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2000 DIGILAW 45 (KAR)

GANGA RAO K. v. V. BHASKAR RAO

2000-01-14

B.N.MALLIKARJUNA

body2000
B. N. MALLIKARJUNA, J. ( 1 ) THIS revision under Section 115 of the Code of Civil Procedure is directed against the order dated 30-3-1999 of the Principal Civil Judge (Junior Division), Udupi in F. D. P. No. 6 of 1998. Revision petitioners are he legal representatives of the deceased plaintiff-V. Krishna Rao in O. S. No. 91 of 1976. First respondent herein is the second defendant and applicant in F. D. P. No. 6 of 1998. Respondents 2 and 10 herein are the defendants-1 and 5 respectively. Respondents 3 to 9 are the legal representatives of the deceased defendant 4-Sarojini. Neither defendant 3 nor defendant 6 is a party to these proceedings. ( 2 ) FACTS relevant for the disposal of this revision may be stated thus: deceased Krishna Rao, second defendant-Bhaskar Rao and third defeandant narayana Rao are the sons of one R. Vishnumurthy Rao who died on 18-12-1972. Defendants 4-Sarojini, 5-Leelavathi and 6-Indira S. Tantry are the daughters. First defendant-Rathnavathi is their mother. It would appear that R. Vishnumurthy died intestate leaving behind him wife and these six children and he had possessed of immoveable property shown as 'a' schedule in the plaint in Sy. No. 185 of Shivahalli village Udupi Taluk within the Udupi municipality measuring 58 cents out which 55 cents were Nanja, 2 cents were Bagayath and 1 cent was dry land. It is also stated that he had two lorries and other moveables shown in 'b' schedule of the plaint. Undisputably there was a portion of house in 'a' schedule property and perhaps that portion of house was in occupation of the plaintiff and certain portions, it is stated, were leased out to different defendants. On 13-11-1976, plaintiff-Krishna Rao instituted suit for partition and for separate possession of his V?th share in the above said properties. The defendants resisted the suit. Second defendant and defendant 3 filed separate written statements. Third defendant appears to have contended that certain properties in possession of the second defendant are not included in the plaint schedule and they should be brought for partition and that was disputed by the second defendant, he claimed those properties mentioned by the third defendant are his self-acquisition thougt he admits that he was in management of the transport services belonging to the family. On these pleadings, certain issues, Issues 1 to 6 were framed and the suit came up for trial. On these pleadings, certain issues, Issues 1 to 6 were framed and the suit came up for trial. In the meantime, the parties on 16-4-1980 filed a joint memo and on 17-4-1980, the Court decreed the suit, in view of the joint memo and directed the office to draw up preliminary decree. It may be noted that the suit was instituted in the Court of the Civil Judge, Udupi at the first instance. Preliminary decree was acordingly drawn. ( 3 ) THEREAFTER the second defendant-Bhaskar Rao filed an application on the year 1985 for drawing up final decree. During the pendency, there was change of pecuniary jurisdiction and as a result this application was transferred to the Principal Civil Judge (Jr. Dn.), Udupi and accordordibly it was renumbered as F. D. P. No. 7 of 1989. The respondents therein opposed the said application. However, subsequently, the parties agreed for appointment of a Commissioner to visit the spot and divide the property in 'a' schedule into seven equal shares by metes and bound. Accordingly, LA. No. 20 was filed on 21-6-1997, the Court allowed the application and appointed one Sri K. Bhaskar, Advocate as commissioner. The Commissioner after visiting the spot and examining the properties, on 19-7-1997 filed a memo in Court saying that the said property cannot conveniently be divided into seven equal shares as per the final decree for partition and sought for necessary direction. The court after hearing both the parties, instructed the Commissioner to carve out 1/7th share in the 'a' schedule property and allotted 8 1/4 cents of land to the legal representatives of the plaintiff-Krishna Rao. Accordingly, the Commissioner visited the property, carved out 81/4 cents of land and prepared a sketch and filed the report and the sketch in Court. It would appear that on 14-8-1997, applicant Bhaskar Rao (second defendant) filed a memo in Court stating that he has no objection for allotting that 8v4 cents of land to the plaintiff and granting them four months time to vacate and handover possession of the rest of the property in A schedule to the other respondents. As it was inconvenient to divide the rest of the extent in 'a' schedule property, the Court according to the wishes of the party, fixed 18-8-1997 as the date for selling that area in public auction. As it was inconvenient to divide the rest of the extent in 'a' schedule property, the Court according to the wishes of the party, fixed 18-8-1997 as the date for selling that area in public auction. It is admitted that Mala Rao, wife of the applicant bhaskar Rao and Power of Attorney holder participated in the auction and she was the highest bidder and the bid amount was Rs. 14,30,000/ -. Accordingly, the auction purchaser deposited 1/4th of the amount at the time of auction and the balance within 15 days thereafter. Since no other sharer objected, it appears, on 18-9-1997 