ABDUL RAHIMAN Vs. M LNARASIMHIAH

JUDGEMENT

(1.) This is an appeal against he order in O.S.No. 5 of 38-39 on the file of the District Judge, Mysore, directing inquiry into and payment of defendant 2's share of the profits derived from the suit property till he is put in possession of it.

(2.) The suit was field by the plaintiff against defendant, his father and defendant 2 his cousin for recovery of his 1/4th share in the family properties and for his share of the income from them. The appellant was also impleaded as one of the properties was mortgaged with possession to him by defendant 1. The appellant pleaded that the debt was binding on the family as it was contracted for legal necessity but his contention was negatived and a preliminary decree was drawn up for division of the properties on the footing that the debt was binding only on 1/4th interest of plaintiff's father. The appellant filed an appeal against the plaintiff only and succeeded in showing that the mortgaged debt was binding not only on the share of his father, but also on plaintiff's 1/4th share as the latter was not born on the date of alienation. he did not implead to his appeal, defendant 2 and did not agitate against the finding that the alienation was not binding on defendant 2/s share as it was not contracted for legal necessity. The appellant is not disputing that defendant 2 can have is half share in the property mortgaged to him. he is contesting only that this defendant is not entitled to mesne profits now claimed by him.

(3.) The first point raised by him is that the preliminary decree for partition does not direct an inquiry into future means profits and as such the Court has no power to direct an inquiry into future mesne profits. The decision in 21 Mys. L.J.R. 270 is relied on. In that decision it was held that an application under Order 20, Rule 12 for future mesne profits was not maintainable when the decree did not award future mesne profits. In that case, a final decree had been passed for possession and past mesne profits but was silent on the question of future mesne profits claimed in the plaint. Order 20, Rule 12 is as follows: