Gopalakrishna Pillai And Others v. Meenakshi Ayal And Others

Bachawat, J.— The following pedigree shows the relationship of Sivasami Odayar and the members of his family :

2. 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 1 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 Neelayadkshi 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.

3. 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 clause 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 Order 20 Rule 12 of the Code of Civil Procedure and ordered that in respect of the rest of the suit properties the suit be dismissed. Some of the defendants now appeal to this Court by special leave.

4. 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.

5. 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 Chinnayal 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 Balasubramania. 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 Balasubramania writing or signing. We are satisfied that Samiyappa did not see Balasubramania putting his signature on the will. The High Court rightly held that the appellants failed to prove the signature of Balasubramania 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.

6. 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 PW 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.

7. 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 Rule 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 Order 20 Rule 12 apply to the present suit. We find that the plaintiffs distinctly pleaded in para 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 Order 20 Rule 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.

8. Order 20 Rule 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 Order 7 Rules 1 and 2 and Order 7 Rule 7 of the Code of Civil Procedure 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 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 Order 20 Rule 12 apply. But in a suit to which the provisions 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 grant this general relief, though it is not specifically asked for in the plaint, see Basavayya v. Guruvayya ILR 1952 Mad 173 FB at 177. In Fakharuddin Mahomed Ahsan v. Official Trustee of Bengal (1881) ILR 8 Cal 178 (PC) 189 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 Section 196 of Act 8 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 possession.”

Section 196 of Act 8 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 Section 196 of Act 8 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 Order 20 Rule 12 of the Code of Civil Procedure, 1908, apply.

9. 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. Yamin v. Vakil Ahmed (1952) SCR 1133 :

“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 be 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 Order 20 Rule 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 Andhra Pradesh.

10. 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.

11. In the result, the appeal is dismissed with costs.