http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: R.S. MADANAPPA AND ORS.

       Vs.

RESPONDENT: CHANDRAMMA AND ANR.

DATE OF JUDGMENT: 05/03/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. WANCHOO, K.N. SIKRI, S.M.

CITATION:  1965 AIR 1812            1965 SCR  (3) 283

ACT: Indian Evidence, s. 115 and Equitable Estoppel--When conduct does   not  amount  to  estoppel--Mesne  profits--Past   and future--When can be awarded.

HEADNOTE: The plaintiff instituted the suit for possession of her half share  in  the suit properties and for  mesne  profits.  The first  defendant, who was the plaintiff’s  sister,  admitted the  plaintiff’s claim and herself claimed a decree  against the  other  defendants in respect of her half share  in  the suit  properties. The second defendant was their father  and the suit properties were in his possession. He and the other defendants,  who were his second wife and children  by  her, contested the suit. The trial court decreed the  plaintiff’s claim,  but held that the first defendant was estopped  from claiming  possession  of her share. On appeal by  the  first defendant, the High Court passed a decree in her favour also for possession of her half share in the suit properties, and for past and future mesne profits.    On  appeal to this Court against the decree in favour  of the first defendant, it was contended on behalf of the other defendants: (i) that the first defendant was estopped by her conduct  from claiming possession of her half share  of  the properties because (a) she had not replied to a notice  from the  plaintiff  to join with her in the suit  for  obtaining possession and division of the suit properties; (b)’she  had written a letter to her step-mother stating that she  wished to  have  no  interest in the suit properties  then  in  her father’s possession; (c) she and her husband had attested  a will  executed  by the father 25-1-1941  which  covered  the disposition of the suit properties; and (d)’  that the first defendant’s  conduct was either covered by s.  115  Evidence Act  or fell within the principle of  "equitable  estoppel"’ (ii)even if the first defendant’s claim to the half share in the suit properties could not be denied, she must be made to pay  for  half  the cost of various  improvements  of  those properties  effected  by the second. defendant in  the  bona fide  belief that the properties belonged to him as she  had acquiesced in the expenditure being incurred; (iii) that no, decree  can be passed in favour of a defendant who  has  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

asked  for transposition as plaintiff in the suit; and  (iv) that it is not open to a court to award future mesne profits to a party who did not claim them in the suit.     HELD: (i) The first defendant was neither estopped  from claiming possession of her half share of the properties  nor could  she  be  made  liable  to  pay  half  the  costs   of improvements  alleged  to  have  been  made  by  the  second defendant; (a) It cannot be implied from the conduct of  the first  defendant in not replying to the notice given b   the plaintiff that she had admitted that she had no interest  in the  properties;  (b) The second defendant’s case  that  the properties belonged to him having been negatived, there  was no  possibility of an erroneous belief being created in  the mind  of  the  second defendant that he  had  title  to  the property  because of what the first defendant, had  said  in her  letter to her step-mother; (c) The attestation  of  the will  by the first defendant and her husband, by  which  the second defendant purported to make a disposition of the suit properties  in  favour  of the other  defendants  could  not operate as an estoppel, as 284     no interest had accrued in favour of those defendants on the  date  of the suit. As far as the second  defendant  was concerned,  he knew, the true legal position and  could  not say  that  an erroneous belief was created in  his  mind  by reason of the first defendant and her husband attesting  the will. [286 G-H; 287 C; 287 F]     Quaere:   Whether the Court, while  determining  whether the  conduct of a particular party amounts to an  "equitable estoppel"  could travel beyond the provisions of s.  115  of the Evidence Act. [288 B] Case law reviewed.     (ii) No man who knowing fully well. that he has no title to property, spends money on improving it, can be  permitted to  claim payment for improvements which were  not  effected with the consent of the true owner. [290C] Ramsden v. Dyson, L R.I.H.L.App. 129, 140 distinguished.     (iii) Both the plaintiff and the first defendant claimed under  the  same title and though the other  defendants  had urged special defences against the first defendant, they had been fully considered and adjudicated upon by the High Court while  allowing  her  appeal. The High  Court  could,  while upholding her claim, have transposed her as a plaintiff.  It either  over-looked the technical defect or felt that  under Order  XLI rule 33, it had ample power to decree her  claim. However  that may be, the provisions of s. 99 C.P.C.,  would be a bar to interference by the Supreme Court with the  High Court’s decree upon such a ground. [290 G-H] Bhupendra v. Rajeshwar, 58 I.A. 228, referred to.     (iv)  Though mesne profits prior to the suit  cannot  be awarded  to  a successful party unless a claim  is  made  in respect of them, the position regarding future mesne profits is governed by O. XX, r. 2, C.P.C. The decree awarding mesne profits  to the first defendant must be upheld  because  the first  defendant  admitted  the  plaintiff’s  claim  and  in substance  prayed for a similar  decree in her favour.  [291 B; 292 G-H]     Mohd.  Amin  and  Ors. v. Vakil Ahmed  and  Ors.  [1952] S.C.R. 1133, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 730 of 1962.     Appeal  from the judgment and decree dated February  19,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

