GAYATRIKUTTY AMMA Vs. BHASKARAN NAIR

JUDGEMENT

(1.) THE short point arising for determination in this revision petition is whether a decree for mesne profits passed after 14-7-1958 relating to a period prior to 14-7-1958 could be discharged under the provisions of the Kerala Agriculturists Debt Belief Act (Act XXXI of 1958 ). THE preliminary decree in this case which was passed on 29-11-1955 left the question of mesne profits to be decided in execution and it was only the final decree which was passed on 24-11-1958 that awarded a sum of Rs. 800 towards past arrears and for future mesne profits for two years at the rate of Rs. 134-31. THE application for discharge of the debt under the provisions of the act was dismissed by the Munsiff on the ground that the debt came into existence only after 14-7-1958 the date on which the Act came into force. In arriving at that decision the learned Munsiff relied upon the decision of the travancore-Cochin High Court in Kunju Ali v. Kunju Mahammadu 1951 KLT. 112. In that case a similar question in relation to the Travancore Debt Relief Act (Act ii of 1116) came up for consideration and it was decided that though the basis of the liability for mesne profits namely wrongful possession existed before the date mentioned in the section the liability itself can be said to have been "incurred" only when the court fixed it by its decree.

(2.) IT is contended on behalf of the revision petitioner that the liability for mesne profits has to be taken to have been incurred as soon as the year for which the mesne profits is payable ran out. The decision of the Bombay High Court in Ismailbhai Sarbarbhai v. Kondi Ravji ILR. [1960] Bombay 276 was also cited. That case related to a claim for damages for breach of an agreement and it was held that as the liability was incurred by the defendant on the day of the breach of the agreement it was a debt as defined in S. 2 (4) of the Bombay Agricultural Debtor's Relief Act. That decision is not applicable to the facts of this case which relates to mesne profits. Though mesne profits are in the nature of damages it cannot be said that the liability to pay mesne profits arose when the party concerned came into possession of the property. The question of mesne profits arises only at the stage when the Court comes to the conclusion that the plaintiff has proved his title and also that the defendant is in wrongful possession. In a suit for partition of a share in the tarwad property besides the circumstance that the plaintiff is entitled to a share in the properties other questions may also have to be considered by the Court before it fixes the liability for mesne profits and it cannot be said that the liability for mesne profits was incurred before a decree for mesne profits was actually given by the court. Mesne profits are in the nature of damages which the court may mould according to the justice of the case.