Madras High Court

Ramasamy vs Vetrivelan on 7 March, 2018

Author:
R.Subramanian

Bench:
R.Subramanian

C.R.P.No. 1279 of 2018
C.M.P.Nos. 6556 & 6557 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
25.09.2020 16.10.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.No. 1279 of 2018
and
C.M.P.Nos. 6556 & 6557 of 2018

Ramasamy ... Petitioner

-vs-

1.Vetrivelan
2.Kasinathan
3.Kuzhandaivel
4.Meenatchi Ammal
5.Senthil
6.Vijayalakshmi ... Respondents

Prayer: Civil Revision Petition filed under
Article 227
of the Constitution of
India, against the order and decreetal order in I.A.No.260 of 2016 in
A.S.No. 30 of 2016 dated 07.03.2018 on the file of the Principal District
Judge, Cuddalore.

For Petitioner : Mr.V.Raghavachari

For Respondents : Mr.N.Suresh for R1 to R6
Mr.Y.T.Aravind Gosh, AGP

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ORDER

This revision raises an interesting question as to the Court fee

payable in an appeal against an order determining the share of the income

from the properties to be divided between the parties in a suit for partition.

2. The suit in O.S.No.493 of 1993 was filed by one Palaniandi and

the respondents 1 and 2 herein. Since Palaniandi died after the suit, his

legal representatives were brought on record and arrayed as respondents 3 to

6 herein. A preliminary decree came to be passed by the Trial Court on

26.10.1998. An appeal was taken there from to this Court in A.S.No.861 of

1998, which came to be disposed of on 22.09.2008. Thereafter, the

plaintiffs in the suit filed an application in I.A.No.172 of 2010 seeking

determination of the income from the suit properties. The application came

to be filed under Order 20 Rule 12 of C.P.C.

3. The learned Principal Sub-Ordinate Judge, Cuddalore by an

order dated 12.01.2016 fixed the income from the suit properties, which

resulted in a direction to the petitioner herein to pay a sum of

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Rs.1,00,19,890/- with subsequent interest at 6% per annum from the date of

the suit till date of realization. Aggrieved by this fixation, the petitioner,

who is the sole defendant in the suit preferred an appeal in A.S.No.30 of

2016 on the file of the Principal District Judge, Cuddalore. The appeal was

valued under Section 37(2) of the Tamilnadu Court Fees and Suits Valuation

Act and a fixed court fee of Rs.750/- was paid. The respondents herein filed

I.A.No.260 of 2016 under Section 44 r/w 52 of the Tamilnadu Court Fees

and Suits Valuation Act, directing the appellant to pay ad valorem court fee

at the rate of 7.5% contending that an appeal against an order determining

mesne profits ought to be valued under Section 44 of the Tamilnadu Court

Fees and Suits Valuation Act and the Court fee payable is on the income

ascertained by the Court. They would also rely upon the direction made in

the order of the Trial Court requiring them to pay Court fee at 7.5% per

annum.

4. This application was opposed by the petitioner herein

contending that the order passed by the Trial court though on an application

under
Order 20 Rule 12 of C.P.C
, is not an order ascertaining mesne profits.

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It is actually an order passed under
Order 20 Rule 18 of C.P.C
., where the

court is empowered to determine the share of the income of the parties as

per the preliminary decree. Therefore, according to the petitioner herein,

the appeal is not against an order passed under
Order 20 Rule 12 of C.P.C
as

Order 20 Rule 12 could be invoked only in cases where there is a decree for

possession against a person, who is found to be in illegal occupation of the

property.

5. It is the further contention of the petitioner herein that Section

44 of the Tamilnadu Court Fees and Suit Valuation Act will apply only in

cases where a decree for mesne profits granted by the Court as against

person who is in illegal possession and not against the sharer in suit for

partition. On the above contentions, the petitioner herein claim that the

court fee that has been paid is just and proper. The learned Principal

District Judge, who heard the application concluded that since the appeal is

against an order determining mesne profits under Order 20 Rule 12, it is

Section 44
of the Court fee Act that would apply and therefore, the appellant

ought to have valued the appeal and paid ad valorem court fee at 7.5% of

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the share of the income that was determined by the Trial Court. It is the

correctness of this order, which is questioned in this revision.

