3. 1973 (2) Mys L.J 99 - Nemichand Tavanappa Kudach v. Jinnappa Mahadev Kudachi (but not followed) 12 4. AIR 1951 Madras 938 - Basavayya v. Guruvayya (but not foll) 14 5. AIR 1923 Madras 147 - Ramaswami Iyer v. Subramania Iyer (Ref) 14 6. AIR 1957 Andhra Pradesh 766 - Damisetti Satyanarayana Murthi v. Damisetti Bhavanna (do) 15 7. AIR 1940 MAD 113 - C.R Ramaswamy v. C.S Rangachariar (do) 15 8. HR 1991 KAR 4506 - Thammegowda v. Siddegowda* (do) 16 9. AIR 1933 PAT 234 - Sideshwari Prasad v. Ram Kumar Rai* (do) 17 10. AIR 45 MAD 280 - Balaram Naidu v. Sangam Naidu (do) 17 11. AIR 1958 MAD 414 - Sinnapappal v. Subbanna Sounder (do) 17

ORDER ON COURT FEE

Raveendran, J.:—

First respondent filed O.S No. 57/1992 on the file of the Civil Judge. Puttur on 14.9.1992 against respondents 2 to 11 (defendants 1 to 5 and 7 to 11) and Appellants (defendants 6 and 12) seeking a decree:

(i) directing partition and separate possession of his 1/42nd Share in the suit ‘B’ schedule properties;

(ii) directing the defendants or such of them as are liable to render account in respect of the income received from them till date of suit and to pay future mesne profits to him at a rate to be determined by the Court till delivery of possession of the property.

(iii) for payment of Rs. 200/- as the cost of the lawyers notice;

The plaintiff filed a valuation slip showing the actual market value of the B Schedule properties as Rs. 81,50,000/- and the market value of his 1/42nd share as Rs. 1,94,047.61. He stated that the Court Fee payable in regard to the first relief (Partition) is Rs. 200/- under Section 35(2) of the Karnataka Court Fees and Suit Valuation Act, 1958 (‘Act’ for short). He did not value the second relief nor showed any Court Fee as a payable in regard to that relief. In regard to the third relief, that is notice charges of Rs. 200/-, the Court Fee payable was shown as Rs. 20/-. Thus a total Court Fee of Rs. 220/- was paid on the plaint.

2. A preliminary decree was passed in the said suit on 7.11.1996 declaring that plaintiff and defendants-7 to 11 were entitled to 1/72nd share each, defendants-1 to 5 were entitled to 1/12th share each, and defendant No. 6 was entitled to half share, in the plaint schedule property. Issues 3 to 7 were left open to be decided in the Final Decree proceedings. Those issues were as to whether defendant No. 6 has effected any improvements and if so, its value (Issue No. 3), whether 6th defendant was entitled to reimbursement of the value of such improvements (Issue No. 4), whether there were any binding family debts and if so what provision was to be made (Issue No. 5), what is the correct income from ‘B’ schedule property (Issue No. 6) and whether plaintiff was entitled to future mesne profits or rendition of accounts from the 6th defendant (Issue No. 7).

3. The preliminary decree was challenged by 6th and 12th defendants in RFA 132/1997. This Court dismissed the appeal by judgment dated 29.5.1998 It is stated that the appeal filed by them before the Supreme Court was also dismissed.

4. Final decree proceedings were initiated by the first respondent in regard to the said preliminary decree in FDP No. 5/1997. The trial Court, by order dated 2.8.2002 allowed the petition and directed the drawing of the final decree holding as follows:

“The Division Report filed by the Court Commissioner is hereby accepted. The preliminary decree schedule properties divided and different sharers be allotted share as proposed by the Court Commissioner in the Division Report. The 2nd defendant since transferred his 1/12th share in favour of the 6th defendant subsequent to the preliminary decree. 6th defendant shall, in addition to her half share, also be allotted 1/12th share of the 2nd defendant.

2. The value of improvements by way of capital investment by the 6th defendant is determined as Rs. 1,02,488/-.

3. The total amount of mesne profits is determined as R. 9,57,510/- payable by the 6th defendant to the different shares including herself. She is entitled to deduct the value of improvements Rs. 1,02,488/- in the first instance from the mesne profits Rs. 9,57,510/- and shall pay-

i) Rs. 11,875.30 to the plaintiff;

ii) Rs. 2,85,007.33 to the defendant Nos. 1 and 3 to 6 (2nd defendant has transferred his share to 6th defendant) and

iii) Rs. 59,376.50 to the defendant Nos. 7 to 11.

within thirty days from this day. In case of failure to do so, the 6th defendant shall be liable to pay interest at the rate of 6% p.a from this day onwards till satisfaction of the claim.

