Delhi High Court
Neety Gupta vs Usha Gupta & Ors on 29 October, 2018
$~13.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No. 81/2017 & CM Nos. 10773/2017 & 43979/2017
Date of decision: 29th October, 2018
NEETY GUPTA ..... Appellant
Through: Ms. Shashi Kiran, Advocate with Appel-
lant-in-person.
Versus
USHA GUPTA & ORS ..... Respondents
Through: Mr. Harsh Peechara, Advocate with Re-
spondent No. 4 in person.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ANUP JAIRAM BHAMBHANI, J. :
CM No. 10772/2017
As the appeal is barred by limitation, the appellant has filed an appli-
cation praying for condonation of delay of 382 days. In the application it is
stated that the appellant had filed Review Application RA No. 146/2016
seeking review of order dated 28th January, 2016. This review application
was disposed of by the single Judge vide order dated 17th February, 2017 as
having been withdrawn with liberty to file an appeal against the impugned
order. Referring to the decision of a single Judge of this Court in Sita
FAO(OS)81/2017 Page 1! of !13
Kashyap & Anr vs. Harbans Kashyap & Others, 183 (2011) DLT 47, the
review order observes as under:-
"6. Admittedly, this judgment which is relied upon
in the case of Sita Kashyap (supra) was not cited
before this Court when the order was passed on
28.1.2016 dismissing I.A. No. 22524/2004. That a
judgment is 'erroneous' has two connotations. One
aspect is that the judgment is 'erroneous' for being
challenged in appeal and thus for being set aside, and
the second connotation is that the judgment is 'erro-
neous' for the purpose of allowing of a review peti-
tion. In my opinion, since the judgment in Sita
Kashyap (supra) was not cited before this Court
when this Court passed the order dated 28.1.2016
dismissing I.A. No. 22524/2014, this review petition
effectively is for re-arguing the case and with respect
to which relief was declined by a speaking order dat-
ed 28.1.2016 giving reasons that no evidence was led
to prove mesne profits and plaintiff had not sought
framing of issues on mesne profits. The reasons giv-
en in the order dated 28.1.2016 are one possible and
plausible view, and it is not as if this view taken is
ex-facie illegal, more so because the judgment in Sita
Kashyap (supra) case was not cited before this Court.
"7. Plaintiff, therefore, may possibly have a good case
for challenging in appeal the order dated 28.1.2016
dismissing I.A. No. 22524/2014 declining the award
of mesne profits, however, there is no error which is
apparent on the face of record for allowing of a re-
view petition because reasons are given in terms of
the order dated 28.1.2016 to decline grant of mesne
profits and which reasons given cannot be said to be
erroneous on the face of record.
"8. In view of the above position, since this review
petition in the opinion of this Court is not maintain-
FAO(OS)81/2017 Page 2! of !13
able, counsel for the plaintiff/applicant is allowed to
withdraw this review petition with liberty to file an
appeal against the impugned order dated 28.1.2016
dismissing I.A. No. 22524/2014 and in which appeal
plaintiff can raise all grounds against the order dated
28.1.2016 as asserted in the present review petition
and also other grounds if may be available to the
plaintiff. I may also note that the pendency of the
present review petition would be a possible ground
not only for plaintiff to seek condonation of delay in
filing the appeal against the order dated 28.1.2016,
but also, the case of the plaintiff so far as limitation
period of filing of the appeal is concerned would also
be within parameters of Section 14 of the Limitation
Act, 1963.
"9. The review petition is accordingly disposed of in
terms of the aforesaid observations."
2. By Order dated 28.01.2016, being the order under challenge in this
appeal, the single Judge has taken the view that the application for
mesne profit cannot be entertained after preliminary decree is passed
if no such prayer was made in the plaint. The said view, as also al-
luded to in the review order, is contrary to the view expressed by an-
other single Judge in an earlier judgment reported in Sita Kashyap &
Anr (supra). In fact, before us reference is also made to the judgment
in the case of Seth Girdhari Lal & Ors vs. Seth Gaja Nand & Ors
ILR (1974) 1 Delhi 864 and order dated 12th August, 2013 of a Divi-
sion Bench of this Court in FAO(OS) No. 238/2011 titled Harbans
Kashyap vs. Sita Kashyap & Ors affirming the judgment of the single
Judge in the case of Sita Kashyap & Anr (supra).
FAO(OS)81/2017 Page 3! of !13
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 appli-
cation 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 respon-
dent has, to the exclusion of the appellant and other respondents, been
in use and occupation of the property in respect of which mesne prof-
its have been claimed, as detailed below.
7. The appellant and the respondents have inherited immovable proper-
ties from their parents, being property No. B-7, 80/2, Safdarjung En-
clave, 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.
FAO(OS)81/2017 Page 4! of !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 ap-
pellant'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 proper-
ties. 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 appli-
cation 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.
FAO(OS)81/2017 Page 5! of !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 judgment-
debtor with notice to the decree-holder through the
Court, or
(iii) the expiration of three years from the date of the de-
cree, 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 in-
quiry."
Order XX Rule 18 of the Code reads as under :
"18. Decree in suit for partition of property or separate pos-
session of a share therein.--Where the Court passes a de-
FAO(OS)81/2017 Page 6! of !13
cree for the partition of property or for the separate posses-
sion 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 im-
movable 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 parti-
tion 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 di-
rections as may be required. These directions would include directions
for payment of mesne profits. Interpreting the aforesaid Rule, a Divi-
sion 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
FAO(OS)81/2017 Page 7! of !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 be-
fore an equitable and final partition can be effected.
