# GOPALAKRISHNA PILLAI AlliD OTHERS v. MEENAKSHI A Y AL AlliD OTHERS

- **Citation:** [1966] Supp. 1 S.C.R. 128
- **Court:** Supreme Court of India
- **Decided:** 1966-03-31
- **Bench:** A. K. Sarkar C.J, J. R. MliDHOLKAR ASD R. S. BACHAWAT
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopalakrishna-pillai-allid-others-v-meenakshi-a-y-al-allid-others-3790
- **Pages:** 7

## Headnote

Civil Procedure Code, 1908, Order 20. r. 12 future mesne profitsWh'1n can be grated by Court.
S. d'ied in 1927 and bv a will bequeathed some items of property
A
B
to his wife N and certain other property to his mother C. He also
appointed C as a trustee of some property fo" the benefit of a temple.
C
Upon the death of N in 1931, C inherited her properties as a limited
heir.
Some of this property was sold by C under a sale deed in June
1957; by a deed executed in August 1940 she gifted some of the other
inherited property to M and thcreaftec purported to execute a will
in September 194il. bequeathing to M the remainini: properties belonging to her and inherited by her as a limited heir from N, as also
her trusteeship rights in the p'operty left by S.
After C's death on September 15, 194il, M conveyed all the pr0perties acquired by him under the gift deed and tho '.Viii to V. V died
in 1943 leaving some of the defendants as his heirs.
D
ln about August 1952 the respondents instituted
a suit and
claimed the properties left by C and N as their heirs. The'' denied
the factum and validity of the sale deed, the gift deed as well as the
will of September 1940.
E
•
The Courts below held that C had no power to disnose of the
properties which she had inherited from N as a limited heir; that
'?1~
there was no sale by the deed executed in June 1957; and that the
gift deed executed by her was valid.
TheSe findings
were not
challenged in the appeal to this Court.
The Trial Court, however. held that the respondents had failed
to prove that they were entitled to inherit the properties on the
F
death of C. and that the will of September 4, 1940 was forged. On
appeal to the High Court, the single bench upheld the will and also
directed that the question whether the respondents were the next
revcrsioners of N should be tried afresh by the Trial Court. But in
a Letters Patent Appeal the Division Bench held the will was not
genuine and its execution and attestation v;erc not proved: it also
held that on the materials on the record the respondents must be
held to te the next reversioners of N.
The Court therefore passed
a decree in favour of the respondents for recovery of the various
G
items of p:-operty and deelared that they w"re entitled to mesne Pr<>-
fits for three years prior to the suit and also to future mesne profits
in respect of the various properties; accordingly it directed an inquiry
by the Trial Court to determine futuce mesne profits.
In the appeal to this Court by some of the defendants. it was
also contended that the High Court had no power to pass a decre"
for mesne profits accrued after the institution of the suit as there H
\Vas no specific prayer for such a decree.
128
•
A
B
c
D
E
F
G
GOPALAKRISHNA v. MEENAKSHI (Bachawat, J.)
129
HELD: On the facts, the High Court had rightly held that the
appellants had failed to prove the execution and attestation of the
will. [131 F-GJ
The trial proceeded on the footing that the plaintiffs were the
next reversioners of N and the High Court was therefore right in
holding that it was not open to the appellants to contend that the
respondents were not the reversionery heirs of N. [132 BJ.
On a reading of the plaint it was clear that the suit was for recovery of possession of immovable property and for mesne profits.
The provisions of Order 20, r. 12 were therefore attracted to the suit
and the court had power to pass a decree in the suit for both past
and future mesne profits. [132 F]
Order 20, r. 12 enables the court to pass a decree for both past
ancf future mesne profits but there are important distinctions in the
procedure for the enforcement of the two claims. With regard to
past mesne profits, a plaintiff has an existing cause of action on the
date of the institution of the suit. In view of 0. 7, rr. 1 and 2 and 0. 7,
r. 7 of the Code of Civil Procedure and s. 7(1) of the Court Fees Act,
the plaintiff must plead this cause of action, specifically claim a
decree for the past mesne profit

## Text

128
GOPALAKRISHNA PILLAI AlliD OTHERS
v.
MEENAKSHI A Y AL AlliD OTHERS
March 31, 1966
(A. K. SARKAR C.J., J. R. MliDHOLKAR ASD R. S. BACHAWAT, JJ.J
Civil Procedure Code, 1908, Order 20. r. 12 future mesne profitsWh'1n can be grated by Court.
S. d'ied in 1927 and bv a will bequeathed some items of property
A
B
to his wife N and certain other property to his mother C. He also
appointed C as a trustee of some property fo" the benefit of a temple.
C
Upon the death of N in 1931, C inherited her properties as a limited
heir.
Some of this property was sold by C under a sale deed in June
1957; by a deed executed in August 1940 she gifted some of the other
inherited property to M and thcreaftec purported to execute a will
in September 194il. bequeathing to M the remainini: properties belonging to her and inherited by her as a limited heir from N, as also
her trusteeship rights in the p'operty left by S.
After C's death on September 15, 194il, M conveyed all the pr0perties acquired by him under the gift deed and tho '.Viii to V. V died
in 1943 leaving some of the defendants as his heirs.
D
ln about August 1952 the respondents instituted
a suit and
claimed the properties left by C and N as their heirs. The'' denied
the factum and validity of the sale deed, the gift deed as well as the
will of September 1940.
E
•
The Courts below held that C had no power to disnose of the
properties which she had inherited from N as a limited heir; that
'?1~
there was no sale by the deed executed in June 1957; and that the
gift deed executed by her was valid.
TheSe findings
were not
challenged in the appeal to this Court.
The Trial Court, however. held that the respondents had failed
to prove that they were entitled to inherit the properties on the
F
death of C. and that the will of September 4, 1940 was forged. On
appeal to the High Court, the single bench upheld the will and also
directed that the question whether the respondents were the next
revcrsioners of N should be tried afresh by the Trial Court. But in
a Letters Patent Appeal the Division Bench held the will was not
genuine and its execution and attestation v;erc not proved: it also
held that on the materials on the record the respondents must be
held to te the next reversioners of N.
The Court therefore passed
a decree in favour of the respondents for recovery of the various
G
items of p:-operty and deelared that they w"re entitled to mesne Pr<>-
fits for three years prior to the suit and also to future mesne profits
in respect of the various properties; accordingly it directed an inquiry
by the Trial Court to determine futuce mesne profits.
In the appeal to this Court by some of the defendants. it was
also contended that the High Court had no power to pass a decre"
for mesne profits accrued after the institution of the suit as there H
\Vas no specific prayer for such a decree.
128
•
A
B
c
D
E
F
G
GOPALAKRISHNA v. MEENAKSHI (Bachawat, J.)
129
HELD: On the facts, the High Court had rightly held that the
appellants had failed to prove the execution and attestation of the
will. [131 F-GJ
The trial proceeded on the footing that the plaintiffs were the
next reversioners of N and the High Court was therefore right in
holding that it was not open to the appellants to contend that the
respondents were not the reversionery heirs of N. [132 BJ.
On a reading of the plaint it was clear that the suit was for recovery of possession of immovable property and for mesne profits.
The provisions of Order 20, r. 12 were therefore attracted to the suit
and the court had power to pass a decree in the suit for both past
and future mesne profits. [132 F]
Order 20, r. 12 enables the court to pass a decree for both past
ancf future mesne profits but there are important distinctions in the
procedure for the enforcement of the two claims. With regard to
past mesne profits, a plaintiff has an existing cause of action on the
date of the institution of the suit. In view of 0. 7, rr. 1 and 2 and 0. 7,
r. 7 of the Code of Civil Procedure and s. 7(1) of the Court Fees Act,
the plaintiff must plead this cause of action, specifically claim a
decree for the past mesne profits, value the claim approximately and
pay court-fees thereon. With regard to future mesne profits, the
plaintiff has no cause of action on the date of the institution of the
suit, and it is not possible for him to plead this cause of action or to
value it or to pay court-fees thereon at the time of the institution of
the suit. Moreover, he can obtain relief in respect of this future
cause of action only in a suit to which the provisions of 0. 20, r. 12
apply. But in a suit to which the provisions of 0.20, r. 12 apply, the
court has a discretionary power to pass a decree directing an enquiry;
into the future mesne profit•. and the court may grant this genera1
relief, though it is not specifically asked for in the plaint. [132 G133 BJ
.
Case law referred to.
Appeal by special leave from the judgment and decree dated
February 24, 1961 of the Madras High Court in L.P.A. No. 126 of
1957.
