# R. S. MADANAPPA AND ORS v. CHANDRAMMA AND ANR

- **Citation:** [1965] 3 S.C.R. 283
- **Court:** Supreme Court of India
- **Decided:** 1965-03-05
- **Bench:** K. N. Wanchoo, J. R. MUDHOLKAR ANDS. M. SncRJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-s-madanappa-and-ors-v-chandramma-and-anr-3485
- **Pages:** 10

## Headnote

Indian Evidence, s. 115 and Equitable Estoppel-When conduct
does not amount to estoppel-Mesne profits-Past and future-When
can be awarded.
.
The plaintiff instituted the suit for possession of her half share in
the suit properties anci for mesne profits. The first defendant, what
was the plaintiff's sister, admitted the plaintiff's ciaim and herselfi
claimed a decree against the other defendants in respect of her half
share in the suit properties. The second defendant was their fatheJ'
and the suit properties were in his possession. He and the other
defendants, who were his second wife and children by her, contested
the suit. The trial court decreed the plaintiff's claim, but held that
the first defendant was estopped from claiming possession of her
share. On appeal by the first defendant, the High Court passed .a decree!
in her favour also for possession of her half share in the suit properties, and for past and future mesne profits.
On appeal to thi~ Court against the decree in favour of the
first defendant, it was contended on behalf of the other defendants: (i) that the first defendant was estopped by her conduct from
claiming possession of her half share of the properties because (a) she\
had not replied to a notice from the plaintiff to join with her in the
suit for obtaining possession and division of the suit properties; (b)'
she had written a letter to her step-mother stating that she wished to
have no interest in the suit properties then in her father's possession;
(c) she and her husband had attested a will executed by the father on
25-1-1941 which covered the disposition of the suit properties; and (d)
that the first defendant's conduct was either covered by s. 115 Evidence Act or fell within the principle of "equitable estoppel"; (jjy
even if the first defendant's claim to the half share in the suit properties could not be denied, she must be made to pay for half the cos~
of various improvements of those properties effected by the secondi
defendant in the bona fide belief that the properties belonged to him,
as she had acquiesced in the expenditure being incurred; (iii) that no
decree can be passed in favour of a defendant who has not asked for
transposition as plaintiff in the suit; and (iv) that it is not open to a1
court to award future mesne profits to a party who did not claim them
in the suit.
HELD: (i) The first defendant was neither estopped from claim·
ing possession of her half share of the properties nor could she be
made liable to pay half the costs of improvements alleged to have
been made by the second defendant; (a) It cannot be implied from
the conduct of the first defendant in not replying to the notice given
by the plaintiff that she had admitted that she had no interest in the
properties; (bl The second defendant's case that the properties belonged to him having been negatived, there was no possibility of an
erroneous belief being created in the mind of the second defendant
that he had title to the property because of what the first defendant
had sa'd in her letter to her step-mother; (c) The attestation of the
will by the first defendant and her husband, by which the second
defendant purported to make a disposition of the suit properties in
favour of the other defendants could not operate as an estoppel, as
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StJPREME COURT REPORTS
[1965) 3 S.C.R.
no interest had accrued in favour of those defendants on the date of
the suit. As •far a~ .the second defendant was concerned, he knew
the true legal pos1t10n and could not say that an erroneous belief
was created m his mmd by reason of the first defendant and her
husband attesting the will. [286 G-H; 287 C; 287 F]
Quaere: Whether the Court, while determining whether the
conduct of a particular party amounts to an "equitable estoppel"
could travel beyond the provisions of s. 115 of the Evidence Act
[288 Bl
.
Case Jaw reviewed.
(ii) No man who knowing fully well that he has no title to pro~
perty, spends money on improving it, can be permitted to cl

