Skip to content


Mohamed Habibullah Vs. Rahimath Beevi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1980)1MLJ436
AppellantMohamed Habibullah
RespondentRahimath Beevi
Cases ReferredMahanth Sudarshan Dass v. Mahanth Ramkripal Dass
Excerpt:
- .....petitioner is the plaintiff in the said suit, which was one for partition of his share in the suit properties. he also filed a petition for recovery of his share in the rents and profits derived from the properties. while the petition was disposed of, he was given liberty to file a subsequent petition for the same. the final decree was passed on 30th april, 1973, which came to be confirmed in the appeal and thereafter, he obtained delivery of possession in e.p. no. 85 of 1975 on 30th december, 1975. there were 11 shops in the suit properties and it appears that in respect of ten of them, a sum of rs. 5 per mensem was collected as rent for each shop till 31st december, 1967 and thereafter, at the rate of rs. 7 and for the remaining one, a rent of rs. 10 per month was being collected......
Judgment:
ORDER

S. Mohan, J.

1. The civil revision petition arises out of I.A. No. 354 of 1976 in O.S. No. 24 of 1965 on the file of the District Munsif, Paramakudi, under the following circumstances:

2. The revision petitioner is the plaintiff in the said suit, which was one for partition of his share in the suit properties. He also filed a petition for recovery of his share in the rents and profits derived from the properties. While the petition was disposed of, he was given liberty to file a subsequent petition for the same. The final decree was passed on 30th April, 1973, which came to be confirmed in the appeal and thereafter, he obtained delivery of possession in E.P. No. 85 of 1975 on 30th December, 1975. There were 11 shops in the suit properties and it appears that in respect of ten of them, a sum of Rs. 5 per mensem was collected as rent for each shop till 31st December, 1967 and thereafter, at the rate of Rs. 7 and for the remaining one, a rent of Rs. 10 per month was being collected. The petitioner for his share is entitled to Rs. 6,150 by way of mesne profits and therefore, he took out the said Interlocutory Application for passing a decree for mense profits.

3. The defendant/respondent filed a counter stating that the plaintiff filed the suit for partition saying that he was in joint possession. He paid court-fee under Section 37(2) of the Tamil Nadu Act XIV of 1955. At no stage of the proceeding the plaintiff claimed any mesne profits. Neither in the preliminary decree nor in the final decree was any provision made for enquiry into the mesne profits. The final decree, dated 28th August, 1975 was the end of the proceedings and therefore, the present application was not maintainable and it had to be dismissed in limini. It was further contended that the petition was barred by limitation and the rent was Rs. 3 or Rs. 4 per month and the maximum rent received is only Rs. 7 per month and a sum of Rs. 25 had to be spent towards tax, etc.

4. The learned District Munsif dismissed the application on the ground that inasmuch as the petitioner filed the suit alleging that he was in possession, he was not justified in asking for mesne profits. Consequently, he dismissed the petition. Thereupon, C.M.A. No. 11 of 1977 was preferred to the District Court of Ramanathapuram at Madurai. That also ended adversely to the petitioner. Hence, the present revision to revise both the orders.

5. The only contention that is urged by the learned Counsel for the revision petitioner is that notwithstanding the fact that there was a final decree, dated 30th April, 1973, which did not provide for mesne profits, yet as regards future mesne profits at least, for which a plea could not have been raised at the time when the suit came to be filed, the application ought to have been allowed. In support of this contention, he relies on the decisions Manicka Mudaliar v. Munilakshmammal : AIR1973Mad157 , Varatharujulu Reddiar v. Venkatakrishna Reddiar I.L.R. (1967) 1 Mad. 136, Veerappa Gounder v. Sengoda Gounder (1975) l M.L.J. 53 , and also Nalla Gounder v. Ramasmy : (1979)1MLJ309 .

