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1 THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR PARTITION Judgment Reserved on: Judgment Pronounced on: I.A. No /2010 in CS(OS) No. 1943/1998 Sita Kashyap & Anothers.. Plaintiffs - versus - Harbans Kashyap and Others...Defendants Advocates who appeared in this case: For the Plaintiff: Mr. S.K. Puri, Sr. Adv. with Mr. Praveen Kumar. For the Defendant: Mr. H.L. Kapoor for D-1. Ms. Maldeep Sidhu for D-2 & 3. CORAM:- HON BLE MR JUSTICE V.K. JAIN V.K. JAIN, J 1. The following reliefs have been claimed in this suit:- a) (i) a decree of partition in respect of all that property comprised of land and building and bearing No.5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi, as per plan enclosed with the plaint; (ii) a preliminary decree for partition of the suit property No.5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi for dividing the said property by metes and bounds and if it is ascertained that this property is not capable of being divided by metes and bounds then to order sale of property No.5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi and to divide the proceeds in the ratio of

2 ¼ share for each of the two plaintiffs and defendant No.1 and the remaining ¼ to defendants No.2 and 3 together; (b) a decree of declaration that the plaintiffs have inherited the contractual tenancy rights in respect of all that commercial premises being Shop No.2738, Municipal No.XVI, Ajmal Khan Road, to the exclusion of the defendants; c) a decree of mandatory injunction requiring the defendants to allow the plaintiffs user and quiet possession of the said commercial shop No.2738, Municipal No.XVI, Ajmal Khan Road, Karol Bagh, New Delhi. d) a decree of declaration declaring the first plaintiff as the owner of all the contents of locker No.20A Type with The Delhi Safe Deposit Company Limited, New Delhi, and to operate the said locker singly or with plaintiff No.2 who is the joint holder of the locker. e) a decree of rendintion of accounts in favour of the plaintiffs and against the defendants requiring the defendants to render true and full accounts in respect of business activity of the business named and styled Banbasees being run from commercial shop No.2738, Municipal No.XVI, Ajmal Khan Road, Karol Bagh, New Delhi-5, as on the death of Smt. Kartar Devi and to further render accounts in respect of earnings of the said business firm Banbasees with the capital and share in profits of the deceased as from the death of the deceased and of the proceeds of bank account of the deceased known to defendant No.1 and to pass a decree in favour of the plaintiffs in such sum as may be found due and payable to the plaintiffs; and f) a decree of permanent injunction against the defendants restraining the defendants from disturbing the status quo in respect of plaintiffs

3 possession of the portion of the house property 5A, Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi and restraining them from alienating, transferring or otherwise parting with possession of the said property or any portion thereof, till disposal of the suit. 2. A preliminary decree partitioning property No.5A, Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi was passed by this Court on 10 th May, 2007 holding that each party has ¼ undivided share in the aforesaid property. A Local Commissioner was appointed by the Court, who submitted a report stating therein that the property was not capable of being divided by metes and bound. The Court vide order dated 19 th November, 2007, passed a final decree of partition with respect to movable as well as immovable properties, directing that the properties being incapable of partition, the same would have to be sold. In respect of property No. 5A, Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi , it was directed that the same be sold by public auction and the parties would be entitled to bid in the public auction, to the exclusion of their share. 3. I.A. No.13192/2009 has been filed by Ms. Benu Puri, who claims that the first plaintiff Ms. Sita Kashyap,

4 who died during the pendency of the suit, had left a Will in her favour. 4. Vide order dated 29 th January, 2010 passed in I.A. No.13192/2009 for bringing the L.Rs. of deceased plaintiff No.1 on record, the following two issues were framed by this Court:- (i) (ii) Whether Ms. Benu Puri is the LR of deceased Sita Kashypa in terms of the registered Will dated , registered on and if so, its effect? Relief. 5. Mutation in the name of all the four co-owners has been directed by this Court and the applicant has been directed to be joined in place of late Ms. Sita Kashyap but ¼ share of the sale proceeds is to remain deposited in the Court till the question of Will and the right of the applicant to succeed to the estate of the deceased is decided. 6. It is alleged in the application under consideration that the first plaintiff was in possession of a room in the suit property at the time of filing of the suit, but, after passing of preliminary decree that room was occupied by the defendants, who are now in occupation and enjoyment of whole of the property but have not offered to pay mesne

