GOPALAN Vs. RAGHAVAN

JUDGEMENT

(1.) The common question for consideration and decision in these revision petitions is whether arrears of profits decreed in favour of a sharer in a partition suit under the final decree is a debt, as defined in S.2(3) of Act 17 of 1977. According to the learned counsel for the revision petitioners, it falls under the exempted category in clause (c), in that it is a liability arising out of a breach of trust or in the alternative a tortious liability. Reliance was placed on the decisions in Kunhamina v. Ammotty Mariam ( 1979 KLT 73 ), Narayanan v. Govindan ( 1964 KLT 72 ), Prabhakaran Pillai v. Subhashani Amma ( 1980 KLT 777 ). To decide the question what is relevant is not the description given in the decree but the substance of the claim. In a suit for partition and separate allotment of properties with the share of profits what is decreed in favour of the sharer is that part of the income of the property which be would have been entitled to on a distribution of the profits which had been collected by the party in actual possession. If that party in actual possession is not a trespasser or a person in the position of a trustee who had the legal obligation to account, his liability to pay off the share to a coowner cannot be characterised either as a liability arising out of breach of trust or as in the nature of a tortious liability. What has been considered in Kunhamina's case (1979 KLT 73) and in Prabhakaran Pillai's case (1980 KLT 777) is the case of a trespasser who was found liable to pay the profits for the period for which he was in wrongful possession and the Court has said that the possession of the trespasser being wrongful, his liability to account arises from tort This position was reiterated in Prabhakaran Pillai's case (1980 KLT 777) pointing out that mesne profits will arise only in wrongful possession and in other words the person in possession must be a trespasser. A trespass over another's land is a tort and the liability arising therefrom is certainly a tortious liability. The court said that a decree for mesne profits is a decree for money and ordinarily it is understood as one for recovery of debt and the proviso which takes out the decree for possession with mesne profits from the category of a decree in respect of a debt mentioned in the Explanation cannot be understood to mean that a decree for mesne profits is a debt within the meaning of the word 'debt' or anything other than a decree for tortious liability exempted from the purview of the Act.

(2.) The question whether a decree for mesne profits in a suit for partition is a debt has not been specifically considered in these decisions. That question arose directly for consideration in the decision reported in Madhavi Amma v. Madhavi Amma (ILR 1979 (2) Kerala 166). It was held:

(3.) In Mariyamma v. Thresiamma ( 1959 KLT 989 ) the court said: