IN THE HIGH COURT OF MADRAS
FULL BENCH
Civil Revn Petn No. 1695 of 1948
Decided On: 02.02.1951
Babburu Basavayya and Ors.
Vs.
Babburu Guravayya and Ors.
Hon’ble Judges/Coram: P.V. Rajamannar, C.J. Vishwanatha Sastri and A.S. Panchapakesa Ayyar, JJ.
Citation: AIR 1951 Madras 938.
1. The plff., here respondent, obtained a preliminary decree for partition of joint family properties, later on, during the pendency of the partition suit, applied in I. A. no. 83 of 1947 for an enquiry into the profits of the properties realised by the defts. subsequent to the institution of the suit a final decree for his share of such profits. The defts. opposed the application on the grounds there was no prayer in the plaint for the recovery of such profits that the preliminary decree passed in the suit did not direct an enquiry into the same. The Court below held that these objections, though well founded in fact, were untenable in law, by its order dated 9-7-1948, posted the case for an enquiry into the merits. This civil revision petition is filed against the order of the Court overruling the objections of the defts.
2. In Ghulusam Bivi v. Ahamdsa Rowther, 42 Mad. 296 Ayling Krishnan JJ. held that if a preliminary decree in a partition suit either “intentionally or inadvertently” omitted to direct an enquiry into future profits a subsequent application for directing such an enquiry was incompetent the Court had no power to pass a final decree awarding such profits. This decision goes the whole length of the petitioner’s contention, but its correctness has been questioned in later decisions of this Court in the arguments before us.
3. It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery of possession of Immovable property from a person in possession without title, together with a claim for past or past future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defts. not being lawful, the plff. is entitled to recover “mesne profits” as defined in Section 2, Clause (12), Civ. P. C., such profits being really in the nature of damages. In the second case, the possession receipt of profits by the deft, not being wrongful the plff’s. remedy is to have an account of such profits making all just allowances in favour of the collecting tenant in common. In the third case, the plff. must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plff. would, however, be in the position of a tenant-in-common from the date of severance in status his rights would have to be worked out on that basis.
4. Order 20, Rule 12, Civil P. C. deals with the first class of suit above referred to, while Order 20, Rule 18, Ideals with the second the third categories. In view, however, of the considerable reliance placed on Order 20, Rule 12, Civil P. C. in Ghulusum Bivi v. Ahmadsa Rowther, 42 Mad. 296in dealing with the right of a plff. to profits accruing during the pendency of a partition suit, it is desirable to consider the scope of this provision. A claim for possession a claim for past mesne profits have been held to be based on different causes of action, at any rate, in the decisions of this Court. Order 2, Rule 4, Civil P. C. however permits their joinder in one suit. There is a material difference between a claim for past a claim for future mesne profits. Order 7, Rule 2, Civil P. C. Section 7 Sub-section (1), Court fees Act, require that the amount of past mesne profits claimed should be approximately stated in the plaint ad valorem court-fee should be paid on such amount. These provisions can have no application to future profits, for it is not possible for the plff. to predicate how long the litigation is going to last or give even an approximate statement of the amount of mesne profits that might become payable at the end. The cause of action for future mesne profits is the plff’s. being kept out of possession during the suit arises subsequent to the suit. In empowering Courts to award future mesne profits Order 20, Rule 12, Civ. P. C. makes an exception to the general rule that a plff. 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 during its pendency in the original appellate Courts. But the plff. 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. Hence it is that the power of the Court to award mesne profits subsequent to the suit has been held to be discretionary a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. Doraiswami v. Subramania, 41 Mad. 188. In re Ekanathalingaswami, I.L.R. (1937) Mad. 284. Section 11, Court-fees Act, (as amended in Madras) requires payment of court-fee on future mesne profits only if the plff. desires to execute the decree awarding him such profits. The Judicial Committee interpreting the provisions of Section 196, Civ. P. C. of 1859 this Court, construing the corresponding provisions of Order 20, Rule 12 held that whether a plaint contained or not a claim to future profits the Court has the power to grant them under these special provisions, Fakharuddin Mohamed Ashan v. Official Trustee of Bengal, 8 Cal. 178 Kemgamswami v. Subbamma, 53 Mad. 838. When the Legislature has expressly empowered the Court to grant relief for future mesne profits, that is to say, in respect of a cause of action arising subsequent to the suit, there is no reason to circumscribe this power by importing a qualification that there must have been a specific prayer in the plaint for the recovery of such unascertainable unpredictable profits. Future mesne profits could, we think, well be awarded as part of the general relief to which a plff. is entitled.
