M. Natesan, J.
1. This Second Appeal has been filed by defendants 1, 3 and 4 and arises out of a suit for recovery of possession of the plaint schedule properties with future mesne profits from the date of suit. Defendants 3 and 4 are wife and son of the first defendant and have been added subsequent to the institution of the suit, the fourth defendant being a minor represented by his mother as guardian ad litem. The plaintiff Sivagami Ammal was the wife of one Arunachalam Pillai, to whom the suit properties admittedly belonged. The and defendant in the suit was impleaded as the santhathi or son of the plaintiff and the said Arunachalam Pillai. It was the plaintiff's case that Arunachalam Pillai who was leading a wayward life and dissipating his properties, at the request of the plaintiff and others interested in the couple, executed a settlement deed on 31st March, 1925, whereunder the suit properties were settled on hereself and her husband for their lifetime to be enjoyed jointly. The properties have to pass on. to their issues on the death of the survivor of them. The settlement deed generally prohibits alienations by the husband and Wife, alienation being permitted, if necessary only by both the husband and wife jointly. The settlement is evidenced by the registration copy, Exhibit A-2. Defendants 1, 3 and 4 were impleaded as alienees from the husband, the alienations having been made in contravention of the terms of the settlement deed. Arunachalam Pillai, the plaintiff's husband, died on 9th February, 1957. Alleging that the first defendant was interfering with the plaintiff's enjoyment of the suit properties on the strength of the alienations made by the deceased Arunachalam Pillai, the suit was instituted on and January, 1961. The plaintiff averred that the transfers by the deceased were not binding on her and that she became entitled to the exclusive possession of the suit properties for her life on the death of her husband, her son, the and defendant, to succeed to the properties as the vested remainderman after her. In defence Inter alia defendants 1, 3 and 4 contended that the settlement deed was a sham and nominal transaction executed with the sole object of screening the properties from creditors and it was never intended to take effect. These defendants pleaded that shortly after the settlement, the plaintiff eloped with one Sangu Thevar, the power-of-attorney agent of the plaintiff in the present Court proceedings, and that thereupon Arunachalam Pillai on 29th April, 1925, by a registered deed duly cancelled the original settlement he had duly made. The deed of cancellation is evidenced by Exhibit B-1. It was further pleaded in defence that Arunachala Pillai himself continued in possession of the properties in his own right and that possession had passed from him to his transferees on transfer and that thus, the plaintiff's claim was barred by adverse possession. There was a plea that some of the suit properties were not in their possession and that they had no interest whatsoever in those particular items. There was also a plea that the third defendant was not a necessary party to the action, as her interest and right in a half share in items 13 and 16 of the suit properties was derived from Murugayya, the elder brother's son of the deceased Arunachala Pillai to whom that share had been allotted in their family partition. These defendants further plead that the 2nd defendant was not the son of Arunachalam Pillai as long before his birth the plaintiff had deserted .Arunachalam Pillai and that the and defendant was not a santhathi of Arunachalam Pillai and the plaintiff. It was therefore said that the second defendant was an unnecessary party to the suit. The trial Court found for the contesting defendants and held that the settlement deed was only a sham and nominal transaction, which was not given effect to by Arunachalam Pillai and that plaintiff had at no time any enjoyment of the suit property. The issue as to the legitimacy of the second defendant was left open, it being remarked that the learned Counsel for the first defendant had conceded that the question need not be gone into in the suit. The 2nd defendant, in the circumstances, was deemed to be an unnecessary party to the suit by the trial Court. The title and right to possession of the contesting defendants being found, the plaintiff's suit was dismissed with costs.