They would include all questions of accountability be-
tween 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 appli-
cation of the parties. Order 20, Rule 18 C.P.C. does
not prohibit the Court from issuing such directions af-
ter 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 pre-
liminary decree itself or subsequently as a step to-
wards the passing of the final decree and in either
case the result of the enquiry has to be incorporated in
the final decree.
(Emphasis Supplied)
"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 prof-
its 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
FAO(OS)81/2017 Page 8! of !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 prof-
its; 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 prof-
its; in the third case, the state of the family on the date
of the partition is material and the parties are not enti-
tled 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 fraudu-
lent 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 de-
cree 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."
(Emphasis Supplied)
13. The Full Bench of the Madras High Court in B. Basavayya V.B. Gu-
ravayya 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 ; where-
as the provisions of Rule 12 apply to a suit for ejectment or recovery
FAO(OS)81/2017 Page 9! of !13
of possession of immoveable property from a person without title,
with a claim for past or future mesne profits.
14. Similar view has been expressed by a single Judge of this Court in
Sita Kashyap & Anr. vs. Harbans Kashyap & Ors, (supra), which
decision also refers to several other judgments including a judgment
of the Madras High Court in Gnanaprakasa Mudalier & Ors vs. B.
Anandathanadavan & Ors, 1999 (2) CTC 6, a judgement of the
Andhra Pradesh High Court in Azizabi vs. Fatima Biand & Ors, 1977
(1) Andhra WR 136 and a Full Bench decision of the Patna High
Court in Indradeo Prasad Singh & Anr vs. Sheonath Prasad Singh
& Ors AIR 1980 Patna 201. Thereafter in Sita Kashyap (supra) it was
held as under:
"21. In a suit for partition though there is no specific
prayer for awarding profits, the Court has power to
direct an inquiry into profits and grant a decree for
plaintiff's share therein. This proposition was express-
ly 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 dispropor-
tionate to his share in the property subject matter of
the partition, it becomes the duty of the Court to ad-
just the equities by directing appropriate division of
profits, if any, earned from the property, which is sub-
ject matter of the partition or by directing appropriate
payment by a person, who has been occupying a por-
tion 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 posses-
FAO(OS)81/2017 Page 10
! of !13
sion 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 exer-
cise 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 prof-
its. 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 offi-
cio, in the sense that no proceedings in the main suit
are pending before it, but, when the suit proceedings
continue to be pending before the Court for one rea-
son or the other, there is no legal impediment in pass-
ing such an order even after passing of the final de-
cree. In such cases, the Court is competent to pass a
supplementary/additional decree limited to the grant
of mesne profits."
(Emphasis Supplied)
15. The aforesaid view in Sita Kashyap was affirmed by a Division
Bench of this court vide judgment dated 12th August, 2013 in FAO
(OS) No. 238/2011 Harbans Kashyap vs. Sita Kashyap & Ors.
16. In light of the aforesaid discussion, it must be held that the application
for grant of mesne profits filed by appellant before passing of the final
decree was maintainable. The impugned order erroneously holds that
the application was not maintainable as the appellant had not prayed
for mesne profits in the plaint and had not adduced evidence to prove
FAO(OS)81/2017 Page 11
! of 13
!
the prayer. A prayer for mesne profits can be made even if no such re-
lief was claimed when the court passed a preliminary decree of parti-
tion or separation. A prayer in this regard can be granted even after
passing of the preliminary decree in terms of Order XX Rule 18(2) of
the Code. This is important and relevant since, in a suit for partition
even a defendant is a plaintiff. Once the shares are declared by the
court on passing a preliminary decree, a party can, by filing an appli-
cation, seek a decree of mesne profits, from the party in occupation.
17. In the present case the fourth respondent is in exclusive possession of
the Safdarjung Enclave property although she only has a 1/5th share
therein. Accordingly, the appellant who also holds a 1/5th share, is en-
titled to claim mesne profits for her 1/5th share. However, the amount
can only be quantified on a proper enquiry. We would also record that
other shareholders, namely the other three sisters, have not made a
claim and do not seek mesne profits from the fourth respondent.
18. Our attention was also drawn to the fact that the suit was finally adju-
dicated vide order-cum-final judgment dated 19.09.2016 and a final
decree has been passed.
19. In light of the aforesaid position, we accept the appeal and set aside
order dated 28.01.2016. We further direct that an enquiry for mesne
profits in terms of Rule 18 of Order XX CPC be undertaken in execu-
tion proceedings.
20. During the course of hearing it was brought to our notice that the plot
at Pitam Pura has since become subject matter of a sale deed, which
allegedly has not been executed by the appellant nor by any of the re-
FAO(OS)81/2017 Page 12
! of !13
spondents. The fourth respondent present in Court states that she has
filed a First Information Report and is, on her own, also pursuing a
matter relating to the Pitam Pura property before the Debt Recovery
Tribunal. Her grievance is that the appellant and the other sisters are
not cooperating in these proceedings. The appellant who is present in
person states that there are personal differences between her and the
fourth respondent. However, she conceded that it would be in her in-
terest as well to ensure that the plot at Pitam Pura is not lost to an al-
legedly fraudulent sale transaction ; and that it is sold by the parties at
the earliest so that the sale proceeds thereof are divided between the
parties. The fourth respondent also states that she is suffering from
cancer. We only record these submissions with the hope that these
would also be taken into consideration by the appellant.
21. In view of the aforesaid discussion, we allow the present appeal to the
extent indicated above. However, there would be no order as to costs.
ANUP JAIRAM BHAMBHANI, J.
SANJIV KHANNA, J.
October 29, 2018
MR
FAO(OS)81/2017 Page 13
! of !13
