1. This appeal arises out of the final decree proceedings in a partition action. O. S. No. 138 of 1949 in which the appellant-fifth defendant has been held liable for mesne profits in respect of a portion of a non-residential building which is situate in a centrally located, busy non-residential area in Karur town a reputed whole-sale and retail business centre. Mesne profits have been awarded from January 1946 till delivery of possession which took place on 31-1-1964. As regards the quantum, a Commissioner who was appointed investigated into the matter and determined the mesne profits with reference to four distinct periods. The Commissioner also took note of the fact that the other portion of the building had been let out by the fifth defendant to one K. C. Venkataraman Chettiar at the rate of Rs. 55 per mensem and this rate has been taken into account by the Commissioner in fixing the quantum. After a careful scrutiny of the Commissioner's report and the evidence the trial Court fixed the mesne profits at the rate of Rs. 20 per month from 21-1-1946 to 20-1-1949 and at the rate of Rs. 25 per month from 21-1-1949 till delivery of possession in January 1954. The appellant admits his liability for Rs. 2,000 and in this present appeal his complaint is with regard to the excess of Rs. 3,000 odd. Mr. Padmanabhan, learned counsel for the appellant raised two points : (i) that in awarding mesne profits under Order XX, Rule 12, C. P. Code, the maximum period for which the plaintiff could be awarded mesne profits is three years from the date of the decree and that in this case the court should have awarded mesne profits for three years only from 27-12-1950, the date of the preliminary decree and the award of mesne profits till January 1964 is illegal and contrary to Order XX, Rule 12, Civil P. C (ii) The quantum fixed by the trial Court is excessive.
2. As regard the quantum, we are satisfied that the liability as determined by the trial Court is correct and fully justified by the evidence on record. It is not in dispute that the property is situate in a centrally located non-residential area in Karur town, which is a reputed wholesale and retail business centre. The property had a road frontage and the rates fixed. viz., Rs. 20 per mensem and Rs. 25 per mensem in such a business centre in Karur town cannot be said to be excessive. As observed already, the appellant has been collecting Rs. 55 pre month from one Venkatarama Chettiar in respect of the other portion of the non-residential building, though of a larger area. The appellant has not made out any case for interference with the quantum of mesne profits determined by the trial Court.
3. On the question of the precise scope of Order XX, Rule 12, C. P. Code and the want of jurisdiction of the court in awarding mesne profits for a period exceeding three years, learned counsel relied upon the decision of the Supreme Court reported in Subbanna v. Subbanna, . On a careful examination of the decision of the
Supreme Court in the light of the particular facts therein, we are not inclined to hold that the aforesaid decision supports the contention of the appellant. All the High Courts, in a uniform course of decision, have taken the view that Order XX, Rule 12, C. P. Code will not apply to a suit for partition and that it is Order XX, Rule 18, Civil P. C. which governs such an action. We are unable to hold that the decision of the Supreme Court referred to above has impliedly overruled uniform course of decisions of all the High Courts. Indeed as will be presently shown a later decision of the Supreme Court reported in Gopalakrishna Pillai v. Meenakshi Ayal, shows that far from taking a different view the Supreme Court has expressly referred, with approval, to the Full Bench decision of this court reported in Basavayya v. Guruvayya, 1951-2 Mad LJ 176 = (AIR 1951 Mad 939) (FB), in which it was held that Order XX, Rule 12, Civil P. C. would not apply to a suit for partition and that the claim for mesne profits for the entire period till delivery of possession is awarded by way of appropriate directions at the time of the passing of the final decree under Order XX, Rule 18, Civil P. C. Order XX, Rule 12, sub-rules (1) and (2), Civil P. C. are in these terms :--
"Rule (12)(1): Where a suit is for recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree--(a) for possession of the property; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or direction an inquiry 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 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 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 inquiry."
Order XX, Rule 18 deals with a specific case of a suit for partition and separate possession of a share and sub-rule (2) thereof is in these terms (sub-rule (1) omitted as not relevant) :
"Rule 18 (1)........... (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 preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required."
