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K. Venkata Subbaiya Vs. K. Veeraiyya and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 518 of 1949
Judge
Reported inAIR1955AP172
ActsCode of Civil Procedure (CPC),1908- Order 20, Rule 18
AppellantK. Venkata Subbaiya
RespondentK. Veeraiyya and anr.
Appellant AdvocateG. Venkatarama Sastri, Adv.
Respondent AdvocateK. Koataiah, Adv.
Excerpt:
.....- appeal preferred - high court observed cause of action of plaintiff was for mesne profit which kept him out of possession during suit - it is an exception of general rule that plaintiff can only sue on such cause of action which has arisen on date of instituting his suit - object is to avoid multiplicity of litigation that arises if persons are kept out of possession of their lands unlawfully - held, they were obliged to file suits every three years for mesne profits accruing after institution of suit in ejectment and during its pendency in original and appellate courts - appeal dismissed. - - a suit for partition by a joint hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the..........bench of this court in -- 'subbarayudu v. state', (s) : air1955ap87 (c), i am bound by the full bench decision of the madras high court already referred to (which has approved the decision of somayya j. in -- 'raghava mannadiar v. theyunni mannadiar (a)', and following that decision i hold that the order of remand is perfectly justified.(4) the learned advocate for the appellant, sri g. venkatarama sastri, contended that the full bench decision of the madras high court in 'basavayya v. guravayya (b)' requires re-consideration in view of the decision of the supreme court in -- 'mohd. amin v. vakil ahmad', : [1952]1scr1133 (d) and the decision of rajagopala iyengar j., in -- 'arunachala mudali v. maragathammal', 1954 - 2 mad lj 696 (e). in : [1952]1scr1133 (d) the suit was filed for a.....
Judgment:

(1) This appeal raises a simple question of law. The 1st repondent herein filed I. A. No. 461 of 1948 in O. S. No. 318 of 1939, District Munsif's Court, Repalle, on 5.7.1948, for the ascertainment of profits from the date of the plaint. The suit in which the application was filed was instituted in 1939 for partition and separate possession of joint family properties and the preliminary decree was passed on 23.8.1946. The final decree was passed on 31.8.1948. long after the application for the ascertainment of future profits was filed. The ground on which the District Munsif of Repalle dismissed the application was that the final decree had been passed by the time the application was taken up for hearing on 17.9.1948.

On appeal, the Subordinate Judge of Tenali rightly held that the delay in the disposal of the application ought not to prejudice the 1st repondent herein in the determination of his legal rights. He followed the decision of Somayya J. in -- Reghava Mannadiar v. Theyunni Mannadiar', AIR 1947 Mad 106 (A) and held that though there was no prayer in the plaint for the ascertainment of future profits from the date of suit and though there was no specific direction in the preliminary decree in the partition suit for such ascertainment, the Court is bound under the provisions of O. 20, R. 18, Civil P. C., to direct such an enquiry and consequently set aside the order of the trial Court and remanded the application to the District Munsif for fresh disposal and ascertainment of profits. As against the Order of remand, the C. M. A. No. 518 of 1949 has been filed before this Court.

(2) The decision of Somayya J. relied in by the Subordinate Judge was approved by a Full Bench of the Madras High Court in -- 'Basavayya v. Guravayya', : AIR1951Mad938 (FB) (B). The legal position is summed up at pp. 941 - 942 in the rollowing terms :

'A tenant-in-common who files a suit for partition seeks a petition not only of his share of the properties forming the subject-matter of the suit, but also of his share of the profits accruing from those properties during the pendency of the suit or till he is put in possession of his share. He cannot anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realised during that period. He need not therefore specifically ask for any relief in respect of future profits the prayer for general relief being sufficient to enable the Court to award him such profits ............ The right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition.

A suit for partition by a Joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. If, as we think, this is the true nature of the proceedings in a suit for partition, a direction for an enquiry into 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 there is nothing in O. 20, R. 18, Civil P. C., interdicting such procedure'.

(3) As held by a Full Bench of this Court in -- 'Subbarayudu v. State', (S) : AIR1955AP87 (C), I am bound by the Full Bench decision of the Madras High Court already referred to (which has approved the decision of Somayya J. in -- 'Raghava Mannadiar v. Theyunni Mannadiar (A)', and following that decision I hold that the Order of remand is perfectly justified.