N. C. Chatterjee and R. Ganapathy Iyer, for the appellants.
T. V. R. Tatacihari, for respondents Nos. 1 and 3 to 7.
The Judgment of the Court was delivered by
Bachawat, J. The following pedigree shows the relationship of
Sivasami Odayar and the members of his family:
Chinnayal
,--------------"-------------,
Sivasami Odayar
Meenakshi
Kamakshi
married
Ayal
Ayal
Neelayadakshi
(Plff. No. I)
(PltI. No. 2)
Sivasami died issueless in 1927. By his will dated September
14, 1927 he bequeathed items 1 to 4 ancl one half of items 12 and
13 of the suit properties to his wife, Neelayadakshi absolutely and
H
items 5 to 11 and one half of items 12 and 13 to his mother, Chinnaya\ absolutely. He also appointed Chinnayal as the trustee of
items 14 to 18 for the benefit of the Pillayar temple. Neelayadakshi
130
8CPI:n!E COl'1lT REPORTS
(1966) SCPP. S.~.R.
died in 1931. It is common case that on her death Chinnayal inA
herited her properties as a limited heir. Defendants 6 and 7 claimed that their father purchased item 4 from
one Muthukumaraswami. agent of Chinnayal, under a sale deed dated June 5. 1937.
On August 28, 1940, Chinnayal executed a deed of gift in favour
of Muthukumaraswami giving him items 1, 3 and 8 and portions B
of items 5 and 13. On September 4, 1940, Chinnayal is said to
have executed a will bequeathing to Muthukumaraswami the remaining properties belonging to her absolutely and inherited by her
as a limited heir from Neclayadakshi and also items 14 to 18 and
her trusteeship right in respect of those items. Chinnayal died on
September 15. 1940. It is common case that the plaintiffs are her
heirs. Soon after her death, Muthukumaraswami conveyed to one c
Venugopala all the properties acquired by him under the aforesaid gift deed and will. Venugopa!a died in 1943 leaving defendants 1 to 5 as his heirs. In or about August 1952, Meenakshi and
Kamakshi instituted a suit in the Court of the Subordinate Judge,
Cuddalore for possession of the suit properties alleging that they
were entitled to the properties left by Chinnayal and Neelayadakshi and denying the factum and validity of the gift deed dated
D
August 28, 1940, the will dated September 4. 1940 and the alleged
sale in favour of the father of defendants 6 and 7. The defendants
contested the suit.
The Courts below held that ()) Chinnayal had no power to
dispose of any of the properties which she harl
inherited
from
Neelayadakshi as a limited heir, (2) Chinnayal duly executed the
E
gift deed and by that deed she lawfully disposed of items 8 and
portions of items 5 and 13, and (3) there was no sale of item 4 to
the father of defendants 6 and 7. These findings are no longer
challenged. The Subordinate Judge held that the plaintiffs failed
to prove that they were the reversioners of Neelayadakshi, or were
entitled to inherit her properties on the death of Chinnayal, and
that the will dated September 4, 1940 was forged and its execution F
and attestation were not proved. The plaintiffs and the defendants
preferred separate appeals from this decree to the Madras Hi)(h
Court. Ramaswami, J held that the will was genuine and was duly
executed and attested but it was inoperative with regard to items
14 to 18 and the trusteeship rights in those items. He also held
that the question whether the plaintiffs were the next reversioners
of Neelayadakshi should he tried afresh by the trial Court. ThereG
after. Kamakshi died and her legal representatives were substituted
on the record. Meenakshi and the legal representatives of Kamakshi filed an appeaJ under cl. 15 of the Letters Patent of the Hioh
Court, and the appellant filed cross-objections. A Division Bench
of the Madras High Court held that the will was not genuine and
its execution and attestation were not proved. It also held that on H
the materials on the record the plaintiffs must be boll to be the
next reversioners of Neelayadakshi. On thi• finding, the Division
Ii
..
:.
•
)-
A
•
B
c
D
E
F
~ .
H
G
'..'-
H
GOPALAKRISHNA v.
MEENAKSRI (Bachawat, J.)
131
Bench passed a decree in favour of the appellants before t}1em for
the nocovery of possession of items 1 to 4, 3 cents m item 5,
items 6, 7 and 9 to 13 and items 14 to 18, declared that they were
entitled to mcsne profits for it three years pr~or to the .suit ~nd to
future mesne profits in respect of the aforesaid properttes, drrected
the trial Court to make an enquiry into the mesne profits under
0.20, r. 12 of the Code of Civil Procedure and ordered that in respect of the rest of the suit properties the suit be dismissed. Some
of the defendants now appeal W this Court by Special leave.