2. The plaintiff preferred the Appeal A.S. No. 100 of 1962, from this decision reiterating her claims arid contentions. Pending the appeal the plaintiff, Sivagami Ammal died on 15th February, 1962, intestate leaving her surviving as her only issue and son, the 2nd defendant in the suit. The 2nd defendant had been impleaded in the appeal as the second respondent and by LA. No. 85 of 1962 he applied to be transposed as the second appellant in the appeal in his character as the legal representative of the deceased Sivagami Ammal that he may proceed with and prosecute the appeal further. In the affidavit in support of the application, it was stated that the right to sue and the right to carry on the appeal survived in him as the only heir of the deceased Sivagami Ammal and that he was therefore, entitled to be transposed as the second appellant and legal representative of the deceased. There was no objection to the 2nd defendant--2nd respondent in the appeal being transposed as. the second appellant for the purpose of further prosecution of the appeal. In the counter-affidavit filed, it was specifically stated that the respondents (the contesting defendants in the suit) had no objection to have the second defendant regarded as the legal representative of the deceased, as the son of his mother, Sivagami Ammal. Only they did not admit that he was the son of Arunachalam Pillai. They questioned this claim that Arunachalam Pillai was his father. The contesting respondents in the appeal were not only willing but had no objection to the appeal being further prosecuted by the 2nd defendant in the suit as the legal representative of the deceased plaintiff. The application was therefore ordered and the appeal was continued with the son of Sivagami Ammal as the 2nd appellant. No question was raised at any stage of the proceedings in the lower appellate Court that the cause of action did not survive to the son of the deceased. The averment in the affidavit of the 2nd defendant that the cause of action survived to him and that he could further prosecute the appeal was not traversed. In the circumstances when the appeal was taken up for hearing, the question that the learned Subordinate Judge posed before himself for consideration was, whether the settlement deed had taken effect and if so, whether its cancellation was binding on the plaintiff. On his review of the oral and documentary evidence and on a consideration of the probabilities and the circumstances of the case and rejecting the story of elopement pleaded by the respondents as totally false and unacceptable, he concluded that the settlement was not a sham transaction. He held that the unilateral cancellation of it by the settlor was not valid and would not bind the donee. The very terms of the settlement, deed were opposed to the contention that the settlement was a sham transaction. Some five years after the settlement deed, othi had been executed by the husband and wife jointly and according to the learned Subordinate Judge, this established that the settlement deed had been given effect to and followed by Arunachalam Pillai. The subsequent transaction further established according to the learned Subordinate Judge, that the cancellation deed was not given effect to and had not taken effect. The finding as to the reality of the settlement is a pure question of fact in the circumstances of this case, ,and nothing has been made out for upsetting the finding. The learned Subordinate judge also examined the plea of adverse possession put forward for the contesting defendants and found against the plea. Alienations in favour of defendants 1, 3 and 4 were all within 12 years prior to suit and according to the learned Subordinate Judge it had not been established that the possession of Arunachalam Pillai prior to the alienation was adverse to his tenant-in-common, that is the plaintiff. Under the settlement, the husband and wife were tenants-in-common, of the settled properties.. Exhibit B-1 the cancellation deed, according to the learned Subordinate Judge, whereunder the husband purported to revoke the settlement, had not been given effect to. Subsequent to the settlement deed about five years after, the husband and wife had joined together and executed othis of the settlement properties. Reliance was placed before me on behalf of the contesting defendants on Exhibit B-5 and 6-25 for making out the case of adverse possession of the properties by Arunachalam Pillai. Under Exhibit 5 there was no transference of possession by Arunachalam Pillai. The document is a further mortgage and refers to the earlier possessory mortgage, Exhibit B-4, dated 13th) August;, 1930, jointly executed by the plaintiff Arunachalam Pillai. The mortgagee had entered into possession of the property under Exhibit B-4 from both the tenants-in-common and his lawful possession cannot become adverse by his merely taking a subsequent possessory mortgage of the same property from one of the tenants-in-common, purporting to be the exclusive owner of the properties. Rightly, no weight has been given to this document by the lower appellate Court : as in any way making out the defendants' case of adverse possession of Arunachalam Pillai against his wife. The document Exhibit 35 too has no relevance on the question of adverse possession. It is a registration copy of the will executed by the plaintiff's own father of his properties. There, the father refers the fact of his daughter living separately from her husband, as a reason for his making provisions for her by the will. It certainly is not any evidence that Arunachalam Pillai was holding the properties in the year 1938 adverse to his wife. He was a tenant-in-common with her and had in 1930 joined with her in executing; othi of the properties, thereby recognising the joint rights of both in the properties. The finding as to the adverse possession given by the lower appellate Court cannot therefore be impugned in this Court within the limits of a Second Appeal. There was ample and substantial material for the learned Subordinate Judge to arrive at the conclusion as he has done and the strenuous arguments of Mr. R. Rajagopala Aiyar,, learned Counsel for the appellants before me, do not make out that these findings of fact are in any way vitiatec and open for reconsideration in Second Appeal.