6. I have heard Mr.V.Raghavachari, learned counsel for the

petitioner, Mr.N.Suresh, learned counsel for the contesting respondents.

Since the matter involved in payment of Court fee, I had directed issuance

of notice to the Additional Government Pleader (CS) and I have heard

Mr.Y.T.Aravind Gosh, learned Additional Government Pleader (CS) also.

7. The application before the Trial Court namely, the application

in I.A.No.172 of 2010 was filed under
Order 20 Rule 12 of C.P.C
.
Order 20

Rule 12 of C.P.C
reads as follows:-

“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 direction an inquiry as
to such rent;

(ba) for the mesne profits or directing an inquiry as to such mesne

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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 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.

(3) Where an Appellate Court directs such an inquiry, it
may direct the Court of first instance to make the inquiry, and in
every case the Court of first instance may of its own accord, and
shall whenever moved to do so by the decree holder inquire and
pass the final decree.”

A very reading of the above provision would show that it will not

apply to a suit for partition.

7. Subsection 12 of
Section 2
of C.P.C defines the term mesne

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profits and it reads as follows:-

“(12)"Mesne profits” of property means those profits
which the person in wrongful possession of such property actually
received or might with ordinary diligence have received
therefrom, together with interest on such profits, but shall not
include profits due to improvements made by the person in
wrongful possession.”

8. From the definition, it could be gathered that mesne profits is

referable to those profits, which a person in “wrongful possession”

received. As regards the partition action is concerned, the sharers are

deemed to be in joint possession and possession of one of the sharers is on

behalf of the others also. Therefore, it cannot be said that a sharer in

possession of a joint property is in wrongful possession of the property.

Therefore, a determination of the share of the income from the properties

subject matter of a partition suit cannot be termed as determining mesne

profits within the meaning of
Order 20 Rule 12 of C.P.C
. The nature of

such determination is no longer res-integra. The nature and character of the

proceeds from the estate subject matter of a suit for partition was subject

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matter of a several decisions of this Court as well as the other High Courts.

9.
In
Ramaswami Iyer Vs. Subramania Iyer
reported in AIR

1923 Mad 147, a Hon'ble Division Bench of this Court had an occasion to

consider the nature of the liability of a manager to account for profits

subsequent to the suit.
After referring to the judgment of the Privy council

in Prithi Pal Vs. Jowahir singh reported in ILR 14 Cal 493, this Court had

observed as follows:-

"8. As pointed out by their Lordships a member of a
Hindu family suing for partition and for the profits on his share is
really suing for an account of the profits received by the manager
or the persons in possession so that the proceeds so received by
the latter which are also divisible property, may be divided and
his share therein also given to him. As stated by their Lordships at
page 512, a sharer has a "clear right" to an account of the
profits received by the person in possession of the whole, and to
be awarded his share thereof, not as mesne profits received by a
person in wrongful possession but as appurtenant to the
plaintiff's right in his share of the lands.” (Emphasis Supplied)

“10.I might also refer to the judgment of Abdul Rahim,

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J. and Oldfield, J. in A.S. No. 322 of 1919 explaining Ghulsam
Bivi v. Ahamadsa Rowther (1919) I.L.R 42 Mad.
296 and to the
decision in
Ramnath Choturam v. Goturam Radhakishan
(1920)
I.L.R. Bom. 179, and the other decisions referred to in the latter
case in support of the following conclusions: (1) That Order 20
Rule 12,
Code of Civil Procedure
, relating to technical "mesne
profits" does not apply to the claim of a plaintiff suing for
partition of lands and the profits which are accruing on the lands
which ultimately might fall to his share under the decree, (2) That
unless a preliminary decree for partition refused or should be
deemed to have refused to grant profits, the Court is not
precluded from granting profits in its final decree.”

