1966 JTR(SC) 123
1967 AIR(SC) 155 ; 1967 AllLJ 239 ; 1967 1 AndhWR(SC) 89 ; 1967 BLJR 222 ; 1967 1 MLJ 89 ; 1967 1 SCA 46 ; 1967 1 SCJ 450 ; 1966 Supp SCR 128 ; 1967 1 SCWR 1 ; 1967 KHC 444
SUPREME COURT OF INDIA
A.K. SARKAR, C.J.I., J.R. MUDHOLKAR AND R.S. BACHAWAT, JJ.
Gopalakrishna Pillai and others, Appellants
Versus
Meenakshi Ayal and others, Respondents.
Civil Appeal No. 79 of 1964, D/- 31-3-1966.
Advocates appeared
Mr. N. C. Chatterjee, Senior Advocate, (Mr. R. Ganapathy Iyer, Advocate, with him), for Appellants; Mr. T. V. R. Tatachari Advocate, for Respondents Nos. 1 and 3 to 7.
Act
Referred
:CIVIL PROCEDURE CODE : O.7 R.7, O.7 R.2, O.7 R.1, O.2 R.12
COURT FEES ACT : S.7(1)
PAST MESNE PROFITS - FUTURE MESNE PROFITS - SCOPE AND APPLICABILITY - SUIT OF POSSESSION OF IMMOVABLE PROPERTY—CLAIM OF PAST MESNE PROFITS - DISCRETIONARY POWER - PAST AND FUTURE MESNE PROFITS
-with regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7, Rules 1 and 2 and Order 7, Rule 7 of the Code and Section 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay Court-fees thereon
-with regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay Court fees thereon at the time of institution of this suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which provisions of Order 20, Rule 12 apply. But in a suit to which the provision of Order 20, Rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may direct this general relief, though it is not specifically asked for in the plaint
-this Rule is not mandatory but merely directory. The Court has discretion to direct an inquiry into future mesne profits; it is under no obligation to do so - Gopalakrishna Pillai v. Meenakshi Ayal, AIR 1967 SC 155. Directions as to mesne profits is within the discretion of the court. Irrespective of whether the plaintiff has prayed for them or not, if the court thinks fit to give direction as to future mesne profits it can give such directions under this Rule - Maddanappa v. Chandramma, 1965 SC 1812. It is not necessary to incorporate relief for mesne profits in the plaint itself, it can be asked for by way of a subsequent petition under this Rule. But it was held in an earlier case, Mohd. Amin v. Vakil Ahmed, AIR 1952 SC 358, that the relief of mesne profits must be specifically claimed in the plaint; a mere general relief is not sufficient. Also held in Bhagwati v. Chandramaul, AIR 1966 SC 735, the mesne profits prior to the date of the suit cannot be awarded unless a claim was made in respect of them and also held that the claim for future mesne profits is governed by this Rule. A decree of ejectment must be accompanied by a direction for payment of the future mesne profits or damages, where plaintiff s case of tenancy is not proved but the possession of the plaintiff is found that of a licensee. However in the case of Meerla Ramanna v. Nallaparaju, AIR 1956 SC 87, the plaintiff’s suit for declaration of title failed but he succeeded on the basis of his possession and the trial was unnecessarily prolonged and hence it was held that it would be just and proper that the plaintiff would not be granted mesne profits upto the date of judgment. In the case of Thakur Bhim Singh v. Thakur Kan Singh, (1980) 3 SCC 72, the operation of the decree was stayed by the High Court and in view of the decree passed by the High Court, the defendant continued to be in possession of the suit and thereby twenty years elapsed it was held by the Supreme Court that the defendant be directed to pay mesne profits till that day of the order of the Supreme Court and an enquiry was directed to be made under this Rule to determine mesne profits payable to the defendant after such date of the order of the Supreme Court till the date of delivery of possession. As observed in Girdharilal v. Hukam Singh, AIR 1977 SC 129, for determining whether the provisions of this Rule apply to a suit, the allegation made in the plaint have to be seen, it is immaterial that eventually a decree is not passed in terms of the prayers contained in the plaint. As held in Dalhousie Properties v. Soorajmull, AIR 1977 SC 223, where the plaintiff claims mesne profits at a certain rate, he must be given opportunity to prove the same. Where no opportunity is given Order passed by the Court is illegal.