3. The learned Subordinate Judge even as the trial Court did, left the question of the legitimacy of the and defendant open in the trial Court; he observed that the question of the 2nd defendant's legitimacy was not relevant for the purpose of the suit. Neither of the parties had claimed an adjudication on this question. In result on the finding that the settlement had taken effect and that there had been no valid cancellation of it, the learned Subordinate Judge set aside the decree of the trial Court and decreed the suit for possession of the plaint schedule properties. As the learned Subordinate Judge had accepted the case of the third defendant of her claim to a half share of items 15 and 16, her share in those items was exonerated from the suit. He directed mesne profits in respect of the properties decreed, to be ascertained by separate proceedings under Order 20, Rule 12, Civil Procedure Code.
4. Apart from the merits of the case, which I have discussed already, a further point is raised before me, the competency of the lower appellate Court to grant a decree for possession in favour of the second defendant as the legal representative of the plaintiff, after the death of the plaintiff. It is most unfortunate that this aspect of the matter was completely lost sight of and ignored by the lower Court. Under the settlement deed, the plaintiff held only a life estate and the remainder went to the lawful issue of the settlor and his wife. The 2nd defendant was impleaded in the suit as a party defendant on the averment that he is the son of the settlor. This was questioned and both the Courts below have left the question open whether the second defendant is the santhathi of the settlor and his wife the plaintiff in this case. The settlor died in 1957. On his death under the terms of the settlement deed, the possession would continue in his wife, the plaintiff, for her life and after her, the issue gets the properties. If the second defendant is the issue of Arunachala Pillai and his wife, he would in his character as the santhathi be entitled to the suit properties; but the second defendant had been transposed in the appeal only as the legal representative of the plaintiff and not as the santhathi of Arunachalam Pillai. As the legal representative of the plaintiff, Sivagami Ammal, he would be entitled to whatever estate she had in the property, that pass on her death to her heir. But her possession of the suit properties was only for her life and on her death her interest therein ended and could not pass on to her heirs. Clearly, the cause of action, for the claim for possession of the suit properties under the settlement did not survive to her heirs. The second defendant has come on record only as her heir. The trial Court held that he was an unnecessary party. His status as santhathi was not adjudicated upon and both the Courts have considered any adjudication of that question unnecessary. No heir of the plaintiff as such can claim to be brought on record to continue the suit for possession and take a decree for possession. The claim for possession manifestly abated with the death of the plaintiff; the position is incontestable. Surprisingly, this point was not taken in the lower Court. It is difficult to imgaine why it was missed and whether the attitude of the defendants then was deliberate, the defendants evidently not willing to give up the findings in then favour about the invalidity of the settlement deed and hoping to have the findings confirmed in their favour in the appeal, in the presence of the second defendant. Otherwise, I cannot understand the attitude adopted by the defendants. Cautiously in the counter affidavit, they denied, only the status of the second defendant as the son of Arunachalam Pillai. They conceded that he was the legal representative of the plaintiff and that he may be brought on record. As observed by me, when setting out the facts of the case, there was no traverse by the defendants of the allegation by the and defendant in his application to come on record, that the cause of action survived to him as the legal representative of the plaintiff.
5. It is one thing to hold that the 2nd defendant in his character as the legal representative of the plaintiff cannot claim possession, but the question for consideration is, whether the 2nd defendant, who had as legal representative, secured a decree for possession as well as pendente lite profits, is to be non-suited completely at this stage. Learned Counsel for the second defendant referred me to the decision in Ramiah v. Adikesavalu : AIR1953Mad869 . In that case, the widow was entitled to possession during her lifetime. Under a will on her death the testator's sister's son was entitled to the possession. Pending the suit, the widow died and the sister's son, who had a vested remainder, applied to bring himself on record as the legal representative of the deceased widow. The learned Judge held that the widow had instituted a suit in the representative character and the right to sue had survived to the remainderman and that the sister's son was therefore entitled to be brought on record under Order 22, Rule 3, Civil Procedure Code, and continue the suit. The learned Judge observed:
In order therefore to entitle a person to bring himself on record as the legal representative or as a co-plaintiff to continue the suit, what he has primarily to establish is that the right to sue has survived to him, even though he may not be strictly the legal representative in the sense that he represents the estate of the deceased person. In this case, however, as the suit has been held to be instituted in a representative character as one not alone on behalf of the widow but even on behalf of the remainderman the respondent, and the right to sue has also survived to the respondent, the order of the learned District Judge bringing the respondent on record under the provisions of Order 22, Rule 3, Civil Procedure Code, is correct.