Counsel for the appellants challenged before us the correctne;s of the findings of the Division Bench of the High Court with
regard to (]) the factum and execution of the will and (2)
the
plaintiffs' claim to be the next reversioners of Neelayadakshi. He
also contended that the High Court had no power to pass a decree
of mesne profits accrued after the institution of the suit.
The appellants' case is that the will of Chinnayal dated September 4, 1940 was attested by Balasubramania and Samiyappa.
The appellants rely solely on the testimony of Samiyappa for
proof of the execution and attestation of the will. Samiyappa. was
not present when Chinnayal is said to
have put her thumb·
impression on the will. Samiyappa said that when he was passing
along the street, Balasubramania and Muthukumaraswami called
him. He went inside Chinnayal's house, Muthukumaraswami gave
the wi!l to him and after he read it aloud, Chinnayal acknowledged that she had affixed her thumb-impression on the will. He
then pnt his signature on the will and Balasubramania completed
it after he left. In his examination-in-chief, he said nothing about
the attestation of the will by Balasubramannia. In cross-examination, he said that after he signed, Balasubramania wrote certain
words on the will and put his signature. On further crossexamination, he added that Balasubramania was saying and writing
something on the will, but he did not actually see Balasubramania
writing or signing We are satisfied that Samiyappa did not see
Balasubramania putting his signature on the will. The High Court
rightly held that the appellants failed to prove the signature of
Balasubramania or the attestation of the will by him.
On this
ground alone we must hold that the will was not proved. We do
not think it necessary to consider the further question whether the
will was genuine.
The plaintiffs claimed that on Chinnayal's death the properties
acquired by Neelayadakshi under the will of Sivasami devolved
upon them as the next reversioners of Neelayadakshi. Relying on
a statement of P.W. 2, Sethurama Nainar, that Meenakshi had
two daughters and a son, the appellants contend that the son of
Meenakshi was the reversionary heir of Neelayadakshi. Assuming
that Meenakshi had a son, it is not possible to say that he was born
before the death of Chinnayal, and, if so, he was alive at the time
S1JPRL~ti:; COURT ltJo:PORTS
[1966] surr. s.c.ll.
of her death. In the absence of any son of Mcenakshi at the time
A
of Chinnayal's death, aclmit!cdly the plaintiffs would be the next
reversioncrs of Nalayadakshi. No issue was raised on this question, and the trial proceeded on the footing that the plaintiffs were
the next reversioncrs of Neelayadakshi. The trial Court refused
leave to the appellants to file an additional statement raising an
issue on this point. In the circumstances, the Division Bench of B
the Madras High lourt rightly held that it was not open to the
appellants to contend that the plaintiffs were not the rcversionary
heirs of Neelayadakshi, and were not entitled to succeed to her
estate on the death of Chinnayal.
In the plaint, there was no specific prayer for a decree for
mesne profits subsequent to the institution of the suit. Counsel for c
the appel~ants argued that in the absence of such a specific prayer,
the High Court had no jurisdiction to pass a decree for such mesnc
profits. We arc unable to :iccept this contention. Order 20, r. 12 of
the Code of Civil Procedure provides that "where a suit is for
the recovery of possession of immovable property and for rent or
mesne profits" the Court may pass a decree for the possession of
the property and directing an inquiry as to the rent or mcsne D
profits for a period prior to the institution of the suit and as to
the subsequent mesne profits. The question is whether the
provisions of 0.20, r. 12 apply to the present suit. We find that the
plaintiffs distinctly plcadcJ in paragraph 9 of the plaint that they
were entitled to call
upon
the
defendants to account fbr
mesne profits sir.cc the death of Chinnayal in respect of the suit
properties. For the purposes of jurisdiction and court-fees. they
E
valued their claim for possession and mesne profits for three
years prior to the date of the suit and paid court-fee thereon.
In the prayer portion of the plaint, they claimed recovery of possession, an acc0unt of mesnc profits for three years prior to the date
of the suit, costs and such other relief as may seem fit and proper
to the Court in the circumstances of the case. On a reading of the
plaint, we arc satisfied that the suit was for recovery of possession F
of immovable property and for mesne profits. The provisions of
0.20, r. 12 were, therefore, attracted to the suit and the Court had
power to pass a decree in the suit for both past and future mcsne
profits.