-once it is held that the plaintiff is entitled to object the defendant, it follows that from the date of decree granting relief of ejectment to the plaintiff the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree in such a case must be accompanied by a direction for payment of the future mesne profits or damages -
-the court has power to grant future mesne profits also, but where the party has failed to claim past mesne profits and the suit is confined to the relief of declaration of title and possession, the future mesne profits cannot be granted-
-in a suit to which this Rule applies the court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the court may grant this general relief, though it is not specifically asked for in the plaint -
-this Rule enables the court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7, Rule 7 of the Code and Section 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specially claim a decree for the past mesne profits, value the claim approximately and pay court fees thereon. With regard to the future mesne profits the plaintiff has no cause of action on the date of the institution of the suit and it is not possible for him to plead this cause of action on to the value of it or to pay court fees thereon at the time of institution of the suit -
-with regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7, Rules 1 and 2 and Order 7, Rule 7 of the Code and Section 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay Court-fees thereon
-with regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay Court fees thereon at the time of institution of this suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which provisions of Order 20, Rule 12 apply. But in a suit to which the provision of Order 20, Rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may direct this general relief, though it is not specifically asked for in the plaint
-this Rule is not mandatory but merely directory. The Court has discretion to direct an inquiry into future mesne profits; it is under no obligation to do so - Gopalakrishna Pillai v. Meenakshi Ayal, AIR 1967 SC 155. Directions as to mesne profits is within the discretion of the court. Irrespective of whether the plaintiff has prayed for them or not, if the court thinks fit to give direction as to future mesne profits it can give such directions under this Rule - Maddanappa v. Chandramma, 1965 SC 1812. It is not necessary to incorporate relief for mesne profits in the plaint itself, it can be asked for by way of a subsequent petition under this Rule. But it was held in an earlier case, Mohd. Amin v. Vakil Ahmed, AIR 1952 SC 358, that the relief of mesne profits must be specifically claimed in the plaint; a mere general relief is not sufficient. Also held in Bhagwati v. Chandramaul, AIR 1966 SC 735, the mesne profits prior to the date of the suit cannot be awarded unless a claim was made in respect of them and also held that the claim for future mesne profits is governed by this Rule. A decree of ejectment must be accompanied by a direction for payment of the future mesne profits or damages, where plaintiff s case of tenancy is not proved but the possession of the plaintiff is found that of a licensee. However in the case of Meerla Ramanna v. Nallaparaju, AIR 1956 SC 87, the plaintiff’s suit for declaration of title failed but he succeeded on the basis of his possession and the trial was unnecessarily prolonged and hence it was held that it would be just and proper that the plaintiff would not be granted mesne profits upto the date of judgment. In the case of Thakur Bhim Singh v. Thakur Kan Singh, (1980) 3 SCC 72, the operation of the decree was stayed by the High Court and in view of the decree passed by the High Court, the defendant continued to be in possession of the suit and thereby twenty years elapsed it was held by the Supreme Court that the defendant be directed to pay mesne profits till that day of the order of the Supreme Court and an enquiry was directed to be made under this Rule to determine mesne profits payable to the defendant after such date of the order of the Supreme Court till the date of delivery of possession. As observed in Girdharilal v. Hukam Singh, AIR 1977 SC 129, for determining whether the provisions of this Rule apply to a suit, the allegation made in the plaint have to be seen, it is immaterial that eventually a decree is not passed in terms of the prayers contained in the plaint. As held in Dalhousie Properties v. Soorajmull, AIR 1977 SC 223, where the plaintiff claims mesne profits at a certain rate, he must be given opportunity to prove the same. Where no opportunity is given Order passed by the Court is illegal.
-once it is held that the plaintiff is entitled to object the defendant, it follows that from the date of decree granting relief of ejectment to the plaintiff the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree in such a case must be accompanied by a direction for payment of the future mesne profits or damages -
-the court has power to grant future mesne profits also, but where the party has failed to claim past mesne profits and the suit is confined to the relief of declaration of title and possession, the future mesne profits cannot be granted-
-in a suit to which this Rule applies the court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the court may grant this general relief, though it is not specifically asked for in the plaint -
-this Rule enables the court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7, Rule 7 of the Code and Section 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specially claim a decree for the past mesne profits, value the claim approximately and pay court fees thereon. With regard to the future mesne profits the plaintiff has no cause of action on the date of the institution of the suit and it is not possible for him to plead this cause of action on to the value of it or to pay court fees thereon at the time of institution of the suit -
N.C.CHATTERJI, R.Ganapathy Iyer, T.V.R.TATACHARI
Judgement
BACHAWAT, J. : The following pedigree shows the relationship of Sivasami Odayar and the members of his family :
Sivasami died issueless in 1927. By his will dated September 14, 1927, he bequeathed items 1 to 4 and one half of items 12 and 13 of the suit properties to his wife, Neelayadakshi absolutely and items 5 to 11 and one half of items 12 and 13 to his mother, Chinnayal absolutely. He also appointed Chinnayal as the trustee of items 14 to 18 for the benefit of the Pillayar temple. Neelayadakshi died in 1931. It is common case that on her death Chinnayal inherited her properties as a limited heir. Defendants 6 and 7 claimed that their father purchased item 4 from one Muthukumaraswami, agent of Chinnayal, under a sale deed, dated June 5, 1937 On August 28 1940, Chinnayal executed a deed of gift in favour of Muthukumaraswami giving him items 1, 3 and 8 and portions of items 5 and 13. On September 4, 1940, Chinnayal is said to have executed a will bequeathing to Muthukumaraswami the remaining properties belonging to her absolutely and inherited by her as a limited heir from Neelayadakshi and also items 14 to 18 and her trusteeship right in respect of those items. Chinnayal died on September 15, 1940. It is common case that the plaintiffs are her heirs. Soon after her death, Muthukumaraswami conveyed to one Venugopala all the properties acquired by him under the aforesaid gift deed and will. Venugopala died in 1943 leaving defendants l to 5 as his heirs. In or about August 1952, Meenakshi and Kamakshi instituted a suit in the Court of the Subordinate Judge, Cuddalore for possession of the suit properties alleging that they were entitled to the properties left by Chinnayal and Neelayadakshi and denying the factum and validity of the gift deed, dated August 28, 1940, the will dated September 4, 1940 and the alleged sale in favour of the father of defendants 6 and 7. The defendants contested the suit.
