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Venugopal Pillai And Others v. Thirugnanavalli Ammal

Madras High Court

Aug 2, 1940

Judgment

Subsequent
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Factual and Procedural Background

This appeal is by defendants 1 and 3 to 6 from a decree of the Subordinate Judge of Cuddalore dated 11 October 1937 in O.S. No. 4 of 1933. The plaintiff sued to recover mesne profits for fasli 1333 in respect of certain properties together with interest. There had been an earlier suit between the same parties concerning the same properties seeking cancellation of a lease dated 8 August 1923 granted by the plaintiff's great-grandmother (the second defendant) in favour of the first defendant. The properties belonged to the plaintiff, who was then a minor under the testamentary guardianship of the great-grandmother appointed under the will of the plaintiff's father (dated 6 July 1915). The earlier suit was decreed, the High Court dismissed the appeal on 30 August 1932, and attempts to proceed to the Privy Council were abandoned; the High Court decree with costs was final.

The present suit for mesne profits was instituted on 14 October 1932 (one and a half months after the High Court decision) and was instituted shortly before the lapse of three years after the plaintiff's attaining majority (the plaintiff alleged majority on 15 October 1929). The Subordinate Judge decreed the suit and this appeal challenges that decree.

Legal Issues Presented

Whether the claim for past mesne profits was barred by Order 2, Rule 2 of the Civil Procedure Code because it should have been included in the earlier suit arising out of the same cause of action.
Whether the present suit was barred by limitation (two facets): (a) the correctness of the plaintiff's date of birth as a factual matter and (b) whether the court's grant of time to pay court-fee at presentation adversely affected limitation.
Whether the valuation of paddy adopted by the trial Court (Rs. 2-10-0 per kalam) was excessive and whether the lower Court erred in its assessment of evidence on valuation.
Whether interest could be awarded as part of mesne profits and whether the award of interest on the calculated mesne profits was appropriate.
Whether any conduct of the appellants (including alleged fraud or conspiracy in the earlier suit) should affect the relief awarded.

Arguments of the Parties

Appellants' Arguments

The claim for mesne profits should either have been included in, or was in fact included in, the earlier suit; consequently it is barred by Order 2, Rule 2, Civil Procedure Code.
The Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) was contended to be incorrect or not applicable in view of observations and the later Privy Council decision in Naba Kumar Hazra v. Radhashyam Mahis (1931).
On limitation: the suit was time-barred — this was advanced on two grounds: a challenge to the plaintiff's asserted date of birth, and an argument that the Court improperly granted time for payment of court-fee after presentation, affecting the limitation computation.
The valuation of paddy adopted by the lower Court (Rs. 2-10-0 per kalam) was excessive.
The plaintiff's claim for interest had grown larger because of delay in filing the suit and this was urged as a reason to deny or reduce interest.

Respondent / Plaintiff's Position (as reflected in the opinion)