the sale was confirmed. Thereafter the Court proceeded to pass a final decree accordingly on 6th day of December, 1997. Nothing is mentioned either in the preliminary decree or in the final decree as to the enquiry into the profits derived by the plaintiff from the property in excess of his share in a' schedule property. ( 4 ) IT appears, thereafter, the second defendant-Bhaskar Rao on 10-8- 1998 filed an application order for an enquiry into mesne profits. In a suit for partition it cannot be mesne profit, it should be profit derived by the plaintiff from the property in his possession in excess of his share. Phis is registered as F. D. P. No. 6 of 1998. This application was opposed by the legal representatives of the plaintiff and a preliminary objection was raised as to the maintainability of the application. The Court, therefore, heard both the parties and by the order dated 30-3- 1999, said that the application is maintainable. It is this order that is under challenge in this revision. ( 5 ) SRI Sampath Anand Shetty, learned Counsel for the petitioners argued that there being no direction either in the preliminary decree or in the final decree for an enquiry into the profits and more importantly, the decree being drawn by consent of the parties, the application for an enquiry into profits is not maintainable. In elaborating his arguments and in support, he cited several decisions and relied greatly on the decision of a Full Bench of the Madras High Court in Gnanaprakasa mudaliar and Others v B. Anandathanadavan and Others. Sri Padubidri Raghavendra Rao. In elaborating his arguments and in support, he cited several decisions and relied greatly on the decision of a Full Bench of the Madras High Court in Gnanaprakasa mudaliar and Others v B. Anandathanadavan and Others. Sri Padubidri Raghavendra Rao. learned Senior Counsel per contra argued that there can be any number of preliminary or final decree in a suit for partition so long as the matter is not concluded, it is open to the parties to the proceedings to make an application for an enquiry under order 20, Rule 18 of the Code of Civil Procedure, therefore, the order impugned does not suffer from either illegality or material irregularity and as such calls for no interference. In elaborating his arguments and hi support he invited my attention to several decisions but largely depend on the Full Bench decision of the Madras High Court in Babburu basavayya and Others v Babburu Guravayya. ( 6 ) IN view of the rival contentions, the only point that would arise for consideration is: when the final decree in a suit for partition does not speak of an inquiry for future profits, can an application for a direction for enquiry into future profits under Order 20, Rule 18 of the Civil Procedure Code be maintainable? The settled proposition of law is that in a suit for partition there could be any number of preliminary decrees or final decrees but there could be only one final decree in respect of a particular item of the property. It is also settled that even if the preliminary decree does not speak of an enquiry for future profits, there could be an applicat ion for an enquiry either by any of the parties to the proceedings or the court can take up the matter suo motu so long as the final decree is not drawn up. This is precisely the law laid down by the Full Bench of the madras High Court both in cases Babburu Basavayya and janaprakasa Mudaliar referred to supra. Therefore, the question in this case is one for consideration as to whether in the final decree drawn on 6-12-1997, there is a direction for enquiry into future profits in respect of'a' schedule property. The narration of facts would demonstrate that the parties concentrated mostly on 'a' schedule property and agreed tor a division according to the proposal of the Commissioner. The narration of facts would demonstrate that the parties concentrated mostly on 'a' schedule property and agreed tor a division according to the proposal of the Commissioner. Further it admits of no doubt that a final decree was drawn up granting four months time to the legal representatives of the plaintiff to vacate and handover the remaining portion of the 'a' schedule property to the auction purchaser and accordingly they delivered and the auction purchaser of the property is in occupation of the property. It is also seen from the record that the other sharers have drawn their shares of the sale price from the amount deposited by the auction purchaser, i. e. , from out of Rs. 14,30,000/ -. ( 7 ) A perusal of the order impugned reflects that the learned Judge bolds that the application for an enquiry into future profits is maintainable solely on the submission made by the learned Counsel for the petitioners that there is a direction to decide the mesne profits. The relevant portion of the order reads thus:". . . . Hence the application for ascertaining the profits can be filed even after the final decree is passed for division of properties. Because, as per the submission of learned Counsel for the petitioners, there is a direction to decide the mesne profits. Hence the submission of the learned Counsel for the respondents cannot be accepted and there can be ascertainment of the mesne profits in this petition. Because, as per the submission of learned Counsel for the petitioners there is a direction to decide the mesne profits. Hence the submission of the