4. The 6th defendant is entitled to deduct a sum of Rs. 2,00,000/- deposited into Court as per order dated 7.1.2000 in MFA NO. 5173/1999 on the file of the Hon'ble High Court, towards mesne profits, which amount the petitioner and defendant Nos. 1, 3 to 5 and 7 to 11 are entitled to.

5. If the delivery of property in terms of this decree did not take place within three months from today, hereinafter the produce of 5 1/2 candies (=1430 Kgs) of arecanuts from the “Mangala” areca plants in S. No. 131/1 of llanthila Village shall also be reckoned as available for division among the shares.

6. The parties shall bear their own costs.

7. The Division Report and survey sketch filed by the Court Commissioner shall form part and parcel of the final decree.”

The effect of the order is that the total income from ‘B’ schedule properties from 1992 to 2002 was determined as Rs. 9,57,510/-. The Court treated the said amounts as mesne profits, directed Rs. 1,02,488/- to be deducted towards improvements and arrived at the net mesne profits as Rs. 8,55,022/-. The said amount was apportioned as follows:—

5. Feeling aggrieved, defendants-6 and 12 have filed this appeal for the following reliefs:

(a) for setting aside the judgment and decree dated 2.8.2002 passed by the Civil Judge (Sr. Divn), Puttur, D.K in F.D.P No. 5/1997 except to the extent of direction, directing the 1st appellant to deliver the properties as per the Commissioner's report to plaintiff and defendants-4 and 9 to 11;

(b) To remand the matter to determine afresh the income derived from ‘B’ schedule property each year commencing from 1993 till 2002 and thereafter deduct the cost of improvement and other expenditure incurred by the first appellant from out of the income and if any excess if found to determine the amount payable to the plaintiff and defendants-4 and 7 to 9.

The appellants have shown the valuation for the purpose of Court fee and jurisdiction as follows:

“The subject matter of the above appeal for the purpose of Court fee and jurisdiction is Rs. 81,51,000.00 and a Court fee of Rs. 17.00 is paid herewith as paid in the Court below i.e, FDP No. 5/1997 as per Section 49 read with Schedule-II, Article (iii)(i)(a) of the Karnataka Court Fees and Suits Valuation Act, 1958 (‘Act’ for short).’

6. When the matter came up for admission, learned Counsel for the first respondent (plaintiff in the suit) raised an objection in regard to Court Fee. According to him, as the appellants have challenged the determination of Rs. 9,57,510/- as the total income from the property from the date of the suit till the date of final decree (referred to mesne profits), the Appellant has to pay ad valorem Court Fee on Rs. 9,57,510/- under Section 42(2) read with Section 49 of the Act. It is submitted that in a suit for partition and mesne profits, the plaintiff is liable to pay the fixed Court Fee under Section 35 of the Act in regard to the relief of partition and ad valorem Court Fee under Section 42 of the Act in regard to the prayer for mesne profits; and as the Court Fee payable in an appeal is the same as the Court Fee that would be payable in the Court of first instance on the subject matter of the appeal, the Appellant will have to pay Court Fee on the amount determined as mesne profits, that is, on Rs. 9,57,510/-. In fact the learned Counsel for first respondent (plaintiff) went to the extent of saying that plaintiff himself will have to pay ad valorem Court Fee on Rs. 11,875.30 found to be due to him as mesne profits, before the Trial Court.

7. On the other hand, appellants contend that the Court fee payable in an appeal shall be the same as the Court fee that would be payable in the Court of first instance on the subject matter of the appeal; that as the Court fee payable in the Court of first instance on the final decree application was Rs. 2/- under Article 11(m)(i) of second schedule to the Act, the Court fee payable on this appeal is also Rs. 2/-. They also submit that the Court Fee paid on the suit for partition was Rs. 200/- and as they had paid a Court Fee of Rs. 200/- when they had earlier challenged the preliminary decree, having regard to the proviso to Section 49, they are entitled to credit of the Court fee paid on the appeal challenging preliminary decree and therefore, no Court fee is payable on this appeal except the Court fee of Rs. 2.00; and that however, they have paid a Court fee of Rs. 17,00 that is Rs. 2/- plus Rs. 15.00 which is the Court Fee payable on an appeal under Article 3(iii)(I)(a) of Schedule II to the Act, to avoid any technical objections. It is therefore contended that Court fee paid is sufficient.

