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Madras High Court
V. RAMASWAMI
Lakshmi Ammal - Appellant
Versus
Subbaraj - Respondent
Decided On : 03/15/1974
PARTITION SUIT - MESNE PROFITS - JURISDICTION OF COURT - ENQUIRY INTO MESNE PROFITS - PRAYER IN PLAINT - PRELIMINARY DECREE - LEGAL POSITION - RATIO DECIDENDI - FINAL DECISION - MODIFICATION OF FINAL DECREE - MARRIAGE EXPENSES - LIABILITY.
Fact of the Case:
Plaintiffs filed a suit for partition and separate possession of their 23/48th share in the plaint A schedule properties. The suit was decreed on 31-7-1964. Neither the plaintiffs have prayed for past or future mesne profits in the plaint nor the preliminary decree directed an enquiry into the mesne profits under Order 20, Rule 12, Civil P. C. The plaintiffs filed I.A. 124 of 1966 for partition of the immovable properties and separate possession as directed in the preliminary decree. They also filed IA 205 of 1966 for determination of mesne profits for the suit items from fasli 1372 onwards and to incorporate the same in the final decree.
Finding of the Court:
The court held that the courts below had the jurisdiction to enquire into it and award the mesne profits from the date of the suit. However, the court found that the courts below erred in holding that the amount received by Ayyakkammal shall be deemed to have been received by the defendants. The court also found that the first defendant was not liable to account for the profits arising from item No. 16, but defendants 3 and 5 were liable to account for the same.
Issues: 1. Whether the court had jurisdiction to enquire into the question of mesne profits in the absence of a prayer in the suit either for past or future mesne profits and in the absence of even a direction by the Court in the preliminary decree to enquire into the mesne profits under Order 20, Rule 12, Civil P. C.? 2. Whether the quantum of mesne profits determined by the Commissioner in the final decree proceedings was correct?
Ratio Decidendi: 1. The court relied on the decision of the Full Bench of this court in Babburu Basavayya v. Babburu Guruvayya, (1951) 2 Mad LJ 176 : (AIR 1951 Mad 938 (FB)) and the decision of the Supreme Court in Maddanappa v. Chandramma, AIR 1965 SC 1812 to hold that the courts below had the jurisdiction to enquire into it and award the mesne profits from the date of the suit. 2. The court found that the courts below erred in holding that the amount received by Ayyakkammal shall be deemed to have been received by the defendants. The court also found that the first defendant was not liable to account for the profits arising from item No. 16, but defendants 3 and 5 were liable to account for the same.
Final Decision: The second appeal was allowed in part in respect of item 2 and to the extent mentioned in respect of item 16. The final decree was modified accordingly. There was no order as to costs in this second appeal.
2. It is the contention of Sri N. Veluswami, the learned counsel for the appellant that in the absence of a specific prayer in the plaint for past mesne profits or for future mesne profits, the Court had no jurisdiction even to provide for determination of the mesne profits subsequent to the suit in the preliminary decree, much less to direct the determination in the absence of a direction in the preliminary decree itself. In support of this contention the learned counsel relied on two decisions of the Supreme Court reported in Md. Amin v. Vakil Ahmed, AIR 1952 SC 358 at p. 362 corresponding to (1953) 1 Mad LJ 6 at p. 11, and Gopalakrishna Pillai v. Meenakshi Aval, AIR 1967 SC 155. In the first of these cases the plaintiff claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. But the preliminary decree directed an enquiry to be made under Order 20, Rule 12, Civil Procedure Code. In considering whether this direction was correct or not, the Supreme Court made the following observations:
"It was however pointed out by Sri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression 'awarding possession and occupation, of the property aforesaid together with all the rights appertaining thereto'. We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree."
In the latter case the suit was for the recovery of possession of immoveable property and for past mesne profits. There was no specific, prayer for future mesne profits. But the preliminary decree directed an enquiry into the future mesne profits as well, though there was no specific prayer for the same in the plaint. It was contended relying on the above observations that the court had no jurisdiction to pass a decree for future mesne profits in the absence of a specific prayer for the same. The Supreme Court held that though the plaintiff must plead in order to enable him to get a decree for past mesne profits, with regard to future mesne profits, since the plaintiff would have no cause of action on the date of the institution of the suit it was not necessary for him to plead in the plaint and in all cases
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