R S GOPALAKRISHNAN Vs. K RAJAMBAL

JUDGEMENT

(1.) THIS is an appeal at the instance of defendants 12 and 13 in O. S. No. 144 of 1973, Sub-Court, Mayuram, against the final decree for mesne profits passed in I. A. No. 616 of 1977 in O. S. No. 144 of 1973 determining the liability of the appellants for mesne profits in a sum of Rs. 30,000 for the period from 1. 8. 1972 to 22. 10. 1977, on an application taken out in that regard by respondents 1 and 2 in this appeal, who figured as the plaintiffs in o. S. No. 144 of 1973.

(2.) IN order to appreciate the controversy between the parties to this appeal, it would be necessary to briefly set out the facts. A and B schedule properties in O. S. No. 144 of 1973, with which this appeal is concerned, belonged to one Natesa Iyer, who died in 1948. He had a son of the name of Krishnamurthy and two daughters Rajammal alias Rajalakshmi and manga-lambal, the second plaintiff in O. S. No. 144 of 1973. One Rajambal is the wife of Krishnamurthy and she is the first plaintiff in O. S. No. 144 of 1973. On 19. 1. 1939, Natesa Iyer executed a Will in relation to A and B schedule properties. Under that will, Natesa Iyer bequeathed a life interest to his son krishnamurthy in relation to A and B schedule properties and it was also further provided that after the lifetime of Krishnamurthy, the children of krishnamurthy and Rajambal, male and female, should take the properties. A further provision was also made that in the event of Krishnamurthy and Rajambal not having any children, A schedule properties should be taken by Rajambal and b Schedule properties should be taken by Rajammal alias Rajalakshmi and after the death of Rajammal alias Rajalakshmi, Mangalambal, the second plaintiff in o. S. No. 144 of 197 3, should take B schedule properties. There is no dispute that on the death of Natesa Iyer, the provisions in his will as aforesaid took effect. Though Krishnamurthy, under the terms of the Will of Natesa Iyer, was entitled only to a life interest in the properties bequeathed in his favour, yet, he purported to sell the properties to the first appellant herein under a sale deed dated 5. 8. 1950. The extent so sold was 20. 70 acres. Krishnamurthy and rajambal did not have any children. Krishnamurthy and Rajammal alias rajalakshmi died on 1. 8. 1972. IN accordance with the terms of the Will of natesa Iyer, Rajambal and Mangalambal, became entitled to A and B schedule' properties. Therefore, they instituted O. S. No. 144 of 1973 praying for recovery of possession of A and B schedule properties in that suit with past and future mesne profits. Several persons in possession of the properties inclusive of the appellants in this appeal were impleaded as defendants. It would suffice for purposes of this appeal to notice only one of the several defences raised by the appellants herein. They claimed that they were not in possession of any of the properties as they had sold the same to various persons for valuable consideration and the alienees were in possession. Issue No. 3 in the suit related to the question whether the first appellant herein was a bona fide purchaser for value. The Court found that the first appellant herein had purchased the properties from Krishnamurthy being fully aware of an insurance policy without paying anything in cash and that none of the alienees had purchased the properties in good faith. Dealing with the issue relating to the plea of adverse possession raised by the appellants herein which formed the subject-matter of issue No. 15, the Could held that the rights of the plaintiffs in the suit would not in any manner be affected. On the question of mesne profits, it was found that some defendants are in possession of certain lands and some others in possession of certain other lands and, therefore, the quantum of mesne profits, past and future, should be relegated to a separate proceeding under Order 20, rule 12, Code of Civil Procedure, Ultimately, on 24. 2. 1977, a decree for recovery of possession of A schedule properties was passed in favour of the first plaintiff in the suit and a similar decree for recovery of B schedule properties was granted in favour of the second plaintiff, the quantum of mesne profits being relegated to proceedings under Order 20, rule 12, Code of Civil Procedure. Thereafter, on 22. 10. 1977, the plaintiffs in o. S. No. 144 of 1973 filed I. A. N0. 616 of 1977 for ascertainment of mesne profits from A and B schedule properties payable by the defendants in O. S. No. 144 of 197 3 for the period from 1. 8. 1972 to 22. 10. 1977. Against the decree and judgment in O. S. No. 144 of 1973, defendants 1 and 2 therein preferred an appeal in a. S. No. 661 of 1977, while, the appellants herein filed A. S. No. 632 of 1977 before, this Court. The appellants also moved for and obtained stay, though subject to certain conditions. Both the appeals were dismissed on 30. 6. 1982 by this Court. While disposing of A. S. No. 632 of 1977, this Court noticed the contention raised on behalf of the appellants herein that they had subsequently sold the properties purchased by them and no decree for mesne profits could be passed against them and stated that such a contention has to be agitated in the course of proceedings arising under Or. 20, R. 12, Code of civil Procedure.

