Kerala High Court
Muhammed Haneefa Rowther vs Sara Umma And Ors. on 20 March, 1990
Equivalent citations: AIR1991KER94, AIR 1991 KERALA 94, (1990) 2 KER LT 127
JUDGMENT P.K. Shamsuddin, J.
1. This appeal and the cross appeal are directed against the final decree and judgment in I.A. No. 3548/1976 in O.S. No. 74 of 1974 on the file of the Court of the Subordinate Judge, Palghat. A preliminary decree was passed on 20-12-1975 directing the plaint A schedule Items 1 to 15 and 17, C schedule item 6 and the movables shown in Ext. C1(a) and Ext. C1(b) to be divided into 72 equal shares, and allotment of 7 such shares to the plaintff, 14 shares to the 1st defendant and the remaining shares to defendants 2 to 7 jointly. There was also a direction against the 1st defendant to account for the value of 6 cart loads of paddy to the other sharers. The 7th defendant was also directed to pay Rs. 496/ - to the 1st defendant being the share in the fixed deposit amount withdrawn by her and also the respective shares due to the plaintiff and defendants 2 to 6. There was also a direction against the 1st defendant to pay mesne profits to the plaintiff and defendants 2 to7 from A schedule items 1 to 15 and 17 from the date of the suit at such rate as will be determined in the final decree.
2. In I.A. No. 3845 of 1976 which was an application for passing final decree, a Commissioner was deputed to effect division in accordance with the terms contained in the preliminary decree. Exts. C5 to C7 contained the schedules of properties allotted by the Commissioner to different parties. No objection was filed regarding the allotment and the allotment was accepted and a final decree was passed on that basis.
3. As regards the movables the Commissioner was directed to divide the value of the movables as was available for division. 1st defendant was found accountable for the value of movables shown in Ext. C1(a) with the modification of the price of paddy to be calcualted at Rs. 20/- per para and defendants 2 to 7 were made liable to account for the value of movables shown in Ext. C1(b) and also for the value of paddy seen in the house.
4. In this appeal filed by the 1st defendant, learned counsel has challenged the correctness of mesne profits liable to be accounted by the defendant in respect of Kanni and Makaram crops of the year 1155 M.E. and Kanni crop of the year 1156 M.E. Learned counsel for the appellant submitted that in respect of the other years, there was auction.
This submission was disputed by the counsel for respondents. Learned counsel for respondents contended that in respect of some other years also there was no auction and the defendant was in possesssion of the property. In the final judgment passed by the Court it was held that the 1st defendant was liable to account for the periods except during the years in which the right to raise to crops was sold in auction the Court below determined the quantum of profits at 700 paras of paddy per year in respect of periods during which the right was not auctioned. The Court below will consider the question as to which are the years during which there was no auction, as there is dispute between the parties on this aspect.
5. Regarding the liability fastened on the 1st defendant to account for 700 paras of paddy per year in respect of the years during which there was no auction, learned counsel for the appellant submitted that the direction is illegal. According to him, the appellant had not raised any crops during the Kanni and Makaram of the year 1155 M.E. and Kanni of 1156 ME. That the 1st defendant has raised such a contention is clear from paragraph 6 of the final judgment where the learned Subordinate Judge referred to the contention of the defendant that there was no evidence to show that he had raised any crops during those years.
6. Learned counsel for the respondents countered this argument by submitting that there is a direction for payment of mesne profits in the preliminary decree and that direction was not appealed against and became final and it is not open to the appellant to contend that he was not liable to pay mesne profits as he did not raise crops for the disputed years. Learned counsel for the respondents submitted that 1st defendant had actually raised the crops and that in his evidence as D.W. 1 he did not specifically state that during the disputed years, he did not raise the crops. P.W. 1 also did not give any evidence on the question whether the 1st defendant had raised crops during the disputed years. However, from the final judgment it is clear that the 1st defendant raised a contention that he did not raise crops. There is no finding by the lower Court on this aspect and it proceeded on the basis that 1st defendant is liable to account for mesne profits irrespective of whether or not he raised the crops.