learned Counsel for the respondents cannot be accepted and there is a right accrued to the petitioners to ascertain the mesne profits and they are entitled for the same". (emphasis supplied) in view of this statement, I asked the learned Counsel to point out the said direction. But no such direction is brought to my notice. However, learned Counsel Sri Padubidri Raghavendra Rao invited my attention to a memo filed by the applicant and it is dated 14-8-1997. It would be appropriate to refer to the said memo which reads thus:"memo filed by the petitioner 1. But no such direction is brought to my notice. However, learned Counsel Sri Padubidri Raghavendra Rao invited my attention to a memo filed by the applicant and it is dated 14-8-1997. It would be appropriate to refer to the said memo which reads thus:"memo filed by the petitioner 1. The petitioner agrees for the allotment of 8 1/4 cents of land as demarcated by the Court Commissioner in his plan submitted to the Court on 11-8-1997 along with all the improvements thereon to respondents l (a) to l (c) as representing the deceased 1st respondent as their share in the plaint properties in full satisfaction of their claim in the same. 2. The petitioner has no objection to give four months' time from today to the respondents l (a) to l (c) to vacate the main house now occupied by them and shift to the house in the portion of the property allotted to them as above. 3. The question of mesne profits and moveables be left open to be decided along with the claim of other sharers, when the same is taken up division. Udupi 14-8-1997". item 3, no doubt, states that the question of mesne profits, does not say in respect of what property would be taken up when the claim of other sharers is taken for division. ( 8 ) IT is significant to note that the final decree in F. D. P. No. 7 of 1989 is passed on 6-12-1997. But in the final decree, there is no mention as to the enquiry into the profits realised by the deceased plaintiff or his legal representatives in respect of the property in excess of their share. The operative portion of the order in F. D. P. No. 7 of 1989 reads thus:"order petition is allowed. The L. Rs of 1st respondent i. e. , l (a) to l (c) are allotted 8 1/4 cents of land on the north western portion of plaint property (2 cents of Survey No. 185/28 and 6 1/4 cents in S. No. 185/4 of Shivalli village, Udupi Taluk, containing building bearing Door No. 1-4-29 as stated by L. Rs of respondent 1-Sri Mohan Rao. The remaining property of 6/7th share is allotted to the highest bidder i. e. , the wife of the petitioner being the highest bidder in the Court auction as she has purchased the said property for a valuable consideration of Rs. 14,30,000/ -. The respondents l (a) to l (c) shall vacate main house within four months from the date of auction and surrender the vacant possession of the main house to the highest bidder, being the auction purchaser. Office is directed to issue sale certificate in favour of the auction purchaser in respect of the property purchased in the Court auction. The remaining eligible shares are at liberty to withdraw their share from the amount deposited by the auction purchaser/draw a final decree in the above terms, after collecting necessary N. J. Stamps. Looking to the relation between the parties, there is no order as to cost". close look at the operative portion clearly makes out that there is no inention about an enquiry into the profits. Preliminary decree is drawn on the basis of the joint memo filed by both the parties. The joint memo dated 16-4-1980 reads thus:"joint Memo filed by the parties the parties are agreed as follows: 1. There may be a preliminary decree for partition declaring that the plaintiff and defendants 1 to 6 are each entitled to 1/7th share in the plaint 'a' schedule immovable properties, 'b' schedule lorries in Items 1 and 2 and the case in Item No. 11 and the movables described in the inventory prepared by the commissioner appointed in the suit which shall be attached to the preliminary decree to be passed in pursuance to this joint memo except Item No. 49 in the old house and Items 1 to 14 in the new house in the said inventory. There are no other properties to be partitioned between the parties. 2. On the application of any of the parties to the suit, a commissioner shall be appointed to divide the aforesaid properties by metes and bounds having regard to the nature of the soil into 7 equal shares and delivery of one such share to each of the plaintiff and defendants 1 to 6. 3. 2. On the application of any of the parties to the suit, a commissioner shall be appointed to divide the aforesaid properties by metes and bounds having regard to the nature of the soil into 7 equal shares and delivery of one such share to each of the plaintiff and defendants 1 to 6. 3. Issue No. 2 is left open to be decided in the final decree proceedings, when Item No. 11 of the plaint 'b' schedule will be adjusted from out of the amounts found due from him as accounting. 