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Gulusam Bivi Vs. Ahmadsa Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in51Ind.Cas.140
AppellantGulusam Bivi
RespondentAhmadsa Rowther and ors.
Cases Referred and Maimod Rowther v. Doraisami Naicker Appeal
Excerpt:
civil procedure code (act v of 1908), order xx, rule 12, 18 - partition suit--preliminary decree, omitting directions for future mesne profits--enquiry at time of. - - 3. i fail to see why the same principle should not be applied to preliminary and final decrees in partition suits......she was 10th defendant. the preliminary decree in the suit is silent on the subject of future mesne profits on appellant's share and the question is whether she is entitled to ask that they should be determined and included in the final decree.2. in my opinion she is not. we are not now concerned with the decision of the full bench in doraisami aiyar v. subramania aiyar 42 ind. cas. 929 that where the decree in a suit for possession leaves a claim to mesne profits undecided, a fresh suit for the mesne profits will lie. what we have to determine is the extent to which the final decree in a partition suit can provide for matters which are not settled or directed to be enquired into by the preliminary decree. the relevant provisions of law are rules 12 and 18 of order xx, which have to.....
Judgment:

Ayling, J.

1. This appeal relates to appellant's claim to future mesne profits on the property awarded to her by the decree in a partition suit in which she was 10th defendant. The preliminary decree in the suit is silent on the subject of future mesne profits on appellant's share and the question is whether she is entitled to ask that they should be determined and included in the final decree.

2. In my opinion she is not. We are not now concerned with the decision of the Full Bench in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 that where the decree in a suit for possession leaves a claim to mesne profits undecided, a fresh suit for the mesne profits will lie. What we have to determine is the extent to which the final decree in a partition suit can provide for matters which are not settled or directed to be enquired into by the preliminary decree. The relevant provisions of law are Rules 12 and 18 of Order XX, which have to be read together, and in my opinion their effect is against appellant. A simple suit for possession of specific immoveable property, uncomplicated by any question of partition, is governed specifically by Rule 12: and it seems clear to me that in such a suit the final decree could only provide for mesne profits, past or future, where an enquiry into the same had been directed by the preliminary decree. If, either intentionally or inadvertently, the Court had omitted to direct such an enquiry, the aggrieved party must get the preliminary decree amended; no application for mesne profits not provided for in the preliminary decree would be entertained in framing the final decree. This was not, in fact, contested by the learned Vakil for appellant.

3. I fail to see why the same principle should not be applied to preliminary and final decrees in partition suits. Rule 18 (2) says:

The Court may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the several parties interested in the property, and giving such further directions as may be required.

4. As to what follows the rule is silent; but the law obviously intends that a final decree should be passed as in the cases specifically dealt with by Rule 12: and I think the 'further directions' must be understood as relating to the further enquiry' which is found necessary and that the final decree, contemplated, though not specifically referred to, by Rule 18, should be restricted in exactly the same way as the final decree referred to in Rule 12 With all respect, I am unable to agree with the view expressed by Oldfield, J., in Venkamamidi Mahalakshmamma v. Venkamamidi Rajamma 43 Ind. Cas. 458 that a direction for enquiry regarding future mesne profits should be made in the final decree and they should be the subject of a separate final decree after its conclusion. This involves three distinct stages of decree; whereas, as it seems to me, the law expressed in the rules above quoted contemplates only two see Bhartendu v. Yaqub Husain 18 Ind. Cas. 701 and Kamini Debi v. Promotho Nath Mukerjee 27 Ind. Cas. 317. I respectfully agree in this connection with my Lord the Chief Justice, who says in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929: 'The change introduced by the new rule is that the award of mesne profits in all cases is to be by preliminary decree and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they were to be ascertained in execution.' We are referred to an unreported case Maimod Rowther v. Doraisami Naicker (Appeal against Order No. 277 of 1917) in which the learned Judges remarked that unless there was an adjudication on plaintiff's rights to profits before the preliminary decree was passed, there was no reason why the Court should not provide in its final partition decree for an enquiry regarding it. Neither this decision nor that of the single Judge in Venkamamidi Mahalakshamamma v. Venkamamidi Rajamma 43 Ind. Cas. 458 is of course, binding on us, but I may remark that the circumstances of the unreported case were quite different. In that case a party was endeavouring to attack in execution the terms of a final decree which had already been passed, and had conclusively determined the right to the mesne profits in question. Even if the judgment had been directed to he reported, the remarks above quoted would be of an 'obiter' nature in so far as they went beyond the facts of the case.

5. I would dismiss the appeal with costs of defendants-respondents.

Krishnan, J.

