1. The first defendant in the suit is the appellant in this second appeal, which arises out of the final decree proceedings in a suit for partition instituted by the first respondent herein in 0. S. No. 2423 of 1961, on the file of the learned 5th Assistant judge, City Civil Court, Madras.
2. The facts are not in dispute. The first respondent instituted the suit for partition and separate possession of in S/4 share in the mentioned the schedule to the plaint or in the alternative for a society thereof and also for an account of the income collected by the appellant and for the appointment of Receiver and other incidental reliefs. By a preliminary decree dated 24-12-1968, the first respondent herein was granted a decree for partition in respect of a half share of the suit property and clause (2) of the preliminary decree provided that, the first respondent shall also be at liberty to apply for the ascertainment of the income from the property and the allotment of her share therein.
There was an appeal against this preliminary decree in A. S. No. 201 of 1964 to this court, which was disposed of on 9-9-1970 with certain modifications. Pursuant to the preliminary, decree granted in favour of the first respondent as modified by their court, she filed 1. A. No. 1877 of 1971 for the appointment of a Commissioner to divide the property by metes and bounds and also for ascertainment and payment of her share of the income from the property in question. A Commissioner was appointed and he submitted a report with reference to the suggested mode of allotment of the property and also the quantum of income referable to the share of the first respondent.
The trial court, on a consideration of the report of the Commissioner, by its judgment and decree dated 10-1-1973, allotted the southern portion of the suit property to the first respondent and the northern portion to the appellant. It further directed that a sum of Rs. 4160 be paid to the first respondent by the appellant towards her share of income. Aggrieved by this, the appellant preferred an appellant- in A - S. No. 243 of 1974, before the learned Fourth Additional Judge, City Civil Court, Madras. The appellate Court 7,8 also confirmed not only the mode of allotment, but also felt that the assessment and ascertainment of the share of the income of the first respondent at Rs. 4160 was not only reasonable, but unexceptionable. In the result, the appeal was dismissed. It is against that the appellant has now come up before this court in second appeal.
3. The Only contention that is urged by the learned counsel for the appellant in this second appeal is that the maximum period for which the first respondent could be awarded her share of income is three years from the date of the decree and in this case, the courts below should not have, therefore, awarded mesne profits for a period in excess of that period and that the award of mesne profits thus given is not in conformity with the provision of the civil Procedure Code, viz, O.20, Rule 12. It may immediately be stated that this contention was not raised in the courts below in the form in which it is -now presented before this court. However, since it is a point of law, which does not call for any further investigation of facts, the learned counsel for the appellant was allowed to raise the same.
4. In order to appreciate this contention, it becomes necessary to examine the terms of the preliminary decree and ascertain whether Order 20, Rule 12 C. P. Code would apply to the instant case at all. The relevant clauses of the decree in 0. S. No. 2423 of 1961 run thus:
1. That the property mentioned in the schedule be divided into two equal shares and the plaintiff be allotted one such share;
2. That the plaintiff shall be at liberty to apply by way of a separate application for ascertaining the income from the property and allotment of her share therein.
5. On appeal in A. S. -No. 201 of 1964, this decree, in so far as it is relevant for this second appeal, was modified by this court on 9-9-1970, thus
'I. That the appellant (1st defendant) do render accounts for the period commencing from 31-5-1961 (viz. the date of plaint), in respect of the rental collections made by him and that the first appellant first defendant shall get credit for Rs. 150 (Rs. one hundred and fifty only) paid on the file of the High Court.
At this stage, it is necessary to set out the provisions of 0. 20, Rules 12 and 18 U. P. C. 0. 20, Rule 12 runs thus
'Decree for possession and mesne profits :-
1. Where a suit is for the recovery of Possession of immoveable property and for rent or mesne profits, the court may pass a decree
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba)- for the mesne profits or directing an enquiry as to such mesne profits;
(c) directing an enquiry as to rent or mesne profits from the institution of the suit until
(i) the delivery of possession to the decree-holder;
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the court, or
(iii) the expiration of three years from the date of t e decree, whichever event first occurs.
(2) Where an I 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 rank of such inquiry.