10. The question relating to proper Court fee payable in a suit for

partition and accounts was considered by this Court in
Chandra Bhogi Vs.

Guddappa Bhandary
reported in 66 LW Page 348. After referring to

various judgments cited at the bar, the Hon'ble Justice. Subba Rao as he

then was had held as follows:

“6. From the aforesaid discussion of the case law the following
principles emerge:

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(1) The court fee payable for a relief of partition in a
suit as well as In the appeal is only the fixed court fee payable
under Article 17-
B of Schedule II of the Court-fees Act
.

(2) If the relief of accounting or any other relief is an
inherent part of the main relief of partition and implied therein, it
is not necessary to value that relief separately. The court fee paid
on the relief for partition would cover the other relief also. In
such a case if the relief claimed in an appeal is only that implied
in the main relief for partition, the fixed court fee under Article
17-B of Schedule II will suffice.

(3) But if the relief for rendition of accounts relates to a
different subject matter such as a relief for accounting against a
manager of a Joint Hindu family on the ground of fraud or
improper conduct, a separate court fee has to be paid both in the
suit as well as in the appeal. In such cases the principle of the
Full Bench decision in -- 'AIR 1938 Mad 435 (E)', will apply and
'ad valorem' court fee is payable in appeal on the amount
decreed.

7. In the instant case, the appeals relate only to the sum
of Rs. 21600 representing the share of the other members in the
sale proceeds of the clay realised by the appellants. That amount,
therefore, only represents the value of the respondents' share in
one of the assets of the family. Looking into the accounts by the

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Commissioner or the court for ascertaining the value of that asset
is Incidental to the relief of partition and is implied therein. I
therefore hold that the appellants have correctly valued their
relief in the appeals by paying the fixed fee of Rs. 100 under
Article 17-
B of Schedule II of the Court-fees Act
.”

11. A similar question as to the nature of the claim for accounting

in the suit for partition was considered by a Hon'ble Full Bench of this

Court in Basavayya Vs. Guruvayya reported in 1951 (2) MLJ 176. The

essential question that was raised was as to whether the Court directed any

enquiry into future profits in a partition suit where, the preliminary decree is

silent. The main objection that was raised before the Hon'ble Full Bench

was that since the preliminary decree passed in the suit did not direct an

enquiry into the accounts and recovery of profits, the Court cannot direct

enquiry and pass a final decree for such income. The correctness of the

judgment of the Hon'ble Division Bench in Ghulusam Bibi Vs. Ahamadsa

Rowther was considered by the Hon'ble full bench. While considering the

question, the Hon'ble full bench had observed as follows:-

“3. It is necessary at the outset to distinguish between

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three different types of cases in which a question of profits or
mesne profits might arise : (1) Suits for ejectment or recovery of
possession of immoveable property from a person in possession
without title, together with a claim for past or past & future
mesne profits. (2) Suits for partition by one or more tenants-in-
common against others with a claim for account of past or past &
future profits. (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 defts. not being lawful, the plff. is
entitled to recover "mesne profits" as defined in
Section 2
, Clause
(12), Civ. P. C., such profits being really in the nature of damages.

In the second case, the possession & receipt of profits by the deft,
not being wrongful the plff's. remedy is to have an account of
such profits making all just allowances in favour of the collecting
tenant in common. In the third case, the plff. must take the joint
family property as it exists at the date of the demand for partition
and is 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. The plff. would, however, be in the position of a
tenant-in-common from the date of severance in status & his
rights would have to be worked out on that basis.”