(3.) THE question of possession of the properties purchased by the first appellant from Krishnamurthy has to be first considered before the liability to mesne profits can be fastened. It is seen from the Judgment in o. S. No. 144 of 1973, Sub Court, Mayuram, (which is available in A. S. No. 632 of 1977 filed by the appellants herein) that the appellants put forth the plea that even on 1. 8. 1972, they had parted with the properties purchased from krishnamurthy in favour of others. Three documents of sale executed by the first appellant In favour of defendants 7, 11 and. 8 in the suit were also relied upon. It was found that the first appellant had taken an assignment of an insurance policy without making any payment for the purchase of properties from Krishnamurthy on 5. 8. 1950 and that none of the alienees purchased properties in good faith, but their conduct clearly established bad faith or want of good faith. It was also, further found that the first appellant had coerced Krishnamurthy into taking an insurance policy and the assignment thereof and that subsequent to the death of Krishnamurthy, the first appellant had also collected the amount of Rs. 45,000 due under the policy. Thus, the Court was not inclined to accept the sale in favour of the first appellant as supported by consideration or the so-called further sales by the first appellant in favour of others as bona fide. Ultimately, the Court granted a decree for recovery of possession against all the defendants. If really, as the appellants would now contend, they had parted with possession of the properties purchased by them from Krishnamurthy and they were not in possession, it is difficult to understand how the Court proceeded to grant a decree for possession even as against the appellants. That is not all. THE filing of the appeal in A. S. No. 632 of 1977 by the appellants herein before this Court has already been referred to. It is significant that none of the so-called alienees from the first appellant had filed the appeal or joined the first appellant in filing the appeal. That would clearly establish that the real persons aggrieved by the decree for recovery of possession were not the alienees, but the appellants. Unless the appellants were in possession of the properties, their filing the appeal and obtaining stay cannot be explained at all. Besides, the appellants raised in the course of trial a plea of adverse possession. That was also negatived. Such a plea could have been raised only on the strength of the possession of the appellants. That also indicates that the appellants were in possession of the properties and wanted to defeat the plaintiffs in O. S. No. 144 of 1973 by a plea of adverse possession, though that was not accepted by the court. Above all, in the affidavit filed in support of I. A. No. 616 of 1977, the plaintiffs have clearly stated that the appellants had admitted the lands to be in their possession and those lands were double crop wet lands, the net income from which would be 12 kalams per mah. THE counter filed by the first appellant in this behalf is bald and not very clear or specific in that it does not categorically deny the possession of 20 acres by the appellants. But, while admitting the liability to account for the same, it proceeds to state that items had been sold to third parties. THE passing of a decree for possession against the appellants despite their setting up a plea that they had parted with the properties purchased from Krishnamurthy has already been referred to. Three instances of sale were also relied upon. THE Court had not accepted the sales as bona fide or genuine transactions. That would mean that the transactions of sale were only make-believe transactions and not real ones. Further, Exhibit A-3 shows that the first appellant has sworn to an affidavit as late as 3. 11. 1977 stating that he was anticipating better kuruvai crops and was expecting to remit a sum of Rs. 10,000, but that he was not able to owing to submersion of lands in water and damage to crops. On this ground, the appellants sought a variation of the earlier order passed, by extending the time for payment of the amounts directed by the Court earlier. It is thus clearly established that the appellants were in possession and had raised crops and were anticipating a good harvest, which turned out to be a disappointment, and therefore variation of the order and extension of time became necessary. This would. also show that the appellants were in possession, though they stated that they were not. THE aforesaid features which could be culled out from the judgment in O. S. No. 144 of 1973 and the other materials clearly point out that the appellants continued to remain in possession of the properties, but wanted to avert a decree for possession by saying that they had sold the properties and parted with possession, which was not established either in the course of the trial of the suit O. S. No. 144 of 1973 or even now in the course of the present proceedings. THEre is also no acceptable material to show that the so-called vendees from the first appellant were put in possession of the properties stated to have been sold in their favour. Undoubtedly, therefore, the appellants as persons in possession of the properties have to be held liable for mesne profits.