5. The further question is whether this power to direct an enquiry into future mesne profits can be exercised early at the stage when a preliminary decree for possession is passed or at a later stage of the suit. The contention of the petitioner based on the decision in Ghulusum Bivi v. Ahamdsa Rowther, 42 Mad. 296 is that the Civil Procedure Code provides only for one preliminary one final decree, that the final decree has merely to work out the rights declared by the preliminary decree that if the preliminary decree has, to quote the language of Ayling J. in that case, “intentionally or inadvertently omitted to direct an enquiry” into future mesne profits the final decree cannot award such profits.
6. Ordinarily there would be one preliminary one final decree but, as pointed out in Kasi v. Ramanathan Chettiar MANU/TN/0174/1947 : (1947) 2 MLJ 523 there is nothing in the Civil Procedure Code which can be construed as a prohibition against the Court, in proper case, passing more than one preliminary decree one final executable decree in a suit. The relevant provisions of the Code the earlier rulings of this the other High Courts are reviewed in the judgment of Patanjali Sastri J. with which we are in respectful agreement. A judicial determination of the amount of future profits has to be made with reference to any one of the three events specified in Order 20, Rule 12, Sub-rule (1) (c), whichever event first occurs. If a preliminary decree awarding possession contains a direction for enquiry into future mesne profits, the suit or that part of the suit relating to future mesne profits continues to be pending the D.H. might move the Court to hold an enquiry pass a final decree awarding such profits without the necessity of filing an application within the period prescribed by Article 181, Limitation Act. This is the effect of the decision in Ramasubramania v. Karimbil Pati, I. L. R. (1940) Mad. 372 the Madras amendment of Order 20, Rule 3. If, to use the language of Ghulusum Bivi v. Ahmadsa Rowther, 42 Mad. 296, the preliminary decree “intentionally omits”, that is to say, refuses to direct an enquiry into future mesne profits, that decision will, subject to the result of any appeal, be binding on the parties in all the subsequent stages of the suit no application can thereafter be made in the course of the suit for an enquiry into such profits. Where a decree awarding possession is silent with regard to an enquiry into future mesne profits the decree has not completely disposed of the suit which, for one reason or another, continues to be pending, there is nothing in the Civil Procedure Code prohibiting the D. H. from applying to the Court during the pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry The Court may, in the exercise of its discretion, refuse an enquiry leaving the D. H. to a fresh suit for such profits If it does order an enquiry it is bound to incorporate the result in a final decree. Unlike Order 20 Rules 13 16 Order 34 Rules 2, 4 7, Civil P. C., Order 20, Rule 12 is not mandatory does not insist on a preliminary decree containing all the directions referred to in Rule 12. There is no express or implied prohibition in the Civil Procedure Code against awarding possession directing an enquiry into future mesne profits by successive adjudication in a pending suit though the normal ordinary procedure would be to pass a preliminary decree awarding possession also direct an enquiry into future mesne profits: Swaminatha Odayar v. Gopalaswami Odayar MANU/TN/0299/1938 : (1938) 2 MLJ 704. In any case an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit cannot be said to be without jurisdiction.
7. We have dwelt at some length on the scope effect of Order 20, Rule 12 , Civil P. C., in view of the strong reliance placed on its terms by the learned Judges in Ghulusum Bivi v. Ahamdsa Rowther, 42 Mad. 296 which, however, like the present case, was a suit for partition. We have already stated that Order 20, Rule 12 relates to “mesne profits” in the sense in which that expression is defined in Section 2, Clause (12), Civil P. C. The claim of a plff. suing for partition his share of the profits accruing from the lands pending the suit is not, properly speaking, a claim for “mesne profits” Order 20, Rule 12, Civil P C., has no application to such a case. Order 20, Rule 182), Civil P. C., provides that if a partition of immovable or movable property cannot be conveniently made without further enquiry, the Court may pass a preliminary decree
declaring the rights of the several parties interested in the property giving such further directions as may be required.