7. In order to appreciate the contention raised by the learned counsel, it would be profitable to refer to Section 2(12) of the Code of Civil Procedure which defines mesne profits as meaning those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
8. Learned counsel for the appellant argued that possession of a cosharer is not a wrongful possession and therefore no question of payment of mesne profits as defined in Section 2(12) arises in such cases and that what is legally awarded in case of partition suit filed by a co-sharer is only share of profits received by the co-sharers in possession. In support of his contention, learned counsel invited my attention to a ruling of the Madras High Court in Sassi Lazar Villavaraya v. M. Ramaswami Naidu (AIR 1933 Mad 710). In that case the Madras High Court held that it is well settled that the receipt of profits by a co-sharer is not wrongful. See Yerukola v. Yerukola (AIR 1922 Mad 150) The Court further observed that the right to profits against a co-sharer in possession, is not a right in law to mesne profits, but is a right to obtain and call for an account, and such a right can be transferred. The same question came up for consideration before a Full Bench of the Madras High Court in Babburu Basavayya v. Babburu Guravayya (AIR (38) 1951 Madras 938). Dealing with the question, the Full Bench observed at Page 939 of AIR ;
"It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits right arise; (1) suits for ejectment or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne profits, (2) suits for partition by one or more tenants in common against others with a claim for account of past or past and future profits, (3) suits for partition by a member of a joint Hindu family with a claim fof an account from the Manager. In the first case, the possession of the defendants not being lawful, the plaintiff is entitled to recover "mesne profits" as defined in Section 2, Clause 12 Civil P.C. such profits being really in the nature of damages. In the second case, the possession and receipt of profits by the defendant not being wrongful the plaintiff's remedy is to have an account of such profits making all just allowance in favour of the collecting tenant in common. In the third case, the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the Manager has been guilty of fraudulent conduct or misappropriation. The plaintiff would however, be in the position of a tenant in common from the date of severance in status and his rights would have to be worked out on that basis."
After reviewing the authorities on the point, the Court held at Page 940 of AIR:
"Order 20, Rule 12 relates to "mesne profits" in the sense in which that expression is defined in Section 2, Clause 12 of the Code. The claim of a member of a joint Hindu family suing for partition and for his share of the profits accruing from the lands pending the suit is not, properly speaking a claim for "mesne profits" and Order 20, Rule 12, Civil P.C. has no application to such a case.
A Division Bench of our High Court also had occasion to consider the question in the decision in Mariyumma v. Kunhambu Nair (1967 Ker LT 1017). The Division Bench followed the dictum laid down in the Babburu Basavayya's case (supra) and held that even in the absence of any provision to award future mesne profits in favour of a party in the preliminary decree, it is open to Court even after the 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. The Division Bench also held that it is not correct to regard the claim for profits put forward in suit for partition by a sharer of joint family property of a co-ownership property as a claim for mesne profits falling under Order 20, Rule 12, C.P.C.
9. In the light of the principles enunciated in the above decisions, the expression 'mesne profits' used in the preliminary decree has to be understood only as profits and not in the sense of mesne profits as defined in Sec. 2, Cl. 12, C.P.C. or Order 20, Rule 12, C.P.C. It is clear from Section 2, Clause 12 that mesne profits mentioned therein is the profits which the person in wrongful possession of such property actually received or might with ordinary diligence received therefrom. The possession by a co-owner cannot be termed as unlawful possession and therefore Section 2, Clause 12, C.P.C. can have no application. So understood future mesne profits mentioned in the preliminary decree could only mean the actual profits received by the person in possession. The question of what profits with ordinary diligence, the person in possession would have received does not arise in such case.