6. Order 20, Rule IS C. P. C. that specifically deals with the case of a suit for partition and separate Possession Of 2 share in the property runs thus-
'Decree in suit for partition of Property or separate possession of a share therein - Where the court passes a decree for the partition of property or for the separate possession of a share therein, then (1) it 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 par-interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf in accordance with such declaration and with the provisions of S. 54,
(2) if and in so far as such decree relates to any other immoveable property or to moveable property, the court, may if the partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring its of the several parties interested in the property giving such further directions as may be required.' -
7. The relative scope of Order 20. Rule 12 and Order 20, Rule 18 C. P. Code has been the subject-matter of an illuminations and exhaustive discussion by a Full bench of this court in the decision reported in Basavayya v. Gurovayya, : AIR1951Mad938 . the Full Bench observed thus it is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise. (1) suits for ejectment or recovery of possession of immoveable property from a person in possession without title, together with a claim for past or past and future mesne profits-, (2) suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits, (3) suits for partition by a member of a joint Hindu family with a claim for an account from the manager in the first case, the possession of the defendants not being lawful, the plaintiff is entitled to recover 'mesne profits' as defined in Sec. 2, clause (12) of the C. P. C. such profits Being really in the nature of 224 A'D. Nataraja v. damages. In the second case, the possession and receipt of profits by the defendant not being wrongful the plaintiff's remedy is to have an account of such profits making all just allowances in favour of the collecting tenant-in-common. In the third case, the plaintiff must take the joint family property as it exists at date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation.'
8. The Full Bench also held that O. 20, Rule 12, C. P. C., deals with the first class of suits above referred, while O. 20, Rule 18 would take in suits in the second and third categories. It was also further held that O. 20, Rule 12 relates to 'mesne profits' in the sense in which that expression is defined in Sec. 2(12) C. P. C. and that the claim of the plaintiff suing for partition and his share of profits accruing from the lands pending the suit is not, properly speaking, a claim for mesne profits and O. 20, Rule 12 C. P. Code, has no application to such a case. The learned counsel for the appellant, however, would strongly rely upon a decision of the Supreme Court in Chittoori Subbanna v. Kadappa Subbanna : 2SCR661 , and urge that, the first respondent cannot be granted a decree in respect of mesne profits in excess of three years from the date of the decree. The question, therefore, is whether the first respondent decree-holder could be denied her share of the income for a period in excess of three years.
The scope applicability of the judgment the Supreme Court relied upon by the learned counsel for the appellant was the subject matter of the judgment of a Division Bench reported in Subba Reddiar v. Hazra Bibi, : AIR1973Mad237 . In that case also, the same objection that is being raised in the present second appeal by the learned counsel for the appellant was raised, relying upon the aforesaid judgment of the Supreme Court reported in : 2SCR661 . The Division Bench examined the provisions of Order 20, Rule 12 and Order 20, Rule 18 C. P. C. and followed the ratio of the Full Bench of this court re ed ha : AIR1951Mad938 and ultimately held that O. 20, Rule 12 C, P. C. will not be applicable to a case like the present case, It cause when an account of the income from the property pertaining to the share of the plaintiff is ordered up to the date of the final decree what actually happens is the division of an integral portion of the hotchpotch comprising of not only the property but also the income and accretions thereto up to the date of the final decree and to such a case, Order 20, Rule 12 will be inapplicable.
In -addition the Division Bench also examined in detail the judgment of the Supreme Court and held that a careful perusal of the minority and the majority views shows that the entire discussion related only to the scope of Order 20, Rule 12 C. P. C., and in particular whether the preliminary decree would be binding upon the defendant at the stage of the final decree proceedings and whether the objection that the period for the award of mesne profits should exceed three years could be allowed to be raised for the first time before the High Court. It was also pointed out by the Division Bench that in the judgment of the Supreme Court there is no reference whatever to 0. 20, Rule 18 C. P. C, which deals with a case of suit for partition and mesne profits.
It was also further pointed out that the Full Bench decision of this court reported : AIR1951Mad938 as not even referred to and therefore it is rather difficult to countenance an argument that the Supreme Court by implication intended to overrule the view taken by the Full Bench which has been followed in all other decisions of other High Courts. Thai: being the position, the question of the applicability of the provisions of O. 20, Rule 12 to the instant case does not arise because in this case, though the application purports to be one under O. 20, Rule 12 C. P. C., it would fall within the second and third categories enumerated by the Full Bench and to which the provisions of O. 20, Rule 12 will not be a liable Order 20, Rule 18 C. P. C. would govern the present case and therefore, the objection of the learned counsel for the appellant that the mesne profits cannot be given for more than three years from the date of the decree does not hold good.
9. The mode of allotment and the quantum of mesne profits were not in any manner challenged by the learned counsel for the appellant. Therefore, I am of the view that the fixation of the mesne profits at Rs. 4160 for the period in question and the allotment of the property to the share of the first defendant as has been done in the final decree appealed against are unassailable and the second appeal should therefore be dismissed with costs.
10. Appeal dismissed.