N.S. Ramaswami, J.
1. This revision petition is against the dismissal of an application which is really one under Order 20, Rule 18, Civil Procedure Code, though incorrectly stated as one under Order 20, Rule 12 Civil Procedure Code. The revision petitioner is the plaintiff in O. S. No. 98 of 1967 on the file of the lower Court, in a suit for partition and separate possession. There was a preliminary decree for partition on 16th August, 1969. Later there were final decree proceedings during which the revision petitioner filed an application purporting to be under Order 20, Rule 12, and Section 151, Civil Procedure Code for ascertainment of profits from the suit properties and for allotment of a share therein to him. It appears that according to the case of the revision petitioner the suit properties were in the possession of the respondent (defendant in the suit ) and that therefore the defendant was bound to render an account in respect of the profits from the date of suit up to the date of the final decree. The Court below has passed a final decree on 17th September, 1970 but the profits claimed by the revision petitioner had not been ascertained and the same had not been incorporated in the final decree. Though the application (I. A. No. 1826 of 1969) for ascertainments of profits and division of the same, had been filed even before the passing of the final decree, the Court below had taken up that application for enquiry only subsequent to the passing of the final decree, and dismissed the same. Broadly speaking, the Court below has given two reasons for so dismissing the application and they are : (1) The preliminary decree does not give any direction for determining the profits in separate proceedings (2) After the passing of the final decree, no application for ascertainment of profits can be entertained.
2. On the face of it, the order of the Court below is wholly unsustainable. The learned Subordinate Judge had not kept in mind the distinction between a suit for possession and a suit for partition and separate possession. Only in the case of a suit for possession, if mesne profits are not determined at the time when the decree is passed there should be a direction in the decree that the mesne profits are to be determined in separate proceedings and in such a case there can be an application under Order 20, Rule 12, Civil Procedure Code. Only in a suit for possession, the defendant who is in possession of the property is bound to pay mesne profits, but in a case for partition and separate possession, the profits derived from the properties subsequent to the filing of the suit is really not mesne profits as such, for the simple reason, the party who is in possession of the property or properties is not in wrongful possession. As a co-owner, the possession of a particular party in a suit for partition is not similar to possession held by a defendant in a suit for declaration of title and possession. In a suit for partition, the future profits from the property ought to be ascertained as property that is to be divided among the sharers. When a preliminary decree directs partition of the suit properties according to the shares declared therein, it is the duty of the Court not only to divide the several items of properties described in the plaint schedule but also the future profits derived therefrom from the date of suit till date of final decree, for, profits so derived are also '' property ' liable to be divided between the sharers. If one of the sharers happens to be in possession of all the suit properties and he had been deriving the profits therefrom during the pendency of the suit, he is bound to account for the same and the other sharers are entitled to their respective shares in the net profits on such accounts. The Court below has proceeded on the footing as if the application made by the revision petitioner is one for ascertainment of mesne profits as in a suit for possession. To a certain extent, the revision petitioner himself is to be blamed, for, the application is purported to be under Order 20, Rule 12, Civil Procedure Code. As I said that provision applies only to a suit for possession, where the defendant who has been directed to deliver possession of the property to the plaintiff decree-holder should be deemed to be in wrongful possession of the property till he so delivered possession. The above position has been made clear by a Full Bench of this Court in Basavayya v. Guravayya : AIR1952Mad61 . The headnote brings out the point and it is as follows 4
Order 20, Rule 12, relates to 'mesne profits' in the sense in which that expression is defined in Section 2, Clause (12.) of the Code. The claim of a member of a joint Hindu family suing for partition and for his share of the profits accruing from the lands pending the suit is not, properly speaking a claim for ' mesne profits ' and Order 20, Rule 12, Civil Procedure Code, has no application to such a case. In a suit for partition the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and- decided before an equitable final partition can be effected. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order 20, Rule 18, does not prohibit the Court from issuing such, directions after the stage of a preliminary decree. The mere fact that the preliminary decree docs not direct an enquiry into profits subsequent to the date of the suit does nor preclude the parties from applying for, or the Court from awarding, such profits by its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards, the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree.
3. Therefore the Court below is incorrect in its conclusion that the prayer of the revision petitioner cannot be granted inasmuch as the preliminary decree does not direct that the profits may be determined in separate proceedings.
