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1916 Supreme(SC) 87
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER L.C., LORD ATKINSON, LORD WRENBURY, AND MR. AMEER ALI.
DEONANDAN PRASHAD SINGH - Appellant
Versus
RAMDHARI CHOWDHRI - Respondents
On Appeal From The High Court in Bengal.
Decided On : December 11, 1916.
Solicitors for appellants:Watkins & Hunter. Solicitors for respondents: T. L. Wilson & Co.
In pre-emption suits, the right to possession and mesne profits vests in the pre-emptor only upon payment of the purchase money specified in the decree; until such payment is made, the original purchaser is entitled to the rents and profits of the property.
Headnote:(A) Code of Civil Procedure, 1882 - Section 214 - Right of pre-emption - Mesne profits - In a suit to enforce a right of pre-emption, the plaintiff obtains possession of the property only upon payment of the purchase money and costs as specified in the decree - Until such payment is made, the original purchaser retains possession and is entitled to the rents and profits of the property.
(B) Nature of Pre-emption - A person claiming an order of pre-emption is not an ordinary purchaser; the right is to acquire the property from the purchaser at the price paid, and the actual substitution of the owner dates from possession under the decree following the fulfillment of the payment terms. (Paras 14, 15, 16)
Facts of the case:
Pre-emptors initially obtained possession of a property based on a decree that fixed a lower purchase price. This decree was subsequently reversed by a higher court, and possession was returned to the original purchaser. Upon further appeal to the highest court, the right of pre-emption was affirmed, but the purchase price was increased to the amount stated in the original sale deed. The pre-emptors paid the balance of the increased price and were restored to possession several years after the initial dispute. A claim was then made for mesne profits for the period during which possession had alternated between the parties due to the conflicting decrees.
Findings of Court:
The court found that the right to possession and the subsequent entitlement to profits in pre-emption cases are strictly governed by the payment of the purchase money. Since the final decree required a higher payment than originally ordered, the pre-emptors only legally obtained possession within the meaning of the law on the date the full amount was deposited and possession was restored.
Issues: Whether the pre-emptors were entitled to mesne profits for the period they were out of possession due to an erroneous intermediate decree, or whether the original purchaser was entitled to such profits until the final purchase price decreed by the highest court was paid.
Ratio Decidendi: Under Section 214 of the Code of Civil Procedure, the right to possession in a pre-emption suit is contingent upon the payment of the purchase money. The original purchaser remains the entitled party to rents and profits until the pre-emptor fulfills the terms of the decree. Consequently, the pre-emptors' right to profits only commenced from the date they paid the final decreed price and regained possession.
Result: Appeals dismissed and cross-appeals allowed.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- mesne profits
- pre-emption
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civil procedure
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property law
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pre-emption
- mahomedan law
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pre-emption
Judgement
Consolidated Appeals from a judgment and decree of the High Court (February 25, 1910) partly affirming and partly reversing four decrees of the Subordinate Judge of Monghyr.
The appeals were in respect of decrees upon applications for mesne profits in respect of property which under decrees made by the Subordinate Judge, the High Court, and the Privy Council in pre-emption proceedings had alternately been in the possession of the preemptors and the original purchaser. The facts are fully stated in the judgment of their Lordships.
The Subordinate Judge held that the above named respondents, representing the original purchaser,
Law. Rep. 44 Ind. App. 80 ( 1916- 1917) Deonandan Prashad Singh V. Ramdhari C howdhri
215
were entitled to mesne profits for the period between July 19, 1900, and July 20, 1904, during which they were out of possession, and that the pre- emptors (the above named appellants) were not entitled to mesne profits for the subsequent period, since they were only entitled to, possession upon paying the full price at which the Privy Council held that they were entitled to purchase.
The High Court (Brett and Sharfuddin JJ.) reversed the decrees in favour of the original purchaser and affirmed those disallowing mesne profits to the pre-emptors. The learned judges thought that s. 144 of the Code of Civil Procedure, 1908, could not be applied, as neither the possession of the pre-emptors from 1900 to 1904 nor that of the original purchaser from 1904 to 1909 was wholly wrongful. They pointed out that the original purchaser had lost the interest for nine years upon the Rs.44,850 which he had paid as the price of the property, but had had possession for five years ; the pre-emptors had lost the interest for nine years upon Rs.37,000, but had had possession for four years. They thought that it would be fair and equitable to treat the profits realized by possession as compensation for the loss of interest in each case, and they accordingly dismissed the claims of both parties. They further observed that substantially the same result would follow under s. 144, as the right to mesne profits as restitution under that section would be subject in each case to a liability for interest upon the outstanding amounts.
1916. Nov. 10. De Gruyther, K.C., and Dube, for the appellants (pre-emptors). The pre-emptors are entitled to mesne profits for the period between 1904 and 1909 during which they were out of possession owing to the erroneous decree of the High Court. They obtained a title upon paying the amount decreed by the Subordinate Judge, and their right of pre-emption was affirmed by the Order in Council. In any case they were not wrongfully in possession between 1900 and 1904 and cannot be made to account for the mesne profits for that period. The pre-emptors have lost the interest upon Rs.37,000 which they paid under the first order ; it is just and equitable that, having established their right of pre-emption, they should have the benefit of the mesne profits. [Gradys Hedaya, p. 550, and the Code of Civil Procedure, 1908, Order xx., r. 14, were referred to.]
Dunne; for the respondents. Under s. 214 the pre-emptors were only entitled to possession from the date when they paid the price finally decreed by the Order in Council Deokinandan v. Sri Ram . (( 1889) I. L. R. 12 Allah. 234.) The right to mesne profits is a question of law depending entirely upon the right to possession. The High Court was wrong in dealing with the matter upon equitable principles. . The decision and reasons of the Subordinate Judge were correct. De Gruyther, K.C. replied.
Dec. 11. The judgment of their Lordships was delivered by
LORD BUCK MASTER L.C. The question in these appeals affects the right to mesne profits of certain lands which by virtue of three different sets of judgments—first, two decrees of the Subordinate Judge on March 31, 1900 ; secondly, two decrees of the High Court at Calcutta on January 20, 1904 ; and thirdly, an Order i