5 profits to the plaintiffs. According to the applicant, the plaintiffs had not sought mesne profit in the main suit since one of them was, at that time, in part occupation of the aforesaid property. The applicant has accordingly sought a direction to the defendant to vacate any portion equivalent to ½ of the suit property or in the alternative deposit a sum of Rs.40,000/- per month in the Court for use and occupation of the share, which does not belong to them. The applicant has also sought mesne profits at the above referred rate from the date of preliminary decree or final decree. 7. The application has been opposed by defendant No.1, who claims that under the garb of the application, the applicant is seeking possession, which is not permissible. He has also claimed that the Will set up by the applicant is a forged and fabricated document. 8. Order 20 Rule 18 of the Code of Civil Procedure to the extent it is relevant, provides that where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, 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

6 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. 9. Admittedly, the plaintiff did not claim mesne profits in the present suit. This is, according to the applicant, was done since the plaintiffs at that time were in part possession of the aforesaid property. 10. The learned counsel for the plaintiffs, in support of his contention that mesne profits can be awarded even at this stage, has relied upon the decision of Madras High Court in Ponnuswami Udayar and Anr. v. Santhappa Udayar and Ors., AIR 1963 Madras 171, A.R. Veerappa Gounder v. Sengoda Gounder,(1975)1 MLJ 53 and the decision of Punjab High Court in Rattan Lal vs. Madan Lal Malhotra, 1979 (81) PLR 238. In the case of Ponnuswami Udayar (supra), after passing of preliminary decree, an application was filed under Order 20 Rules 12 & 18 of CPC for enquiry and determination of mesne profits payable to the plaintiffs by the defendants from the date of the institution of the case till delivery of possession and for a

7 final decree, after such assessment of mesne profits. In the plaint, however, no claim was made for recovery of future mesne profits accruing after institution of the suit till the date of delivery of the possession of the property allotted to the share of the plaintiffs under the final decree and this claim was made for the first time in the application. It was held that an application for ascertainment of future mesne profits can be filed and maintained so long as partition suit has not been ended in a final decree. The view taken by the High Court was summarized as under:- I am clearly of opinion that in a partition suit, an application for ascertainment of future mesne profits can be filed so long as the suit is pending and so long as no final decree has been passed even though the plaint does not specifically pray for the granting of such relief and the preliminary decree does not provide for it. The mesne profits accruing from the properties forming the subject-matter of the division and referable to the properties which are eventually allotted to the share of the successful plaintiff, form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves. It would be most inequitable and unjust to compel the plaintiff to sue separately for future mesne pofits, and it is certainly not the policy of the law to encourage multiplicity of proceedings.

8 In the case of Rattan Lal (supra), after passing of a preliminary decree of partition and before passing of final decree, an application under Order 20 Rule 12 of CPC was filed by the petitioner seeking mesne profits. Relying upon the decision of the Madras High Court in Ponnuswami Udayar (supra), it was held that the application could not be summarily rejected. The trial court was directed to decide the application on merits after giving the parties opportunity to prove their respective contentions. In the case of A.R. Veerappa Gounder (supra), preliminary decree for partition was passed on During final decree proceedings, the revision petitioner filed an application purporting to be under Order 20 Rule 12, and Section 151 of CPC for ascertainment of profits from the suit properties and for allotment of a share therein to him. A final decree was then passed on , but, the profits claimed by the revision petitioner had not been ascertained and had not been incorporated in the final decree, despite the fact that the application seeking ascertainment of profits and division of the same, had been filed even before the passing of the final decree. The Court took up the application after passing of the final decree, and dismissed the same on the

9 grounds that the preliminary decree did not give any direction for determining the profits in separate proceedings and after the passing of the final decree, no application for ascertainment of profits can be entertained. It was observed by the High Court that in a suit for partition, the future profits from the property ought to be ascertained as property that is to be divided among the sharers and when a preliminary decree directs partition of the suit properties according to the shares declared therein, it is the duty of the Court not only to divide the several items of properties described in the plaint schedule but also the future profits derived therefrom from the date of suit till date of final decree, for, profits so derived are also '' property " liable to be divided between the sharers. It was held that if one of the sharers happens to be in possession of all the suit properties and he had been deriving the profits therefrom during the pendency of the suit, he is bound to account for the same and the other sharers are entitled to their respective shares in the net profits on such accounts. As regards the contention of the respondent that having passed the final decree, the Court had become functus officio, the High Court was of the view that the mere fact that there is a

10 final decree in respect of the property described in plaint schedule, which final decree does not incorporate the profits derived after filing of the suit, is not a ground to refuse the request that the profits should be ascertained and divided. If certain items of properties had not been divided under a final decree passed by the Court, the Court has not only the power but also the duty to divide the remaining property according to the shares declared in the preliminary decree. During the course of the judgment, the High Court relied upon the observations made in an earlier decision Krishnamma vs. Latchumanaidu, AIR 1958 A.P. 520, where the Court had, inter alia, observed as under:- In a proper case, therefore, where a supplemental final decree can be made, the Full Bench does not preclude the Court from ascertaining the profits and including the same in the supplemental decree. If a party to a partition files such an application for the ascertainment of future profits and the Court, without disposing of that application, makes a final decree in respect of the other matters and without incorporating any relief for profits, the legal position is that the entire subject matter of the suit has not been finally disposed of and, on that basis, it may be open to the Court to make another supplemental final decree in regard to profits.