8. Therefore, the question that arises for consideration is where profits or mesne profits are determined in a final decree proceedings in a suit for partition, from the date of suit till the date of final decree/till date of possession, whether ad valorem Court fee is payable in regard to profits or mesne profits so determined, in an appeal against the final decree.

9. We may first refer to the relevant provisions of the Act. Section 6(1) of the Act provides that where separate and distinct relief based on the same cause of action are sought in any suit, the plaint shall be chargeable with a fee on the aggregate value of the reliefs. But the proviso to sub-section (1) of Section 6 of the Act provides that if a relief is sought only as ancillary to the main relief, the plaint shall be chargeable only on the value of the main relief. Section 35 of the Act deals with partition suits. Section 42 of the Act deals with suits for mesne profits. Sub-Section (1) of Section 42 enables a plaintiff in a suit for mesne profits to compute mesne profits approximately and pay the ad valorem Court fee on the amount stated approximately and sued for; and that if the profits ascertained to be due to the plaintiff are in excess of the profits so approximately estimated and sued for, then plaintiff is required to pay the difference and no decree shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the profits so ascertained, is paid. Sub-Section (2) of Section 42 provides that where a decree directs an enquiry as to the mesne profits which have accrued on the property, whether prior or subsequent to the institution of the suit, no final decree shall be passed till the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits accrued due till the date of such decree is paid.

10. We may next refer to the relevant provisions of Code of Civil Procedure. Section 2(12) defines ‘mesne profits’ of a property as those profits which the persons 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 possession. Order 20 Rule 12 CPC deals with decree for possession and mesne profits. Order 20 Rule 18 CPC deals with suits for partition.

11. In Shambhatta v. Krishna Bhatta . 19692 Mys. L.J 439. a learned Single Judge of this Court held that in the case of suits for partition, the relief of accounts against the manager is inherent in the main relief (for partition) itself and that such relief for accounts would be an ancillary relief referred to in the proviso to Section 6(1) of the Act; and therefore the Court fee is payable only in respect of the main relief of partition and no separate Court fee is payable on the claim for accounts. It consequently follows that in an appeal filed against the judgment and decree in a suit for partition and accounts, the Court fee which is payable will be same as the Court fee that is payable in the Court of first instance and nothing more, even though accounting is order or profits are quantified.

12. The learned Counsel for first respondent submitted that what has been considered as ancillary relief in SHAMBHATTA is the prayer for accounting up to the date of the suit. It is contend that the prayer for mesne profits from the date of suit till the date of delivery of possession will not be an ‘ancillary’ relief referred to in SHAMBHATTA, but one that would fall under Section 42 of the Act. He relied on an old Division Bench decision of the Madras High Court in P. Balarama Naidu v. P. Sangan Naidu . ILR 45 Madras 280. and a Division Bench of this Court in Nemichand Tavanappa Kudachi v. Jinnappa Mahadev Kudachi . 19732 Mys L.J 99. to contend that ad valorem Court fee is payable on the amount determined as mesne profits from the date of suit till date of delivery of possession.

13. BALARAMA NAIDU, related to a case where a suit for partition of joint family properties was decreed determining the shares of appellants and respondent. By a subsequent Order, the Court of first instance determined the amount of mesne profits subsequent to the suit at Rs. 500/- as payable by defendant to plaintiff. Both parties appeals against the said determination of mesne profits. The Appellate Court made the following reference under Section 5 of the Court Fees Act: “Whether an appeal from a final decree passed under Order 20 Rule 12(2) CPC, in respect of subsequent mesne profits is not chargeable with ad-valorem Court Fee under Schedule I Article 1 of the Court Fees Act?” The Division Bench answered the question by holding that the Appeals must be treated as appeals against a final decree under Order 20 Rule 12(2) CPC and an ad valorem Court fee must be charged under Article 1 of Schedule-I of the Court fees Act, calculated on the amount of mesne profits in dispute. But we find that Order 20 Rule 12 relates to decree for possession and mesne profits. The said decision is good law only in regard to matters falling under Order 20 Rule 12 CPC. It is not good law in assuming that a suit for partition and accounts falls under Order 20 Rule 12 CPC.

