N. Palaniswamy v. N. Govindaraj — 1999 DIGILAW 1269 (MAD)

Judgment :- The first defendant in O.S. No. 970 of 1977 on the file of the Sub-Court, Coimbatore is the appellant in this appeal. The plaintiff in that suit is the first respondent and defendants 2 and 3 are respondents 2 & 3 respectively in this appeal. The 4th defendant is not added as a party to this appeal. The decree holder/first respondent died pending appeal and his legal representatives have come on record by an order of this court. For the sake of convenience in this judgment the parties to the proceedings would hereinafter be refereed to as the plaintiff and the defendants. Heard Mr. R. Sasidharan learned counsel appearing for the appellant as well as Mr. N. Varadarajan learned counsel appearing for the legal representatives of the first respondent/decree holder. The above suit for partition filed by the plaintiff was decreed on merits. Hence the present appeal before this court. 2. The allegations in the plaint are as follows: “The plaintiff is the younger brother of the first defendant. Their father is Narayanaswamy Naidu. He purchased vacant sites, on which superstructures have been put up in the years 1948 & 1949. Thereafter he constructed on the vacant sites, a row of houses bearing Nos. 51 to59. Narayanaswamy Naidu died on 28.04.64 intestate. His wife also died later on intestate. The plaintiff and the first defendant are the only legal heirs of the deceased Narayanaswamy Naidu. The plaintiff is in possession of Door No. 56. Door Nos. 53, 54 & 55 are in the occupation of the first defendant. Door Nos. 51 & 52 have been demolished for the purpose of reconstruction and defendants 2 to 4 are tenants of Door Nos. 57 to 59 respectively each on a monthly rent of Rs. 35/-. The first defendant alone is collecting the entire rent. The first defendant therefore is liable to pay the mesne profits to the plaintiff at the rate of 52.50 per month from November 1975 till the date of delivery of possession. Hence the suit for partition as well as for past and future mesne profits.” 3. The first defendant has filed a written statement inter alia contending as follows: “It is true that Narayanaswamy Naidu on his death left behind the suit properties and they belong to the plaintiff and this defendant. The mother of the plaintiff and the first defendant died on 25.02.75. The first defendant has filed a written statement inter alia contending as follows: “It is true that Narayanaswamy Naidu on his death left behind the suit properties and they belong to the plaintiff and this defendant. The mother of the plaintiff and the first defendant died on 25.02.75. She was living with the plaintiff and not with this defendant. It is true that the plaintiff is in possession of Door No. 56. This defendant is occupying Door Nos. 53 to 55. It is also true that Door Nos. 51 & 52 had been demolished. This defendant had spent about Rs. 20,000/- for improving, reconstructing and renovating Door Nos. 56 to 59. Only after such improvement defendants 2 to 4 came to occupy the respective portions in their enjoyment. The plaintiff is in occupation of only the renovated portion while this defendant continues to live in the old house. Even before the reconstruction the plaintiff agreed that he would be liable for half of the expenditure and this defendant would be at liberty to adjust the monthly rent collection towards the reconstruction expenses. Before the plaintiff could get possession of his share of the property, he is bound to pay a sum of Rs. 11,250/- with interest in connection with his half share of the expenditures incurred by this defendant for reconstruction. The claim for mesne profits is untenable. The rental collections are adjusted towards the expenditures incurred for reconstruction by the first defedant.” 4. On the side of the plaintiff three witnesses were examined as P.Ws.1 to 3, out of whom, P.W.1 is the plaintiff himself and as many as 7 exhibits were marked as Exs.A.1 to A.7. On the side of the defendants, the first defendant was examined as D.W.1 and as many as 107 exhibits were marked as Exs.B.1 to B.107. The learned trial Judge on the pleadings available framed the following issues: a) Whether the plaintiff is entitled to partition of his share only on payment of Rs. 11,250/- to the first defendant? b) Whether the plaintiff is entitled to recover a sum of Rs. 1,200/- by way of mesne profits? c) What is the nature and extent of improvements effected by the first defendant? d) Whether in equity the first defendant has to be allotted the repaired portions for his share? e) To what relief? 11,250/- to the first defendant? b) Whether the plaintiff is entitled to recover a sum of Rs. 1,200/- by way of mesne profits? c) What is the nature and extent of improvements effected by the first defendant? d) Whether in equity the first defendant has to be allotted the repaired portions for his share? e) To what relief? Applying his mind to the materials available on record the learned trial Judge held on Issue No. 1 that the plaintiff is entitled to get the relief of possession without payment of Rs. 11,250/- as condition precedent. On Issue No. 3, the learned trial Judge held that the first defendant had not established the improvements made by him. On Issue No. 4 it was held that equity is not in favour of the first defendant. On Issue No. 2 the learned trial Judge held that the plaintiff is entitled to past mesne profits as prayed for. On Issue No. 5 the learned trial Judge held that the plaintiff is entitled to the sum of Rs. 52.50 per month from 22.09.77 till delivery of possession. As already stated it is the correctness of the said judgment that is being questioned in this appeal before this court. 