(4) The learned advocate for the appellant, Sri G. Venkatarama Sastri, contended that the Full Bench decision of the Madras High Court in 'Basavayya v. Guravayya (B)' requires re-consideration in view of the decision of the Supreme Court in -- 'Mohd. Amin v. Vakil Ahmad', : [1952]1SCR1133 (D) and the decision of Rajagopala Iyengar J., in -- 'Arunachala Mudali v. Maragathammal', 1954 - 2 Mad LJ 696 (E). In : [1952]1SCR1133 (D) the suit was filed for a declaration that the deed of settlement dated 5.4.1940 was invalid and for recovery of the share of the plaintiffs in the estate of Haji. The decree for mesne profits awarded by the High Court of Allahabad was set aside by the Supreme Court. The relevant portion of the judgment dealing with the question of profits runs in the following terms :

'It was however, pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such, but urged that the claim for mesne profits would be included within the expression 'awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto'. We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree.'

(5) These observations have no application to the facts of the present case which is a suit for partition. What is claimed by the 1st respondent in his application is not mesne profits from a trespasser. The nature of the claim is clearly set out by the Judicial Committee in -- 'Pirthi Pal v. Jowahir Singh', 14 Ind App 37 (PC) (F). Referring to that decision, Sadasiva Iyer J. observes in -- 'Ramaswami Aiyar v. Subramania Aiyar', AIR 1923 Mad 147 at p. 149 (G) in the following words :

'As stated by their Lordships............a sharer has a clear right to an account 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 land'.

(6) As pointed out by the Full Bench at pp. 941 - 942 in : AIR1951Mad938 (B), the right to an account of such profits is implicit in the right to a share in the common properties and need not be separately asked for. Even after teh passing of the preliminary decree, it is open to the Court to give appropriate directions either 'suo motu' or on the application of the parties. The observations of the Supreme Court apply only to a case where mesne profits in an ejectment suit are no specifically prayed for against the defendant. It is not necessary for me to decide in this case as to whether the Full Bench decision, in so far as it deals with a claim for future mesne profits under O. 20, R. 12, Civil P. C., does not require reconsideration in the light of the Supreme Court decision. The case before Rajagopala Ayyangar J., in 1954 - 2 Mad LJ 696 (E), dealt with an application under O. 20, R. 12, Civil P. C. The learned Judge distinguished the Full Bench case on the ground that it

'related not to O. 20, 12, but to O. 20, R. 18, Civil P. C., dealing with preliminary and final decrees in suits for partition.'

In my opinion, this decision does not purport to and cannot affect the correctness of the Full Bench decision. Moreover, as pointed out by the Full Bench of this Court in (S) : AIR1955AP87 (FB) (C), I am not bound by the decisions of the Madras High Court pronounced subsequent to 5.7.1954, but only by the decisions prior to that date. I might however point out that the grounds on which the Full Bench decisions was distinguished by the learned Judge are not wholly justifiable as from the statement of the facts, it appears that the application under O. 20 R. 12, Civil P. C., was filed during the pendency of the Second Appeal in the High Court and the decree passed by the trial Court for ejectment has not become final. If so, the observations in : AIR1951Mad938 (FB) (B) directly governed that case and the learned Judge ought to have followed it. The relevant observations of the Full Bench which were applicable to that case are as follows :

'The cause of action for future mesne profits is the plaintiff's being kept out of possession during the suit and arises subsequent to the suit. In empowering Courts to award future mesne profits O. 20, R. 12, Civil P. C., Makes an exception to the general rule that a plaintiff can only sue on such cause of action as has arisen on the date of instituting his suit. The objection is to avoid multiplicity of litigation that would result if persons, unlawfully kept out of possession of their lands, were obliged to file suits every three years for mesne profits accruing after the institution of a suit in ejectment and during its pendency in the Original and Appellate Courts.'

(7) Similarly, the decision of the Patna, High Court in -- 'Raghu Mahton v. Bulak Mahton', : AIR1953Pat289 (H) also arose out of an application under O. 20, R. 12, Civil P. C., and not under O. 20, R. 18, Civil P. C. and it has consequently no application on the facts of the present case.

(8) In the result, the Civil Miscellaneous Appeal fails and is dismissed with costs. No leave.

(9) Appeal dismissed.


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