11 The Court was of the view that since the revision petitioner had in fact filed an application for ascertainment of the profit before the final decree was passed and the Court below had not considered that application while passing the final decree, it was not correct in dismissing the application on the ground that it could not be maintained after the final decree was passed. 11. However, in Thyagarajan & Ors. vs. Sundaravelu, AIR 1972 Madras 216, the same High Court had earlier held that after the passing of the final decree, there cannot be another final decree regarding mesne profits on the footing that the mesne profits merge in the property from which it is derived. 12. In my view, since it is the boundant duty of the Court to direct appropriate division/apportionment not only of the common immovable property but also of the profits earned/mesne profits which accrues from that immovable property, even if no application for grant of profits is pending at the time when the final decree is passed, would not be material when suit continues to be pending before Court for one reason or the other.

12 13. In B. Basavayya V.B. Guravayya v. B. Guravayya, AIR 1951 Madras 938, a Full Bench of Madras High Court was dealing with a case where in a suit for partition of joint family properties, there was no prayer for ascertainment of profits realized pending the suit. The plaintiff applied by way of an interlocutory application, for enquiry into such profits and for passing a final decree. That application was opposed on the ground that in the plaint no relief for recovery of such profits was prayed for and there was no such direction in the preliminary decree. The trial Court overruled these objections and directed an enquiry into profits. Dismissing the civil revision pending against that order, the Full Bench held as follows:- Where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of suit which, for one reason or another, continues to be pending, there is nothing in the Civil Procedure Code prohibiting the D.H. from applying to the Court during the pendency of such suit for an enquiry into further mesne profits or the Court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the D.H. to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree.

13 There is no express or implied prohibition in the Civil Procedure Code against awarding possession & directing an enquiry into future mesne profits by successive adjudication in a pending suit though the normal & ordinary procedure would be to pass a preliminary decree awarding possession & also direct an enquiry into future mesne profits. 14. Though the issue before the Full Bench was as to whether the Court could direct an enquiry into profits after preliminary decree for partition where relief for a share of profits was claimed or directed under the preliminary decree, the above referred observations do indicate a view that if the facts and circumstances of the case so warrant, the Court is empowered to pass more than one final decrees in a suit for partition. 15. Another Full Bench of Madras High Court in Gnanaprakasa Mudaliar and Ors. V. B. Anandathanadavan & Ors., 1999(2) CTC 6 had an opportunity to consider the decision in the case of Basavayya (supra). In this case, the respondents had filed a suit for partition. A preliminary decree was passed on 31 st March, 1962 followed by a final decree passed on 15 th April,

14 1964. The plaintiffs took possession of the property on 26 th December, 1974 with respect to certain properties. The final decree came to be passed separately on 15 th July, 1976 since those items were subject matter of a second appeal, which was disposed of in the year The plaintiffs took possession of their share in the items, subject matter of that final decree, on 22 nd September, Thereafter, they filed an application for ascertainment of mesne profits, which was granted by the trial Court as well as the first appellate court. The learned Single Judge of the High Court before whom the second appeal came up for consideration referred the matter to the larger Bench on the following question:- Whether in a partition action the lis got terminated for all purposes even with regard to future profits, not provided for in the final decree in the absence of any indication therein that something more remained to be done." 16. Relying upon the decision in the case of Basavayya (supra), the Full Bench observed that the preliminary decree should contain the relief of mesne profits and even if it is not so, it is open to the parties to ask for the enquiry with regard to the mesne profits during the pendency of the suit which is till the passing of the final

15 decree. The decision in the case of Basavayya (supra) was interpreted to mean 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 it was held that till the passing of the final decree the suit is pending, but when once a final decree is passed, it interdicts the rights of the parties. The question referred to the Full Bench was answered as follows:- In a partition action, the lis 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. 17. This issue also came up for consideration before a Division Bench of Andhra Pradesh High Court in Azizabi v. Fatima Bi and Others, 1977 (1) Andhra WR 136. In the case before the Andhra Pradesh High Court, a preliminary decree was passed on 30 th July, 1972 followed by a final decree passed on 7 th October, The plaintiff thereafter filed I.A. 2245/1972 on 3 rd November, 1972 for appointment of a Commissioner to ascertain profits. The application was opposed on the ground that once a final decree for partition