6. In the present case, the 2nd defendant had not come on record as the remainder man. Specifically, he has been brought on record only as the legal representative of the widow. The second defendant applied to bring himself on record not on the basis that the plaintiff was litigating in respect of the estate covered by the settlement, but as her personal representative. The decree as passed by the appellate Court gives possession to the second defendant only as the legal representative of the deceased-plaintiff. Clearly no legal representative of the deceased plaintiff would be entitled to possession under the title upheld in the suit. This case in the circumstances, does not help the second defendant. On the averments in the plaint, it would have been possible for the second defendant to have contended that the suit had been laid by the widow in her representative capacity. He did not choose to do so; the contesting defendants readily conceded his right to come on record and continue the proceedings as the heir of the plaintiff.
7. Learned Counsel for the second defendant contends that at any rate as representing the estate of the deceased, the second defendant could sustain the suit to the extent of the decree for mesne profits. Learned Counsel contends that there was a decree for mesne profits from the date of suit to be ascertained under Order 20, Rule 12. The suit had been instituted on 2nd January, 1961, and the plaintiff died on 15th June, 1962. Learned Counsel contends that for the period there can be a decree for mesne profits and even though a decree for possession may not be tenable on the death of the widow, the claim for mesne profits is an independent cause of action and the decree of the lower appellate Court would be sustained to that extent. This is met by Mr. R. Rajagopala Iyer by the plea that there could be no decree for mesne profits simpliciter in this case without a decree for possession and if no decree for possession could be passed, there should be no decree for mesne profits.
8. There can be no doubt that the heir of the deceased plaintiff, who may not be the remainderman under the settlement, would be entitled to the mesne profits which She plaintiff could have claimed. The claim for profits would go with her estate and does not die with the claim for possession. She had been kept out of possession of the properties during her lifetime and the loss to her estate represents the claim for mesne profits. What the defendants in wrongful possession received or might, with ordinary Diligence, have received ought to go to enrich her estate. Her claim for possession and mesne profits may arise out of the same transaction; but as far as the decisions of this Court go, the cause of action for the two are different. The suit for possession and the suit for mesne profits are based on distinct causes of action. There could be a suit for possession and mesne profits accrued till date of suit and a subsequent suit for the mesne profits accruing after the filing of the suit. (See Dorai-swami v. Subramanla (1918) 33 M.L.J. 699 : I.L.R. 41 Mad. 188., Claim for mesne profits uptil date of suit without possession and a suit for possession could be filed subsequently. A plaintiff can file a suit for the mesne profits of the properties from which he has been dispossessed by defendant without being obliged to sue for possession also along with the claim for profits. See Tirupati v. Narasimha I.L.R. (1888) Mad. 210, and Dyamovee Dayee and Ors. v. M. Modhoo Soodan Mytee 3 W.R. 147. Counsel for the 2nd defendant contended that as the claim to profits is severable from the claim to possession, and as heir he was entitled to the profits that had accrued as due to the estate, he could sustain the decree for the profits and the findings in the case necessary to sustain the decree for profits. Learned Counsel submitted that only his client may not be entitled to possession in his right as the heir of the deceased-plaintiff, but as heir he could continue the suit for the profits that she could have claimed. Reference in this connection is made to the decision of this Court in Alamelu Animal v. Chellammal I.L.R. (1959) Mad. 106 : (1959) 1 M.L.J. 269. In that case a widow of a coparcener in a joint Hindu family sued for her share in the properties under the Hindu Women's Rights to Property Act XVII of 1937. A preliminary decree for partition and for mesne profits was passed in her favour. During the pendency of the appeal filed by the other members of the joint family the widow adopted a minor boy to her deceased-husband and she died pending the appeal. On the question whether the claim of the widow abated and on whom the interests in the property devolved and whether the adopted son can continue the suit, it was held that the mesne profits that was decreed to the widow would be separate property and the adopted son would be entitled to the same as her heir and legal representative. That interest would be sufficient to bring him on record and prevent an abatement of the appeal. But it must be noted that this is a case where a decree had been passed for mesne profits. In Subbarao v. Krishna Prasad : AIR1954Mad227 , a Hindu widow, who filed a suit for partition and for past and future maintenance died pending the suit. Her daughter as streedhana heir sought to come on record in her place. The learned Judges held that the claim for partition and the claim for future maintenance did not survive to the streedhana heir and to that extent the action abated. However, the claim for past maintenance including therein the claim upto the date of the death of the widow, stood on a different footing. It was conceded in that case that it survived to the streedhana heir. The order of the Court below bringing on record the streedhana heir as legal representative it was held could, therefore, be sustained so far as the suit related to the past maintenance. But the learned Judges observed that no contention had been raised before them that the proper remedy for the streedhana heir was to file a separate suit to enforce her rights and not to continue the action instituted by her mother. The death in that case had taken place pending the suit and while the principal relief applied, for was held not to survive, the heir was brought on record to pursue the matter so far as past maintenance that is maintenance till death was concerned. The claim then as stated already included maintenance prior to suit and future maintenance. This may make a difference.