## Text

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283
R. S. MADANAPPA AND ORS.
v.
CHANDRAMMA AND ANR.
March 5, 1965
[K. N. WANCHOO, J. R. MUDHOLKAR ANDS. M. SncRJ, JJ.]
Indian Evidence, s. 115 and Equitable Estoppel-When conduct
does not amount to estoppel-Mesne profits-Past and future-When
can be awarded.
.
The plaintiff instituted the suit for possession of her half share in
the suit properties anci for mesne profits. The first defendant, what
was the plaintiff's sister, admitted the plaintiff's ciaim and herselfi
claimed a decree against the other defendants in respect of her half
share in the suit properties. The second defendant was their fatheJ'
and the suit properties were in his possession. He and the other
defendants, who were his second wife and children by her, contested
the suit. The trial court decreed the plaintiff's claim, but held that
the first defendant was estopped from claiming possession of her
share. On appeal by the first defendant, the High Court passed .a decree!
in her favour also for possession of her half share in the suit properties, and for past and future mesne profits.
On appeal to thi~ Court against the decree in favour of the
first defendant, it was contended on behalf of the other defendants: (i) that the first defendant was estopped by her conduct from
claiming possession of her half share of the properties because (a) she\
had not replied to a notice from the plaintiff to join with her in the
suit for obtaining possession and division of the suit properties; (b)'
she had written a letter to her step-mother stating that she wished to
have no interest in the suit properties then in her father's possession;
(c) she and her husband had attested a will executed by the father on
25-1-1941 which covered the disposition of the suit properties; and (d)
that the first defendant's conduct was either covered by s. 115 Evidence Act or fell within the principle of "equitable estoppel"; (jjy
even if the first defendant's claim to the half share in the suit properties could not be denied, she must be made to pay for half the cos~
of various improvements of those properties effected by the secondi
defendant in the bona fide belief that the properties belonged to him,
as she had acquiesced in the expenditure being incurred; (iii) that no
decree can be passed in favour of a defendant who has not asked for
transposition as plaintiff in the suit; and (iv) that it is not open to a1
court to award future mesne profits to a party who did not claim them
in the suit.
HELD: (i) The first defendant was neither estopped from claim·
ing possession of her half share of the properties nor could she be
made liable to pay half the costs of improvements alleged to have
been made by the second defendant; (a) It cannot be implied from
the conduct of the first defendant in not replying to the notice given
by the plaintiff that she had admitted that she had no interest in the
properties; (bl The second defendant's case that the properties belonged to him having been negatived, there was no possibility of an
erroneous belief being created in the mind of the second defendant
that he had title to the property because of what the first defendant
had sa'd in her letter to her step-mother; (c) The attestation of the
will by the first defendant and her husband, by which the second
defendant purported to make a disposition of the suit properties in
favour of the other defendants could not operate as an estoppel, as
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StJPREME COURT REPORTS
[1965) 3 S.C.R.
no interest had accrued in favour of those defendants on the date of
the suit. As •far a~ .the second defendant was concerned, he knew
the true legal pos1t10n and could not say that an erroneous belief
was created m his mmd by reason of the first defendant and her
husband attesting the will. [286 G-H; 287 C; 287 F]
Quaere: Whether the Court, while determining whether the
conduct of a particular party amounts to an "equitable estoppel"
could travel beyond the provisions of s. 115 of the Evidence Act
[288 Bl
.
Case Jaw reviewed.
(ii) No man who knowing fully well that he has no title to pro~
perty, spends money on improving it, can be permitted to claim pay~
ment for improvements which were not effected with the consent of
the true owner. [290 CJ
Ramsden v. Dyson, L R.I.H.L.App. 129, 140 distinguished.
(iii) Both the plaintiff and the first defendant claimed under the
same title and though the other defendants had urged special defences
against the first defendant, they had been fully considered and ·adjudicated upon by the High Court while allowing her appeal. The
High Court could, while upholding her claim, have transposed her as
a pla'ntiff. It either over-looked the technical defect or felt that under
Order XLI rule. 33, it had ample power to decree her claim. However
that may be, the provisions of s. 99 C.P.C., would be a bar to interference by the Supreme Court with the High Court's decree upon
such a gm1nd. [290 G-H]
Bhupendra v. Rajeshwar, 58 I.A. 228, referred to.
(iv) Though mesne profits prior to the suit cannot be awarded
to a successful party unless a claim is made in respect of them, the
position regarding future mesne profits is governed by 0. XX, r. 2,
C.P.C. The decree awarding mesne profits to the first defendant musb
be upheld because the first defendant admitted the plaintiff'• claim
and in substance prayed for a similar
decree in her favour.
[291 B; 292 G-H]
Mohd. Amin and Ors. v. Vakil Ahmed and Ors. [1952] S.C.R. 1133,
distinguished.
C1v1L A1•PELLATE JURISDICTION: Civil Appeal No. 730 of 1962.
Appeal from the judgment and decree dated February 19, 1959.
of the Mysore High Court in Regular Appeal No. 208 of 1961-62.
S. K. Venkatarangaiengar and A. G. Ratnaparkhi, for the