4. However, Mr. N. Sivamani, the learned Counsel for the respondent urges that in the present case, the final decree itself having been passed, the Court has become functus officio and that therefore the application for ascertainment of mesne profits cannot be entertained. The learned Counsel seeks support for his above contention from some of the observations of the Full Bench in the above case and from those in two other cases, namely Ponnusiwami v. Santhappa : AIR1962Mad171 , rendered by Jagadisan, J. and Thyagarajan v. Sundaravelu : AIR1972Mad216 , rendered by Raghavan, J. In the Full Bench case, it was observed at the end of the judgment as follows:
It is open to the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree and in either case the result of the enquiry has to be incorporated in the final decree.
In Ponnuswami v. Santhappa : AIR1963Mad171 , Jagadisan, J. after quoting the summing up of the legal position by the above Full Bench, stated that an application for ascertainment of future profits can be filed and maintained so long as the partition suit has not ended in a final decree. The learned Counsel contends that as the Full Bench held that the result of the enquiry regarding profits has to be incorporated in the final decree and the judgment of Jagadisan, J., also stated that an application for ascertainment of profits is maintainable until the suit for partition has ended in a final decree, no enquiry regarding profits can be ordered after the final decree is passed.
5. But it must be remembered that in those cases, the Court has not considered the question whether ascertainment of profits in a suit for partition can be made even after a final decree. In those cases no final decree had been passed and the Court was concerned in those cases whether an application for ascertainment of profits was entertainable at that stage or not. The Court was not concerned with the question whether even after passing of a final decree an application for ascertainment of profits is entertainable or not. As a I said earlier, in a suit for partition of common properties, profits accruing from the properties subsequent to the filing of the suit, is also property to be divided among the sharers. When the preliminary decree directs division of the property it means that not only the properties described in the plaint schedule but also the profits derived therefrom, after the filing of the suit till the date of final decree, have to be divided according to the shares declared in the decree. Therefore, the mere fact that there is a final decree in respect of the property described in plaint schedule, which final decree does not incorporate the profits derived after filing of the suit, is not a ground to refuse the request that the profits should be ascertained and divided. No doubt, a suit is finally disposed of by passing a final decree but if certain items of properties had not been divided under a final decree passed by the Court, the Court has not only the power but also the duty to divide the remaining property according to the shares declared in the preliminary decree.
6. Supposing in a suit where there are half a dozen items of properties described in the plaint schedule and when the final decree was passed, by inadvertence or otherwise, a particular item of property had been left out from division, it is meaningless to say that just because the Court has already passed a final decree, the property that had been left out is not to be divided at all. Undoubtedly in a situation like that, the Court is bound to pass another final decree dividing the property that had been left out in the first final decree. I am unable to see any difference between profits derived from the properties after the filing of the suit for partition and from any particular item of property described in the plaint schedule itself, in respect of the above aspect. As seen earlier, profits from the properties derived after the suit for partition is also property to be divided among the sharers and if the Court, while passing a final decree, has failed to take the profits into consideration, it is bound to go into the question of profits even subsequently and pass a final decree regarding the same. What the Full Bench has stated should not be understood as saying that after the passing of a final decree, the Court is powerless to ascertain the profits derived from the property after the filing of the suit. Normally the future profits have to be ascertained before the passing of the final decree and the same should be incorporated in the final decree. But that does not mean that if profits had not been so ascertained before the passing of the final decree and it had not been incorporated in the said final decree, the Court, cannot ascertain the profits subsequently and divide the 'same among the sharers. I am clearly of the view that the Court has not only the power but also the duty to ascertain the profits and divide the same according to the shares declared in the preliminary decree. Till this is done, the suit for partition cannot be said to have been completely disposed of in spite of the Court having already passed a final decree. Though, normally, the suit for partition is completely disposed of when a final decree is passed, if the final decree does not cover all the properties that are to be divided, then undoubtedly the suit must be held to be still pending and not completely disposed of.