9. The contention of Mr. Rajagopala Iyer is that the principle of these cases would not apply to the case on hand. Here there was no claim for past profits. The plaintiff had claimed partition and future mesne profits. There has been no decree for possession or profits by the trial Court. The appellate Court ignoring that there could be no decree for possession, while granting the decree for possession, it has ordered in the decree that future mesne profits shall be determined by separate proceedings under Order 20, Rule 12, Civil Procedure Code. Of course these proceedings will be in the suit itself. Learned Counsel contends that when the principal or the main relief cannot be had, an incidental relief like profits, pendente lite ought not to be decreed. There is force in this contention. When the action has to abate in respect of the main or substantial relief if no action could be maintained independently for the incidental relief that is just future profits, it must also fail. While there can be a claim for profits accrued till date of suit without a claim for possession, certainly one cannot conceive of a suit for future profits only. The present action by the plaintiff cannot be deemed to be in respect of two independent reliefs, both available on the date of the suit, a relief for possession and a relief for future profits. There was no claim by the plaintiff for profits accrued due on the date of the suit.. Normally the representative of the deceased-plaintiff can only prosecute the cause of action as originally laid. Learned Counsel for the defendants referred to Kunhi-Kuttiamma v. Narayana A.I.R. 1952 T.C. 517, where it was held that where the right to recover mesne profits given under a decree is incidental to the main relief for redemption of the mortgaged property, as long as redemption is stayed, no right to recover mesne profits can arise, because the possession can be considered only as that of mortgagees. This decision cannot be of much help to the defendants as in essence what is decided is that till redemption the possession of the mortgagee is not wrongful and there could be no claim for mesne profits. When the possession is wrongful, the right to mesne profits is not merely incidental to the relief of possession. As discussed above, there could be a claim for mesne profits, without making an immediate claim for possession, only the time would be running against the plaintiff for an action for possession. But the bar to a decree for future mesne profits alone rests on a firmer and more formidable ground. A Court can claim no jurisdiction to give plaintiff relief on a cause of action that had not accrued to him on the date of the suit. To this principle. Order 20 rule, 12, Civil Procedure Code, makes an exception. This rule enables the Court to pass a decree for future mesne profits from the institution of the suit until delivery of possession by the judgment debtor with notice to the decree holder through Court or the expiration- of three years from the date of the decree-whichever event first accrues. In a suit for recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree, directing an enquiry as to the future profits. When an enquiry is directed by the decree, a final decree should be passed by the Court in accordance with the result of the enquiry. The object of this provision is to avoid multiplicity of suits. The provision is in respect of profits pendente lite, profits which would go with the relief of possession. It is only when a suit is competent for the recovery of possession of immovable property and for rent or mesne profits of the property, that the Court may pass a decree for future profits. In Basavayya v. Guravayya : AIR1951Mad938 , the position is thus stated:
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, Order 20, Rule 12, Civil Procedure Code, 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 object is to avoid the 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. But the plaintiff could not claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit.
10. It is pointed out by the Full Bench that future mesne profits, which are granted at the discretion of the Court, could well be awarded as part of the general relief to which a plaintiff is entitled even, if there was no specific prayer in the plaint for the recovery of such profits. This view has been recently affirmed by the Supreme Court in Gopalakrishna Pillai v. Meenakshi Ayal : AIR1967SC155 . Their Lordships observed thus:
With regard to past mesne profits, the plaintiff has no existing cause of action on the date of the institution of the suit....with regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay Court-fees thereon at the time of the institution of the suit. Moreover he can obtain relief in respect of this future cause of action only in a suit to which the provisions of Order 20, Rule 12 apply. But in a suit to which the provisions of Order 20, Rule 12 apply, the Court has discretionary power to pass a decree directing an enquiry into the future mesne profits and the Court may grant this general relief though it is not specifically asked for in the plaint....