In our opinion, this rule does not mean that all directions which may be necessary or proper to be given in a partition suit before a final decree is passed should be given at the stage of the preliminary decree itself. It may be necessary in a partition suit not merely to divide the properties but also to realise outstandings, discharge common liabilities, sell properties not capable of easy division, direct different sharers to account for different periods of time in respect of profits of different properties, adjust equities between the parties give directions from time to time to the commissioners appointed to divide the properties or take accounts. It is not reasonable to Suppose that the power of the Court to give directions in respect of all or any of these matters must be exercised only at the time of passing the preliminary decree is exhausted with the passing of that decree. If Order 20, Rule 12or the analogy of that rule is to be applied 60 suits for partition, as was done in Ghulusum Bivi v. Ahmadsa Rowther, 42 Mad. 296 , a direction for an enquiry into profits, past or future, can be given only at the time when a decree for possession of the property is passed, that is to say, at the time of the passing of a final decree for partition of the properties, when alone the sharers would be entitled to get possession of their respective allotments. On the completion of such enquiry a further final decree in respect of profits will have to be passed. This was the view taken by Oldfield J. in Mahalakshmamma v. Rajamma, 43 I. C. 458 . We might mention that the conclusion of the learned Judge was affirmed in L. P. A. Nos. 116 58 of 1917.
8. Where a plff. claims not only a partition of common properties, but an account of profits realised by the deft. before suit recovery of his share of such profits he must value approximately the amount of such past profits pay court-fee thereon. See Order 7, Rule 2 Civil P. C., Section 7(1) (iv) (f), Court-fees Act. We are not here concerned with a claim for an account of past profits. A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject-matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit or till he is put in possession of his share. He cannot anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realised during that period. He need not therefore specifically ask for any relief in respect of future profits, the prayer for general relief being sufficient to enable the Court to award him such profits. If during the pendency of the suit one or some of the co-sharers receive or realise the entire profits or more than their share of the profits of the common properties, they have to account to the other sharers for the excess. If the collecting co-sharer or tenant-in-common is not in a position to bring into the hotchpot his realisations subject to all just allowances in his favour, the Court will, when passing a final decree, deprive him of a sufficient portion of the properties allottable to his share allot the portion so taken away to the other sharers so as to give them the equivalent of their share of the profits in the shape of property. Or the Court may impose a charge on the share of the defaulting tenant-in-common for the amount for which he is accountable to the other sharers thus equalise the shares. The theoretical allotments the general declaration of rights in the preliminary decree have to be worked out with due regard to the realisations of profits drawings by the parties subsequent to the institution of the suit till the passing of the final decree. The profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties both rights have to be worked out provided for in the final decree for partition. A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided his proper share given to him. If, as we think, this is the true nature of the proceedings in a suit for partition a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree there is nothing in Order 20, Rule 18, Civ. P.C. interdicting such procedure.
9. There is also ample authority for the view we take. In Ramaswami Iyer v. Subramania Iyer, 43 M. L. J. 406 Sadasiva Aiyar J. (with whom Napier J agreed) referred to the decision of the Judicial Committee in Pirthipal Uman Parshad v. Jowahir Singh, 14 Cal. 493 observed as follows:
As stated by their Lordships a sharer has a ‘clear right’ to an account of the profits received by the person in possession of the whole to be awarded his share thereof, not as mesne profits received by a person in wrongful possession but as appurtenant to the plffs’. right in his share of the lands.
10. The suit was one for partition of joint family properties an order had been made drawn up declaring the shares of the several parties appointing a commissioner to effect a division by metes bounds while the Civil P. C. of 1882 was in force. There was, however, no direction for an enquiry into the profits of the properties, the order being silent on the point. The suit was pending when the Civil Procedure Code of 1908 came into force the plff. thereafter wanted an enquiry into the profits that had accrued since the institution of the suit. The Courts below decided adversely to the plff. but this Court held that it was competent to the Court to direct such an enquiry award the plff. his share of the profits accruing pendente lite. The Court relied on an earlier decision of Abdul Rahim Oldfield JJ. in A. S. No. 322 of 1919, where it was held that unless a preliminary decree for partition refused or should be deemed to have refused to grant profits, the Court was not precluded from granting profits in its final decree. Sadasiva Aiyar J. stated the principle applicable to such cases in these terms :
In all adjudications which are not intended to be final but only to be the determination of some of the questions involved in a suit, there is ought always to be implied the reservation of leave to all parties to apply for further directions adjudications necessary for the complete trial complete disposal of the litigation.