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12. The Hon'ble full bench also considered the scope of Order 20

Rule 12 and Order 20 Rule 18. It was observed that while Order 20 Rule 12

would apply to the first category of suits mentioned above, Order 20 Rule

18 would apply to the second and third categories of the suits. The Hon'ble

full bench concluded that since the profits arising from the estate forming

part of a partition suit, also form part of such estate are liable to be

partitioned under the final decree. Even without a specific prayer in the

plaint for an account of such profits and division there of the court can

determine such profits and direct the sharer in possession to pay such share

to the suing sharer, the Hon'ble Full Bench summarised its conclusion as

follows:-

“13. We may now summarise our conclusions. A
partition suit in which a preliminary decree has been passed is
still a pending suit & the rights of the parties have to be adjusted
as on the date of the final decree: Jadunath v. Parameswar, I.L.R.
(1940) 1 Cal. 255. In such a suit the Court has not only to divide
the common properties but has also to adjust the equities arising
between the parties oat of their relation to the common property
the property to be divided. The preliminary decree determines the
moieties of the respective parties & thereby furnishes the basis

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upon which the division of the property has to be made. There are
other matters in addition to the moieties of the parties that have
to be considered & decided before an equitable final partition can
be effected. Among them are the realisation of common
outstandings, the discharge of common liabilities, the distribution
of the profits of the properties realised pending the suit, either in
cash or by allotment of property of the requisite value, the grant
of owelty, the provision of maintenance to parties entitled thereto,
the allotment of lands on which improvements have been effected
to the sharer who has improved them, the allotment of alienated
lands to the share of the alienor & other similar matters. 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, Civ. P. C. does not prohibit the Court from
issuing such directions after the stage of a preliminary decree. It
is open to the Court in order to prevent multiplicity of litigation &
to do complete justice & effect an equal division of all the
common assets & properties among the parties, to direct an
enquiry into the profits received or realised by one or some of
them daring the pendency of the suit & 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

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subsequently as a step towards the passing of the final decree, &
in either case the result of the enquiry has to be incorporated in
the final decree.”

The above judgment of the Hon'ble full bench lays to rest the

controversy regarding the nature of the determination of the share in the

income of a suing sharer in a suit for partition. Hon'ble Justice. V. Ratnam as

he then was in
D.Nataraja Achari Vs. Balambal Ammal
reported in 1979

(2) MLJ 234 considered the difference between the determination under

Order20 Rule 12 and
Order 20 Rule 18 C.P.C
. After referring to the

judgment of the full bench in Basavayya Vs. Guruvayya, it was held that the

determination of profits in a partition suit would fall under
Order 20 Rule

18 of C.P.C
and not under
Order 20 Rule 12 of C.P.C
. Having held so, the

claim of the appellants that the Court cannot grant mesne profits beyond a

period of three years from the date of the decree was rejected. While doing

so, this Court observed as follows:-

6. The Full Bench also held that Order 20, Rule 12,
Civil Procedure Code, deals with the first class of suits above
referred, while Order 20, Rule 18 would take in suits in the
second and third categories. It was also further held that Order

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20, Rule 12 relates to "mesne profits" in the sense in which that
expression is defined in
Section 2(12)
of the Civil Procedure Code
and that the claim of the plaintiff suing for partition and his share
of profits accruing from the lands pending the suit is not, properly
speaking, a claim for mesne profits and Order 20, Rule 12 Civil
Procedure Code, has no application to such a case. The learned
Counsel for the appellant, however, would strongly rely upon a
decision of the Supreme Court in Chittoori Subbamma v.

Kadappa Subbanna and Ors. and urge that the first respondent
cannot be granted a decree in respect of mesne profits in excess
of three years from the date of the decree. The question, therefore,
is whether the first respondent decree-holder could be denied her
share of the income for a period in excess of three years. The
scope and applicability of the judgment of the Supreme Court
relied upon by the learned Counsel for the appellant was the
subject-matter of the judgment of a Division Bench reported in

Subba Reddiar v Hara Bibi
.
In that case also, the same objection
that is being raised in the present second appeal by the learned
Counsel for the appellant was raised, relying upon the aforesaid
judgment of the Supreme Court reported in Subbamma's case.
The Division Bench examined the provisions of Order 20, Rule 12
and Order 20, Rule 18. Civil Procedure Code, and followed the
ratio of the Full Bench of this Court reported in Basavayya v.