11. No doubt in Muslim Sank v. Hasan Shriraza A.I.R. 1951 Hyd. 57, a decree for rent pendente lite was. granted while granting the relief for ejectment. The learned Judges observed thus:
No doubt where a plaintiff's suit for possession of property is dismissed by reason of want of title in the plaintiff to the suit property, the claim for rent pendente lite also would not be decreed because a person who has no title to the property cannot claim compensation for usage and occupation of the property. But where plaintiff's title to the property is not questioned and the Court is unable to grant the relief for ejectment by reason of the jurisdiction to grant of the same having been vested in another authority by special law his claim to rent pendente lite cannot be affected and he could he given a decree.
12. The suit itself was filed for ejectment and for rents due upto the date of the suit. The claim for ejectment could not be decreed, as the plaintiff had to appear before the Rent Controller and obtain his permission. The Rent Controller had rejected permission. This case is cleanly distinguishable. The title of the plaintiff was not in dispute. It could not be said that the suit was not properly laid for possession and rents. Only the relief for possession could not be availed of. Kalidas v. Satyeshchandra : AIR1933Cal554 , is again a case where mesne profits pendente lite were granted when no decree for possession could be granted. In that case the suit was properly laid by the plaintiffs for recovery of possession of a patni taluq on a declaration of the. plaintiff's title thereto and after annulment of encumbrances, if any, and also for mesne profits. During the pendency of the suit, the patni of the plaintiffs defaulted in payment of its rents and in consequence thereof, it was sold under the patni regulation and purchased by defendant 17. In the circumstances, the trial Court declared the plaintiff's title to the patni upto the date of sale, and holding that the plaintiffs were not entitled to get possession as they had no subsisting interest on the date of the decision, they were given a decree for mesne profits upto the date of the suit as claimed and from the date of the suit till the date of sale against the persons, who were deemed trespassers. Upholding this decree, it was said in appeal:
As regards this matter, it has been argued in the first instance, that a decree for mesne profits can only follow a decree for possession, and that when the plaintiffs have failed to obtain a decree for possession their claim for mesne profits should not have been allowed. The proposition which the appellant has thus propounded and which under ordinary circumstances is perfectly sound, cannot be regarded to be applicable to the present case in its special circumstances. It is only because of the sale that took place during the pendency of the suit that the plaintiffs are precluded from obtaining his possession. This cannot deprive the plaintiffs of their right to mesne profits upto the date upto which they were entitled to possession.
The two cases above cited are not cases of abatement of the action itself and are distinguishable from the present case.
13. We have here a case where the cause of action does not survive to the heir of the deceased plaintiff. The matter for possession cannot be maintained by him. The title of the original plaintiff to possession is titll her death. The substantial relief claimed in the suit is assertion of that title. With her death it is extinguished and does not survive to her legal representative. The claim for future profits made in the plaint is no ton any independent cause of action for the contention, that partially only there has been an abatement of the suit. No independent claim could have originally been laid for future profits. The abatement will therefore be of the entire suit and not partial. A claim for past profits would stand on a different footing. This is not to say that the legal representative or heir cannot lay a claim to the profits that had accrued pendente lite if the right of possession does not survive. As representing the estate and for the benefit of the estate, it will certainly be competent for him to claim the mesne profits that had accrued from the date of the suit till the death of the plaintiff. What falls for decisions here is whether in a case where the action cannot be maintained for possession it could be continued as a claim for future mesne profits. In my view it cannot be done
14. But the defendants in the lower appellate Court never put forward or pleaded abatement of the action either wholly or in part. They readily consented to the 2nd defendant coming on record as the legal representative of the deceased-plain tiff and pursuing the action. There has been no decree by the trial Court. The suit has been dismissed in its entirety, the findings being in favour of the contesting defendants. The abatement of the action for possession in the case is glaring and so obtrusive that it cannot be ignored. How then comes it that there has been no objection to the continuance of the proceedings by the 2nd defendant? I am unable to ascribe it to ignorance. Evidently, as surmised in the beginning, the defendants-wanted to have the benefit of the findings given against the deceased by one Court and expected the confirmation of the said findings in the presence of the second defendant. The defendants wanted to take the chance of the