1959, of the Mysore High Court in Regular Appeal No. 208  of 1961-62.     S.K.  Venkatarangaiengar and A.G. Ratnaparkhi,  for  the appellants S.T. Desai and Naunit Lal, for respondent No. 1. K.K. Jain, for respondent No. 2. The Judgment of the Court was delivered by     Mudholkar, J. This is an appeal by defendants Nos. 3  to 8  from  a decision of the High Court of  Mysore  passing  a decree in favour of respondent No. 1 who was defendant No. 1 in  the  trial court, for possession of  half  the  property which  was the subject matter of the suit and also  allowing future mesne profits.     The relevant facts are briefly these: The plaintiff  who is the eider sister of the first defendant instituted a suit in  the  court  of  the  District  Judge,  Bangalore  for  a declaration  that  she.is  the owner of half  share  in  the properties  described in the schedule to the plaint and  for partition  and  separate possession of half  share  and  for mesne     285 profits. According to her the suit property was the absolute property of her mother Puttananjamma and upon her death this property  devolved  on her and the first  defendant  as  her mother’s heirs. Since,according to her, the first  defendant did not want to join her as coplaintiff in the suit, she was joined as a defendant. It is common ground that the property was   in  the  possession  of  the  second  defendant   R.S. Maddanappa,  the  father  of the  plaintiff  and  the  first defendant  and Gargavva, the second wife of  Maddanappa  and her  children.  Maddanappa died during the pendency  of  the appeal  before this Court and his legal representatives  are the  other  defendants  to   the suit.  Briefly  stated  his defence, which is also the defence of defendants other  than defendant No. 1 is that though the suit properties  belonged to  Gowramma, the mother of Puttananjamma, she  had  settled them  orally  on the latter as well as on himself  and  that after  the death of Puttananjamma he has been in  possession of  those  properties and enjoying them as  full  owner.  He further  pleaded that it was the last wish of  Puttananjamma that he should enjoy these properties as absolute owner. The plaintiff  and  the first defendant had, according  to  him, expressly  and  impliedly  abandoned their  right  in  these properties,  that  his possession over  the  properties  was adverse to them and as he was in adverse possession for over the  statutory  period,  the suit  was  barred.  Finally  he contended  that  he had spent more than Rs.  46,000  towards improvements  of  the properties which met partly  from  the income  of his joint ancestral property and partly from  the assets  of  the  third  defendant.  These  improvements,  he alleged,  were made by him bona fide in the belief  that  he had  a right to the suit properties and consequently he  was entitled  to the benefit of the provisions of Section 51  of the Transfer of .Property Act.     The first defendant admitted the claim of the  plaintiff and  also claimed a decree against the other  defendants  in respect of her half share in the suit properties. The  other defendants,  however, resisted her claim and in addition  to what  the  second  defendant  has  alleged  in  his  written statement  contended  that she was estopped by  her  conduct from claiming any share in the properties.     The  trial court decreed the claim of the plaintiff  but held  that  the first defendant was estopped  from  claiming possession  of her half share in the properties left by  her mother.  The first defendant preferred an appeal before  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

