KUNHI KURUMBAN Vs. UPPUKOOTU PARAMBIL LAKSHMI

JUDGEMENT

(1.) In these three connected second appeals the alienees of certain items of property, the subject-matter of the suit, which the plaintiff sought to recover with mesne profits, are the appellants, but the questions that arise for determination are the same.

(2.) The first point that was argued by Mr. Ramachandra Aiyar on behalf of the appellants was that the lower Courts were wrong in their finding on the question of title raised in the case. It was argued that though both the lower Courts found that the title to the property claimed was not with Thanu, the husband of Parvathi, but with Parvathi; still such finding should be regarded as vitiated by the misconstruction by the lower Courts of the document Ex. 8 in O.S. 52 of 1921. That was an instrument by which Thanu Chetty, the husband of Parvathi, gave these properties as security to the Government. The document is purported to be attested by Parvathi and her daughters and others as prospective heirs of Thanu Chetty and obviously with the object of estopping them in future from making any claim in respect of the property, having regard to the purpose for which the instrument was given. But it falls to be observed that in the very schedule in that instrument the property was described as having been purchased by and being in the possession of Parvathi, the wife. Though no doubt the averments in such documents may be regarded as evidence with regard to title, no question of misconstruction can be regarded as capable of being raised in the present case. It was one of the facts to be taken into consideration by the lower Courts in arriving at a conclusion with regard to title and we do not feel persuaded that the conclusion arrived at in regard to this matter by the lower appellate Court, was vitiated by any such misconstruction. Mr. Ramachandra Aiyar frankly intimated to us that, so far as some question-was raised on the basis of some custom, he could not possibly press his contentions before us in these second appeals, having regard to the finding arrived at already in a previous litigation regarding the absence of such a custom as is now alleged.

(3.) The last point for determination relates only to the amount of mesne profits awarded to the plaintiff. The lower appellate Court seems to have treated this question of mesne profits exactly in the same way as a similar question in ordinary suits for possession overlooking the special circumstances in this case, namely, that by the very decrees passed by the lower appellate Court the defendants who are the parties in possession have been declared to be entitled to be paid to them by the plaintiffs seeking to eject them the value of improvements. Mr. Ramachandra Aiyar has drawn our attention to the definition of "mesne profits" as appearing in Clause 12, Section 2, Civil P.C. It is as follows: Mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements-made by the person in wrongful possesion.