10. In the light of this legal position, it was necessary for the Court below to consider the question whether the 1st defendant had raised any crops during the disputed periods and whether he received any profits during the disputed years. Since there is no dispute regarding the possession of the 1st defendant, he is certainly accountable for the receipt of profits during the disputed periods and therefore the Court has to go into the question whether he received any profits during the disputed years. Unfortunately, as stated already, the Court below has not addressed itself to this question and only based its decision on the provision in the preliminary decree that the 1st defendant is liable to account for the mesne profits. This approach does not seem to be legally correct. I therefore set aside that part of the final judgment and decree of the Court below determining that the 1st defendant was liable to account for the mesne profits at the rate of 700 years of paddy per year in respect of Kanni and Makaram crops for the year 1155 and Kanni crops for the year 1156 M.E.
11. Plaintiff and defendants 2 to 7 have filed a cross appeal against the finding of the the Court below determining the quantum of 700 paras of paddy as the profits for the disputed years. Learned counsel for the cross-appellants submitted that there was no reason to reject the quantum of 780 paras of paddy fixed by the Commissioner in Ext. Cl report. Since I am remanding the matter to the Court below for determination of profits for the disputed years, laying down the correct principle for determining such profits, it is not necessary for me to consider the objection. It is sufficient to state that the quantum of profits has to be determined on the basis of receipt of profits by the 1st defendant. The parties will be permitted to adduce evidence on this aspect.
12. Another contention raised by the learned counsel for the appellants is that the Court below went wrong in not taking notice of the death of bullock after the preliminary decree. The Court below has observed in paragraph 3 of the final judgment that in I. A. No. 1020 of 1979 the factum of death of a bullock was recorded by his predecessor and he also ordered that the plaintiff will be held liable for the price of the bullock as shown in Ext. C1(a) and that in view of this order the 1st defendant cannot be exonerated from that liability (the reference 'the plaintiff' in the judgment is apparently a mistake for 'the 1st defendant'). On verification of the order in LA. No. 1020 of 1979 I find this statement by the Court below is correct. However, it is open to the 1st defendant to challenge this finding in the appeal filed against the final decree. Learned counsel for the appellant submitted that though in the preliminary decree the bullock was found as an item of movable property the Court below is bound to take notice of the factum of death of the bullock subsequent to the preliminary decree as it is not available for partition. There is force in this contention. I therefore set aside the direction in the final decree and judgment that the 1st defendant would be liable for the price of the bullock which is recorded to be dead and I direct the Court below to consider this question afresh.
13. What remains to be disposed of are the two points raised in the cross appeal filed by plaintiff and defendants 2 to 7-- (1) that in Ext. Cl report the Commissioner has assessed the damages caused by the 1st defendant by cutting the trees and removing Kalapura as Rs. 1488/- but in the final decree and judgment, no provision has been made for damages and (2) that though in the final decree and judgment, the price of six cart loads of paddy was quantified as Rs. 8,400/-, the decree did not provide for the share of defendants 2 to 7 in the said paddy. As regards the first submission, the Court below observed that there is no evidence to show that the 1st defendant had actually cut the trees and caused damages. The Commissioner in his report has stated that damage to the extent of Rs. 1488/- has been committed. In the circumstances, the Court below ought to have directed an enquiry on this aspect. I therefore direct the lower Court to enquire into this question and allow the parties to adduce evidence on this aspect. Learned counsel for the plaintiff and defendants 2 to 7 is also correct in his contentions that the final decree did not make provision for the share of defendants 2 to 7 in the value of six cart loads of paddy which was estimated as Rs. 8,400/-. Necessary amendment would be made in the decree incorporating the shares of defendants 2 to 7 in the price of the six cart loads of paddy quantified in the preliminary judgment.
In the result, the appeal and the cross appeal are allowed to the extent indicated above and in all other respects they are dismissed. Parties will suffer their costs. The appellant and cross appellants will be entitled to refund of Court-fee paid on the Memorandum of Appeal and Cross Appeal. The parties will appear before the Court below on 29th June, 1990. Since the matter is old, the Court below will dispose of the matter within four months from the date of receipt of records. Records will be sent to the Court below forthwith.