High  Court challenging the correctness of the  decision  of the  trial court. The other defendants also flied an  appeal before the High Court challenging the decision of the  trial court  in favour of the plaintiff. It would appear that  the plaintiff had also preferred some cross-objections. All  the matters  were  heard  together  in  the  High  Court,  which dismissed the appeal preferred by defendants Nos. 2 to 8  as well  as  the crossobjections lodged by  the  plaintiff  but decreed  the  appeal preferred by the  first  defendant  and passed  a  decree in her favour for possession of  her  half share in the suit properties, and future mesne profits 286 against  the  remaining defendants. Defendants Nos. 2  to  8 applied     for  a  certificate from the  High  Court  under Articles 133(1)(a) and 133(1)(c) in respect of the decree of the  High Court in the two appeals. The High  Court  granted the  certificate  to  defendants Nos. 2 to 8 in  so  far  as defendant No. 1 was concerned but refused certificate in  so far  as  the  plaintiff was  concerned.  We  are  therefore, concerned  with a limited question and that is  whether  the High  Court  was  right in awarding a decree  to  the  first defendant  for  possession  of  her  half  share  and  mesne profits.     Mr.  Venkatarangaiengar, who appears for the  appellants accepts the position that as the certificate was refused  to defendants  Nos.  2  to  8 in so far  as  the  plaintiff  is concerned,  the only points which they are entitled to  urge are  those  which concern the first defendant alone  and  no other.  The points which the learned counsel formulated  are as follows:                   (1)  It  is not open to a court  to  award               future  mesne profits to a party who  did  not               claim them in the suit;                   (2) No decree can be passed in favour of a               defendant who has not asked for  transposition               as plaintiff in the suit.                   (3) That the first defendant was  estopped               by her conduct from claiming possession of her               alleged half share of the properties.     We  will  consider the question of estoppel  first.  The conduct  of  the  first defendant  from  which  the  learned counsel wants us to draw the inference of estoppel  consists of  her  attitude when she was served with a notice  by  the plaintiff,   her  general  attitude   respecting   Bangalore properties  as expressed in the letter dated  17th  January, 1941  written by her to her step-mother and the  attestation by her and her husband on 3-10-1944 of the will executed  on 25th  January, 1941 by Maddanappa. In the notice dated  26th January,  1948  by  the  plaintiff’s  lawyer  to  the  first defendant  it  was stated that the plaintiff and  the  first defendant  were  joint owners of the suit  properties  which were in the possession of their father and requested for the co-operation  of the first defendant in order to effect  the division  of the properties. A copy of this notice was  sent to  Maddanappa and he sent a reply to it to the  plaintiff’s lawyers. The first defendant, however, sent no reply at all. We  find it difficult to construe the conduct of  the  first defendant  in  not  replying to the notice and  in  not  co- operating  with  the plaintiff in instituting  a  suit,  for obtaining  possession  of the properties as  justifying  the inference  of estoppel. It does not mean that she  impliedly admitted  that she had no interest in the properties. It  is true that in Ex. 15, which is a letter sent by her on  17-1- 1941 to her step-mother she has observed thus:               "I have no desire whatsoever in respect of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

             properties which are at Bangalore.  Everything               belongs   to  my  father.  He  has  the   sole               authority to do anything  ....  We give our                     787               consent  to  anything done by our  father.  We               will not do anything." But  even  these  statements cannot  assist  the  appellants because admittedly the father knew the true legal  position. That  is  to  say, the father  knew  that  these  properties belonged  to Puttananjamma, and that he had no authority  to deal  with  these  properties.  NO  doubt,  in  his  written statement  Maddanappa had set up a case that the  properties belonged  to  him  by  virtue of  the  declaration  made  by Puttananjamma  at the time of her death, but that  case  has been negatived by the courts below. The father’s  possession must,  therefore, be deemed to have been, to his  knowledge, on  behalf of the plaintiff and the first  defendant.  There was  thus  no possibility of an erroneous belief  about  his title  being  created in the mind of Maddanappa  because  of what the first defendant had said in her letter to her step- mother. In  so far as the attestation of the will is concerned,  the appellants’  position is no better. This ’will’ purports  to make  a disposition of the suit properties along with  other properties  by Maddanappa in favour of defendants Nos. 3  to 8.  The attestation of the will by the first  defendant  and her husband, would no doubt affix them with the knowledge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of defendants Nos. 3 to 8 or even in  favour  of Maddanappa. The will couId take  effect  only upon the death of Maddanappa and, therefore, no interest  in the property had at all accrued to the defendants Nos. 3 re, 8  even  on the date of the suit. So far  as  Maddanappa  is concerned, he, as already stated, knew the true position and therefore, could not say that an erroneous belief about  his title to the properties was created in his mind by reason of the  conduct  of  the. first defendant and  her  husband  in attesting the document. Apart from that there is nothing  on the  record  to show that by reason of the  conduct  of  the first  defendant  Maddanappa  altered his  position  to  his disadvantage.     Mr. Venkatarangaiengar, however, says that subsequent to the   execution  of  the  will  he  had   effected   further improvements  in the properties and for this  purpose  spent his own moneys. According to him, he would not have done  so in  the  absence of an assurance like the one given  by  the first defendant and her husband to the effect that they  had no  objection to the disposition of the suit  properties  by him in any way he chose to make it. The short answer to this is  that Maddanappa on his own allegations was not  only  in possession and enjoyment of these properties ever since  the death  of  Puttananjamma but had made  improvements  in  the properties  even before the execution of the will. In  these circumstances,  it is clear that the provisions  of  Section 115  of  the Indian Evidence Act, which contain the  law  of estoppel by representation do not help him.     Mr. Venkatarangaiengar, however, wanted us to hold  that the law of estoppel by representation is not confined to the provisions 288 of  s.  115  of  the  Evidence  Act,  that  apart  from  the provisions   of  this  section  there  is  what  is   called "equitable estoppel" evolved by the English Judges and  that the   present  case  would  come  within   such   "equitable estoppel".  In some decisions of the High  Courts  reference

