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PETITIONER: GOPALAKRISHNA PILLAI AND OTHERS

       Vs.

RESPONDENT: MEENAKSHI AYAL AND OTHERS

DATE OF JUDGMENT: 31/03/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SARKAR, A.K. (CJ) MUDHOLKAR, J.R.

CITATION:  1967 AIR  155            1966 SCR  (1)  28

ACT: Civil  Procedure  Code, 1908, Order 20, r. 12  future  mesne profits When can be grated by Court.

HEADNOTE: S.   died  in  1927 and by a will bequeathed some  items  of property  to  his wife N and certain other property  to  his mother  C.  He  also  appointed C a,.;  a  trustee  of  some property  for the benefit of a temple.  Upon the death of  N in 1931, C inherited her properties as a limited heir. Some  of  this property was sold by C under a sale  deed  in June 1957; by a deed executed in August 1940 she gifted some of  the  other  inherited  property  to  M  and   thereafter purported  to execute a will in September 1940,  bequeathing to M the remaining properties belonging to her and inherited by  her  as a limited heir from N, as also  her  trusteeship rights in the property left by S. After  C’s death on September 15, 1940, M conveyed  all  the properties acquired by him under the gift deed and the  will to  V. V died in 1943 leaving some of the defendants as  his heirs. In about.  August 1952 the respondents instituted a suit and claimed the properties left by C and N as their heirs.  They denied  the factum and validity of the sale deed,  the  gift deed as well as the will of September 1940. The Courts below held that C had no power to dispose of  the properties which she had inherited from N as a limited heir; that  there was no sale by the deed executed in  June  1957: and  that  the gift deed executed by her was  valid.   These findings were not challenged in the appeal to this Court. The  Trial  Court, however, held that  the  respondents  had failed  to  prove  that they were entitled  to  inherit  the properties on the death of C, and that the will of September 4, 1940 was forged.  On appeal to the High Court, the single bench  upheld the will and also directed that  the  question whether  the  respondents were the next  reversioners  of  N should be tried afresh by the Trial Court.  But in a Letters Patent  Appeal  the  Division Bench held the  will  was  not genuine and its execution. and attestation were not  proved; it  also  held  that  on the materials  on  the  record  the respondents  must be held to be the next reversioners of  N.

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The  Court  therefore  passed  a decree  in  favour  of  the respondents  for recovery of the various, items of  property and  declared that they were entitled to mesne  profits  for three  years  prior  to the suit and also  to  future  mesne profits in respect of the various properties; accordingly it directed  an inquiry by the Trial Court to determine  future mesne profits. In  the appeal to this Court by some of the  defendants.  it was also contended that the High Court had no power to  pass a decree for mesne profits accrued after the institution  of the suit as there was no specific prayer for such a decree. 129 HELD:On the facts, the High Court had rightly held that  the appellants had failed to prove the execution and attestation of the will. [131 F-G] The trial proceeded on the footing that the plaintiffs  were the next reversioners of N and the High Court was  therefore right  in holding that it was not open to the appellants  to contend that the respondents were not the reversionary heirs of N. [132 B]. On  a reading of the plaint it was clear that the  suit  was for  recovery  of possession of immovable property  and  for mesne  profits.   The  provisions of Order 20,  r.  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. [132 F]

JUDGMENT: Order 20, r. 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 0. 7, rr. 1 and 2 and 0. 7, r. 7 of the  Code of Civil Procedure and s. 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 0. 20, r. 12 apply.  But in a  suit to which the provisions of 0.20, r. 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. [132 G133 B] Case law referred to. Appeal  by special leave from the judgment and decree  dated February 24, 1961 of the Madras High Court in L.P.A. No. 126 of 1957. N.   C.   Chatterjee   and  R.  Ganapathy  lyer,   for   the appellants. T.   V. R. Tatachari, for respondents Nos.  1 and 3 to 7. The Judgment of the Court was delivered by Bachawat,  J. The following pedigree shows the  relationship of Sivasami Odayar and the members of his family:           Chinnayal      Sivasami Odayar     Meenakshi        Kamakshi      married              Ayal             Ayal

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    Neelayadakshi    (Plff. No. 1)        (Plff. No. 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 II 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 130 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 Neelayadakshi 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. 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 items 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  cl. 15 of the Letters Patent of the High  Court,  and the  appellant 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 Neelavadakshi.  On  this finding, the Division 131 Bench  passed  a decree in favour of the  appellants  before

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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  it 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  0.20, r.  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. Counsel for the appellants challenged before us the correct- ness 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 of mesne profits accrued  after  the institution of the suit. 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  Balasubramannia.   In  cross- examination,  he said that after he  signed,  Balasubramania wrote  certain words on the will and put his signature.   On further  crossexamination, 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. 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 P.W. 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 132 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 Nalayadakshi.   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.

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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, r. 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 inquiry  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 0.20, r. 12  apply to the present suit.  We find that the  plaintiffs distinctly  pleaded in paragraph 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 0.20, r. 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. Order 20, r. 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 0.7, rr. 1 and 2 and 0.7, r. 7  of the  Code of Civil Procedure and s. 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                             133 date of the institution of the suit, and it is not  possible for  him to plead this case 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 0.20, r. 12 apply.  But in a suit to which the provisions   of  0.20,  r.  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(1).  In  Fakharuddin Mahomed  Ahsan, v. Official Trustee of Bengal(1), 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  s. 196 of Act VIII of 1859, it  was  in

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             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 VIII 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  s.  196 of Act VIII 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 O.20,r.    12  of the Code of  Civil Procedure, 1908 apply. 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 and others v. Vakil Ahmed and others(3).               "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               (1)   I.L.R. 1952 Mad. 173 (F.B) at 177.               (3)   [1952] S.C.R. 1133,1144.               (2) (8181) I.L.R. 8 Cal. 178 (P.C), 189               134               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 con- tention.  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 0.20, r. 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(1). 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

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no  reason to interfere with the decree passed by  the  High Court. In the result, the appeal is dismissed with costs. Appeal dismissed. (1) I.L.R. [1957] Andhra Pradesh, 52,56. 135