14. A Full Bench of the Madras High Court in a subsequent decision. Basavayya v. Guruvayya . AIR 1951 Madras 938., held that Order 20 Rule 12 CPC does not apply to partition suits. The Full Bench held that Order 20 Rule 12 deals only with suits for ejectment or for recovery of possession of immovable property from a person in possession without title and for recovery of past or past and future mesne profits; and that Order 20 Rule 18 deals with suits for partition by one or more tenants-in-common against others with a claim for account of profits and suits for partition by a members of a joint Hindu family with a claim for an account from the manager. It was held that the words “mesne profits” as defined in Section 2(12) of CPC being in the nature of damages were not applicable to a case where relief is sought as against a tenant-in-common or the manager of a Joint Family for accounts. We extract below the relevant portions of the decision of the Full Bench:

“It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise:

(1) Suits for ejectment or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past & future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendants, not being lawful, the plaintiff is entitled to recover “mesne profits” as defined in Section 2, (12), Civ. P.C, such profits being really in the nature of damages. In the second case, the possession and receipt of profits by the defendants not being wrongful the plaintiff's remedy is to have an account of such profits making all just allowances in favour of the collecting tenant in common. In the third case, the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plaintiff would however, be in the position of a tenant-in-common from the date of severance in status and his rights would have to be worked out on that basis. Order 20 Rule 12 CPC deals with the first class of suit above referred to, while Order 20 Rule 18 deals with the second and the third categories.

The claim of a plaintiff suing for partition and his share of the profits accruing from the lands pending the suit is not, properly speaking, a claim for ‘mesne profits’ and Order 20 Rule 12 CPC has no application to such a case…. It may be necessary in a partition suit not merely to divide the properties but also to realise outstandings, discharge common liabilities, sell properties not capable of easy division, direct different shares to account for different periods of time in respect of profits of different properties, adjust equities between the parties and give directions from time to time to the Commissioner appointed to divide the properties or take accounts.

Where a plaintiff claims not only a partition of common properties, but an account of profits realise by the defendant before suit and recovery of his share of such profits he must value approximately the amount of such past profits and pay Court-fee thereon. See Order 7 Rule 2 Civil P.C, and Section 7(1) and (iv)(f), Court-fees Act. We are not here concerned with a claim for an account of past profits. A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject-matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit or till he is put in possession of his share. He cannot anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realised during that period. He need not therefore specifically ask for any relief in respect of future profits, the prayer for general relief being sufficient to enable the Court to award him such profits. If during the pendency of the suit one or some of the coshares received or realise the entire profits or more than their share of the profits of the common properties, they have to account to the other shares for the excess. If the collecting cosharer or tenant-in-common is not in a position to bring into the hotchpot his realisations subject to all just allowances in his favour, the Court will, when passing a final decree, deprive him of a sufficient portion of the properties allottable to his share and allot the portion so taken away to the other sharers so as to give them the equivalent of their share of the profits in the shape of property. Or the Court may impose a charge on the share of the defaulting tenant-in-common for the amount for which he is accountable to the other sharers and thus equalise the shares. The theoretical allotments and the general declaration of rights in the preliminary decree have to be worked out with due regard to the realisations of profits and drawings by the parties subsequent to the institution of the suit till the passing of the final decree. 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 even without a specific prayer in the plaint for an account of such profits and a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition. A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. If, as we think, this is the true nature of the proceedings in a suit for partition a direction for an enquiry 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 there is nothing in Order 20 Rule 18 Civ. P.C interdicting such procedure.

We may not summarise our conclusions. A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree: Jadunath v. Parameswar. ILR (1940) 1 Cal. 255. In such a suit the Court has not only to divide the common properties but also to adjust the equities arising between the parties out of their relation of the common property the property to be divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be effected. Among them are the realisation of common out standings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the alienor and other similar matters. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. Order 20, Rule 18, Civ. P.C does not prohibit the Court from issuing such directions after the stage of the preliminary decree. It is open to the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree.”

In Ramaswami Iyer v. Subramania Iyer . AIR 1923 Madras 147. it was held that “a sharer has a ‘clear right’ to an account of the profits received by the person in possession of the whole and to be awarded his share thereof, not as mesne profits received by a person in wrongful possession, but as appurtenant to the plaintiff's right to his share of the lands”.

15. A learned Single Judge of the Andhra Pradesh High Court in Damisetti Satyanarayana Murthi v. Damisetti Bhavanna . AIR 1957 Andhra Pradesh 766. held that the decision in BALARAM NAIDU in so far as it held that Order 20 Rule 12 CPC applied to suits for partition was not good law in view of the subsequent Full Bench decisions BASAVAYYA as also the decision in C.R Ramaswamy v. C.S Rangachariar . AIR 1940 MAD 113. and reiterated that Order 20 Rule 12 CPC cannot apply at all to partition actions and the profits which the manager has to account for, as it is not mesne profits within the meaning of Section 2(12) of CPC.