adjudication being in their favour in appeal also. Having failed in that, it is now contended that there could be no decree for possession of profits. Even here, the only relevant ground with reference to this aspect of the matter is limited in its scope being coupled with the status of the second defendant, the contention being that the 2nd defendant is not entitled to any relief in the suit as the rights of the plaintiff under Exhibit A-2 terminated on her death and it had not been found that the and defendant is the son of Arunachalam Pillai, the question having been left open. No plea of abatement of the action itself is put forward in the memorandum of ground of appeal. If the defendants had objected to the continuance of the action by the second defendant it may be that he would have straightway instituted an independent suit asserting his rights as the remainderman entitled to possession of the property after the lifetime of the widow, uniting in the action his claim to profits that had accrued till her death as the heir and legal representative of the deceased. The claim to profits-may now be barred by limitation. Of course, any Court under Section 14 of the Limitation Act will exclude the time taken in these proceedings. So far as the 2nd defendant is concerned, it must be held that he had been prosecuting the matter in good faith, as the defendants had no objection to his prosecuting the appeal further. They never questioned his right to further prosecute the appeal, as the legal representative of the deceased. In the circumstances, and as the enquiry as to mesne profits-has, it is stated, not been taken up and completed, I do not see any serious harm or prejudice to the and defendant in not permitting a patent irregularity to stand. Two features of the case weigh with me for directing the and defendant to an independent suit though the point was not taken in the lower Court. Firstly, this is not a case where the profits have been determined and a decree passed. The Court has directed the 2nd defendant to pursue his claim for profits by separate proceedings under Order 20, Rule 1 2, Civil Procedure Code. It is stated from the Bar that on the failure of the appellant to comply with the conditions laid by this Court for stay of execution, the stay got dissolved and the second defendant on 25th April, 1964, took possession of the suit properties themselves in execution, reserving his claim to future profits Secondly the second defendant has still to litigate and establish his title to the suit properties as the remainderman, in question. The Courts below have avoided determining the point whether he is the santhathi of Arunachalam Pillai and the deceased-plaintiff. If there has been such a determination already, it would be a different matter. If the dispute is persisted in multiplicity of proceedings cannot be avoided in the case. The enquiry as to mesne profits as I see it, may if claimed be elaborate. The defendants deny their possession of some of the items of the suit properties. As the claim to mesne profits due to the 2nd defendant as heir may also properly be combined with any suit in assertion of his rights as remainderman, and having regard ex facie to the availability of Section 14 of the Limitation Act, I would relegate the second defendant to a separate suit with reference to the claim for profits accrued to the deceased, the only right he could have as the heir of the deceased-plaintiff.
15. But quite properly in my view, in the circumstances of the case, there can be a declaration of the deceased Sivagami Ammal's plaintiff's right to the possession of the suit properties under the settlement brought about by her husband Arunachalam Pillai under the original of Exhibit A-2 The decree for possession is a consequence of the finding as to the validty of the settlement deed. As the possession lasted only till her life, the action for possession abated. But a relief of declaration could enure to the benefit of her estate and so could be availed of by her legal heir even assuming chat the suit was not instituted in representative capacity. In the special circumstances of the case having regard to the attitude of the defendants in the lower appellate Court I think it is but just and proper that her estate should have the benefit at least of the finding, which the defendants had invited.
16. In the result, Clauses (1) and (3) of the decree of the lower appellate Court granting possession and providing for ascertainment of future mesne profits, shall stand deleted from the decree. The 2nd defendant will not be entitled to the relief of possession and future profits decreed. The second defendant may institute an independent suit for the mesne profits to which he is entitled to, as the legal representative of the deceased-plaintiff. In substitution of Clause (1) of the decree, there shall be a decree declaring that the plaintiff Sivagami Animal had title and right to the possession of the suit properties for her life under the original of the settlement deed Exhibit A-2, executed by her husband Arunchalam Pillai. The rights of the second defendant for establishing his claim as the remainderman are reserved. The order as to the costs made by the lower appellate Court shall in the circumstances stand, In this Court, the parties will bear their respective costs. The decree of the lower appellate Court is modified and the Second Appeal is allowed to the extent above indicated. No leave.