Neety Gupta v. Usha Gupta & Ors

3. In view of the aforesaid position, we condone the delay in filing of the appeal, noticing the fact that the appellant had filed the review application on 26.02.2016 which had remained pending till 17.02.2017.

4. The application for condonation of delay is therefore allowed, without any order as to costs. FAO(OS) No. 81/2017

5. This intra-court appeal under Section 10 of the Delhi High Court Act 1966 impugns order dated 28th January, 2016 whereby IA NO. 22524/2014 praying for a decree of mesne profits against the fourth respondent from the date of institution of the suit, has been dismissed.

6. The appellant and the four respondents are sisters. The fourth respondent has, to the exclusion of the appellant and other respondents, been in use and occupation of the property in respect of which mesne profits have been claimed, as detailed below.

7. The appellant and the respondents have inherited immovable properties from their parents, being property No. B-7, 80/2, Safdarjung Enclave, New Delhi and residential plot No. B-9, Rohit Kunj, Pitampura (Rohtas Cooperative House Building Society), Delhi. Mesne profits have been claimed by the appellant only in respect of the Safdarjung Enclave property, with the claim being restricted to her share in such mesne profits. As noted above, it is the conceded position that the fourth respondent has been in occupation of the Safdarjung Enclave property, to the exclusion of the other sisters including the appellant. 4 13

8. The appellant had filed CS (OS) No. 2209/2008 for partition of the said properties. Respondents Nos. 1, 3 and 4 herein did not appear inspite of service and were accordingly proceeded ex-parte in the suit. The second respondent had entered appearance and accepted the appellant’s claim. Consequently by order dated 27th September, 2011 a preliminary decree of partition was passed, holding that the appellant and the fourth respondent have a 1/5th share each in the suit properties. The appellant had given- up the relief for rendition of accounts.

9. The fourth respondent thereafter filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (‘Code’, for short) for setting aside the ex-parte preliminary decree against her, which application was dismissed vide order dated 28th January, 2016 made by the single Judge. The appeal FAO(OS) No. 108/2016 preferred by the fourth respondent was dismissed by the Division Bench of this Court vide judgement dated 25th October, 2016. The Special Leave Petition filed by the fourth respondent was also dismissed. Accordingly, the preliminary decree dated 27th September 2011 has attained finality.

10. The application, being IA No. 22524/2014 dated 5th November, 2014, for decree of mesne profits in favour of the appellant and against the fourth respondent was rejected vide order dated 28th January, 2016 on the ground that no prayer for mesne profits had been made in the plaint. The appellant had not led any evidence to prove mesne profits before passing of the preliminary decree. As previously noticed, the appellant had thereupon filed a review application relying upon the judgment of the single Judge of this Court in Sita Kashyap & Anr. 5 13 (supra), which review application was disposed of vide order dated 17th February, 2017.

11. The provisions of the Code that are relevant for the issue of mesne profits are extracted hereinafter. Order XX Rule 12 of the Code reads as under: “12. Decree for possession and mesne profits.—(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 rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such 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 decree-holder,

(ii) the relinquishment of possession by the judgmentdebtor 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.” Order XX Rule 18 of the Code reads as under: “18. Decree in suit for partition of property or separate possession of a share therein.—Where the Court passes a de- 6 13 cree for the partition of property or for the separate possession of a share therein, then,— (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required.”

12. As is evident from a bare perusal of the provisions of Rules 12 and 18 of Order XX of the Code, in the case of a partition suit it is Rule 18 that specifically applies. It is also clear that the right to receive a share in mesne profits is a consequence of partition of the property. Sub-rule 2 of Rule 18 of Order XX of the Code states that if a decree for partition or separation cannot be conveniently made without enquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property. At this stage, the court can give further directions as may be required. These directions would include directions for payment of mesne profits. Interpreting the aforesaid Rule, a Division Bench of this Court in Seth Girdhari Lal & Ors vs. Seth Gaja Nand & Ors ILR (1974) 1 Delhi 864 observed as under:- “The preliminary decree determines the shares of the respective parties and thereby furnishes the basis upon 7 13 which the division of the property has to be made. There are other matters, in addition to the shares of the parties, that have to be considered and decided before an equitable and final partition can be effected. They would include all questions of accountability between the parties, the distribution of the profits in the properties realised pending the suit etc. 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 C.P.C. does not prohibit the Court from issuing such directions after the stage of a preliminary decree even in a case where the plaint itself does not expressly ask for such relief. It is open to the Court, to prevent multiplicity of litigation and to do complete justice and affect 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. “In Babburu Basavayya vs. Babburu Guravayya (1951 A.I.R. Madras 938 (7)) a Full Bench of the Madras High Court explained the above features of a partition suit as well as the scope of Order 20, Rules 12 and 18 C.P.C. The distinction between three types of cases, in which a question of profits or mesne profits might arise, was explained: (1) suits for ejectment or recovery of possession of immovable property from a person without title with a claim for past or past and future mesne profits; (2) suits for partition by one or 8 13 more tenants-in-common against others with a claim for account of past or past and future profits, and (3) suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defendant, not being lawful, the plaintiff is entitled to recover mesne profits; in the second case, the possession and receipt of profits by the defendants not being wrongful, the plaintiffs' remedy is to have an account of such profits; in the third case, the state of the family on the date of the partition is material and the parties are not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. Order 20, Rule 12 C.P.C. deals with the first type of suits while Order 20, Rule 18 deals with the second and third categories. The preliminary decree in this case had directed the taking of accounts under Order 20, Rule 18 C.P.C. Basavayya held that even in the absence of a claim for future mesne profits and the preliminary decree being silent about it, it is open to the Court to give appropriate directions either suo motu or on the application of the parties even after the date of the preliminary decree.”

13. The Full Bench of the Madras High Court in B. Basavayya V.B. Guravayya vs. B. Guravayya, AIR 1951 Madras 938, on interpretation of Rules 12 and 18 of Order XX, has held that the provisions of Rule 18 of Order XX apply to a suit for partition by a member of a joint family as also a suit for partition by one or more tenants-in-common against each other, with a claim for accounts of mesne profits; whereas the provisions of Rule 12 apply to a suit for ejectment or recovery 9 13 of possession of immoveable property from a person without title, with a claim for past or future mesne profits.