16. A Division Bench of this Court in Thammegowda v. Siddegowda* . ILR 1991 KAR 4506. reiterated the position thus:

“In a suit for partition and separate possession, the question of mesne profits does not arise. The co-parcener who will be in possession of the joint family property will be liable to account for the profits derived from the joint family property in excess of his share. The possession of a coparcener of the joint family property is not unlawful because his right extends over the entire joint family property until it is divided by metes and bounds. The possession of a coparcener of the joint family property until it is divided by metes and bounds does not become unlawful so as to make him liable for mesne profits. Therefore, the question of mesne profits does not arise. Of course, he has to account for the income of the share of the plaintiff from the date of the suit till the date of delivery possession. Therefore, the Trial Court is not justified in directing that the plaintiff is entitled to future mesne profits from the date of suit. It ought to have directed that the plaintiff is entitled to accounts of the profits of his share from the date of the suit till the date of delivery of possession.”

17. The first respondent next relied on the decision in Nemichand (supra) In Nemichand's case plaintiff had claimed mesne profits of Rs. 63,607.00. The Court decreed only a sum of Rs. 5,003.00. Being aggrieved, plaintiff - appellant filed an appeal by paying a Court fee of Rs. 5, against the final decree determining mesne profits under Order 20 Rule 12 CPC. The Division Bench held that appellant had to pay the ad valorem Court fee on the difference, following the decisions in Sideshwari Prasad v. Ram Kumar Rai* . AIR 1933 PAT 234. Balaram Naidu v. Sangan Naidu . AIR 45 MAD 280. and Sinnapappal v. Subbanna Gounder . AIR 1958 MAD 414., the principle followed is stated thus:

An appellant has to pay advalorem Court Fee on the amount for which he seeks to avoid liability or on the amount by which he seeks to enhance the value of the decree. Thus rule applies to all appeals from decisions determining the amount of mesne profits whether the profits may have accrued before suit, or after the date of the institution of suit.”

The decision in NEMICHAND related to mesne profits as defined under Section 2(12) CPC, falling under Order 20 Rule 12 CPC, it did not relate to a suit for partition falling under Order 20 Rule 18 CPC. As noticed above, the position in law in regard to decrees under Order 20 Rule 12 of CPC and Order 20 Rule 18 are completely different. The decision in NEMICHAND is therefore not relevant.

18. The concept of ‘mesne profits’ is applicable to cases of wrongful possession and not partition. The right of a tenant-in-common or a co-owner to a share in the profits from a property in the enjoyment of another tenant-in-common, is not a right to mesne profits for wrongful possession, but a right appurtenant in his right to a share in the property. A suit for partition and accounts is governed by Order 20 Rule 18 CPC. Neither Section 42 (relating to suits for mesne profits) nor Order 20 Rule 12 (relating to suits for possession and mesne profits) relied on by the first respondent, is relevant to a suit for partition and accounts and share in profits. Section 35 of the Act governs suits for partition with or without the ancillary relief of accounts. In a final decree for partition, what is determined is the share of the plaintiff in the profits from the property as a result of rendering of account by the tenant-in-common in physical possession or management, and not mesne profits.

19. The learned Counsel for first respondent lastly contended that if there is a complete ouster of the plaintiff from possession and enjoyment, then it is possible to claim mesne profits. This contention is academic and need not retain us long. If really there was such ouster, then the main suit for partition will itself fall under Section 35(1) in which event the Court Fee had to be computed on the market value of plaintiff's share. But where the suit is valued under Section 35(2) as in this case, by contending that the plaintiff is in joint possession, there is no question of ouster and consequently no question of mesne profits.

20. Therefore, we hold that Section 42 of the Act is not applicable. We further hold that the relief relating to rendering account and payment of plaintiff's share in profits, is an ancillary relief for which no Separate Court Fee is payable. The Court fee payable under Section 49, on an appeal against a final decree determining profits from the date of suit till the date of delivery of possession, would be the same as the Court fee that was paid in the Court of first instance and it is not necessary to pay ad valorem Court fee on the amount determined as profits. In this case, the Court fee payable and paid in the Court of first instance was Rs. 200/-. Therefore, Court fee payable on the appeal will be Rs. 200.00 The contention of the appellants that credit shall be given for the fee paid by them in the appeal against the preliminary decree cannot be accepted as the proviso to Section 49 will apply only when the appeal against preliminary decree is pending. In this case, as no appeal is pending, proviso to Section 49 of the Act will not apply. Therefore, objection of the first respondent that ad valorem Court Fee has to be paid on the amount determined as ‘mesne profits’ is over ruled. The appellants are however directed to pay the difference between Rs. 200.00 and Rs. 17.00 Ordered accordingly.