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

has  been made to "equitable estoppel" but we doubt  whether the  court  while  determining  whether  the  conduct  of  a particular party amounts to an estoppel, could travel beyond the  provisions of Section 115 of the Evidence Act.  As  was pointed  out  by Garth C.J. in Ganges Manufacturing  Co.  v. Saurjmull(1) the provision of s 115 of the Evidence Act  are in  one  sense a rule of evidence and are rounded  upon  the well  known  doctrine laid down in Pickard  v.  Sears(2)  in which the rule was stated thus:               "Where  one  by his word or  conduct  wilfully               causes another to believe for the existence of               a  certain state of thing and, induced him  to               act  on  that belief so as to  alter  his  own               previous  position,  the former  is  concluded               from  averring against the latter a  different               state  of  things as existing  at  the  first,               time." The  object  of  estoppel is to  prevent  fraud  and  secure justice between the parties by promotion of honesty and good faith.    Therefore,    where    one    person    makes    a misrepresentation to the other about a fact he would not  be shut out by the rule of estoppel, if that other person  know the true state of facts and must consequently not have  been misled by the misrepresentation.     The general principle of estoppel is stated thus by  the Lord Chancellor in Cairncross v. Lorimer(3):               "The  doctrine   will apply, which  is  to  be               found, I believe, in the laws of all civilized               nations  that if a man either by words  or  by               conduct  has intimated that he consents to  an               act  which  has been done, and  that  he  will               offer  no opposition to it, although it  could               not  have  been  lawfully  done  without   his               consent,  and he thereby induces others to  do               that  from  which they  otherwise  might  have               abstained, he cannot question the legality  of               the act he had so sanctioned, to the prejudice               of those who have so given faith to his  words               or to the fair inference to be drawn from  his               conduct.  I  am  of  opinion  that,  generally               speaking,  if  a party having an  interest  to               prevent  an act being done has full notice  of               its being done, and acquiesces in it, so as to               induce a reasonable belief that he consents to               it,  and the position of others is altered  by               their  giving credit to his sincerity, he  has               no  more right to’ challenge the act to  their               prejudice  than  he would have had if  it  had               been done by his previous license."     It  may  further be mentioned that in Carr v.  London  & N.W.  Ry. Co.(4)four propositions concerning an estoppel  by conduct (1) I.L.R. 5 cal., 669. (2) 6 Ad. & E. 469.     (3) 3 Macq. 827. (4) L.R. 10 C.P. 307.      289 were  laid  down by Brett, j. (afterwards  Lord  Reher)  the third which runs thus:               "If  a  man  either in  express  terms  or  by               conduct  makes a representation to another  of               the  existence  of a certain  state  of  facts               which he intends to be acted upon in a certain               way, and it be acted upon in the belief of the               existence  of  such a state of facts,  to  the               damage  of him who so believes and  acts,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