16 was passed and properties were allotted to decree holder, no petition for ascertainment of profits is, thereafter, maintainable. The Division Bench, after considering the decision of the Full Bench of Madras High Court in the case of Basavayya (supra) held that there is nothing in the Code which precludes the Court from making more than one final decree in a suit for partition, one for partition and separate possession of properties and the other for profits. The Court was of the view that notwithstanding the final decree for partition and separate possession, another final decree directing ascertainment of profits and awarding a share therein could be made by the Court. The respondents before the High Court contended that even if the Court has a power to make a separate final decree for profits, it would not exercise that power unless a petition for ascertainment of profit was filed before the final decree for partition and separate possession was made and an application subsequent thereto was not maintainable. Rejecting the contention, the Division Bench, inter alia, held as under:- On the other hand, when even after a decree further proceedings have to be taken before the suit could be said to have been completely disposed of, such a

17 decree would still be preliminary and would not be a final decree. The Code does not enjoin that final disposal of the suit should be by a single adjudication on or under a single decree; nor does it enjoin that a single application should be filed for passing a final decree in respect of all the reliefs claimed in the suit or with reference to all the directions contained in the preliminary decree. What is crucial for determining whether a petition or enquiry into profits is maintainable or not, once a final decree for partition of the properties is made, is to ascertain whether the suit has been completely disposed of, by any earlier order, and so long as the suit is not disposed of, there is nothing in the Code which prohibits the Court from passing one or more final decrees to completely dispose of the suit. Once the suit is pending, the parties are at liberty to file a petition for disposing of the same by making a final decree and it is the duty of the Court to do so. The passing of a final decree for division of the properties cannot stand in the way of the Court completely disposing of the pending suit. Hence, in our view, another final decree could be passed for profits on an application made before or after the passing of the previous final decree for division of the properties by metes and bounds and thereby completely dispose of the suit. In taking this view, the Division Bench of Andhra Pradesh High Court also took support from the decision of

18 Madras High Court in Manicka Mudaliar v. Munilakshmantmal, AIR 1973 Madras The Full Bench of Madras High Court in Basavayya (supra) in this regard, inter alia, observed as under:- A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit till he is put in possession of his share. He can not anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realised during that period. He need not, therefore, specifically ask for any relief in respect of future profits, the prayer for general relief being sufficient to enable the Court to award him such profits. If during the pendency of the suit one or some of the co-sharers receive or realise the entire profits or more than their share of the profits of the common properties, they have to account to the other sharers for the excess. If the collecting co-sharer or tenant-in-common is not in a position to bring into the hotchpot his realisations subject to all just allowances in his favour, the court will, when passing a final decree, deprive him of a sufficient portion of the properties allottable to his share and allot the portion so taken away to the other sharers so as to give them the equivalent of their share of the profits in the shape of property. Or the court may impose a

19 charge on the share of the defaulting tenant-in-common for the amount for which he is accountable to the other sharers and thus equalise the shares. The theoretical allotments and the general declaration of rights in the preliminary decree have to be worked out with due regard to the realisations of profits and drawings by the parties subsequent to the institution of the suit till the passing of the final decree. The profits accruing from the common properties pending a suit for partition like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits and a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition. A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. If, as we think this is the true nature of the proceedings in a suit for partition, a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing in Order 20 Rule 18 C.P.C. interdicting such procedure. 19. In Indradeo Prasad Singh and another v. Sheonath Prasad Singh and others, AIR 1980 Patna

20 201, the following question of law was referred to the Full Bench of Patna High Court for consideration:- Whether an application by the plaintiff in the course of the preparation of the final decree for an enquiry into the profits of the properties realised by the defendants during the pendency of the suit and before the preparation of the final decree is maintainable or not? Answering the question in affirmative, the Full Bench, inter alia, held as under:- A member of the joint Hindu family can file a suit for partition as well as for rendition of accounts. A preliminary decree can also be passed for partition and for rendition of accounts. A plaintiff can pray for an enquiry into the profits realised by the defendants at the stage of the preparation of the final decree though such prayer had not been made in the plaint, nor such direction has been given in the preliminary decree. It is necessary to demand such an enquiry in order to adjust equities arising between the parties. It will be within the discretion of the Court, to allow such prayer on the facts and circumstances of each case. Suppose a defendant is in possession of the suit properties and he has realised the income from the properties. If the plaintiff is not given share out of the profits realised by the defendant, a great injustice will be done to the plaintiff and the plaintiff will be deprived of his due share during the pendency of the suit. Though, it appears that in the above referred case

