GOPALKRISHNA PILLAI Vs. MEENAKSHI AYAL

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THE following pedigree shows the relationship of Sivasami Odayar and the members of his family: <IMG>JUDGEMENT_155_AIR(SC)_1967Image1.jpg</IMG> Sivasami died issueless in 1927. By his will dated 14/09/1927 he bequeathed items 1 to 4 and one half of items 12 and 13 of the suit properties to his wife, Neelayadakshi absolutely and items 5 to 11 and one half of items 12 and 13 to his mother, Chinnayal absolutely. He also appointed Chinnayal as the trustee of items 14 to 18 for the benefit of the Pillayar temple. Neelayadakshi died in 1931. It is common case that on her death Chinnayal inherited her properties as a limited heir. Defendants 6 and 7 claimed that their father purchased item 4 from one Muthukumaraswami, agent of Chinnayal, under a sale deed dated 5/06/1937. On 28/08/1940, Chinnayal executed a deed of gift in favour of Muthukumaraswami giving him items 1, 3 and 8 and portions of items 5 and 13. On 4/09/1940, Chinnayal is said to have executed a will bequeathing to Muthukumaraswami the remaining properties belonging to her absolutely and inherited by her as a limited heir from Neelayadakshi and also items 14 to 18 and her trusteeship right in respect of those items. Chinnayal died on 15/09/1940. It is common case that the plaintiffs are her heirs. Soon after her death, Muthukumaraswami conveyed to one Venugopala all the properties acquired by him under the aforesaid gift deed and will. Venugopala died in 1943 leaving defendants 1 to 5 as his heirs. In or about August 1952, Meenakshi and Kamakshi instituted a suit in the court of the Subordinate Judge, Cuddalore for possession of the suit properties alleging that they were entitled to the properties left by Chinnayal and Neelayadakshi and denying the factum and validity of the gift deed dated 28/08/1940, the will dated 4/09/1940 and the alleged sale in favour of the father of defendants 6 and 7. THE defendants contested the suit.

(3.) IN the plaint, there was no specific prayer for a decree for mesne profits subsequent to the institution of the suit. Counsel for the appellants argued that in the absence of such a specific prayer, the High court had no jurisdiction to pass a decree for such mesne profits. We are unable to accept this contention. Order 20, r. 12 of the Code of Civil Procedure provides that 'where a suit is for the recovery of possession of immovable property and for rent or mesne profits' the court may pass a decree for the possession of the property and directing an inquiry as to the rent or mesne profits for a period prior to the institution of the suit and as to the subsequent mesne profits. The question is whether the provisions of 0.20, r. 12 apply to the present suit. We find that the plaintiffs distinctly pleaded in paragraph 9 of the plaint that they were entitled to call upon the defendants to account for mesne profits since the death of Chinnayal in respect of the suit properties. For the purposes of jurisdiction and court-fees, they valued their claim for possession and mesne profits for three years prior to the date of the suit and paid court-fee thereon. IN the prayer portion of the plaint, they claimed recovery of possession, an account of mesne profits for three years prior to the date of the suit, costs and such other relief as may seem fit and proper to the court in the circumstances of the case. On a reading of the plaint, we are satisfied that the suit was for recovery of possession of immovable property and for mesne profits. The provisions of 0.20, r. 12 were, therefore, attracted to the suit and the court had power to pass a, decree in the suit for both past and future mesne profits.