7. It has been repeatedly held by this Court that there can be more than one final decree. In Kan v. Ramanthan Chettiar : (1947)2MLJ523 . a Division Bench of this Court held that the Code of Civil Procedure contemplates passing of not only more than one preliminary decree but also more than one final executable decree. This decision has been approved by the Full Bench referred above. This is what the Full Bench stated in paragraph 6 of the judgment at page 940, column 2:
Ordinarily there would be one preliminary and one final decree but as pointed out in Kasi v. kamanathan Chettiar : (1947)2MLJ523 there is nothing in the Civil Procedure Code which can be construed as a prohibition against the Court, in a proper case, passing more than one preliminary decree and one final executable decree in a suit.
8. The very question whether profits derived from the properties in a suit for partition can be ascertained after passing of a final decree came up for consideration in Krishnamma v. Latckumanaidu A.I.R. 1958 A.P. 520. In that case also, a contention similar to the one that is put forward in the present case was raised. The contention was that the ascertainment of profits should be made only before passing a final decree and the same should be incorporated therein and if the final decree does not give any such relief it is not open to the Court to ascertain the profits thereafter. In that case also the observations of the Full Bench of this Court referred to earlier were relied on. Subba Rao, C.J., as he then was, speaking for the Bench, after quoting the observations of the Full Bench of this Court, stated thus at page 522, column 1:
The Full Bench recognised that there was nothing in the Civil Procedure Code which can be construed as a prohibition against the Court in a proper case passing more than one preliminary decree and one final executable decree in a suit. In a proper case, therefore, where a supplemental final decree can be made, the Full Bench does not preclude the Court from ascertaining the profits and including the same in the supplemental decree. If a party to a partition files such an application for the ascertainment of future profits and the Court, without disposing of that application, makes a final decree in respect of the other matters and without incorporating any relief for profits, the legal position is that the entire subject matter of the suit has not been finally disposed of and, on that basis, it may be open to the Court to make another supplemental final decree in regard to profits.
In the present case, as already indicated, the revision petitioner has in fact filed an application for ascertainment of profits even before the final decree was passed. The Court below had not considered that application while passing the final decree and later dismissed the same holding that such application cannot be maintained after the passing of the final decree. This is wholly incorrect.
9. In K. S. Doraiswami Nadar v. Vinayaka Ramaswami Nadar : (1969)1MLJ392 , a Division Bench of this Court has held that there can be any number of applications for passing a final decree in a suit for partition.
10. Strong reliance is placed on the decision of Raghavan, J, in Thyagarajan v. Sundaravelu : AIR1972Mad216 in support of the contention on behalf of the respondent herein, namely that after the passing of final decree, the Court has no jurisdiction to entertain an application to ascertain the future profits. But before referring to that decision, I would refer to two other decisions of this Court, also referred to by Mr. Sivamani, the learned Counsel for the respondent.
11. The first is Rasamma' v. Subbaroya Gounder : AIR1972Mad216 . There Ramachandra Iyer, C.J , held that where the future profits had not been determined or incorporated in the final decree in a suit for partition, a subsequent suit for recovery of the same is not barred under Order 2, Rule 2, Civil Procedure Code. I am unable to see how this decision helps the respondent. That is an authority for the position that a subsequent suit for the profits is not barred. Even if a subsequent suit is not barred, an application for ascertainment of profits in the suit for partition itself, even though a final decree has already been passed, should be maintainable a fortiori. Incidentally it may be noted that the learned Judge affirmed the position that income received from the properties subsequent to the suit for partition would also form part of the assets which are liable to be divided amongst the sharers.
12. The other case is Varalharajulu Reddiar v. Venkatakrishna Reddiar : (1967)2MLJ342 rendered by Natesan, J. The learned Counsel relied upon the observation of Natesan, J., that there cannot be two final decrees for partition with reference to the same property. From this observation, it is contended that a final decree having been passed in respect of the property described in the plaint schedule, there cannot be another final decree in respect of profits derived from the very same property. But the learned Judge has nowhere stated that profits derived from a property during the pendency of the suit is also part of the same property or in other words, the profits merge in the property and that therefore, if there is already a final decree in respect of the particular item of property, there can be no further enquiry regarding profits, as contended for by the learned Counsel. As a matter of fact, the learned Judge (Natesan, J.) recognises the principle that there can be more than one final decree, if circumstances warrant such a course. There is nothing in the judgment in support of the contention of the learned Counsel for the respondent.
