MARIYUMMA Vs. KUNHAMBU NAIR

JUDGEMENT

(1.) DEFENDANTS 4 to 6 in O.S. 207 of 1950 have preferred this Civil Miscellaneous Appeal. The aforesaid suit was instituted by one Kunhiraman Nambiyar and another for a partition of the plaint schedule properties and for recovery of the plaintiff's 1/3 share with future profits at the rate of Rs. 30/-per year. The suit had been originally dismissed by the trial court and though the said decree of the trial court was confirmed by the lower appellate court, the High court in S. A. No. 932 of 1956 set aside the decrees of the courts below and passed a preliminary decree for partition holding that Kunhiraman Nambiyar was entitled to a 1/3 share. This preliminary decree was, however, silent about the plaintiffs' claim for future profits and did not contain any provision relating thereto.

(2.) THE respondents herein who are the legal representatives of Kunhiraman Nambiyar filed R.I.A. 878 of 1962 in the trial court for passing a final decree. THE trial court by order dated 29.9.1964 passed a final decree implementing the valuation and allotment suggested in the Commissioner's report which was accepted by it. Although in their application for final decree the respondents herein had specifically made a prayer that they should be awarded their share of the properties with effect from the date of suit, the trial court did not advert to this matter at all in its final judgment and consequently, the final decree passed by it did not also contain any provision relating to the aforesaid claim. Defendants 4 to 6 filed A. S.134 of 1964 in the Sub Court, Kasaragod, challenging the aforesaid final decree on the ground that the valuation of the properties and the division effected by the trial court were incorrect and unfair. Respondents herein who were respondents before the Sub Court in the aforesaid appeal filed a memorandum of objections contending that the trial court should have awarded them their share of the profits from the date of the plaint. THE lower appellate court allowed the appeal as well as the memorandum of objections and remanded the final decree application to the trial court for fresh disposal in the light of the directions given by it. THE Subordinate Judge overruled the contention taken before him by defendants 4 to 6 that the respondents are precluded from putting forward their claim for profits in the final decree proceedings on account of the absence of a provision in that regard in the preliminary decree. He held that the plaintiffs-respondents are entitled to profits from the date of suit and directed the trial court to ascertain and fix the quantum thereof and incorporate it in the fresh final decree to be passed by it. Defendants 4 to 6 have come up to this court with this Civil Miscellaneous Appeal, challenging the aforesaid decision of the appellate court in so far as it has directed the award of profits to the plaintiffs.

(3.) THUS none of the cases relied on by the appellant throws any real light on the question raised before us regarding the jurisdiction of the court passing a final decree in a partition suit to award future profits in favour of a party in the absence of any provision in that behalf in the preliminary decree. This point has, however, been directly considered and decided by a Full Bench of the Madras High Court in the decision reported in Basavayya v. Guravayya (AIR. 1951 Mad. 938 FB.). The case before the Full Bench arose out of a suit for partition of joint family properties wherein a preliminary decree had been passed which did not contain any specific provision relating to profits. At the final decree stage the plaintiff applied for an inquiry into the profits of the properties realised by the defendants subsequent to institution of suit and prayed that provision should be made in the final decree for payment of his share of such profits. The defendant opposed the application on the ground inter alia that the preliminary decree passed in the suit did not contain any direction for inquiry into future profits. The trial court having over-ruled this objection of the defendants they approached the High Court with a Civil Revision Petition questioning the jurisdiction of the trial court to conduct an enquiry regarding future profits in the final decree proceedings. The Full Bench held that the claim of a plaintiff suing for partition for his share of the profits accruing from the suit property pending the suit, is not, properly speaking a claim for "mesne profits" and O.20, R.12, CPC. has no application to such a case. It was further held that the profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree and that a right to an account of such profits being implicit in the right to share in the common properties, both rights have to be worked out and provided for in the final decree for partition. In this view, the Full Bench held that a direction for an inquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and that there is nothing in O.20, R.18 CPC. interdicting such procedure. The contention that in the absence of specific provision in the preliminary decree declaring the right of a party to future profits the final decree court has no jurisdiction to award future profits by the final decree was therefore, rejected by the Full Bench.