6. As against this, the learned Counsel for the respondent would urge that neither in the preliminary decree nor in the final decree was any provision made with regard to mesne profits. Under those circumstances, the plea of the revision petitioner that he would be entitled to mesne profits at least with regard to future date is unacceptable because once a final decree is passed, thereafter the Court had no jurisdiction to equire into the mesne profits. Certainly, notwithstanding there being no provision made in the preliminary decree, the petitioner could have well asked for the same before the passing of the final decree but not later. In support of this, reliance is placed on Babburu,, Basavayya v. Babburu Guravayya : AIR1952Mad61 and Ponnuswami Udayar v. Santhappa Udayar : AIR1963Mad171 . It is further contended that the decisions cited by the revision petitioner do not touch the point whereas actually the decision in Ponnuswami Udayar v. Santhappa Udayar : AIR1963Mad171 , directly deals with the subject wherein it has been clearly held that after the final decrees, if no provision had been made for the enquiry into the mesne profits, it cannot be asked. Reliance is also placed in Mahanth Sudarshan Dass v. Mahanth Ramkripal Dass : AIR1967Pat131 .

7. Having regard to the above, the only question that arises for my consideration is whether notwithstanding the fact that the preliminary decree in O.S. No. 24 of 1965 dated 27th August, 1971 does not provide for mesne profits and equally when final decree, dated 30th April, 1973 does not provide for mesne profits, is it open to the petitioner to pray for mesne profits when he took possession in E.P. No. 85 of 1975 on 30th December, 1975 by means of the separate application I.A. No. 354 of 1976 filed on 12th February, 1976? I will consider the various cases relied on by the petitioner first.

8. Manicka Mudaliar v. Munilakshmammal : (1972)2MLJ568 , is a case in which Krishnaswami Reddy J., held:

In a suit for partition and separate possession, one of the clauses of the preliminary decree inter alia provided that the plaintiff's share in the future mesne profits would be determined in the final decree proceedings. A final decree was passed in which it was provided that the question of mesne profits was left to be decided in separate proceedings, while the other matters provided under the preliminary decree were settled under the final decree. Thereafter when the plaintiff filed an application under Order 20, Rule 12, Civil Procedure Code, to hold an enquiry in regard to mesne profits, it was resisted by the defendants on the main ground that as the final decree had already been passed and the decree had become final in respect of all matters, the application for enquiry into mesne profits could not be maintained subsequent to the passing of the final decree.

This case cannot be of any assistance in answering this question because from the above narration it is clear that the preliminary decree itself provided for determination of future mesne profits in the final decree proceedings.

9. Varatharajulu Reddiar v. Venkatakrishna Reddiar I.L.R. (1967) Mad. 136, is merely an authority for the position that more than one final decree is not precluded by the Code of Civil Procedure. The learned Judge Natesan, J., states at page 142 as follows:

The suit in this case was for partition of the family properties and plaintiff prayed for being put in separate possession of his half share in the properties. Where preliminary and final decrees are necessary, the preliminary decrees declared the rights of parties and the final decree carries into fulfilment the preliminary decree and divides the properties specifically by metes and bounds in terms of the rights declared under the preliminary decree thereby completely disposing of the suit. An executable decree is secured to the parties. The Code does not preclude the passing of more than one final decree and itself contemplates the possibility of a composite decree, that is, a decree partly preliminary and partly final.

This again does not touch the issue.

10. In Nalla Gounder v. P. Ramasamy : (1979)1MLJ309 : , my learned brother Ismail, J., held:

With regard to a suit for partition what is really the consequential relief will be a claim for accounting and not a claim for mesne profits. In a suit for partition the profits accruing from the different items of properties which are the subject-matter of the claim for partition will also be properties to be divided among the different sharers. So long as that item of the property is not divided, the suit cannot be said to have been finally disposed of. Any decree that is passed prior to that can only be an interim final decree or one of the several final decrees which came to be passed in the suit.

This decision itself is indicative of the position that no mesne profits could be asked.

11. Strong reliance is placed on the decision Veerappa Gounder v. Sengoda Gounder : (1975)1MLJ53 . In that case N.S. Ramaswami, J., was concerned with a suit for partition. He was of the view that when the preliminary decree directs division of the properties, 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 the final decree, have to be divided according to the shares declared in the decree. The mere fact that there is a final decree in respect of the property described in the plaint schedule which 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. Till that 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. When a final decree is passed, if it does not cover all the properties that are to be divided, the suit must be held to be still pending and not completely disposed of. In arriving at that conclusion, the learned Judge observed at page 55 as follows:

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 Ponnuswami v. Santhappa : AIR1963Mad171 , 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 is 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 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.

12. 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 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 profit 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.

It requires to be noted in this case that the learned Judge was concerned with the situation where certain items of properties have not been divided in the final decree. Therefore, the suit had not come to be finally disposed of. But, that is not the position here.

13. Again, in the same volume, in Lakshmi Ammal v. Subbu Raj : (1975)1MLJ137 , V. Ramaswami, J., in dealing with the legal position regarding future mesne profits when there was altogether no prayer for profits, past or future held:

The legal position is that, in a suit for partition, with regard to future mesne profits, the plaintiff has a cause of action or to value it or to pay court-fee thereon at the time of the institution of the suit. That relieves the plaintiff of the necessity of claiming specifically future mesne profits in the suit itself. It is not the fact, that it is the claim for past mesne profits in the suit that enables the Court to award future mesne profits.

This case again will be of no assistance to the petitioner because it related to future mesne profits for which, according to the learned Judge, cause of action on the date of the institution of the suit had not arisen but only for the passing of the preliminary decree. In other words, the jurisdiction of the Court to take up the question of mesne profits after the passing of the final decree did not directly arise in this case. Thus, the rulings relied on by the petitioner to not advance his case.

14. Turning to the decision cited on behalf of the respondent, Babburu Basavayya v. Babburu Guravayya : AIR1952Mad61 , it dealt with the situation when there was no direction in the preliminary decree in a partition suit whether enquiry relating to future profits could be made, and it was held as follows:

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 21, Rule 19 does not prohibit the Court from issuing such directions after the stage of a preliminary decree. The mere fact that the preliminary decree does not direct an enquiry into profits subsequent to the date of the suit does not preclude the parties from applying for, or the Court from amending, 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'.

Relying on this decision, Jagadisan, J., held in Ponnuswami Udayar v. Santhappa Udayar (1962) 75 L.W. 683 : A.I.R. 1963 Had. 171, in dealing with the very question on hand, as follows:

In a partition suit, an application for ascertainment of future mesne profits can be filed so long as the suit is pending and so long as no final decree has been passed even though the plaint does not specifically pray for the granting of such relief and the preliminary decree does not provide for it. The mesne profits accruing from the properties forming the subject-matter of the division 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. It would be most inequitable and unjust to compel the plaintiff to sue separately for future mesne profits and it is certainly not the policy of the law to encourage multiplicity of proceedings.

Therefore, this decision is directly on point. I find that in Mahanth Sudarshan Dass v. Mahanth Ramkripal Dass : AIR1967Pat131 , all these decisions have been considered and ultimately the conclusion came to be arrived at. In a situation we have presently in the case, there the suit was decreed but the claim for mesne profits was omitted in the preliminary decree as well as final decree. Thereafter, an application was filed for determination of the mesne profits till date of delivery of possession of the property to the petitioner. It was held that as the matter had become final, the application was not maintainable. It was also held that the contention that another final decree should have been passed by the Court enquiring into the plaintiff's claim could not be accepted as although more than one interim final decree could be passed in appropriate cases, there should be only one final decree in a case. The above two decisions directly answer the question involved in the revision and relying upon the same, I negative the petitioner's contention.

15. There is yet another reason for rejecting the claim. As rightly held by the learned Munsif, the plaintiff/petitioner himself came forward with a case that he was in joint possession, which means the question of mesne profits could not arise. For these reasons, I dismiss the revision petition. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //