1959 Supreme(AP) 61

Andhra Pradesh High Court
Judges : M.SESHACHALAPATI, MANOHAR PERSHAD
Kasibhatla Satyanarayana Sastrulu - Appellant
Versus
Kasibhatla Mallikarjuna Sastrulu - Respondent
Decided On : 03-20-59

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 and there is nothing in Order 20 Rule 18 C. P. C. interdicting such procedure.

Headnote:

PARTITION - JOINT HINDU FAMILY - ALIENATIONS - ACCOUNTABILITY - MESNE PROFITS - JURISDICTION - DISCRETION OF COURT - FUTURE PROFITS - APPLICATION FOR ASCERTAINMENT - LIMITATION - DELAY - CROSS OBJECTIONS - ADMISSION - DELAY - REOPENING OF CASE - INJUSTICE.

Fact of the Case:

Plaintiffs filed a suit for partition and separate possession of their share in the joint family properties. The 1st defendant pleaded that there was a partition between him and the 1st plaintiff's father in the presence of their father, and that the family lands were divided into two lots, one lot burdened with the obligation to discharge the family debts, and the second lot without the liability to discharge the debts. The 1st defendant claimed that the plaintiffs' father chose the second lot for his share and that in pursuance of that arrangement the two branches of the family have been in separate and exclusive possession of their respective lands. The 2nd defendant adopted the written statement of the 1st defendant and claimed that he got himself divided from his father, the 1st defendant, as a result of which he was in separate and exclusive possession of certain items of property. The 3rd defendant claimed exclusive title in his own right to certain items of property. The trial court held that there was no prior partition and that the plaintiffs are entitled to their lawful share in the family property. The trial court also directed the 1st defendant to account for a sum of Rs. 5,000.00 to the plaintiff. On appeal, the High Court upheld the decision of the trial court and held that the alienations of certain items of property were not binding upon the plaintiffs. The High Court also directed the deletion of the clause in the preliminary decree which held the 1st defendant accountable for the amount of Rs. 5,000.00 received by him. The plaintiffs filed an application for allotting additional items of properties to them in place of items alienated by the defendants. The defendants resisted the application on the ground that the plaintiffs were in possession of a substantial portion of the property and that the finding of the High Court that there is no accountability on the part of the 1st defendant means that the plaintiff cannot lay any claim to mesne profits. The trial court dismissed the application. The plaintiffs filed an appeal against the dismissal of their application.

Finding of the Court:

The court held that the application filed by the plaintiffs for allotting additional items of properties to them in place of items alienated by the defendants is entitled to be considered on merits and not to be rejected on the ground that ascertainment of profits since suit has not been asked for in the plaint. The court also held that the application filed by the plaintiffs for profits under Order 20, Rule 18 C. P. C. should be allowed and the trial court should dispose of the application on the merits and in accordance with law. The court further held that the application filed by the defendants for admitting the memorandum of cross objections should be rejected due to the extraordinary delay in filing the memorandum of cross objections and the lack of merits in the application.

Issues: 1. Whether the plaintiffs are entitled to additional items of properties in place of items alienated by the defendants? 2. Whether the plaintiffs are entitled to mesne profits? 3. Whether the defendants' application for admitting the memorandum of cross objections should be allowed?

Ratio Decidendi: 1. The court held that the application filed by the plaintiffs for allotting additional items of properties to them in place of items alienated by the defendants is entitled to be considered on merits and not to be rejected on the ground that ascertainment of profits since suit has not been asked for in the plaint. The court relied on the decision of the Full Bench in Bassavayya v. Guravayya, 1957-2 Andh. W. R. 474: (AIR 1958 Andh Pra 517), which held that 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 and there is nothing in Order 20 Rule 18 C. P. C. interdicting such procedure. 2. The court held that the application filed by the plaintiffs for profits under Order 20, Rule 18 C. P. C. should be allowed and the trial court should dispose of the application on the merits and in accordance with law. The court relied on the decision of the Full Bench in Bassavayya v. Guravayya, 1957-2 Andh. W. R. 474: (AIR 1958 Andh Pra 517), which held that 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 and there is nothing in Order 20 Rule 18 C. P. C. interdicting such procedure. 3. The court held that the application filed by the defendants for admitting the memorandum of cross objections should be rejected due to the extraordinary delay in filing the memorandum of cross objections and the lack of merits in the application.

Final Decision: 1. The appeal filed by the plaintiffs for allotting additional items of properties to them in place of items alienated by the defendants is allowed. The decree of the trial court is set aside and the trial court is directed to consider the application according to law. 2. The appeal filed by the plaintiffs for profits under Order 20, Rule 18 C. P. C. is allowed. The decree of the trial court is set aside and the trial court is directed to dispose of the application on the merits and in accordance with law. 3. The application filed by the defendants for admitting the memorandum of cross objections is rejected.