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Case Number

Second Appeal No. 588 of 1917.

Attorney(S)

T. Narasimha Ayyangar and K.R Rangaswami Ayyangar for the appellant.
C.V Ananthakrishna Ayyar for third to ninth and thirteenth to fifteenth respondents.
C.R Subrahmanya Ayyar for first respondent.

Judges

Ayling
Krishnan, JJ.

Acts

Rule 18, Clause (2), of Order XX of the First Schedule of the Code of Civil Procedure
Rule 18 the provisions of Rule 12(1), Clauses (b) and (c), and Clause (2)
Rule 18, Clause (2), with Rule 12(1), Clauses (b) and (c), and Clause (2)
Rules 12 and 18 of Order XX,
Rule 12 of Order XX

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The appellant was the 10th defendant in a partition suit and claimed past and future mesne profits together with her share in the disputed property. A preliminary decree was passed in 1909 which recognised her claim to a share in the property but said nothing about future mesne profits and refused past profits. The appellant appealed the preliminary decree and again claimed future mesne profits, but the Appellate Court did not adjudicate or grant them. A final decree was passed in 1915 awarding the appellant her share in the property. The appellant pursued further appeals and repeatedly attempted to obtain a determination of future mesne profits; on one occasion the District Judge refused to re-open the matter. The present appeal concerns whether the appellant is entitled to have future mesne profits determined and included in the final decree when the preliminary decree was silent on that subject.

Legal Issues Presented

Whether an appellant (10th defendant) is entitled to have future mesne profits determined and included in the final decree of a partition suit when the preliminary decree is silent on future mesne profits.
Whether, and to what extent, the final decree in a partition suit can provide for matters (specifically mesne profits) which were not directed to be inquired into by the preliminary decree.
How Rules 12 and 18 of Order XX of the Code of Civil Procedure should be read and applied in partition suits with respect to directing enquiries and awarding mesne profits (past and future) — i.e., whether the direction for enquiry must be given in the preliminary decree or may be left to be directed in a later stage.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Doraisami Aiyar v. Subramania Aiyar (Full Bench) — 42 Ind. Cas. 929; 41 M. 188; 22 M.L.T. 484; 33 M.L.T. 699; (1917) M.W.N. 847; 6 L.W. 784	Establishes that where a decree in a suit for possession leaves mesne profits undecided a fresh suit for mesne profits will lie; and that the new rule introduces award of mesne profits by preliminary decree and their embodiment in the final decree.	The court refers to this Full Bench ruling as applicable to simple suits for possession and accepts that a separate suit may lie where mesne profits were left undecided; the judges cite its description of the change introduced by the rule (mesne profits to be awarded by preliminary decree and embodied in final decree) to support reading Order XX consistently.
Venkamamidi Mahalakshmamma v. Venkamamidi Rajamma — 43 Ind. Cas. 458	Held (single Judge, Oldfield, J.) that a direction for enquiry regarding future mesne profits could be made in the final decree and that such profits should be the subject of a separate final decree after its conclusion.	Both judges in the present opinion disagree with Oldfield, J.'s view. One judge expressly says he is unable to agree with that view because it would involve three distinct stages of decree; the other judge considers that the approach would unnecessarily lengthen proceedings and prefers that the enquiry be directed in the preliminary decree.
Maimod Rowther v. Doraisami Naicker (Appeal against Order No. 277 of 1917) — unreported	Contains remarks suggesting that unless there was adjudication on plaintiff's rights to profits before the preliminary decree was passed, the Court could provide in its final partition decree for an enquiry regarding it.	The court notes the decision was unreported and that the circumstances differed (it concerned executing the terms of a final decree that had already conclusively determined the right). The remarks are regarded as obiter beyond the facts and not binding for the present matter.
Bhartendu v. Yaqub Husain — 18 Ind. Cas. 701; 35 A. 150; 11 A.L.J. 120	Cited as an authority in relation to the stages and scope of decrees in partition proceedings (in context with Rule 12 and Rule 18).	Quoted together with Kamini Debi as supporting the proposition that the rules contemplate limited stages (preliminary and final decrees) rather than multiple preliminary/final decrees; the court refers the reader to these authorities when discussing the proper number of decrees.
Kamini Debi v. Promotho Nath Mukerjee — 27 Ind. Cas. 317; 20 C.L.J. 478; 19 C.W.N. 755	Cited in the context of authorities addressing the structure and sequencing of decrees and enquiries in partition suits.	Referred to alongside Bhartendu to support the view that the Code contemplates one preliminary decree and one final decree, and to resist interpretations that would create additional decree stages.

