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IN THE HIGH COURT OF DELHI
V.K. Jain, J.
Sita Kashyap and Anr.
Vs.
Harbans Kashyap and Ors.
I.A. No. 14803/2010 in CS (OS) No. 1943/1998
Decided On: 18.03.2011
Civil Procedure Code, 1908 - Order 20, Rule 12--Decree for possession & mesne profit--Suit for partition and mandatory injunction--Final decree of partition passed with respect to movable and immovable property--Thereafter, applicant filed an application and sought mesne profit at the rate of allowed in final decree, from the date of preliminary decree--On the ground that at the time of filing of suit plaintiff was in part possession of the suit property--Question arose whether after passing of final decree of partition, an application for ascertainment of future mesne profit can be maintained--Court was of view, it is duty of court to direct appropriate division/apportionment not only of the common immovable property but also of the profit earned/mesne profit which accrues form that immovable property--Court held that there is no legal impediment in passing such an order even after passing of the final decree--Application disposed of.
[Paras 21 & 22]
It is not strictly mandatory to seek mesne profits in a partition suit. The legal position allows for the possibility of claiming mesne profits even if they are not specifically included in the original suit or decree, provided the suit is still pending and the court's proceedings are ongoing. The court has the authority to direct an enquiry into profits and to grant a decree for the share of profits, even if such relief was not explicitly claimed or incorporated in the preliminary or final decree.
Furthermore, the court's duty includes making appropriate adjustments and divisions of profits earned or realizable from the properties during the pendency of the suit, to ensure equitable distribution among the parties. However, once a final decree becomes functus officio (i.e., the proceedings are concluded), the court generally cannot entertain claims for mesne profits unless a supplementary or additional decree is sought during the pendency of the suit.
In summary, while it is not mandatory to specifically seek mesne profits, the law provides mechanisms for the court to award or adjust for mesne profits during the ongoing proceedings of a suit for partition, as part of the court's duty to ensure just and equitable distribution of the properties and profits derived therefrom.
V.K. Jain, J.
1. The following reliefs have been claimed in this suit:
(a) (i) a decree of partition in respect of all that property comprised of land and building and bearing No. 5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi, as per plan enclosed with the plaint;
(ii) a preliminary decree for partition of the suit CS(OS) No. 1943/1998 Page 2 of 26 property No. 5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 for dividing the said property by metes and bounds and if it is ascertained that this property is not capable of being divided by metes and bounds then to order sale of property No. 5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 and to divide the proceeds in the ratio of 1/4 share for each of the two Plaintiffs and Defendant No. 1 and the remaining 1/4 to Defendants No. 2 and 3 together;
(b) a decree of declaration that the Plaintiffs have inherited the contractual tenancy rights in respect of all that commercial premises being Shop No. 2738, Municipal No. XVI, Ajmal Khan Road, to the exclusion of the Defendants;
(c) a decree of mandatory injunction requiring the Defendants to allow the Plaintiffs user and quiet possession of the said commercial shop No. 2738, Municipal No. XVI, Ajmal Khan Road, Karol Bagh, New Delhi.
(d) a decree of declaration declaring the first Plaintiff as the owner of all the contents of locker No. 20A Type with The Delhi Safe Deposit Company Limited, New Delhi, and to operate the said locker singly or with Plaintiff No. 2 who is the joint holder of the locker.
(e) a decree of rendintion of accounts in favour of the Plaintiffs and against the Defendants requiring the Defendants to render true and full accounts in respect of business activity of the business named and styled "Banbasees" being run from commercial shop No. 2738, Municipal No. XVI, Ajmal Khan Road, Karol Bagh, New Delhi-5, as on the death of Smt. Kartar Devi and to further render accounts in respect of earnings of the said business firm "Banbasees" with the capital and share in profits of the deceased as from the death of the deceased and of the proceeds of bank account of the deceased known to Defendant No. 1 and to pass a decree in favour of the Plaintiffs in such sum as may be found due and payable to the Plaintiffs; and
(f) a decree of permanent injunction against the Defendants restraining the Defendants from disturbing the status quo in respect of Plaintiffs' possession of the portion of the house property 5A, Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 and restraining them from alienating, transferring or otherwise parting with possession of the said property or any portion thereof, till disposal of the suit.
2. A preliminary decree partitioning property No. 5A, Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 was passed by this Court on 10th May, 2007 holding that each party has 1/4 undivided share in the aforesaid property. A Local Commissioner was appointed by the Court, who submitted a report stating therein that the property was not capable of being divided by metes and bound. The Court vide order dated 19th November, 2007, passed a final decree of partition with respect to movable as well as immovable properties, directing that the properties being incapable of partition, the same would have to be sold. In respect of property No. 5A, Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005, it was directed that the same be sold by public auction and the parties would be entitled to bid in the public auction, to the exclusion of their share.
3. I.A. No. 13192/2009 has been filed by Ms. Benu Puri, who claims that the first Plaintiff Ms. Sita Kashyap, who died during the pendency of the suit, had left a Will in her favour.
4. Vide order dated 29th January, 2010 passed in I.A.No. 13192/2009 for bringing the L. Rs. of deceased Plaintiff No. 1 on record, the following two issues were f
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