The earlier plaint did not include a claim for past mesne profits; the plaint expressly showed an intention to bring a separate suit for mesne profits.
The Full Bench decision in Ponnammal v. Ramamirda Aiyar and subsequent authorities support that a claim for past mesne profits need not be included in a suit for recovery of possession (i.e., Order 2, Rule 2 does not bar the present claim).
Documentary evidence (an extract from the Birth Register) established the plaintiff's date of birth as 15 October 1908 and was not shown to be forged; oral evidence offered to the contrary was rejected by the trial Court.
Even if court-fee payment had been allowed after presentation, section 149 of the Code makes the plaint effective from the original presentation date; thus limitation was not attracted.
The valuation evidence (including accounts and a paddy merchant's clerk's evidence from the previous suit) supported the Court's valuation at Rs. 2-10-0 per kalam.
Interest is included in the definition of mesne profits and thus could properly be awarded.
The appellants' conduct in the earlier suit involved a conspiracy and reprehensible fraud to defeat the rights of a minor ward; equitable considerations did not favour the appellants' claim for mitigation on grounds of delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (Full Bench)	Held that a claim for past mesne profits need not be sued for in a suit for recovery of possession; relevant to application of Order 2, Rule 2, C.P.C.	The Court followed this Full Bench authority as dispositive on the Order 2, Rule 2 point and concluded there was no bar to the plaintiff's separate suit for mesne profits.
Khuddus v. Mohammad Hussain (1926) 51 M.L.J. 252	Followed the Full Bench view in Ponnammal on mesne profits and Order 2, Rule 2.	Referred to as a subsequent decision that followed the Full Bench position, supporting the conclusion that the present claim was not barred.
Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J. 294 (Privy Council)	Invoked by appellants as authority allegedly adverse to the Full Bench view; the Privy Council decision dealt with a subsequent suit for accounts founded on the same facts as an earlier suit for declaration and reconveyance.	The Court held that nothing in this Privy Council judgment was really contrary to the Full Bench in Ponnammal: the Privy Council case did not deal with a claim to mesne profits and was factually distinguishable.
Ramiah v. Thathiah, A.I.R. 1937 Mad. 849	Considered a case where a similar contention (that a later decision undermined Ponnammal) was pressed and repelled.	The Court noted that the contention was repelled in that case by Venkataramana Rao, J., and expressed agreement with the reasons given there.
In re Kantheesparam Ekanathalingaswami Koil through its trustee Vedandyagam Pillai (1936) 71 M.L.J. : I.L.R. (1937) Mad. 284	Referenced as an authority relevant to the subject of inclusion of claims and related procedural principles.	Referred to among the authorities supporting the continued correctness of the Full Bench position in Ponnammal.
Rama Kallappa v. Saidappa Sidrama (1934) I.L.R. 59 Bom. 454	Another decision addressing related procedural or substantive questions on inclusion of claims or mesne profits.	Referred to as part of the body of decisions that are consistent with the Full Bench view.
Ram Karan Singh v. Nakchhed Ahir (1931) I.L.R. 53 All. 951 (Full Bench)	Discussed the subject comparatively fully and considered relevant to the question whether claims must be included in an earlier suit.	Cited as additional authority reinforcing the view that Ponnammal's approach had longstanding acceptance.
Tirupati v. Narasimha (1887) I.L.R. 11 Mad. 210	An earlier case indicating the law prevailing in Madras on the subject prior to Ponnammal.	The Court noted that Ponnammal merely reiterated and reaffirmed the law prevailing since this earlier decision.
Basavayya v. Venkatappayya (1926) 51 M.L.J. 90	Applied in relation to section 149 of the Code: where court grants time for payment of court-fee after presentation, plaint takes effect as if presented with full court-fee on the original presentation date.	The Court relied upon this decision (and section 149) to reject the appellants' contention that the grant of time for payment of court-fee caused the suit to be barred by limitation.

Court's Reasoning and Analysis

The Court's reasoning proceeded in discrete analytical steps closely tied to the authorities and the facts found by the trial Court:

On the central issue of Order 2, Rule 2, C.P.C.: the Court accepted and followed the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) and subsequent consistent decisions (including Khuddus v. Mohammad Hussain). The Court treated the Full Bench authority as binding and observed that the Privy Council decision in Naba Kumar Hazra v. Radhashyam Mahis was distinguishable (it did not deal with past mesne profits and involved a subsequent prayer for accounts that could have been founded on the same facts and law). The Court therefore concluded that nothing in the Privy Council judgment undermined the Full Bench position and that no other High Court had taken a different view; several other decisions supported the Full Bench approach. On that basis the Court found no bar under Order 2, Rule 2 to the separate suit for mesne profits.
On the factual contention that mesne profits had in fact been included in the earlier plaint: the Court examined the earlier plaint and found it explicitly did not include a claim for past mesne profits and manifested an intention to bring a separate suit for them. In absence of any prayer-language or express inclusion, the Court rejected the appellants' assertion that the claim had been included.
On limitation (date of birth): the trial Court's finding that the plaintiff's birth date was 15 October 1908 rested on an extract of the Birth Register which was not challenged for forgery. The appellants' contrary story (that the extract related to a younger sister who died) rested on oral evidence unaccepted by the trial Court and no documentary extracts were produced to substantiate it. The appellate Court found no reason to disturb the trial Court's factual conclusion because the documentary evidence was unimpeachable and the oral evidence unreliable.
On limitation (court-fee time): the Court applied section 149 of the Code (and Basavayya v. Venkatappayya) to hold that where the Court grants time for payment of court-fee, the plaint is to be treated as presented on the original date along with full court-fee; accordingly the grant of time did not make the suit time-barred.
On valuation of paddy: the Court reviewed the evidence and concluded the valuation fixed by the trial Court (Rs. 2-10-0 per kalam) accorded with the weight of evidence. The decision relied in part on prior evidence from the previous suit (the clerk of a paddy merchant whose evidence was based on accounts). The Court found no omission by the trial Court in dealing with material evidence and no error in its assessment. The appellants' earlier claims by the first defendant as to value (Rs. 3-8-0 and Rs. 4 per kalam) undermined the present assertion that Rs. 2-10-0 was excessive.
On interest as part of mesne profits: the Court noted that the definition of 'mesne profits' in the Civil Procedure Code indicates that interest is included; therefore the lower Court was entitled to award interest as part of mesne profits.
On delay and appellants' conduct: although appellants argued delay made the interest claim excessive, the Court held that delay did not defeat the plaintiff's entitlement to interest. The Court furthermore described the appellants' conduct in the earlier suit (including a conspiracy involving the testamentary guardian) as reprehensible, and observed that the appellants had no claim to the Court's indulgence.

Holding and Implications

Final Holding: The decree of the Subordinate Judge of Cuddalore is affirmed and the appeal is dismissed with costs in favour of the respondent (plaintiff).

Implications and consequences:

The plaintiff's separate suit for mesne profits was held not to be barred by Order 2, Rule 2, Civil Procedure Code, in reliance on Ponnammal v. Ramamirda Aiyar and subsequent consistent authorities.
The trial Court's findings on the plaintiff's date of birth, the non-inclusion of mesne profits in the earlier plaint, the valuation of paddy at Rs. 2-10-0 per kalam, and the award of interest as part of mesne profits were all upheld.
The appeal was dismissed and costs were awarded to the respondent; the decree in the appeal does not prejudice any pending application in the lower Court to scale down the decree debt (the Court noted that any such application will be disposed of independently).
No suggestion is made in the opinion that a new legal principle or precedent is being laid down; rather, the decision reaffirms existing Full Bench and other authorities on the point addressed.

Show all summary ...

1. This is an appeal by defendants 1 and 3 to 6 from the decree of the Subordinate Judge of Cuddalore dated 11th October, 1937, in O.S. No. 4 of 1933, a suit to recover mesne profits for fasli 1333 in respect of certain properties together with interest thereon. There was an earlier suit between the parties which related to these very properties for cancelling a certain lease granted in respect of them by the plaintiff's great-grandmother (second defendant) on the 8th of. August, 1923, for three years in favour of the first defendant. The properties in question belonged to the plaintiff who was. then a minor under the testamentary guardianship of the second defendant, the great-grandmother who had been appointed to manage the properties by the will of the plaintiff's father, one Thangaswami, dated 6th July, 1915. The testator died a few days later and in the previous suit there was no dispute as to the genuineness of the will. That suit was decreed and the appeal from the decree of the first Court was dismissed by the High Court on 30th August, 1932. There was some attempt made to take the matter to the Privy Council but the idea was finally abandoned and the decree of the High Court which dismissed the appeal with costs was the final decision in that suit. The present suit was instituted on the 14th of October, 1932, that is to say, one and a half months after the High Court had decided the suit in favour of the plaintiff who claims to have attained majority, being till then a ward of the Court under the Guardian and Wards Act, only after attaining her 21st year which, according to her, was on the 15th October, 1929. The present suit was twits' instituted just before the lapse of the period of three years after attaining majority. The suit has been decreed by the Subordinate Judge and the present appeal is, as stated already, by defendants 1 and 3 to 6.