Court's Reasoning and Analysis

The court's analysis proceeds in two connected strands: (a) interpretation of the Code (Order XX, Rules 12 and 18) and (b) application of that interpretation to the appellant's procedural history and claims.

1. Interpretation of Rules 12 and 18:

The judges read Rules 12 and 18 together. Rule 12 is aimed at simple suits for possession and contemplates that mesne profits (past or future) may be provided for in the final decree only where an enquiry into them was directed by the preliminary decree. If the preliminary decree omits such a direction, the aggrieved party must seek amendment of the preliminary decree; the final decree cannot ordinarily include mesne profits not provided for in the preliminary decree.
Rule 18(2) empowers the Court, when a partition or separation cannot be conveniently made without further enquiry, to pass a preliminary decree declaring rights and "giving such further directions as may be required." The judges construe "further directions" as directions relating to the "further enquiry" necessary; consequently, the order for enquiry into mesne profits should be made at the time of the preliminary decree itself.
The court rejects the approach that would create three distinct decree stages (an approach attributed to Oldfield, J., in Venkamamidi Mahalakshmamma). Instead, the rules are read to contemplate only two stages—one preliminary decree and one final decree—and the law should not be interpreted to allow multiplicity of preliminary or final decrees in a single suit.
One judge (Krishnan, J.) adds that although Rule 12's wording relates to suits for possession and is not perfectly adapted to partition suits, its provisions (particularly Rule 12(1)(b), (c) and (2)) are to be kept in mind when conducting an enquiry ordered under Rule 18; but Rule 12 need not be invoked to justify a preliminary decree directing enquiry under Rule 18.
Both judges conclude that the prevailing practice and proper reading of the Code is that the direction for enquiry into mesne profits, if to be made, should be given in the preliminary decree and not postponed so as to create additional decree stages.

2. Application to the facts and procedural history:

The appellant claimed past and future mesne profits in her written statement, but the preliminary decree passed in 1909 made no provision for future profits (past profits were refused). The appellant appealed but did not secure a direction for future mesne profits in the Appellate Court, and did not renew the claim again in the second appeal stage. The final decree of 1915 granted her share in the property but did not determine future mesne profits.
The District Judge refused to re-open the question of future mesne profits during a later appeal and the judges agree that refusal was justified in the circumstances. One judge notes it may still be open to the appellant to sue separately for mesne profits under the Full Bench ruling in Doraisami Aiyar, but that possibility is not a reason to delay or re-open the final decree.
The court therefore holds that where the preliminary decree is silent as to future mesne profits and no enquiry was directed, the final decree will not be kept open to include such profits; the appropriate remedy would have been amendment of the preliminary decree or a separate suit (where applicable).

Holding and Implications

HOLDING: The appeals (second appeals) are dismissed and the appellant is not entitled, on the facts and procedural posture of this case, to have future mesne profits determined and included in the final decree where the preliminary decree was silent and no enquiry was directed.

Direct Consequences and Practical Implications:

The court ordered the dismissal of the appeal with costs in favour of the defendants-respondents (each opinion concludes dismissal with costs).
The appellant's procedural path to obtain future mesne profits was to have the preliminary decree amended when the preliminary decree failed to direct an enquiry, or alternatively to institute a separate suit for mesne profits (in line with the Full Bench decision cited), but she cannot insist on having the final decree re-opened in the circumstances described.
The judges emphasised an interpretative position: Rule 18(2) should be read as authorising the court to direct any necessary enquiry (including mesne profits) in the preliminary decree of a partition suit; the Code contemplates one preliminary decree and one final decree and discourages multiplicity of decree-stages that would prolong litigation.
The opinion engages with prior authorities and expresses disagreement with certain views (notably Oldfield, J.'s view in Venkamamidi Mahalakshmamma), but the decision disposes of the appeal on the facts and procedural grounds described. The court does not purport, in express terms, to lay down an overriding new precedent beyond its interpretation of the relevant rules as applied to these facts.

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Ghulusam Bivi v. Ahamadsa Rowther

1. This appeal relates to appellant's claim to future mesne profits on the property awarded to her by the decree in a partition suit in which she was 10th defendant. The preliminary decree in the suit is silent on the subject of future mesne profits on appellant's share and the question is whether she is entitled to ask that they should be determined and included in the final decree.