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Guruvayya , and ultimately held that
Order 20, Rule 12 of the
Code of Civil Procedure
will not be applicable to a case like the
present case, because when an account of the income from the
property pertaining to the share of the plaintiff is ordered up to
the date of the final decree what actually happens is the division
of an integral portion of the hotch pot comprising of not only
the property but also the income and accretions thereto up to
the date of the final decree and to such a case, Order 20, Rule
12 will be inapplicable. In addition, the Division Bench also
examined in detail the judgment of the Supreme Court and held
that a careful perusal of the minority and the majority views
shows that the entire discussion related only to the scope of Order
20, Rule 12, Civil Procedure Code, and in particular whether the
preliminary decree would be binding upon the defendant at the
stage of the final decree proceedings and whether the objection
that the period for the award of mesne profits should not exceed
three years could be allowed to be raised for the first time before
the High Court. It was also pointed out by the Division Bench
that in the judgment of the Supreme Court there is no reference
whatever to Order 20, Rule 18, Civil Procedure Code, which
deals with a case of suit for partition and mesne profits. It was
also further pointed out that the Full Bench decision of this Court
reported in Basavayya's case was not even referred to and,

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therefore, it is rather difficult to countenance an argument that
the Supreme Court by implication intended to over-rule the view
taken by the Full Bench which has been followed in all other
decisions of other High Courts. That being the position, the
question of the applicability of the provisions of Order 20, Rule
12 to the instant case does not arise because in this case, though
the application purports to be one under Order 20, Rule 12, Civil
Procedure Code, it would fall within the second and third
categories enumerated by the Full Bench and to which the
provisions of Order 20, Rule 12, will not be applicable Order 20,
Rule 18, Civil Procedure Code, would govern the present case
and. therefore, the objection of the learned Counsel for the
appellant that the mesne profits cannot be given for more than
three years from the date of the decree does not hold good.
(Emphasis Supplied)

14. The same question was considered by Hon'ble

Justice.M.Srinivasan as he then was in
P.Ponnammal and others Vs.

Kanakavalli Srinivasan and another
reported in 1988 (2) LW 447.
Here

again, the Hon'ble judge referred to judgment of the full bench in

Basavayya's case to conclude as follows:-

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“8. There is no substance in the contention of learned
Counsel for the appellants that the application for the
ascertainment of mesne profits is barred by limitation, or that it is
not maintainable as there is no provision therefor in the
preliminary decree. It is merely a misnomer to call it mesne
profits. The decree holders seek to have an account of the income
from the property under Order 20, Rule 18,
C.P.C
., and it is not
an application under Order 20, Rule 12,
C.P.C
. The law is well
settled that is too late in the day to question the right of a co-
sharer in a partition suit to apply for ascertainment of the income
pertaining to his share after the passing of a preliminary decree
for partition. It is not necessary to refer to any authority other
than that of a Full Bench of this Court in
Babburu Basavayya v.
Babburu Guruvayya
.
The following propositions
laid down by
the
Full Bench are apposite A partition suit in which a preliminary
decree has been passed is still a pending suit and the rights of the
parties have to be adjusted as on the date of the final decree;
Judunath Ray v. Parameswar Mallik (1960) I.L.R. 1 Cal. 255
(P.C.) In such a suit the court has not only to divide the common
properties but has also to adjust the equities arising between the
parties out of their relation to the common property, the property
to be divided. The preliminary decree determines the moieties of

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the respective parties and thereby furnishes the basis upon which
the division of the property has to be made. There are other
matters in addition to the moieties of the parties that have to be
considered and decided before an equitable final partition can be
effected. Among them are the realisation of common outstandings,
then discharge of common liabilities, the distribution of the
profits of the properties realised pending the suit, either in cash
or by allotment of property of the requisite value, the grant of
owelty, the provisions of maintenance to parties entitled therein,
the allotment of lands on which improvements have been effected,
to the sharer who has improved them the allotment of alienated
lands to the share of the alienor and other similar matters. 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 10,
C.P.C
. does not prohibit the court from issuing
such directions after the stage of a preliminary decree. It is open
to the court in order to prevent multiplicity of litigation and to do
complete justice and effect an equal division of all the common
assets and properties among the parties, to direct an enquiry into
the profits received or realised by one or some of them during the
pendency of the suit and to award the others their proper share or
such profits under its final decree. This enquiry can be ordered

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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.

