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Thammana Nukiah Shetti Vs. Velapa Appalaraju and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberL.P.A. No. 247 of 1972
Judge
Reported inAIR1975AP208
ActsHindu Law
AppellantThammana Nukiah Shetti
RespondentVelapa Appalaraju and ors.
Appellant AdvocateK.V. Subramanya Narsu, Adv.
Respondent AdvocateG. Balaparameswari Rao, Adv.
DispositionAppeal partly allowed
Excerpt:
family - entitlement of mesne profits - section 2 (12) of code of civil procedure, 1908 - suit for partition - whether plaintiff entitled to mesne profits until specific allotment made - division of joint family does not constitute specific allotment - plaintiff does not come into possession until allotment - held, plaintiff entitled to only decree for partition and not mesne profits. - - on a consideration of the evidence on record, the trial court as well as our learned brother found that this was not established by the 2nd defendant. it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. the parties may thereafter choose to divide the property by metes and bounds or may continue to..........division in status but has not divided its assets by metes and bounds, is entitled to have mesne profits from the date of the sale in his favour.2. this question arises in the appeal brought by the 2nd defendant against the judgment and decree of our learned brother ramachandra rao j. in a. s. no. 483 of 1970 confirming the judgment and decree of the subordinate judge's court visakapatnam in o. s. no. 119 of 1967. that suit was filed by the present respondent for partition of a house into seven shares and for possession of two such shares, and for past and future mesne profits on that 2/7th share. he sought past mesne profits right from the date on which he purchased the 2/7th share in the court auction on 7-7-1974. a third party had obtained a money decree against defendants 1.....
Judgment:

Sambasiva Rao, J.

1. The principal question that needs to be answered by us in this Letters Patent Appeal is, whether an auction-purchaser of the shares of two members of a family, which has undergone division in status but has not divided its assets by metes and bounds, is entitled to have mesne profits from the date of the sale in his favour.

2. This question arises in the appeal brought by the 2nd defendant against the judgment and decree of our learned brother Ramachandra Rao J. in A. S. No. 483 of 1970 confirming the judgment and decree of the Subordinate Judge's Court Visakapatnam in O. S. No. 119 of 1967. That suit was filed by the present respondent for partition of a house into seven shares and for possession of two such shares, and for past and future mesne profits on that 2/7th share. He sought past mesne profits right from the date on which he purchased the 2/7th share in the court auction on 7-7-1974. A third party had obtained a money decree against defendants 1 and 2, who are brothers, and, in execution thereof, brought their 2/7th share, i.e., 3 residential house, to sale on 7-7-1974. The respondent purchased that share for Rs. 6,700/-. It is said that symbolic delivery was also given to him. He later filed the suit for the above reliefs.

3. The 1st defendant contended that there were other properties also and without dividing them, this house-property cannot be partitioned. The 2nd defendant averred in his written statement that immediately after his share was sold in the Court auction, he vacated the house and ever since then was living apart and was not, therefore, liable to pay any mesne profits.

4. The 1st defendant and the defendants other than defendant No. 2, on the other hand averred that it was the 2nd defendant that was in management of the joint family properties and so, he alone was liable to pay the mesne profits.

5. The trial court held that the plaintiff was entitled to a decree for partition and, consequently, passed a preliminary decree for 2/7 share. It also found that there was a division in status amongst the members of the family, and felt that division in status would be sufficient to enable the plaintiff to claim mesne profits right from the date of the sale. In the result, it decreed past profits for 37 months, @ Rs. 40 per month, and directed the future profits to be ascertained in separate proceedings. This decree for profits was passed only against defendants 1 ,and 2, whose shares alone the plaintiff purchased. It repelled the contention of the 2nd defendant that he had vacated the house immediately after the sale. Costs were, however, awarded against all the defendants.