             first  is estoppel from denying the  existence               of such a state of facts." This  also  shows that the person claiming  benefit  of  the doctrine must show that he has acted to his detriment on the faith of the representation made to him.     This  was quoted with approval in Sarad v. Gopal(1).  It will  thus be seen that here also the person who sets up  an estoppel  against the other must show that his position  was altered  by reason of the representation or conduct  of  the latter and unless he does that even the general principle of estoppel  cannot  be invoked by him. As  already  stated  no detriment  resulted to any of the defendants as a result  of what  the  defendant No. 1 had stated in her letter  to  her step-mother or as a result of the attestation by her and her husband of the will of Maddanappa.     Mr. Venkatarangaiengar then tried to urge before us that it was a case of family settlement by the father with a view to   avoid   disputes   amongst   his   heirs   and    legal representatives after his death and, therefore, the  actions of  defendant No. 1 can be looked at as acquiescence in  the family  settlement effected by the father. A case of  family settlement was never set up by the defendants either in  the trial  court or in the High Court and we cannot allow a  new case to be set up before us for the first time.     Finally  on this aspect of the case the learned  counsel referred to the observations of Lord Cranworth in Ramsden v. Dyson(2) which are as follows:               "If  a  stranger begins to build  on  my  land               supposing  it  to be his own and I  (the  real               owner)  perceiving his mistake,  abstain  from               setting him right, and leave him to  persevere               in his error, a court of equity will not allow               me afterwards to. assert my title to the land,               on   which  he  has  expended  money  on   the               supposition,  that  the land was his  own.  It               considers that when I saw the mistake in which               he had fallen, it was my duty to be active and               to state his  adverse title; and that it would               be dishonest in me to remain wilfully  passive               on  such  an occasion in order  afterwards  to               profit  by  the  mistake which  I  might  have               prevented. The  doctrine of acquiescence cannot afford any help to  the appellants  for the simple reason that Maddanappa  who  knew the  true state of affairs could not say that  any  mistaken belief was caused (1) L.R. 19 I.A. 203. (2) L.R.I. H. L. App. 129, 140. 290 in  his mind by reason of what the first defendant  said  or did.  According  to the learned counsel, even if  the  first defendant’s  claim  to the half share in the  suit  property cannot be denied to her she must at least be made to pay for the  improvements effected by Maddanappa, according  to  her proportionate share in the suit property. As already  stated the appellant was in enjoyment of these proportion after his wife’s  death and though fully aware of the fact  that  they belonged  to the daughters he dealt with them as  he  chose. When he spent moneys on those properties he knew what he was doing and it is not .open to him or to those who claim under him to say that the real owners of the properties or  either of them should be made to pay for those improvements. No man who,  knowing  fully well that he has no title  to  property spends money on improving it can be permited to deprive  the original  owner of his right to possession of  the  property

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

except upon the payment for the improvements which were  not effected  with  the  consent of that person.  In  our  view, therefore,  neither  was  defendant  No.  1  estopped   from claiming possession of half share of the properties nor  can she  be  made liable to pay half the costs  of  improvements alleged to have been made by the second defendant.     Now regarding the second point, this objection is purely technical.  The  plaintiff sued for partition  of  the  suit properties upon the ground that they were inherited  jointly by her and by the first defendant and claimed possession  of her  share from the other defendants who were wrongfully  in possession  of  the properties. She, also alleged  that  the first defendant did not co-operate in the matter and so  she had to institute the suit. The first defendant admitted  the plaintiff’s  title  to  half share  in  the  properties  and claimed a decree also in her own favour to the extent of the remaining half share in the properties. She could also  have prayed  for  the transposition as a co-plaintiff  and  under Order  I, rule 10(2) C.P.C. the Court could have  transposed her  as  a co-plaintiff. The power under this  provision  is exercisable  by the Court even suo motu. As pointed  out  by the  Privy  Council in Bhupender v. Rajeshwar(1)  the  power ought to be exercised by a court for doing complete  justice between  the parties. Here both the plaintiff and the  first defendant claim under the same title and though defendants 2 to 8 had urged special defences against the first defendant, they  have  been fully considered and adjusted upon  by  the High Court while allowing her appeal. Since the trial  court upheld  the special defences urged by defendants 3 to 8  and negatived  the  claim  of the first defendant  it  may  have thought  it  unnecessary  to  order  her  transposition   as plaintiff.  But  the High Court could, while  upholding  her claim,  well have done so. Apparently it either  over-looked the  technical defect or felt that under O. XLI, rule 33  it had  ample power to decree her claim. However that  may  be, the  provisions  of s. 99 would be a bar to  interfere  here with the High Court’s decree upon a ground such as this. (1) L.R. 58 I.A. 228.         291     The only other question for consideration is whether the High  Court was justified in awarding mesne profits  to  the first  defendant  even though she was not  transposed  as  a plaintiff.  According to the learned counsel  mesne  profits cannot  be  awarded  to a successful party  to  a  suit  for possession  unless a claim was made in respect of them.  The learned counsel is right in so far as mesne profits prior to the  suit  are  concerned but in so  far  as  mesne  profits subsequent      to the date of the institution of the  suit, that is future mesne profits are concerned, the position  is governed by Order XX, rule 2, C.P.C. which is as follows:               "(1)  Where  a suit  is for  the  recovery  of               possession of  immovable property and for rent               or mesne profits, the Court may pass a  decree               --                (a) for the possession of the property;                (b) for the rent or mesne profits which  have               accrued on the property during a period  prior               to the institution of the suit or directing an               inquiry as to               such rent or mesne profits;               (c) directing an inquiry as to  rent or  mesne               profits  from  the  institution  of  the  suit               until:-                (i)   the  delivery  of  possession  to   the               decreeholder,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

