appellant. The policy of law recognised as early as 1873 in Khoorshed Hossein v. Nubbee Fatima, 3 Cal. 55 : (2 C.L.R. 197) which lays down:
'That a decree for partition amounts to a joint declaration of the rights of the person interested in the property of which partition is sought and that it must be taken that a decree in such suits is a decree, when property drawn up, in favour of each share-holder or set of share-holders having a distinct share'
is accepted in 50 May. H.C.R. 46. There can therefore be no distinction between the case of a plaintiff and that of a defendant entitled to a share.
10. This appeal fails on both the pints raised by the appellant and the order of the District Judge directing an inquiry into the profits realised from the property is correct and has to be upheld. The appeal is dismissed with costs.
11. I agree.
12. Appeal dismissed.