2. The Courts below held that (1) Chinnayal had no power to dispose of any of the properties which she had inherited from Neelayadakshi as a limited heir, (2) Chinnayal duly executed the gift deed and by that deed she lawfully disposed of item 8 and portions of items 5 and 13, and (3) there was no sale of item 4 to the father of defendants 6 and 7. These findings are no longer challenged. The Subordinate Judge held that the plaintiffs failed to prove that they were the reversioners of Neelayadakshi, or were entitled to inherit her properties on the death of Chinnayal, and that the will dated September 4, 1940 was forged and its execution and attestation were not proved. The plaintiffs and the defendants preferred separate appeals from this decree to the Madras High Court. Ramaswami, J. held that the will was genuine and was duly executed and attested but it was inoperative with regard to items 14 to 18 and the trusteeship rights in those items. He also held that the question whether the plaintiffs were the next reversioners of Neelayadakshi should be tried afresh by the trial Court. Thereafter, Kamakshi died and her legal representatives were substituted on the record. Meenakshi and the legal representatives of Kamakshi filed an appeal under Cl. 15 of the Letters Patent of the High Court, and the appellants filed cross-objections. A Division Bench of the Madras High Court held that the will was not genuine and its execution and attestation were not proved. It also held that on the materials on the record the plaintiffs must be held to be the next reversioners of Neelayadakshi. On this finding, the Division Bench passed a decree in favour of the appellants before them for the recovery of possession of items 1 to 4, 3 cents in item 5, items 6, 7 and 9 to 13 and items 14 to 18, declared that they were entitled to mesne profits for three years prior to the suit and to future mesne profits in respect of the aforesaid properties, directed the trial Court to make an enquiry into the mesne profits under O. 20, R. 12 of the Code of Civil Procedure and ordered that in respect of the rest of the suit properties the suit he dismissed. Some of the defendants now appeal to this Court by special leave.
3. Counsel for the appellants challenged before us the correctness of the findings of the Division Bench of the High Court with regard to (1) the factum and execution of the will and (2) the plaintiffs claim to be the next reversioners of Neelayadakshi. He also contended that the High Court had no power to pass a decree for mesne profits accrued after the institution of the suit.
4. The appellants case is that the will of Chinnayal, dated September 4, 1940, was attested by Balasubramania and Samiyappa. The appellants rely solely on the testimony of Samiyappa for proof of the execution and attestation of the will. Samiyappa was not present when Chinanayal is said to have put her thumb-impression on the will. Samiyappa said that when he was passing along the street, Balasubramania and Muthukumaraswami called him. He went inside Chinnayal s house, Muthukumaraswami gave the will to him and after he read it aloud, Chinnayal acknowledged that she had affixed her thumb-impression on the will. He then put his signature on the will and Balasubramania completed it after he left. In his examination-in-chief, he said nothing about the attestation of the will by Bala Subramania. In cross-examination, he said that after he signed, Balasubramania wrote certain words on the will and put his signature. On further cross-examination, he added that Balasubramania was saying and writing something on the will, but he did not actually see Balasbramania writing or signing. We are satisfied that Samiyappa did not see Balasbramania putting his signature on the will. The High Court rightly held that the appellants failed to prove the signature of Balasbramania or the attestation of the will by him. On this ground alone we must hold that the will was not proved. We do not think it necessary to consider the further question whether the will was genuine.