6. The 2nd defendant alone appealed against this decree. Ramachandra Rao, J. held that there was a division in status amongst the defendants on the date of the purchase in the court auction, and the family was divided in status. The court auction purchaser would be entitled to claim mesne profits and interest on the undivided share purchased by him. In that view, he affirmed the trial court's decree, in regard to mesne profits from the date of the sale. He also rejected the 2nd defendant's contention that he was not in possession of the suit house, subsequent to the court sale, and in regard to symbolic delivery.

7. Once again it is the 2nd defendant alone that has preferred this Letters Patent Appeal. Sri K. V. Subrah-manya Narsu raises two contentions before us. The first is that the 2nd defendant vacated the house immediately after the court sale and so, he cannot be mulcted with a decree for mesne profits. On a consideration of the evidence on record, the trial court as well as our learned brother found that this was not established by the 2nd defendant. We find no justification for interfering with this concurrent finding of fact. We, accordingly, confirm that finding and hold that the 2nd defendant has not established his contention that he had vacated the house.

8. The second contention is that, until a specific portion of the house is allotted to the plaintiff, he will not be entitled to possession thereof and so, until that time, he will not be entitled to claim or get any mesne profits. The learned counsel challenges the correctness of the view stated by our learned brother that, if the family is divided in status, the court-auction purchaser would be entitled to claim mesne profits and interest on the undivided share purchased by him.

We find great force in this contention of the learned counsel. Going by the principle, a purchaser of an Undivided share will not be entitled to possession until he is allotted a specified share in the Property. Mesne profits can be claimed by him only from the date when he is deprived of his lawful possession. Section 2(12) of C. P. C. defines 'mesne profits' of property as profits which the person in wrongful possession of such property actually received or might have received with ordinary diligence from it. A person is said to be in wrongful possession when he enjoys such possession despite, another person is entitled to it under law. A purchaser is entitled to lawful possession only when allotment of a specified portion is made to him. In this case, the finding is that there was a division in status, but there was no division by metes and bounds. A mere division in status does not bring about the consequence of the different sharers being entitled to specified portions of the property. The only legal consequence of a division in status of a joint Hindu family is that the erstwhile coparceners become 'tenants in common' without any member becoming entitled to a specific portion or item of the properties that belonged to the joint family. In the absence of a specified allotment, no member is entitled to claim possession of any specific item of the property, or any specified portion of the property of the joint family. He will have to file a suit to enforce that right, a purchaser from such a member cannot have a higher right than the member of such a family. Likewise, a purchaser in a Court auction cannot have a higher right. That is why the auction-purchaser in this case has filed a suit for partition and possession of 2/7 share. Until he gets the right to secure possession of specified 2/7 share in the house, he will not be entitled to any mesne profits, since it is not possible for him to show that he is unlawfully deprived of the possession of his property. This is the result if we examine the position first on principles.

9. It is true that there is a decision of a Division Bench of the Madras High Court in Sivarama Murthi v. A. Venkayya, AIR 1934 Mad 364, holding that 'where a family is undivided the purchaser of an undivided share of its properties is not entitled to claim past mesne profits; but where though the properties are not divided by metes and bounds the brothers are enjoying them in definite shares and are living also separately, there is a division in status between the members, and in such a case decree for mesne profits may be given to the purchaser of the undivided share.' The brothers, in the absence of a division by metes and bounds, could (not) be said to be enjoying the properties in definite shares; that is, the quantums of their shares alone are fixed. They cannot fluctuate by the birth of a new member into the family. But it cannot be said that the sharers will be enjoying their specified shares when the properties are not divided by metes and bounds, since it will not be known until then what portions would be actually allotted to them.

10. Whatever be our opinion about the view expressed by the Division Bench of the Madras High Court, we are aware that it is binding on this Court since that decision had been rendered before July, 1954. If we are not inclined to agree with this view, we will per force be obliged to refer the matter to a Full Bench.

11. But, that is obviated by reason of two decisions of the Supreme Court, to which we shall presently refer. In Sidheswar Mukherjee v. Bhubanesh-war Prasad Narain, : [1954]1SCR177 ; Mukherjea. J., speaking for the Court observed at page 188 that:

'2. All that he (the plaintiff) purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property, and was not entitled to joint possession from the date of his purchase. He could work his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.'