9. There is no question of limitation as the proceedings
have been pending and the income has to be ascertained with
reference to a period commencing from the date of suit.”

It could be seen that the Hon'ble Judge had in fact held that it will a
misnomer to call profits ascertained in a suit for partition as mesne profits.

15. A Division Bench of the Karnataka High Court had also

considered the similar question in
Parvathi and another Vs.

Venkatramana Prasad and Others
reported in ILR 2003 KAR 2304. In

fact, the Hon'ble Division Bench had considered the question of correct

court fee that is to be paid in an appeal, challenging the determination of

profits in a suit for partition.

The Hon'ble Division Bench had referred to

the judgment of the full bench of this Court in Basavayya Vs. Guruvayya

reported in 1951 (2) MLJ 176 and the judgment of the Hon'ble Division

Bench of this Court in
Ramaswami Iyer Vs. Subramania Iyer
reported in

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AIR 1923 Mad 147 to conclude as follows:

“18. The concept of 'mesne profits' is applicable to

cases of wrongful possession and not partition. The right of a
tenant-in-common or a co-owner to a share in the profits from a
property in the enjoyment of another tenant-in-common, is not a
right to mesne profits for wrongful possession, but a right
appurtenant in his right to a share in the property. A suit for
partition and accounts is governed by
Order 20 Rule 18 CPC
.
Neither Section 42 (relating to suits for mesne profits) nor Order
20 Rule 12 (relating to suits for possession and mesne profits)
relied on by the first respondent, is relevant to a suit for partition
and accounts and share in profits.
Section 35
of the Act governs
suits for partition with or without the ancillary relief of accounts.

In a final decree for partition, what is determined is the share of
the plaintiff in the profits from the property as a result of
rendering of account by the tenant-in-common in physical
possession or management, and not mesne profits.

19. The learned Counsel for first respondent lastly
contended that if there is a complete ouster of the plaintiff from
possession and enjoyment, then it is possible to claim mesne
profits. This contention is academic and need not retain us long.
If really there was such ouster, then the main suit for partition
will itself fall under
Section 35(1)
in which event the Court Fee

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had to be computed on the market value of plaintiff's share. But
where the suit is valued under
Section 35(2)
as in this case, by
contending that the plaintiff is in joint possession, there is no
question of ouster and consequently no question of mesne profits.

20. Therefore, we hold that
Section 42
of the Act is not
applicable. We further hold that the relief relating to rendering
account and payment of plaintiff's share in profits, is an ancillary
relief for which no Separate Court Fee is payable. The Court fee
payable under Section 49, on an appeal against a final decree
determining profits from the date of suit till the date of delivery of
possession, would be the same as the Court fee that was paid in
the Court of first instance and it is not necessary to pay ad
valorem Court fee on the amount determined as profits. In this
case, the Court fee payable and paid in the Court of first instance
was Rs. 200/-. Therefore, Court fee payable on the appeal will be
Rs. 200.00.”

16. The Kerela High Court has considered the similar question in

Mariyumma Vs. Kunhambu Nair reported in 1967 KLT 1017 and Abu

and Others Vs. Thithikutty Umma and others reported in 1968 KLJ 549.