2. In my opinion she is not. We are not now concerned with the decision of the Full Bench in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 ; 41 M. 188 ; 22 M.L.T. 484 ; 33 M.L.T. 699 ; (1917) M.W.N. 847 ; 6 L.W. 784 that where the decree in a suit for possession leaves a claim to mesne profits undecided, a fresh suit for the mesne profits will lie. What we have to determine is the extent to which the final decree in a partition suit can provide for matters which are not settled or directed to be enquired into by the preliminary decree. The relevant provisions of law are Rules 12 and 18 of Order XX, which have to be read together, and in my opinion their effect is against appellant. A simple suit for possession of specific immoveable property, uncomplicated by any question of partition, is governed specifically by Rule 12: and it seems clear to me that in such a suit the final decree could only provide for mesne profits, past or future, where an enquiry into the same had been directed by the preliminary decree. If, either intentionally or inadvertently, the Court had omitted to direct such an enquiry, the aggrieved party must get the preliminary decree amended; no application for mesne profits not provided for in the preliminary decree would be entertained in framing the final decree. This was not, in fact, contested by the learned Vakil for appellant.

3. I fail to see why the same principle should not be applied to preliminary and final decrees in partition suits. Rule 18 (2) says:

The Court may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the several parties interested in the property, and giving such further directions as may be required.

4. As to what follows the rule is silent; but the law obviously intends that a final decree should be passed as in the cases specifically dealt with by Rule 12: and I think the "further directions" must be understood as relating to the further enquiry" which is found necessary and that the final decree, contemplated, though not specifically referred to, by Rule 18, should be restricted in exactly the same way as the final decree referred to in Rule 12 With all respect, I am unable to agree with the view expressed by Oldfield, J., in Venkamamidi Mahalakshmamma v. Venkamamidi Rajamma 43 Ind. Cas. 458 that a direction for enquiry regarding future mesne profits should be made in the final decree and they should be the subject of a separate final decree after its conclusion. This involves three distinct stages of decree; whereas, as it seems to me, the law expressed in the rules above quoted contemplates only two see Bhartendu v. Yaqub Husain 18 Ind. Cas. 701 ; 35 A. 150 ; 11 A.L.J. 120 and Kamini Debi v. Promotho Nath Mukerjee 27 Ind. Cas. 317 ; 20 C.L.J. 478 ; 19 C.W.N. 755. I respectfully agree in this connection with my Lord the Chief Justice, who says in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 ; 41 M. 188 ; 22 M.L.T. 484 ; 33 M.L.T. 699 ; (1917) M.W.N. 847 ; 6 L.W. 784: "The change introduced by the new rule is that the award of mesne profits in all cases is to be by preliminary decree and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they were to be ascertained in execution." We are referred to an unreported case Maimod Rowther v. Doraisami Naicker (Appeal against Order No. 277 of 1917) in which the learned Judges remarked that unless there was an adjudication on plaintiff's rights to profits before the preliminary decree was passed, there was no reason why the Court should not provide in its final partition decree for an enquiry regarding it. Neither this decision nor that of the single Judge in Venkamamidi Mahalakshamamma v. Venkamamidi Rajamma 43 Ind. Cas. 458 is of course, binding on us, but I may remark that the circumstances of the unreported case were quite different. In that case a party was endeavouring to attack in execution the terms of a final decree which had already been passed, and had conclusively determined the right to the mesne profits in question. Even if the judgment had been directed to he reported, the remarks above quoted would be of an "obiter" nature in so far as they went beyond the facts of the case.

5. I would dismiss the appeal with costs of defendants-respondents.

Krishnan, J.

6. I agree with my learned brother that this second appeal fails.

7. The 10th defendant, who is the appellant before us, claimed past and future profits along with her share in the property in her written statement. But the preliminary decree, which was passed so long ago as 1909, said nothing about future profits while refusing the past profits, though it recognised her claim to a share in the property. She appealed against the decree and again claimed future profits, but the Appellate Court also did not deal with them or grant them. Though she filed a second appeal she did not again renew her claim for such profits.

8. The final decree was passed in 1915, in which the 10th defendant was given her share in the property. She again appealed to the District Court and there claimed future mesne profits once again. Apparently she did not claim them in the first Court when it was passing its final decree, as there is no reference to them in its judgment. The District Judge refused to allow the matter to be re opened before him and 1 think he was right in doing so in the circumstances of this case.