The relative application of Order XX, Rule 12 and Order XX, Rule 18 and the Court's jurisdiction to award mesne profits or rendition of accounts in respect of the income from the property in a partition action has been the subject-matter of discussion in several cases and the point of controversy has centred round the question whether such relief can be awarded even if a claim for mesne profits has not been made in the plaint in partition actions. It is in this context of the absence of such a specific prayer in the plaint for the relief of furture mesne profits or rendition of account of the income from the property, that the court had to consider the problem. It is sufficient to take as a starting point of the discussion the decision of the Full Bench of this court in , as it contains a detailed
discussion and clear exposition of the legal principles. It was held by the Full Bench that the claim for a partition of the common property coupled with a prayer for a share of the profits accruing to the property pending the suit is not properly speaking a claim to mense profits in the sense in which that expression has been defined in Section 2, clause(12), Civil P. C. and that Order XX, Rule 12 has no application to such a case. It was observed that in a suit for partition the court has not only to divide the common property, but also to adjust the equities arising between the parties out of their relation to the common property and that on the basis of the preliminary decree there will be several matters in addition to the division of the property that require consideration and decision before an equitable final partition can be effected. It was also pointed out that after the passing of the preliminary decree the court has ample jurisdiction to give appropriate directions either suo motu or on the application of the parties, and Order XX, Rule 18 does not prohibit the court from issuing such directions for working out equities between the parties finally. It was also observed that the fact that the preliminary decree does not direct an enquiry into the profits subsequent to the date the suit does not preclude the parties from applying for, or the Court from awarding, such profits by the final decree and that the enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree. It will be useful to extract the following headnote which explains why Order XX, Rule 12 is not applicable to a suit for partition--
"The question of profits or mesne profits arises in (1) suits for ejectment or recovery of possession of immovable 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 and (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 recovery of mesne profits as defined in Section 2 clause (12) C. P. C., such profits being really in the nature of damages. In the second case, the possession and receipt of profits by the defendant not being wrongful, the plaintiff's remedy is to have the account of such profits making all just allowances in favor of the collecting tenants-in-common. In the third case the plaintiff must take the joint family property as it exists at the 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 profits except where the manager has been guilty of fraudulent conduct or misappropriation. The plaintiff would, however, be in the position of a tenant-in-common from the date of severance in status and his right would have to be worked on that basis. Order XX, Rule 12, Civil P. C. deals with the first class of suit above referred to while Order XX, Rule 18 deals with the second and third categories."
4. It was also observed that a tenant-in-common, who filed a suit for partition, seeks a partition not only of his share of the properties forming the subject-matter of the suit but also 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; and that he cannot anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realized during that period and that 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. From this decision it clearly emerges that the rights based on the preliminary decree will have to be worked out by taking note of equities right upto the moment of the passing of the final decree which necessarily must embrace the question of the plaintiff's share of the income from the common property till the passing of the final decree and this right to an account in respect of the income upto the moment of the passing of the final decree is implicit and inherent in the right to a share in the property itself. The principle of this Full Bench decision has been followed and applied uniformly in the subsequent decisions of various Courts whenever a similar problem arose. It is sufficient to make a reference to some of the decisions. In D. Satyanarayana Murti, v. D. Bhavanna, AIR 1957 Andh Pra 766, the problem arose with reference to the question of court-fee in an appeal from a decision in a partition action and Umamaheswaran, J., while dealing with the scope of a suit containing a claim for partition coupled with a prayer for income from the properties and for rendition of accounts upto the date of final decree observed (following Basavayya v. Guravayya aforesaid), that a partition action is not governed by the provisions of Order XX, Rule 12, but only by O. XX, R. 18, Civil P. C. and that the profits which the manager is to account for are not mesne profits within the meaning of Section 2, clause 12, Civil P. C. The same question arose in two Bench decisions of the Andhra Pradesh High Court reported in Atchamma v. Rami Reddi, AIR 1958 Andh Pra 517 and Krishnamma v. Latchumanaidu, AIR 1958 Andh Pra 520, in a slightly different context bearing upon the impact of the decision of the Supreme Court in Mohd. Amin v. Vakil Ahmed, which are relied upon as authority for the position that if there is no prayer for mesne profits in a suit for possession the Court has no jurisdiction to award the relief. In both the Bench decision, Subba Rao, C. J. of the Andhra Pradesh High Court, delivering the judgment on behalf of the Bench, held that the observations in Mohd. Amain v. Vakil Ahamed should be understood in the light of the particular facts of the case and that it is not an authority for the position that in every case in which the relief is not asked for the Court will have no jurisdiction to award the relief and that so long as the final decree had not been passed the Court will have jurisdiction to decree mesne profits upto the date of the final decree. What is relevant for the present discussion is that in both the decisions the Bench of the Andhra Pradesh High Court has emphasised that the operation of Order XX, Rule 12 is totally different from the scope of Order XX, Rule 18 and that a claim for a share of the income from the properties upto the date of the final decree is not a claim for mesne profits within the meaning of Order XX, Rule 12, Civil P. C. In Udekar v. Chandrasekhar, , the Bench of the Orissa High Court took the same view following the Full Bench decision of this Court in . It was observed that the expression 'mesne profits' as defined in Section 2, clause (12) Civil P. C. is restricted only to those profits which are derived by a person in wrongful possession of property belonging to another and that it has no application to profits, accountable by a person in possession of property as a co-sharer is accountable. This was followed in Mt. Kainta v. Damru Meher, in which again the views are