The Division Bench in Mariyumma Vs. Kunhambu Nair had after referring

to the judgment of the full bench of this Court held as follows:-

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“7. We are in respectful agreement with the dictum
laid down by the Full Bench in Basavayya Vs. Guruvayya (AIR
1951 Mad. 938 FB) and also the aforesaid decisions of the
Andhra Pradesh High Court. In a suit for partition, the court
has not only to divide the common properties but also to adjust
equities arising between the parties out of their relation to the
common property sought to be divided. A sharer claiming
partition has a clear right to an account of the profits received
by the person in possession of the common property and to be
awarded his share thereof not as mesne profits but as
appurtenant to his right in his share of the lands. The profits
accruing from the common properties forming the subject
matter of the division during the pendency of the suit form part
and parcel of the corpus itself and are as much in the hotchpot
as the lands themselves. It is not correct to regard the claim
for profits put forward in a suit for partition by a sharer of
joint family property or of co-ownership property as a claim
for mesne profits falling under
Order 20 Rule 12 of C.P.C
. In
our view, it is part of the legitimate function of a court passing
a final decree in a suit for partition and effectuating a division
of properties pursuant to a preliminary decree to make a
division of the profits that have accrued from such properties
pending the suit as such profits really form part of the corpus

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available for division.”

17. In Abu and Others Vs. Thithikutty Umma and Others, a Single

Judge of the Kerala High Court has reiterated the position that

determination of shares in a suit for partition will not fall under Order 20

Rule 12 and therefore, separate Court fee need not be paid under
Section 37

of the Court Fees and Suits Valuation Act, 1959 ( Act of 1960, Kerala).

Making a distinction between decree for profits in a suit for partition as

determined under Order 20 Rule 18 and determination of mesne profits

under Order 20 Rule 12, the learned Judge held that the profits ascertained

under Order 20 Rule 18 being one of the incidents of the suit for partition, it

becomes a component part of the decree and therefore, separate Court fee

need not be paid while a challenge is made to such determination. This

reasoning is essentially based on the law laid down by the full bench of this

Court in Basavayya's case to the effect in a partition action, the profits

determining under Order 20 Rule 18 also forms part of the shares and it

cannot be called as mesne profits stricto sensu. Recently, in Dr.Rachel

Zachariah Vs. Dr.M.P.Korah, the another Single Bench of the Kerala High

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Court reiterated the very same position of law after referring to the above

two decisions of the Kerela High Court.

18. Mr.N.Suresh, learned counsel for the respondents would

vehemently contend that de-hors the law laid down by the full bench when

there is a determination of profits at the particular amount and the defendant

seeks to avoid liability of that particular amount, he has to pay ad valorem

court fee under Section 44 of the Tamilnadu Court Fees and Suits Valuation

Act. Section 44 of the Tamilnadu Court Fees and Suits Valuation Act reads

as follows:-

“44. Suits for mesne profits. - (1) In a suit for mesne
profits or for immovable property and mesne profits, fee shall
in respect of mesne profits be computed, where the amount is
stated approximately and sued for, on such amount. If the
profits ascertained to be due to the plaintiff are in excess of the
profits as approximately estimated and sued for, no decree
shall be passed until the difference between the fee actually
paid and the fee that would have been payable had the suit
comprised the whole of the profits so ascertained is paid.

(2) Where a decree directs an enquiry as to the
mesne profits which have accrued on the property, whether

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prior or subsequent to the institution of the suit, no final decree
shall be passed till the difference between the fee actually paid
and the fee which would have been payable had the suit
comprised the whole of the profits accrued due till the date of
such decree is paid.

(3) Where, for a period subsequent to the date of the
decree or final decree, such decree or final decree directs
payment of mesne profits at a specified rate, such decree or
final decree shall not be executed until the fee computed on the
amount claimed in execution has been paid.”

Section 44 provides for payment of Court fee in a suit for

possession and mesne profits. The definition of the term 'mesne profits' as

found in
the C.P.C
., has been extracted above. It is referable only to

wrongful possession. The Full bench of this Court in Basavayya's case

clearly laid down that Order 20 Rule 12 will not apply to a partition suit and

the determination of profits if any made in a partition suit is essentially

under Order 20 Rule 18 and not Order 20 Rule 12.