2. As in the Court below, in this appeal also, a good deal of argument bras been directed to the point of the alleged bar imposed by Order 2, Rule 2, Civil Procedure Code, to the present suit,, the appellants' contention being that the present claim for mesne profits for fasli 1333 should either have been included or had actually been included in the earlier suit inasmuch as it arose out of the same cause of action. This point has been discussed by the Court below somewhat briefly and rightly so because the point is really concluded by the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.), which has been subsequently followed in Khuddus v. Mohammad Hussain (1926) 51 M.L.J. 252 and it may also be added that no other High Court has taken a different view, and on the other hand there are several decisions of other High Courts which take the same view, namely, that a claim for past mesne profits need not be sued for in a suit for recovery of possession of the property in respect of which mesne profits are claimed by reason of Order 2, Rule 2, Civil Procedure Code. The only important reason given to us by the learned advocate for the appellants for not accepting the view of the lower Court on this point which merely followed the Full Bench decision in Ponnammal V. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is, that in view of certain observations and the decision in a later Privy Council case Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.), it must be held that the view taken by the Full Bench in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is not correct. N6 doubt, it was also argued that as a matter of fact the claim to past mesne profits had been made in the earlier suit and therefore the present claim was not maintainable* There is, however, no substance in this contention. A perusal of the plaint in the former suit makes it perfectly clear that in so many words the past mesne profits due to the plaintiff in respect of the plaint properties was not included in the suit and that the plaintiff intended to bring a separate suit in respect of the same. In view of this specific statement, and in the absence of any language in the prayer portion of the plaint to show that any claim to past mesne profits was included in the plaint, it is impossible to accept this contention.

3. As regards the main argument, namely, that the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is not good law, it is enough to say that nothing in the Privy Council judgment in Naba Kumar Hazra v. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) is really contrary to what has been stated' by the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.). The Privy Council case does not deal with a claim to masne profits in the first place. Secondly, it is a case in which the prayer that was made in the subsequent suit, namely, for taking accounts, was a prayer that could have been made on the same foundation of fact and law as the claim in the earlier case which was to declare that a certain trust existed and for reconveyance of certain properties. It is not as if this contention that the ; Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) is not correct in view of the Privy Council decision in Naba Kumar. Hasra v. Radhashyam Mahis (1931) 61 M.L.J. 294 (P.C.) is a new argument put forward for the first time. A similar contention appears to have been pressed in Ramiah v. Thathiah A.I.R. 1937 Mad. 849 and repelled in that case; by Venkataramana Rao, J. It is not necessary to repeat the reasons given by the learned Judge for repelling this contention. We are in general agreement with what he has said in that case and we need only repeat some of the references which he has made in the judgment, namely. In re Kantheesparam Ekanathalingaswami Koil through its trustee Vedandyagam Pillai (1936) 71 M.L.J. : I.L.R. (1937) Mad. 284, Rama Kallappa v. Saidappa Sidrama (1934) I.L.R. 59 Bom. 454 and Ram Karan Singh v. Nakchhed Ahir (1931) I.L.R. 53 All. 951 (F.B.). In the last of these cases, there is a comparatively full discussion of the subject. It is enough to add that the law as laid down by the decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.) merely reiterated and reaffirmed the law prevailing in Madras since Tirupati v. Narasimha (1887) I.L.R. 11 Mad. 210; which is a case of 1888 and the Full Bench decision in Ponnammal v. Ramamirda Aiyar (1914) 28 M.L.J. 127 : I.L.R. 38 Mad. 829 (F.B.), which is a case of 1914 has held the field without any judicial expression of any doubt regarding its correctness all these years. A further point is that no other High Court has sounded a different note, and on the other hand there are several decisions which take the same view. In these circumstances and having regard to the state of the authorities which are practically unanimous for so many years, it is impossible for us to accept the contention put forward on behalf of the appellants in this case. We therefore find that there is no bar imposed by Order 2, Rule 2, Civil Procedure Code, on the plaintiffs claim for mesne profits in this case.