reiterated that Order XX, Rule 12, Civil P. C. has no application to profits accountable by a person as a co-sharer before partition in respect of his possession of common property upto the moment of the final decree. Reference may also be made to the Bench decision of the Andhra Pradesh High Court in Satyanarayana v. Mallikarjuna, , in which it was held that even though there is no
prayer for the ascertainment of future profits in a suit for partition and there in no direction in the preliminary decree the relief can be given till the passing of the final decree and that the decision in is no authority for the position that unless asked
for such a relief cannot be given. It is true that in the subsequent cases the problem arose because of the rival contentions put forward regarding implications of the decision of the Supreme Court in . What is relevant for the present discussion is that in all the subsequent decisions it was held that the relief of accounting in respect of the income can be awarded upto the date of the final decree even though not asked for on the basis that such a relief is not covered by Order XX, Rule 12 but is a claim under Order XX, Rule 18 under which the Court has ample jurisdiction to give appropriate directions for working out the equities between the parties upto the passing of the final decree. In Ponnusami, v. Santhappa, , Jagadisan, J. reviewed the relevant decisions and
held that the mesne profits accruing from the properties forming the subject-matter of the partition action and referable to the properties which are eventually allotted to the share of the successful plaintiff, form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves. From this decision it clearly emerges that when an account of the income from the property pertaining to the share of the plaintiff is ordered upto the date of the final decree what actually happens is the division of an integral portion of the hotchpot because the hotchpot for division is not merely the property as such, but also the income and accretions thereto upto the date of the final decree and in such a case Order XX, Rule 12, Civil P. C. will have hardly any application.
5. It is unnecessary to refer to other decisions in which the same view has been reiterated. Mr. S. Padmanabhan, learned counsel for the appellant however, urged that in the face of the decision of the Supreme Court in Khurai Municipality v. Kamal Kumar, , the principle enunciated in the decisions referred to above cannot be followed. After a careful examination of the reasonings in the decision of the Supreme Court aforesaid in the light of the particular facts in that case and the precise points on which the arguments centered round, we are not inclined to accept this argument. Such an argument would amount to holding that the Supreme Court without any reference to and discussion of the uniform course of decisions of all the High Courts (which have held that Order XX, Rule 12 Civil P. C. will not apply to a suit for partition and Order XX, Rule 18 along will govern such actions) intended to overrule the view taken therein. In the case before the Supreme Court the plaintiff filed a suit for recovery of possession of A and C schedule properties as well as for partition and allotment of a 1/24th share in the B schedule properties and also mesne profits. The trial Court while awarding other relief's awarded mesne profits from the date of the suit till the date of delivery of possession. The defendant preferred an appeal to the High Court against the final decree determining the mesne profits for the period mentioned above. In the High Court the objection was sought to be raised for the first time that under Order XX, Rule 12, Civil P. C., the Court can award mesne profits only upto period of three years in the maximum and the trial Court erred in granting mesne profits upto the date of delivery of possession. The High Court took the view that the preliminary decree which awarded mesne profits upto the date of delivery of possession was binding upon the appellant-defendant and that, in any event the particular objection cannot be allowed to be raised for the first time in the High Court. In this view the High Court dismissed the appeal of the defendant making some modifications in the quantum of mesne profits. The defendant took up the matter to the Supreme Court and the decision therein is . Reghubar Dayal J., and Sikri, J. (as he then was) took the view that the appellant should have been allowed to raise the particular objection and the preliminary decree should be construed in accordance with Order XX, Rule 12 as limiting the period of mesne profits to three years in the maximum. The majority also did not agree with the quantum as determined by the High Court. Mudholkar, J. took a different view holding that the particular objection cannot be allowed to be raised for the first time in the High Court and that the preliminary decree which had awarded mesne profits upto the date of delivery of possession has become final. A careful perusal of the majority as well as the minority views shows that the entire discussion of the Supreme Court related only to the scope of Order XX, Rule 12, Civil P. C. and in particular, whether the preliminary decree would be binding upon the defendant at the stage of final decree proceedings and whether the objection that the period of award of mesne profits should not exceed three years could be allowed to be raised for the first time in the High Court. There is no reference to Order XX, Rule 18, Civil P. C. which deals with the case of suit for partition and mesne profits. Indeed in paragraph 18 of the judgment it is stated that there is no provision other than Order XX, Rule 12, Civil P. C. to cover a claim for mesne profits subsequent to the decision of the suit for recovery of possession of immovable property. It is true that the plaintiff in that case claimed recovery of possession of the A and C schedule properties as well as a partition and allotment of 1/24th share in the B schedule properties. There is no indication whatever in the judgment that any claim or objection was raised or any argument was advanced with regard to the relief of partition and separate possession of 1/24th share. A perusal of paragraphs 36 to 40 which contain the modification made by the Supreme Court with regard to the quantum particularly the table at page 1334, shows that no dispute was raised before the Supreme Court with regard to the B schedule properties. Indeed, the statement in the end of paragraph 1 of the judgment shows that there was no complaint before the Supreme Court concerning the mesne profits with regard to the B schedule properties. Indeed, the statement in the end of paragraph 1 of the judgment shows that there was no complaint before the Supreme Court concerning the mesne profits with regard to the B schedule properties. The crucial aspect of the essential distinction between a suit simpliciter for recovery of possession of specific items of properties and for mesne profits which would be governed by O. XX, R. 12 and a suit for partition with a claim for future profits and rendition of accounts of the income which would be governed by Order XX, Rule 18 Civil P. C. was not adverted to by the Supreme Court evidently for the reason that no argument was advanced with respect to the scope of Order XX, Rule 18, Civil P. C. concerning the B schedule properties. Throughout the judgment, there is no reference to the Full Bench decision of this Court in (FB), and we are not prepared to countenance the argument that the Supreme Court by implication intended to overrule the view taken by the Full Bench which has been followed in all the subsequent decision of the various High Courts. In this connection, it may be mentioned that the judgment on behalf of the Full Bench in was
delivered by Visawanatha Sastri, J., who later on argued as counsel for the appellant-defendant before the Supreme Court in . If no arguments were advanced by him touching the view taken in Basavayya v. Guruvayya, it was because there was no dispute about the B schedule properties, and the entire argument centered round only the scope of Order XX, Rule 12 and the limitation in the Court's jurisdiction to award mesne profits for more than three years.
6. A reference to a later decision of the Supreme Court reported in Gopalakrishna Pillai v. Meenakshi Ayal, , fortifies the view, though that case too dealt with a claim for mesne profits under O. XX, R. 12, Civil P. C. In that case the plaintiffs filed a suit for possession of specific items and the High Court passed a decree for recovery of possession of the items and also declared that the plaintiffs are entitled to mesne profits for three years prior to the suit and future mesne profits to be enquired into under Order XX Rule 12, Civil P. C. The objection before the Supreme Court was that there was no specific prayer for the decree for mesne profits subsequent to the institution of the suit and the High Court, therefore, had no jurisdiction to pass a decree for such future profits. It was in this context that the counsel for the defendant-appellants relied upon the decision of the Supreme Court in in support of his contention that if future mesne
profits were not asked for in the plaint the Court would have no jurisdiction to award. The Supreme Court did not accept this contention holding that no warrant was to be found for that view in the observations contained in Mohd Amin v. Vakil Ahmad. The Supreme Court ultimately held that in a suit for recovery of possession of immovable property and for mesne profits the Court has ample power to pass a decree directing inquiry into the future mesne profits, though there is no specific prayer for the same in the plaint. In the course of the discussion the Supreme Court has referred with approval to the Full Bench decision of this Court reported in Basavayya v. Guruvayya.
7. In a recent Bench decision of the Kerala High Court reported in Mariyumma v. Kunhambu Nair, ILR (1968) 1 Ker 43, the relative scope of Order XX, Rule 12, Civil P. C. and O. XX, R. 18, Civil P. C. came up for consideration and the Bench rejected a similar argument based upon the decision of the Supreme Court in Subbana v. Subbanna. The Bench held that in a suit for partition which is governed by O. XX, R. 18, Civil P. C., it is open to the Court to award mesne profits in the final decree proceedings though there is no prayer for such relief in the plaint. At page 47, it was pointed out in the Bench decision that in Subbanna v. Subbanna the Supreme Court had considered only the scope of O. XX, R. 12, Civil P. C., which limits the maximum period to three years and the decision of the Supreme Court is of no assistance when the case in one of a partition governed by Order XX, Rule 18, Civil P. C. The Bench referred to with approval and followed the Full Bench decision of this Court and reiterated the same view that in a suit for partition the Court's duty is not only to divide the common properties, but also to adjust equities arising between the parties out of their relation to the common properties sought to be divided and that a sharer claiming partition has a clear right to an account of the profits pertaining to his share right uptil the moment of the final decree and that the profits so accruing and awardable to the plaintiff from the subject-matter of the division as being part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves. It was also observed that a claim for profits in a suit for partition by a sharer of the common property is not a claim for mesne profits falling under Order XX, Rule 12, Civil P. C. This Bench decision contains a survey of the case law and with respect, we agree with this view. For all these reasons, we have no hesitation in holding that in a suit for partition the plaintiff-co-sharer will be entitled to and the Court will have ample jurisdiction to award mesne profits or rendition of amounts of the income of the plaintiff's share of the properties right upto the moment of the delivery of possession. The result is that the appeal is dismissed with costs.
8. The cross-appeal by the plaintiff in respect of the portion disallowed is also dismissed as lacking in substance. There will be no costs in the cross-appeal.
9. Appeal dismissed.