5. Mr. R. Sasidharan learned counsel appearing for the appellant relying upon a judgment of this court in a case reported in Basavayya v. Guruvayya (A.I.R. 1951 Madras Pg. 938 = (1951) 64 L.W. 669 ) F.B. would state that the court while passing the preliminary decree, is not legally competent to quantify the past as well as the future mesne profits and the same must be relegated to a later stage in the very same proceedings for being quantified only at the final decree proceedings. Even regarding the principle of equity to be adopted, the learned counsel once again relying upon the very same judgment would contend that the question of applying the principle of equity would arise only during the final decree proceedings and not now. Therefore according to him the learned trial Judge had committed an error in quantifying the past as well as the future mesne profits at the preliminary decree stage itself as well as by the denying the equitable relief to the first defendant at this stage. According to the learned counsel for the appellant these two errors must be corrected. Therefore according to him the learned trial Judge had committed an error in quantifying the past as well as the future mesne profits at the preliminary decree stage itself as well as by the denying the equitable relief to the first defendant at this stage. According to the learned counsel for the appellant these two errors must be corrected. On the factual aspects of this case, the learned counsel would fairly state that the suit properties are available for partition between the two brothers namely, the plaintiff and the first defendant. However he would state that the improvements made by the first defendant to the said properties should be taken into account and it should be adjusted on the ultimate liability of the first defendant in terms of money towards the plaintiff. The learned trial Judge according to him, had not adverted to the voluminous documentary evidence produced by the appellant in support of his case that he had spent considerable sum of money in improving the suit properties. Mr. N. Varadarajan learned counsel for the legal representatives of the deceased decree holder would also fairly state that the preliminary decree quantifying the past as well as the future mesne profits cannot be sustained at this stage and it has to be necessarily relegated to the second stage of the same proceedings. The learned counsel would also state that even the application of principle of equity would arise only at the final decree stage and not at this stage. The learned counsel would further state that on facts the plaintiff had disputed that the first defendant had not made any improvements at all to the suit property. The learned counsel would further add that the plaintiff even disputed the quantum of money stated to have been spent by the first defendant in effecting the improvements. The learned counsel would also add that the quantum of property tax stated to have been paid by the first defendant is also open to doubt. 6. The learned counsel would further add that the plaintiff even disputed the quantum of money stated to have been spent by the first defendant in effecting the improvements. The learned counsel would also add that the quantum of property tax stated to have been paid by the first defendant is also open to doubt. 6. In the light of the arguments advanced by the learned counsel on either side and taking into account the pleadings as well as the judgment under challenge, I am of the opinion that the following issues alone arise for consideration in this appeal: a) In a suit for partition can there be a decree quantifying the past as well as the future mesne profits at the preliminary decree stage itself? b) Is the learned trial Judge right in going into the question of principles of equity to be followed in the matter of actual allotment at the preliminary stage itself? c) Whether the first defendant had effected any repairs and if so what is the extent of repairs done by him and quantum of expenses incurred by him in regard thereto? d) Whether the first defendant had paid any property tax and if so what is the quantum? 7. The judgment brought to my notice by the learned counsel for the appellant is clear on Issue Nos. 1 & 2 framed by this court. It is needless to state that in all suits for partition. It is always obligatory on the part of the learned trial Judge to relegate to the second stage in the same proceedings to conduct an enquiry into the claim for past and future mesne profits. But however in this case the learned trial Judge had done it even at the preliminary decree stage itself. Therefore the finding rendered by the learned trial Judge on the quantum of past and future mesne profits at the preliminary stage itself is set aside. Likewise the finding rendered by the learned trial Judge that the first defendant is not entitled, on the principles of equity, for allotment of certain portions claimed by him, is also set aside. Therefore the finding rendered by the learned trial Judge on the quantum of past and future mesne profits at the preliminary stage itself is set aside. Likewise the finding rendered by the learned trial Judge that the first defendant is not entitled, on the principles of equity, for allotment of certain portions claimed by him, is also set aside. The issue namely, the quantum of past and future mesne profits is relegated to the second stage of the same proceedings and the learned trial Judge, on an application made to him, is directed to appoint an advocate commissioner to go into that question after taking into account the relevant materials available on record and the evidence that may be let in by either of the parties concerned. As far as the principles of equity to be followed, the learned trial Judge shall take up that issue while making the actual allotment in the final decree proceedings. As far as the extent of repairs stated to have been effected by the first defendant and the quantum stated to have been incurred, it appears that the first defendant had filed voluminous documents. How far they are relevant to the issue in question, the learned trial Judge had lost sight of. Therefore the finding by the learned trial Judge that the first defendant had not established that he had effected any repairs, improvements or renovations to the buildings in question as well as the amount spent by him in regard thereto, is again vacated. It is open to the parties to let in evidence as they may choose to do so before the advocate commissioner on this aspect namely, the extent of repairs stated to have been done by the first defendant; to what properties it relate to and the quantum of the expenditure incurred by him in regard thereto. The learned trial Judge is directed to take the commissioners report on this aspect while working out the ultimate liability of the first defendant towards the plaintiff in the area of past and future mesne profits. Inasmuch as there is no dispute about the actual division of the properties between the two brothers namely, the plaintiff and the defendant, I am of the opinion that this question no longer survives for consideration. Accordingly the appeal is allowed on the lines indicated above. No costs. Inasmuch as there is no dispute about the actual division of the properties between the two brothers namely, the plaintiff and the defendant, I am of the opinion that this question no longer survives for consideration. Accordingly the appeal is allowed on the lines indicated above. No costs. The preliminary decree so far as it relates to the declaration of the share of the plaintiff and the first defendant is concerned, will stand confirmed.