: Mesne profits in a suit for partition are part of the corpus available for division and need not be separately valued for court fee purposes.

K. Sadasivan, J.

1. The question arising in this Civil Revision Petition is whether the court fee paid is adequate ana proper. The question was raised in the appeal A. S. No. 399 of 1966 on the file of the Subordinate Judge of Ottappalam from a final decree for partition. The appeal was filed by defendants 2,5 and 6. One of the contentions raised in the appeal was in respect of the mesne profits decreed against them. Mesne profits have not been separately valued in the appeal, since according to the appellants mesne profits form part of the corpus available for partition among the various sharers. In the appellate court a preliminary objection was raised by the respondent (plaintiff) saying that since a specific amount has been decreed by way of Mesne Profits the appellant should be called upon to pay court fee on that amount irrespective of other reliefs claimed in the memorandum of appeal. The appellants are made liable for three years, mesne profits at the rate of Rs. 985-88 Ps., per year. They have been made liable for future mesne profits also at the same rate. The learned Subordinate Judge upholding the preliminary objection has directed the appellants to pay deficit court fee on the mesne profits decreed.

2. The law is clear that in a suit for partition a sharer claiming partition has a right to demand accounts of the mesne profits received by the person in possession, and ask for a decree for his share of the mesne profits that have so accrued. A Division Bench of this court in Mariyumma v. Kunhambu Nair (1967 KLT 1017) has observed that in such suits a share of the profits is claimed "not as mesne profits but as appurtenant to his right in his share of the lands. The profits accruing from the common properties forming the subject matter of the division during the pendency of the suit, form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves. It is not correct to regard the claim for profits put forward in a suit for partition by a sharer of joint family property or of co-ownership property as a claim for mesne profits falling under O.20 R.12 C.P.C. It is part of the legitimate function of a court passing a final decree in suit for partition and effectuating a division of properties pursuant to a preliminary decree to make a division of the profits that have accrued from such properties pending the suit, as such profits really form part of the corpus available for division."

Thus the profits appropriated by the appellants must be regarded as an addition to the common estate partible among the various sharers.

In a Division Bench of the Bombay High Court, Gajendragadkar J., (as he then was) has held, under similar circumstances, as follows:

"A suit for partition falls under Schedule.11, Art.17 Chap.(7) and this would be so whatever be the contentions urged by the defendants while resisting the plaintiff's claim for partition. And in an appeal arising from a suit which falls under Art.17, the court fee payable on memorandum of such an appeal must be the same as that payable on the original plaint in the suit. There is no difference in principle between an appeal preferred by a plaintiff and that by a defendant. An appeal preferred by the defendant against a decree based on the finding that the properties in the suit are the properties of the undivided family and that they do not belong to the appellant defendant as his exclusive properties should similarly fall under Art.17, Clause.(vii) of Schedule. 11. The suit on the whole would still continue to be a partition suit, and for the purpose of an appeal it would still be an appeal from a partition suit notwithstanding the nature of the finding recorded by the trial court and without reference to the question as to who the appellant is".

The appeal, is therefore, a continuation of the suit and the character of the suit does not change even if an appeal is filed by the defendant. He need pay only the court fee that the plaintiff has p