13. Subba Reddiar v. Hazra Bibi (1972) 85 L.W. 699, a decision by a Division Bench of this Court also does not help the respondent in this case. The learned Counsel relied upon the observations in that case at page 702 column 2 that the Court will have jurisdiction to decree mesne profits upto the date of final decree. But that does not mean that once there is a final decree in respect of the immovable property in a suit for a partition there cannot be an enquiry regarding the profits. In fact the above observation is not really the view of the Division Bench but it is an extract of the observation in Krishnamma v. Lachuma Naidu A.I.R. 1958 A.P. 520, explaining the observations of the Supreme Court in Mohammed Amin v. Vakil Ahmed : 1SCR1133 . The Division Bench of this Court concluded at page 705 column 2 that in a suit for partition the plaintiff co-sharer will be entitled to, and the Court will have ample jurisdiction to award rendition of accounts of the income of the plaintiff's share right upto the moment of delivery of possession.
14. As I said, strong reliance is placed by the learned Counsel on the decision rendered by Raghavan, J. in Thyagarajan v. Sundaravelu : AIR1972Mad216 . There the learned Judge held that after the passing of the final decree, there cannot be another final decree regarding mesne profits on the footing that the mesne profits merge in the property from which it is derived. That cannot be taken to be a proposition of law. The judgment of Raghavan, J. was considered by Krishnaswamy Reddy, J. in Manicka Mudaliar v. Munilakshmammal : AIR1973Mad157 . Krishnaswamy Reddy, J., has pointed out that though mesne profits, if ascertained, might merge into the corpus, if it had not been so ascertained, it is separable and it is open to the parties to ask for more than one final decree depending upon the exigencies and other factors of the case. In fact, as already pointed out, in a suit for partition it is not ' mesne profits ' that can be claimed, the simple reason being that the possession by one sharer is not wrongful. A co-sharer in possession is only bound to render an account regarding profits after suit, as that is also property to be divided amongst the sharers. Take, for instance, a case where there are half a dozen items of immoveable properties all in the possession of one sharer and he has kept a true and proper account regarding the income of all the six items as one unit and such account is acceptable regarding the net profits shown therein. In such a case it may not be necessary or even possible to ascertain the profits for each item separately. If in that case, final decree has been passed in respect of some of the items of immoveable properties only (without dividing the profits) can it be said that there can be a second final decree only in respect of the remaining items of immoveable properties but not regarding the profits in respect of all the item? When there is the possibility of the profits from an individual item as inseparable from that of another item, I am unable to see how it can be laid as a proposition that profits merge with the respective item.
15. The learned Counsel also referred to Maddanappa v. Chandramma : 3SCR283 and Gopalakrishna Pillai v. Meenakshi Ayal : AIR1967SC155 , in the course of his arguments, but those are cases arising out of a suit for possession and they do not relate to a suit for partition and separate possession. Further the observations in these cases do not in any way help the learned Counsel. In Phoolchand v. Gopal Lal : 3SCR153 also referred to by the learned Counsel, it was held that as long as final decree has not been passed, the Court can take into account events that transpired after the preliminary decree and vary the share specified in the preliminary decree. This has nothing to do with the present question. The Court below therefore, had failed to exercise the jurisdiction vested in it while holding that it cannot go into the question of profits from the property after the filing of the suit inasmuch as a final decree has already been passed.
16. The civil revision petition is accordingly allowed. However, it is made clear that the suit being not one for possession it should not be taken for granted that the defendant is bound to pay mesne profits and that what has to be ascertained is only the quantum. This being a suit for partition and separate possession, the Court is to ascertain as to which of the parties was in possession of which item of the suit properties in order to adjust the equities relating to the income derived from the properties. If the defendant had been in possession of all the suit properties, then he is bound to render an account regarding the profits from the date of suit and the plaintiff should get his share in the same. If on the other hand, the plaintiff himself had been in possession of the properties, then it is he who should render an account although he has filed the application for ascertainment of profits. If some properties were in the possession of the plaintiff and some were in the possession of the defendant, then each has to account for the profits from the respective properties. Supposing the lands have been lying fallow from the date of suit and no profits had been derived from the properties, then there would be no question of anyone accounting for the profits to the other, as far as the suit for partition is concerned.
17. The Revision Petition is allowed and the matter remitted back to the Court below for disposal of the application on merits in the light of the observations above. No costs.