21 the final decree had not been passed by the time the plaintiff applied for an enquiry into the profits realized by the defendants during the pendency of the suit, that, to my mind, would be inconsequential once it is accepted that it was the duty of the Court to adjust the equities by directing appropriate payments the other party received or with exercise of ordinary diligence could have received and the proceedings in the suit continue to remain pending before the court even after passing of the final decree. 20. It would be only appropriate to note here that in the case before the Full Bench, no proceedings were pending in the trial Court at the time when the plaintiff filed an application for ascertainment of mesne profits. However, in the case before this Court, though a final decree was passed by this Court on 19 th November, 2007 in respect of both movable and immovable properties directing that properties being incapable of partition, the same would have to be sold, the proceedings before this Court did not terminate with the passing of the aforesaid order. This Court while passing the final decree directed the Local Commissioner to take steps for sale of jewellery and to

22 divide proceeds as per the shares of the parties. With respect to property bearing No.5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi, it was directed to be sold by public auction, and be listed before the Joint Registrar for settlement of proclamation of sale and thereafter be listed before the Court for report of sale of the properties. Even, thereafter, the matter came to be considered by the Joint Registrar as well as by the Court on a number of hearings. The matter was listed before the Court on 31 st March, 2008, 20 th August, 2008, 12 th November, 2008, 25 th February, 2009, 7 th August, 2009, 14 th October, 2009, 29 th January, 2010 and 12 th May, All these proceedings took place before I.A. No.14803/2010 was filed. In fact, even I.A /2009 to implead the applicant Ms. Benu Puri in place of deceased plaintiff No.1 was considered by the Court on 29 th January, 2010 and issues were framed on that date in order to decide that application. The sale in terms of the final decree passed by the Court on 19 th November, 2007 is yet to be effected and the sale proceeds can be divided only after the properties, which were directed to be sold are actually sold. Thus, the suit between the parties continues to be pending before the

23 Court despite passing of final decree. It is pertinent to note here that no execution application has been filed and all the orders subsequent to the final decree have been passed in the suit itself. Therefore, the facts of this case are different from the facts of the case, which came to be considered by the Full Bench in Madras High Court in the case of Gnanaprakasa Mudaliar(supra) and in the facts of this case, it cannot be said that the lis between the parties got terminated for all purposes on the passing of the final decree dated 19 th November, In a suit for partition though there is no specific prayer for awarding profits, the Court has power to direct an enquiry into profits and grant a decree for plaintiff s share therein. This proposition was expressly approved by the Madras High Court in the case of Basavayya (supra). In fact, it becomes the duty of the Court in a suit for partition, to make an enquiry into profits even if there is no claim for profits, so as to balance the equities between the parties. If one of the co-owners has been deriving some profit by way of rent etc. or is in possession of a portion disproportionate to his share in the property subject matter of the partition,

24 it becomes the duty of the Court to adjust the equities by directing appropriate division of profits, if any, earned from the property, which is subject matter of the partition or by directing appropriate payment by a person, who has been occupying a portion larger than he ought to be occupying considering his share in the property, to the sharer(s), who is either totally divested of possession or has been in possession of lesser portion as compared to his share in the property. Of course, such payment/adjustment can be directed by the Court only with respect to the mesne profits subsequent to the filing of the suit. Any claim for mesne profits which were earned or could on exercise of due diligence have been earned, before filing of the suit, needs necessarily to be specifically claimed and appropriate court fee needs to be paid on the amount claimed towards share in the mesne profits. But, it would be hyper technical to take a view that merely because the Court did not direct payment of mesne profits either in the preliminary decree or in the final decree, the plaintiff should be deprived of his share in the mesne profits. Of course, no order for such payment/adjustment/apportionment can be passed by the Court once it has become functus officio, in the sense that

25 no proceedings in the main suit are pending before it, but, when the suit proceedings continue to be pending before the Court for one reason or the other, there is no legal impediment in passing such an order even after passing of the final decree. In such cases, the Court is competent to pass a supplementary/additional decree limited to the grant of mesne profits. 22. For the reasons given in the preceding paragraphs, it is directed that if the applicant is brought on record as the legal representative of deceased plaintiff No.1, the Court, while directing payment to the parties out of the sale proceeds of the common properties, which the Court has directed to be sold, appropriate adjustments would be made with respect to mesne profits, if any, which the other parties received or with due diligence could have received from the portion occupied by him from the portion disproportionate to his share in the common immovable properties, which are subject matter of partition. The application stands disposed of in terms of this direction. (V.K. JAIN)

26 JUDGE

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