Order 20. r. 12 enables the Court to pass a decree for hoth
past and future mesnc profits but there are important distinctions
G
in the procedure for the enforcement of the two claims. With regard to past mesne profits. a plaintiff has an existing cause of
action on the date of the institution of the suit. In view of 0.7,
rr. I and 2 and 0.7. r. 7 of the Code of Civil Procedure ands. 7(1)
of the Court Fees Act, the plaintiff must plead this cause of action,
specifically claim a decree for the past mesnc profits, value the H
claim approximately and pay court fees thereon. With regard to
future mesnc profits, the plaintiff has no cause of action on the
•
'
•
A
B
c
D
E
•
F
G
GOPALAKRISHXA v.
MEENAKSHI (Bachawat, J.)
133
date of the institution of the suit, and it is not possible for him to
plead this cause of action or to value it or to pay court-fees thereon
at the time of the institution of the suit. Moreover, he can obtain
relief in respect of this future cause of action only in a suit to which
the provisions of 0.20, r. 12 apply. But in a suit to which the provisions of 0.20, r. 12 apply, the Court has a discretionary power
to pass a decree directing an enquiry into the future mesne profits,
and the Court may grant this general relief, though it is not specifically asked for in the plaint, see Basavayya v. Guruvayya('). In
Fakharuddin Mahomed Ahsan, v. Official Trustee of Bengal('),
Sir R. P. Collier observed :
"The plaint has been already read in the first case and
their Lordships are of opinion that it is at all events
open to the construction that the plaintiff intended to
claim wasilat up to the time of delivery of possession,
although, for the purpose of valuation only, so much
was valued as was then due; but be that as it may, they
are of opinion that, under s. 196 of Act VIII of 1859,
it was in the power of the Court, if it thought fit, to
make a decree which should give the plaintiff wasilat
up to the. date of obtaining possession ...
Section 196 of Act VIII of 1859 empowered the Court in a suit for
land or other property paying rent to pass a decree for mesne
profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council
suggest that in a suit to which s. 196 of Act VIII of 1859 applied,
the Court had jurisdiction to pass a decree for mesne profits though
there was no specific claim in the plaint for future mesne profits.
The Court has the like power to pass a decree directing an enquiry
into future mesne profits in a suit to which the provisions of 0.20,
r. 12 of the Code of Civil Procedure, 1908 apply.
In support of his contention that the Court has no jurisdiction
to pass a decree for future mesne profits in the absence of a specific prayer for the same, counsel for the appellants relied upon the
following passage in Mohd. Yamin and others v.
Vakil Ahmed
and others(").
"It was however pointed out by Shri S. P. Sinha that the
High Court erred in awarding to the plaintiffs mesne
profits even though there was no demand for the same
in the plaint. The learned Solicitor-General appearing
for the plaintiffs conceded that there was no demand
for mesne profits as such but urged that the claim for
mcsnc profits would be included within the expression
'awarding possession and occupation of the property
aforesaid together with all
the
rights
appertaining
( 1 )
I.L.R. l!>tJ21\IaJ. 173 (F.B) at 177.
(')
[1952] S.C.R. II33, II44.
(')
(8181) I.L.R. 8 Cal. 178 (P.C), IS9
134
Sl:PIUCldE COURT REPORTS
[l\166) St:PP.
~ • .: ....
thereto'. We arc afraid that the claim for mcsne profits A
cannot be included within this expression and the High
Court was in error in awarding to the plaintiffs mesne
pro Ii ls though they had not been claimed in the plaint.
The provision in regard to the mesne profits will
therefore have to be deleted from the decree."
In our opinion, this passage does not support counsel's con·
B
tention. This Court made those observations in a case where the
plaint claimed only declaration of title and recovery of possession
of immovable properties and made no demand or claim for either
past or future mesne profits or rent. It may be that in these circum·
stances, the suit was not one "for the recovery of possession of im·
movable property and far rent or mcsne profits", and the Court c
could not pass a decree for future mesne profits under 0.20, r. 12
of the Code of Civil Procedure. But where. as in this case, the suit
is for the recovery of possession of immovable property and for
past mcsne profits, the Court has ample power to pass a decree
directing an enquiry as to future mesnc profits, though there is no
specific prayer for the same in the plaint. In the aforesaid case, this
Court did not lay down a contrary proposition, and this was point· D
ed out by Subba Rao, C.J. in Atchamma v. Rami Reddy(').
We arc, therefore, satisfied that in this case the High Court had
discretionary power to pass the decree for future mcsne profits. It
is not contended that the High Court exercised its discretion im·
properly or erroneously. We see no reason to interfere with the
decree passed by the High Court.
In the result, the appeal is dismissed with costs.
Appeal dismissed.
(') I.L.R. [1UJ7j !ndlir& J'r&Jo,h, 62,06.
E
•
+
•