This decision was followed by a Bench of this Court in Swaminatha Odayar v. Gopalaswami Odayar MANU/TN/0299/1938 : (1938) 2 MLJ 704 which repelled an argument similar to that advanced by the petitioner in these terms:
It is then contended that the preliminary decree of 1924 being silent on the question of mesne profits, the Court was precluded at a later stage from going into it. That such a contention cannot prevail has been held in several decisions of this Court with which we agree.
The cases referred to are Hussain Saheb v. Hamid Sahib, A. I. R. 1923 Mad. 48 (decided by Spencer J.) Ramaswami Iyer v. Subramania Iyer, 43 M. L. J. 406 (decided by Sadasiva Aiyar Napier JJ.) Ramanathan Chetti v. Alagappa Chetti, 53 Mad. 378 (decided by Curgenven J.) The learned Judges observed that in actions for partition separate possession the Court may pass a final decree for profits accruing pendente lite even if not preceded by a direction in the preliminary decree relating to such profits that the fact that the preliminary decree for partition was silent as regards future profits did not preclude the parties from applying to the Court for awarding such profits by the final decree.
11. The cases cited above were all reviewed by Somayya J. in Raghava Mannadiar v. Thyunni Mannadiar MANU/TN/0030/1946 : AIR 1947 Mad 106 the learned Judge held that the mere fact that the preliminary decree for partition did not direct an enquiry into profits subsequent to the date of the suit did not preclude the parties from applying for or the Court from awarding such profits by its final decree. The learned Judge was of the opinion that in a partition suit where a plff. asked for his share in common lands, a right to an account of the profits, accruing from such lands during the pendency of the suit is appurtenant to the plffs. share need not be separately asked for.
12. The absence of a specific prayer in the plaint was held to be no bar to the award of such profits in the final decree. The principle of this decision was accepted acted upon by Mack J. in Abdul Rahim Sahib v. Abdul Salam Sahib, MANU/TN/0237/1949 : A. I. R. 1949 Mad. 743 by a Division Bench of which one of us was a member) in C. R. P. No. 700 of 1947.
13. For the foregoing reasons we are unable to accept the correctness of the reasoning in Ghulusum Bivi v. Ahamdsa Rowther, 42 Mad. 386 which was followed by learned single Judges of this Court without any further discussion in Bapa Lakshmanna v. Koteswararao, 1931 M.W.N. 846 Subbiah v. Katamma MANU/TN/0055/1944 : AIR 1945 Mad 222. In Atchayya v. Appalaraju MANU/TN/0058/1946 : AIR 1947 Mad 109 the same view of the scope of Order 20, Rule 12, Civ. P. C. was taken as in Ghulusum Bivi v. Ahamdsa Rowther, 42 Mad. 296, without, however, any reference to that decision. The decisions of the Calcutta High Court on this point have not been uniform. Kiran Chandra v. Erfan MANU/WB/0329/1933 : AIR 1934 Cal 503 took the same view as this Court did in Ghulsum Bivi v. Ahmadsa Rowther, 42 Mad. 296 but Kalidas Rakshat v. Saraswati Dasi, I. L. R. (1942) Cal. 268 dissented from it. We have not been referred to any decisions of the other High Courts.
14. We may now summarise our conclusions. A partition suit in which a preliminary decree has been passed is still a pending suit the rights of the parties have to be adjusted as on the date of the final decree. Jadunath v. Parameswar, I.L.R. (1940) Cal. 255. In such a suit the Court has not only to divide the common properties but has also to adjust the equities arising between the parties oat of their relation to the common property the property to be divided. The preliminary decree determines the moieties of the respective parties 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 decided before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the alienor other similar matters. 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, Civ. P. C. does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order to prevent multiplicity of litigation to do complete justice effect an equal division of all the common assets properties among the parties, to direct an enquiry into the profits received or realised by one or some of them daring the pendency of the suit 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, in either case the result of the enquiry has to be incorporated in the final decree.
15. For these reasons we confirm the order of the Court below dismiss the civil revision petition with costs.
Babburu Basavayya and Ors. vs. Babburu Guravayya and Ors. (02.02.1951 – MADHC) : MANU/TN/0312/1951