6. I agree with my learned brother that this second appeal fails.

7. The 10th defendant, who is the appellant before us, claimed past and future profits along with her share in the property in her written statement. But the preliminary decree, which was passed so long ago as 1909, said nothing about future profits while refusing the past profits, though it recognised her claim to a share in the property. She appealed against the decree and again claimed future profits, but the Appellate Court also did not deal with them or grant them. Though she filed a second appeal she did not again renew her claim for such profits.

8. The final decree was passed in 1915, in which the 10th defendant was given her share in the property. She again appealed to the District Court and there claimed future mesne profits once again. Apparently she did not claim them in the first Court when it was passing its final decree, as there is no reference to them in its judgment. The District Judge refused to allow the matter to be re opened before him and 1 think he was right in doing so in the circumstances of this case.

9. The learned Judge may be wrong in saying that the appellant's claim to future profits has been 'definitely, though not explicitly, decided against her', and it may be that it is still open to her to sue for them if so advised under the ruling of the Full Bench in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929. I do not, however, think that that is any reason why the final decree should be any longer delayed by directing a fresh enquiry into mesne profits even if it is competent to the Court to do so now. Admittedly the claim for future mesne profits in a suit for possession of immoveable property is not one which a party can, as a matter of right, insist upon being adjudicated upon in the suit. I think, therefore, the Judge was right in refusing to consider the question of future profits in the appeal before him.

10. As the question when exactly the order directing an enquiry into mesne profits should be made in a partition suit has been argued at some length before us, I think it proper to state my view regarding it. I agree with my learned brother that the order should be passed at the time of the preliminary decree itself.

11. It is Rule 18, Clause (2), of Order XX of the First Schedule of the Code of Civil Procedure that provides for the passing of the preliminary decree in a partition suit. That rule gives power to the Court when passing such a decree to give such further directions as may be required.' These words, I think, are wide enough to include a direction for an enquiry into mesne profits; but under the rule the direction should be in the preliminary decree. It is not necessary to pray in aid Rule 12.

12. The wording of Rule 12 of Order XX is not such as would properly apply to a partition suit, for it contemplates a suit for possession in which a decree for possession can be passed at the very first stage; whereas in a suit for partition, though finally a decree for possession of specific immoveable property may be passed, it is not always convenient to do so without a preliminary decree and a further enquiry; and it may also happen that in such a suit directions as to several other matters such as payment of debts and collection of outstandings may become necessary. The rule does not, therefore, in my opinion properly apply, by its own force, to a partition suit. No doubt in making an enquiry into profits ordered under Rule 18 the provisions of Rule 12(1), Clauses (b) and (c), and Clause (2) will be kept in view as guiding the Court in such an enquiry.

13. But even if we assume that we should read Rule 18, Clause (2), with Rule 12(1), Clauses (b) and (c), and Clause (2) to grant mesne profits in partition suits, I am of opinion that the preliminary decree which each rule contemplates is one and the same and it is not necessary to have two different preliminary decrees and two different final decrees at different stages. Neither rule contemplates more than one preliminary decree and one final decree in one suit. In fact the Code nowhere contemplates more than one preliminary decree and one final decree in one suit. To have two final decrees and to call the first one a final' decree will be really a misnomer, as it will not be final. To hold the view taken in Venkamamidi Mahalakshmamma v. Venkimamidi Rajamma 43 Ind. Cas. 458 and Maimod Rowther v. Doraisami Naicker Appeal against Order No. 277 of 1917 is, it seems to me with all respect to the learned Judges, to unnecessarily lengthen out proceedings with a possibility of appeals and second appeals from at least three different decrees in the same suit.

14. Assuming that Rule 12 should be read with Rule 18 to give mesne profits in a partition suit, is there anything in the former rule that compels the Court to wait till the passing of the final decree in partition, before it can order an enquiry into mesne profits? It is said that there is, because the rule speaks of passing a decree for possession in Clause (a) when directing enquiry into profits under the following clauses and it is argued that in a partition suit the decree for possession is the final decree. In considering the wording of Rule 12, as already pointed out, it must be borne in mind that it contemplates a suit where a decree for possession can be passed at the very first stage. In applying that rule to a case where such a decree cannot be passed as in a partition suit, we are, I think, not justified in reading it too strictly but we should make the necessary allowance to avoid unnecessary multiplicity of proceedings especially when Clause (a) does not properly apply to such a suit. I can see no difficulty in holding that an enquiry into mesne profits should, if the Court thinks fit to order it, be directed in the preliminary decree itself and that, I believe, is in accordance with the prevailing practice of the Courts. I, therefore, consider that when the 10th defendant applied for mesne profits before the preliminary decree was passed, she acted properly but when they were not granted to her, her remedy, if any, was by a separate suit. It was too late for her to ask for them in the present appeal.

15. I agree the second appeal should be dismissed with costs of defendants (respondents).


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