4. The other points raised in this appeal on behalf of the appellants can be disposed of somewhat briefly because there is realty no substance in them. One of the two points is one of limitation which was sought to be based on two grounds. These are dealt with in paragraphs 64 to 86 of the lower Court's judgment and paragraph 88 respectively, and there is little to add to what the lower Court has said on these points. The first ground is a pure question of fact, namely, the date of the birth of the plaintiff. There is an extract from the Birth Register which is not attacked on the ground of forgery or the like which shows that the plaintiff was born as alleged by her on 15th October, 1908. This practically unimpeachable evidence and ether evidence which points in the same direction has been sought to be attacked on the ground that the Birth Register extract relates not to the plaintiff but to a younger sister of hers who died a few days after birth. This story has been sought to be established by the evidence of witnesses who were not accepted by the lower Court as witnesses of the truth. No attempt was made to file any extract of the Birth Register or Death Register relating to this alleged younger sister of the plaintiff, and as the learned Subordinate Judge points out, if for any reason such an extract could not be got, it was open to the appellants to have examined at least the Village Munsif of, the village in which the plaintiff, according to the appellants, is alleged to have been born, namely, the village of Movur. On the whole, we see no reason to differ from the conclusion come to by the trial Judge on this pure question of fact and in respect of which the unimpeachable documentary evidence is all on the side of the plaintiff and there is only unreliable oral evidence on the side of the appellants.

5. As regards the other ground, very little was said to us in support of the contention and obviously the contention is without force. The contention is that the suit is barred by limitation because the Court gave improperly and without sufficient cause time for payment of court-fee after the plaint had been presented. Whatever might have been the reasons for the Court's granting time, the effect of the grant of such time is clear, namely, that the plaint takes effect as if it had been presented along with the full court-fee on the date of its first presentation, a proposition put beyond doubt by section 149 of the code vide also the decision in Basavayya v. Venkatappayya (1926) 51 M.L.J. 90. The contention therefore that this claim is barred by limitation has no substance and must be repelled.

6. The remaining point of any substance is that the value of paddy fixed by the Court below is excessive. The value has been fixed at Rs. 2-10-0 per kalam, a kalam being said to be 24 measures. This estimate is, in our opinion, in accordance with the weight of the evidence which has been fully discussed. There has been no omission on the part of the Court below to deal with any material part of the evidence bearing on this point and we do not see any error of judgment in assessing the value to be given to the evidence on both sides. It is a point w»rthy of mention that the first defendant himself when he claimed rent in respect of these very properties from his sub-tenants claimed the value of paddy at Rs. 4 and at Rs. 3-8-0. Even allowing for some exaggeration, it is impossible for it to be contended now that Rs. 2-10-0 is excessive. The estimate is mainly based on the evidence given in the previous |uit by a clerk of a paddy merchant whose disinterestedness is not questioned and his evidence was obviously based on the accounts which he had in his possession. That is really the best evidence available in the present case on this point, and the lower Court could not be said to have gone wrong in relying mainly on that evidence.

7. Something was said to us on the award of interest on the amount of mesne profits, calculated-on this basis, namely, at Rs. 2-10-0 a kalam in the lower Court's decree. The definition of 'mesne profits' in the Civil Procedure Code itself shows that interest is included; in other words, interest can rightly be awarded by the Court as mesne profits.

8. It was also stated that by the delay in the filing of the present suit, the claim on the score of interest has proved to be much larger in amount than it would otherwise have been. This does not, however, show that the plaintiff is not entitled to the interest which she claims. On the other hand, the appellants, have, in our opinion, not the slightest claim on the indulgence of this Court. Their conduct as found in the previous suit was extremely reprehensible. There was a conspiracy to defeat the rights of the plaintiff who was then a minor to which her testamentary guardian herself was a party. A grosser case of fraud could hardly be imagined and the present suit is practically for mesne profits in respect of the very property which was attempted to be alienated by means of a lease for a very low rent in favour of one of the appellants, namely, the first defendant.

9. We see therefore no reason whatever to interfere with the decree of the Court below. That decree is affirmed and this appeal is dismissed with costs of the respondent (plaintiff). We are informed that an application has been made to scale down the decree debt in the Court below, and it is enough to say in connection with this that the decree in this appeal will not prejudice in any way the disposal of the application, if any, to scale down the debt.