19. Mr.N.Suresh would however draw my attention to the

judgment of the five bench of this Court in Inre Dhanukodi Nayakkar and

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others reported in AIR 1938 Mad 435 wherein, the Hon'ble full bench

considered the court fee payable in a suit for accounts falling under
Section

7(iv)(f)
of the Court Fees Act, 1870. The Hon'ble Full Bench held as

follows:--

“The section gives great freedom to plaintiff-
appellants, but we do not consider that it gives the same
freedom to defendant-appellants. When a defendant-appellant
appeals against a final decree he knows exactly the value of his
relief. It follows that we consider that 56 Mad 705 was
wrongly decided and therefore should not be followed.”

20. I am afraid that the said decision may not be helpful in

considering the question that crops up in this revision in as much as the full

bench was concerned with a suit for accounts filed under
Section 7(iv)(f)
of

the Court fees Act, 1817, which is equivalent to
Section 35
of the present

Act.
Section 35
essentially deals with suits for accounts. The determination

of profits in a partition suit has been held to be incidental to the relief of

partition. Therefore, the said judgment cannot be taken as a precedent to

determine the question arising in this revision.

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21. Mr.N.Suresh would also rely upon the judgment of the

Hon'ble Justice. V. Ratnam as he then was in Thulasibai Ammal -Vs-Kanna

Pandithar reported in 1981(2) MLJ 250, wherein, a challenge was made to

direction to the petitioner to pay owelty in a suit for partition in order to

equalize deficit in the value of the share allotted to the respondent. When

the said direction was challenged by way of an appeal, it was held that since

the petitioner is seeking to avoid his liability to pay owelty, ad valorem

Court fee will have to be paid and the petitioner cannot take advantage of

Article 17(b)
to justify payment of fixed fee on the basis of the valuation in

the plaint. In doing so, the judgment in Inre Dhanukodi Nayakkar referred

to above was relied upon. I do not think, the said judgment can also be

taken as a precedent in deciding the question of Court fee payable in a suit

for partition where, the challenge is to the determination of profits.
The

very same learned Judge has in
Nataraja Achari Vs. Balambal Ammal

reported in 1979 2 MLJ 234 referred to Supra had noted the distinction

between Order 20 Rule 12 and Order 20 Rule 18.

22. My attention is also drawn to the judgment of the Hon'ble

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Justice Ramprasad Rao as he then was in
Karuppanna Gounder Vs.

Sennimalai Gounder
reported in 1977 1 MLJ 491. That was also a case

where a decree for possession and mesne profits was challenged. Therefore,

the learned judge concluded that the Court fee should be payable on the

difference in mesne profits. That was a case to which Section 44 would

automatically apply. From the above discussion, the following principles

emerge:-

1) A suit for partition takes in itself a prayer for determination of

the share of the income of the plaintiff in the properties and there need not

be a separate prayer.

2) The income determined in a suit for partition forms part of the

estate in which the plaintiff would be entitled to his or her share even in

cases where the preliminary decree does not grant such share and directs

determination of such income.

3) The determination of income in a suit for partition cannot be

called as determination of mesne profits in the strict sense of the term as

mesne profits contemplates wrongful possession.

4) Once it is held that the determination of income is not mesne

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profits Section 44 of the Tamilnadu Court Fees and Suits Valuation Act will

not apply.

5) Once it is held that the income determined forms part of the

estate while challenging the quantum, the appellant need not value it

separately and pay Court fee on such valuation, since he is not seeking to

avoid the liability but he is only questioning the quantum of liability.

23. I therefore, find that the learned Principal District Judge was

not right in concluding that the court fee should be paid under Section 44 of

the Tamilnadu Court Fees and Suits Valuation Act. This civil revision

petition is allowed, the order of the learned District Judge is set aside and

I.A.No.260 of 2016 will stand dismissed. Consequently, connected

miscellaneous petitions are closed. No costs.

16.10..2020
kkn
Index : Yes/No
Internet: Yes/No
Speaking/Non-speaking

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To:-
The Principal District Judge,
Cuddalore.
R.SUBRAMANIAN, J.

KKN

C.R.P.No.1279 of 2018

and
C.M.P.Nos. 6556 & 6557 of 2018

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