12. The last sentence quoted above is very pertinent. A court auction purchaser of an undivided share is entitled to possession only from the date when a specific allotment was made in his favour. A specific allotment is not made by a mere division in status. It is done either by an arrangement between the parties, or by a decree of the Court Through whatever means it is achieved, there should be a specific allotment before the auction-purchaser's right to possession starts. And it is only from the date on which his right to possession starts, his right to get mesne profits also commences, if he is deprived unlawfully of its possession from that date.

13. The next decision of the Supreme Court is Manikyala Rao v. Nar-simhaswami, : [1966]1SCR628 . The majority held that:

'...... It is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the. share of the coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favour. It would, therefore, appear that the alienee is not entitled to possession till a partition has been made......'

Ramaswami, J., speaking for himself, also Observed that such a purchaser acquires only an equity to stand in the alienor's shoes and work out his rights by means of a partition. He is not entitled to joint possession with them.

14. Even though, in the above two cases, the families still continued as co-parceneries and there was no division in status, the principle, laid down there is clear that a purchaser will be entitled to possession of a member's share only when a specific allotment is made in his favour. Once it is seen that mere division in status does not make a specific allotment, this principle laid down by the two decisions of the Supreme Court must be understood as overruling by necessary implication the view expressed by the Division Bench of the Madras High Court in AIR 1934 Mad 364.

15. We may also take note of a Single Judge's decision of the Madras High Court in Ganesh v. Radhakrishnan, : AIR1969Mad416 . There also a claim for mesne profits by the purchaser of a coparcener's undivided interest, was considered. Following the above mentioned two Supreme Court decisions, the learned Judge said at page 417:--

'...... In view of these decisions of the Supreme Court, it is clear that the first respondent is not entitled to mesne profits for any period anterior to the date when a specific share in the property was allotted to him. In this case it is admitted that the final decree was passed on 9-9-1963. Consequently the first respondent can be said to have been allotted a specific share in the property only from that date, with the result that he will be entitled to mesne profits only from that date......'

This decision supports the view we have expressed.

16. The learned counsel for the respondent (plaintiff) relies on another decision of the Supreme Court in Girija-nandini v. Bijendra Narain, : [1967]1SCR93 . We are afraid, this decision is not of any use in the present context. The question that was considered in that case was, whether there was a severance between the different members of the family. In that connection, the Supreme Court observed that 'in a Hindu undivided family no individual member can predicate, while it remains undivided, that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is parti-, tion. Partition consists in defining the shares of the coparceners in the joint property; actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.' Thus, the Supreme Court was examining in what circumstances a family can be said to be divided, and the legal consequences of such division. It also pointed out that, after effecting a division in status which defines the shares of the coparceners, the parties may either choose to divide the properties by metes and bounds or may continue to live together and enjoy the property in common. If they live together, the mode of enjoyment remains joint. That means no member can Lay an exclusive claim to any specific item or portion of an item belonging to the family, as his own without a division by metes and bounds.

17. The above discussion leads us to the conclusion that the plaintiff in this case is not entitled to mesne profits from the date of the sale. He will be entitled to such profits only from the date when a specified portion of the house is allotted to him representing the 2/7 portion he has purchased.

18. It is true that it can be seen from the written statement of defendants 3 to 6 that they were residing in separate portions, equal to their respective shares. But that is, obviously, by way of convenient enjoyment, because they clearly admitted that there was no division of the property by metes and bounds. So, no one is entitled to any specified portion.

19. In the result, we hold that, while the respondent (plaintiff) is entitled to a decree for partition for 2/7 share, he is not entitled to mesne profits until the allotment of specified portion to his share. The decree of the trial Court as affirmed by our learned brother is modified to this extent, and affirmed in regard to the rest. This appeal is accordingly allowed in part. Having regard to the fact that the parties have partly succeeded and partly failed, we direct them to bear their own costs.


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