4. Each party to bear his own costs". (emphasis supplied) ( 9 ) THUS a perusal of both the preliminary decree and the final decree clearly demonstrates that there was no direction by the Court at any i ne for an enquiry into the future profits as provided under Order 20, rule 18 of the Civil Procedure Code. This is a suit where a matter has been decided by consent of the parties. May be the applicant might have stated after the submission of the report of the Commissioner that there shall be an enquiry for mesne profits but that fact does not find a place to the final decree proceedings. In these circumstances, it is clear that the parties have consciously or otherwise given up their claim for future profits and have agreed to settle the matter on certain other terms, accordingly legal representatives of the plaintiff have delivered possession and the second defendant or his wife who is the auction purchaser has taken possession of the property. ( 10 ) IN the circumstances, it would be appropriate to refer to the declaration of law by the Full Bench of the Madras High Court in Babburu basavayya's case, supra. After considering the decisions on the point as on that date under Order 20, Rules 12 and 18, Civil Procedure code, the Court has said that an enquiry can be ordered either as part to 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 the light of a Full Bench decision of the Madras High Court in Gnanaprakasa Mudaliar's case, supra, relying on the decision in Babburu Basavayya's case, supra, the Court has said that once the final decree is passed, it is not open to the Court to grant the relief of mesne profits. ( 11 ) IN Babburu Basavayya's case, supra, the relevant observation reads thus:". . . . . 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, Civil Procedure Code does not prohibit the court from issuing such directions after the stage of a 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". (emphasis supplied) ( 12 ) IN Gnanaprakasa Mudaliar's case, supra, referring to the said observation in Babburu Basavayya's case, supra, it is said:"12. From the above passage, it is clear that the learned Judges have held that it is open to the Court to give direction with regard to the enquiry into mesne profits during the pendency of the suit and further construed that till the passing of the final decree the suit is pending. Hence when once a final decree is passed, it interdicts the rights of the parties. 13. . . . . . 14. Hence when once a final decree is passed, it interdicts the rights of the parties. 13. . . . . . 14. Hence we are very clear from the above said Full Bench judgment that even though the preliminary decree do not contain any relief with regard to the mesne profits, it is open to the Court to grant the same, however, that should be incorporated in the final decree, which means, in the absence of any relief in the final decree, then it is not open to the parties to claim the same. 15. . . . 16___ 17. . . . 18. We are in agreement with the view taken by the earlier full Bench of this Court in Babburu Basavayya's case, supra, that 1 ill the final decree is passed, the Court is empowered to grant the relief of mesne profits. Once the final decree is passed, thereafter it is not open to the Court to grant the relief of mesne profits. The simple reason being that the final decree is the one which is to be executed. It is well known fact that the executing Court cannot go beyond the decree. 19. For the foregoing reasons, we answer the question referred i,o the Full Bench as follows: in a partition action, the Us gets terminated for all purposes at the time of passing of the final decree even with regard to the future mesne profits and as such it is not open to the parties to claim to the relief of mesne profits beyond the date of passing of the final decree, unless the final decree provides for such relief. ( 13 ) IN view of these two decisions, it is unnecessary to refer to the other decisions cited at the bar, viz. , B. N. Thiagarajan and Others v b. N. Sundaravelu, Indradeo Prasad Singh v Sheonath Prasad Singh, mahanth Sudarshan Dass v Mahanth Ramkripal Dass, Krishnamurthy and Others v Gopal Gounder and Others and Rajajai Singh v Ranganathappa. ( 14 ) IN the instant case there is no mention regarding enquiry into future profits in respect of'a' schedule property either in the preliminary decree drawn pursuant to the joint memo dated 16-4-1980 or in the final decree dated 6-12-1997. ( 14 ) IN the instant case there is no mention regarding enquiry into future profits in respect of'a' schedule property either in the preliminary decree drawn pursuant to the joint memo dated 16-4-1980 or in the final decree dated 6-12-1997. Even if such a direction was not there in the preliminary decree, and if it was there in the final decree, of course, the application by the second defendant for future profit could have been entertained. But I find no such direction in the final decree. Even assunning that there was a direction for an enquiry into future profits on any date in between the date of preliminary decree and the final decree, that would not entitle any of the parties to the proceedings to make an application for enquiry so long it is not incorporated in the final decree. In the instant case, it is not shown that the final decree directed an enquiry into future profits, more importantly in respect of 'a' schedule property and therefore, the application by the second defendant for an enquiry was certainly not maintainable. Thus the order impugned is contrary to law and as such not sustainable. ( 15 ) IN the result and for the reasons hereinabove stated, this revision is allowed. Order dated 30-3-1999 in F. D. P. No. 6 of 1998 is hereby set aside. Parties are directed to bear their own costs. --- *** --- .