             (ii)  the relinquishment of possession by  the               judgment  debtor  with notice to  the  decree-               holder through the Court, or                      (iii)  the  expiration of  three  years               from  the date of the decree, whichever  event               first occurs.                   (2)  Where  an inquiry is  directed  under               clause  (b)  or clause (c) a final  decree  in               respect of the rent or mesne profits shall  be               passed  in accordance with the result of  such               inquiry." The  learned counsel, however, relied upon the  decision  of this  Court  in  Mohd. Amin and others v.  Vakil  Ahmed  and others(1). That was a suit for a declaration that a deed  of settlement was void and for possession of the property which was  the subject matter of the settlement under  that  deed. The plaintiffs had not claimed mesne profits at all in their plaint  but  the  High  Court had passed  a  decree  in  the plaintiff’s  favour  not only for possession  but  also  for mesne  profits. In the appeal before this Court against  the decision of the High Court one of the points taken was  that in  a  case of this kind, the court has no  power  to  award mesne  profits. While upholding this contention Bhagwati  J. who delivered the judgment of the Court has observed thus:                   "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                   (1) [1952] S.C.R  1133,1144                  B(N)3SCI--6               292               possession  and  occupation  of  the  property               aforesaid   together  with  all   the   rights               appertaining  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 order to satisfy ourselves whether these observations related  to the award of past mesne profits or to the  award of  future mesne profits we sent for the original record  of this Court and we found that the High Court had awarded past as  well as future mesne profits. Mr. S.T. Desai,  appearing for  the  respondent  No. 1 stated. that  a  Full  Bench  in Babburu  Basavayya and four others v. Babburu Garavayya  and another (1) following the decision of the Judicial Committee in   Fakharuddin Mohomed Ahsan v.  The  Official  Trustee(2) has  held  that even after the passing  of  the  preliminary decree,  it  is  open  to  the  court  to  give  appropriate directions,  amongst  other matters regarding  future  mesne profits either suo motu or on the application of the parties in  order  to prevent multiplicity of litigation and  to  do complete justice between the parties. This decision has been followed in a large number of cases. In Bachepalli  Atchamma v.   Yerragupta  Rami  Reddy(3)  Simma Krishnamma  v.  Nakka Latchumanaidu   and   others(4)   Kasibhatla   Satyanarayana Sastrulu  and others v. Kasibhatla Mallikarjuna  Sastrulu(5) and  Ponnuswami  Udayar  and  another  v.  Santhappa(6)  the decision  of  this Court was cited at the Bar and  has  been considered. The learned Judges have said that the  authority of  the  decision in Babburu Basavayya and  four  others  v.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

Babburu  Guravayya(1) is not shaken by what this  Court  has said.   One of the grounds given is that the former  relates to  a  suit  for partition while the latter to  a  suit  for possession  simpliciter.  It  is not  necessary  for  us  to consider   whether  the  decision  of  this  Court  can   be distinguished  upon  this ground, but we feel  that  when  a suitable   occasion  arises  it  may  become  necessary   to reconsider  the  decision of this Court as to  future  mesne profits.  In  the present case the plaintiff did  claim  not only partition and separate possession of her half share  of the  properties but also past mesne profits.  The  defendant No. 1 admitted the plaintiff’s claim and in substance prayed for  a  similar decree in her favour. The decision  of  this Court  would,  therefore, not apply to a case like  the  one before us.     In the result therefore we uphold the decree of the High Court and dismiss the appeal with costs. Appeal dismissed. (1) I.L.R. 1952 Madras 173. (2) 8 cal 178 (P. C.). (3) A.I.R. 1957 A.P. 52. (4) A.I.R. 1958 A.P. 520. (5) A.I.R. 1960 A.P. 45. (6) A.I.R. 1963 Mad. 171. 293