9. The learned Judge may be wrong in saying that the appellant's claim to future profits has been "definitely, though not explicitly, decided against her", and it may be that it is still open to her to sue for them if so advised under the ruling of the Full Bench in Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 ; 41 M. 188 ; 22 M.L.T. 484 ; 33 M.L.T. 699 ; (1917) M.W.N. 847 ; 6 L.W. 784. I do not, however, think that that is any reason why the final decree should be any longer delayed by directing a fresh enquiry into mesne profits even if it is competent to the Court to do so now. Admittedly the claim for future mesne profits in a suit for possession of immoveable property is not one which a party can, as a matter of right, insist upon being adjudicated upon in the suit. I think, therefore, the Judge was right in refusing to consider the question of future profits in the appeal before him.

10. As the question when exactly the order directing an enquiry into mesne profits should be made in a partition suit has been argued at some length before us, I think it proper to state my view regarding it. I agree with my learned brother that the order should be passed at the time of the preliminary decree itself.

11. It is Rule 18, Clause (2), of Order XX of the First Schedule of the Code of Civil Procedure that provides for the passing of the preliminary decree in a partition suit. That rule gives power to the Court when passing such a decree to give such further directions as may be required." These words, I think, are wide enough to include a direction for an enquiry into mesne profits; but under the rule the direction should be in the preliminary decree. It is not necessary to pray in aid Rule 12.

12. The wording of Rule 12 of Order XX is not such as would properly apply to a partition suit, for it contemplates a suit for possession in which a decree for possession can be passed at the very first stage; whereas in a suit for partition, though finally a decree for possession of specific immoveable property may be passed, it is not always convenient to do so without a preliminary decree and a further enquiry; and it may also happen that in such a suit directions as to several other matters such as payment of debts and collection of outstandings may become necessary. The rule does not, therefore, in my opinion properly apply, by its own force, to a partition suit. No doubt in making an enquiry into profits ordered under Rule 18 the provisions of Rule 12(1), Clauses (b) and (c), and Clause (2) will be kept in view as guiding the Court in such an enquiry.

13. But even if we assume that we should read Rule 18, Clause (2), with Rule 12(1), Clauses (b) and (c), and Clause (2) to grant mesne profits in partition suits, I am of opinion that the preliminary decree which each rule contemplates is one and the same and it is not necessary to have two different preliminary decrees and two different final decrees at different stages. Neither rule contemplates more than one preliminary decree and one final decree in one suit. In fact the Code nowhere contemplates more than one preliminary decree and one final decree in one suit. To have two final decrees and to call the first one a final" decree will be really a misnomer, as it will not be final. To hold the view taken in Venkamamidi Mahalakshmamma v. Venkimamidi Rajamma 43 Ind. Cas. 458 and Maimod Rowther v. Doraisami Naicker Appeal against Order No. 277 of 1917 is, it seems to me with all respect to the learned Judges, to unnecessarily lengthen out proceedings with a possibility of appeals and second appeals from at least three different decrees in the same suit.

14. Assuming that Rule 12 should be read with Rule 18 to give mesne profits in a partition suit, is there anything in the former rule that compels the Court to wait till the passing of the final decree in partition, before it can order an enquiry into mesne profits? It is said that there is, because the rule speaks of passing a decree for possession in Clause (a) when directing enquiry into profits under the following clauses and it is argued that in a partition suit the decree for possession is the final decree. In considering the wording of Rule 12, as already pointed out, it must be borne in mind that it contemplates a suit where a decree for possession can be passed at the very first stage. In applying that rule to a case where such a decree cannot be passed as in a partition suit, we are, I think, not justified in reading it too strictly but we should make the necessary allowance to avoid unnecessary multiplicity of proceedings especially when Clause (a) does not properly apply to such a suit. I can see no difficulty in holding that an enquiry into mesne profits should, if the Court thinks fit to order it, be directed in the preliminary decree itself and that, I believe, is in accordance with the prevailing practice of the Courts. I, therefore, consider that when the 10th defendant applied for mesne profits before the preliminary decree was passed, she acted properly but when they were not granted to her, her remedy, if any, was by a separate suit. It was too late for her to ask for them in the present appeal.

15. I agree the second appeal should be dismissed with costs of defendants (respondents).

Ghulusam Bivi v. Ahamadsa Rowther

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ghulusam Bivi v. Ahamadsa Rowther

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