5. The plaintiffs claimed that on Chinnayal s death the properties acquired by Neelayadakshi under the will of Sivasami devolved upon them as the next reversioners of Neelayadakshi. Relying on a statement of P. W. 2, Sethurama Nainar, that Meenakshi had two daughters and a son, the appellants contend that the son of Meenakshi was the reversionary heir of Neelayadakshi. Assuming that Meenakshi had a son, it is not possible to say that he was born before the death of Chinnayal, and, if so, he was alive at the time of her death. In the absence of any son of Meenakshi at the time of Chinnayal s death, admittedly the plaintiffs would be the next reversioners of Neelayadakshi. No issue was raised on this question, and the trial proceeded on the footing that the plaintiffs were the next reversioners of Neelayadakshi. The trial Court refused leave to the appellants to file an additional statement raising an issue on this point. In the circumstances, the Division Bench of the Madras High Court rightly held that it was not open to the appellants to contend that the plaintiffs were not the reversionary heirs of Neelayadakshi, and were not entitled to succeed to her estate on the death of Chinnayal.
6. In the plaint, there was no specific prayer for a decree for mesne profits subsequent to the institution of the suit. Counsel for the appellants argued that in the absence of such a specific prayer, the High Court had no jurisdiction to pass a decree for such mesne profits. We are unable to accept this contention. Order 20, R. 12 of the Code of Civil Procedure provides that "where a suit is for the recovery of possession of immovable property and for rent or mesne profits" the Court may pass a decree for the possession of the property and directing an enquiry as to the rent or mesne profits for a period prior to the institution of the suit and as to the subsequent mesne profits. The question is whether the provisions of O. 20, R. 12 apply to the present suit. We find that the plaintiffs distinctly pleaded in paragraph 9 of the plaint that they were entitled to call upon the defendants to account for mesne profits since the death of Chinnayal in respect of the suit properties. For the purposes of jurisdiction and court-fees, they valued their claim for possession and mesne profits for three years prior to the date of the suit and paid court fee thereon. In the prayer portion of the plaint, they claimed recovery of possession, an account of mesne profits for three years prior to the date of the suit, costs and such other relief as may seem fit and proper to the Court in the circumstances of the case. On a reading of the plaint, we are satisfied that the suit was for recovery of possession of immovable property and for mesne profits. The provisions of O. 20, R. 12 were therefore, attracted to the suit and the Court had power to pass a decree in the suit for both past and future mesne profits.
7. Order 20, R. 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of O. 7, Rr. 1 and 2 and O. 7, R. 7 of the Code of Civil Procedure and S. 7 (1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of O. 20, R. 12 apply. But in a suit to which the provisions of O. 20, R. 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief though, it is not specifically asked for in the plaint, see Basavayya v. Guruvayya, ILR (1952) Mad 173 at p. 177 (FB). In Fakharuddin Mahomed Ahsan v. Official Trustee of Bengal, (1882) ILR 8 Cal 178 at p. 189 (PC), Sir R. P. Collier observed :
"The plaint has been already read in the first case, and their Lordships are of opinion that it is at all events open to the construction that the plaintiff intended to claim wasilat up to the time of delivery of possession, although, for the purpose of valuation only, so much was valued as was then due; but be that as it may, they are of opinion that, under S. 196 of Act VIII of 1859, it was in the power of the Court if it thought fit, to make a decree which should give the plaintiff wasilat up to the date of obtaining possessions."
Section 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council suggest that in a suit to which S. 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future, mesne profits. The Court has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of O. 20, R. 12 of the Code of Civil Procedure, 1908, apply.
8. In support of his contention that the Court has no jurisdiction to pass a decree for future mesne profits in the absence of a specific prayer for the same, counsel for the appellants relied upon the following passage in Mohd. Amin v. Vakil Ahmad, 1952 SCR 1133 at p. 1144
"It was however pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto . We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to he deleted from the decree."
In our opinion, this passage does not support counsel s contention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circumstances, the suit was not one "for the recovery of possession of immovable property and for rent or mesne profits", and the Court could not pass a decree for future mesne profits under O. 20, R. 12 of the Code of Civil Procedure. But where, as in this case, the suit is for the recovery of possession of immovable property and for past mesne profits, the Court has ample power to pass a decree directing an enquiry as to future mesne profits, though there is no specific prayer for the same in the plaint. In the aforesaid case, this Court did not lay down a contrary proposition and this was pointed out by Subba Rao, C. J., in Atchamma v. Rami Reddy, ILR 1957 Andh Pra 52 at p. 56
9. We are, therefore, satisfied that in this case the High Court had discretionary power to pass the decree for future mesne profits. It is not contended that the High Court exercised its discretion improperly or erroneously. We see no reason to interfere with the decree passed by the High Court.
10. In the result, the appeal is dismissed with costs.
Appeal dismissed.
For Citation : AIR 1967 SC 155