appellants
,.,
S. T. Desai and Naunit Lal, for respondent No. 1.
K. K. Jain, for respondent No. 2.
The Judgment of the Court was delivered by
Mudholkar, J. This is an appeal by defendants Nos. 3 to 8
from a decision ol the High Court of Mysore passing a decre;: in
favour of respondent No. 1 who was defendant No. 1 in the trial
court, for posses5icn of half the property which was the subject
matter of the ·mit and also allowing future mesne profits.
The relevant facts are briefly these: The plaintiff who is the
elder sister of the first defendant instituted a suit in the court of the
District Judge, Bangalore for a declaration that she is the owner of
half share in the properties described in the schedule to the plaint
and for partiticn and' separate possession of half share and for mesne
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1\.S. MA.DANAPPA
~. CHANDRAlOlA (MuiJholkar, J.)
285
profits. According to her the suit property was the absolute property
of her mother Puttananjamma and .upon her death this property
devolved on her and the first defendant as her mother's heirs. Since,
according to her. the first defendant did not want to join her as coplaintiff in the suit, she was joined as a defendant. It is common
ground that the property was in the possession of the second defendant R. S. Maddanappa, the father of the plaintiff and the first
defendant and Gargavva, the second wife of Maddanappa and her
children. Madanappa died during the pendency of the appeal before
thh Court and his legal representatives are the other defendants to
th,• suit. Briefly stated his defence, which is also the defence of the
defendants other than defendant No. I is that though the suit
properties belonged to Gowramma, the mother of Puttananjamma,
she had settled them orally on the latter as well as on himself and
that after the death of Puttananjamma he has been in possession
of those properties and enjoying them as full owner. He further
pleaded that it was the last wish of Puttananjamma that he should
enjoy these properties as absolute owner. The plaintiff and the Jirst
defendant had, according to him, expressly and impliedly abandoned their right in these properties, that his possession over the properties was adverse to them and as he was m adverse possession for
over the statutory period, the suit was barred. Finally he contended
that he had spent more than Rs. 46,000 towards improvements of
the properties which met partly from the income of his joint
ancestral property and partly from the assets of the third defendant.
These improvements, he· alleged, were made by him bona fide in
the belief that he had a right to the suit properties and consequently
he was entitled to the benefit of the provisions of Section 51 of the
Transfer of Property Act.
The first defendant admitted the claim of the plaintiff and also
claimed a decree against the other defendants in respect of her half
share in the suit properties. The other defendants, however, resisted
her claim and in addition to what the second defendant has alleged
in his written statement contended that she was estopped by her
conduct from claiming any share in the properties.
The trial court decreed the claim of the plaintiff but held that
the first defendant was estopped from claimin~ possession of her
half share in the properties left by her mother. The first defendant
preferred an appeal before the High Court challenging the correctness of the decision of the trial court. The other defendants also
filed an appeal before the High Court challenging the decision of
the trial court .in favour of the plaintiff. It would appear that the
plaintiff had also preferred some cross-objections. All the matters
were h~rd together in the High Court, whiGh dismissed the
~ppeal preferred 9Y defendants Nos. 2 to 8 as well as the crossobjections lodged by the plaintiff but decreed the appeal pr'!ferred
by th·~ first defendant and· passed a decree in her favour for possession of her half share in the suit properties, and future mesne profits
286
SUPREME COURT REPORTS
(1965] 3 S.C.I\.
against th_e remaining defen.dants. Defendants Nos. 2 to 8 applied
tor a certificate from the High Court under Articles 133(1)(a) and
133(])(c) in respect of the decree of the High Court in the t\vo
appeals. The High Court granted the certificate to defendants Nos.
2 to 8 in so far as defendant No. 1 was concerned but refused
certipcate in so far as the plaintiff was concerned. We are therefore, concern~d with a limited question and that is whether the
High Court was right in awarding a decree to the first defendant
for possess'on of her half share and mesne profits.
Mr. Venkatarangaiengar, who appears for the appellants·
accepts the position that as the'certificate was refused to defendants
Nos. 2 to 8 in so far as the plaintiff is concerned, the only points
which they are entitled to urge are those which concern the first
defendant alone and no other. The points which the learned counsel
formulated are as follows :
(I) It is not open to a court to award future mesne profits
to a party who did not claim them in the suit;
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(2) No decree can be passed in favour of a defendant who
has not asked for transposition as plaintiff in the suit.
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(3) That the first defendant was estopped by her conduct
from claiming possession of her alleged half share of
the properties.
We will consider the question of esfoppel first. The conduct of
the first defendant from which the learned counsel wants us to draw
the inference of estoppel con~sts of her attitude when she was
served with a notice by the plaintiff, her general attitude respecting
I!angalore properties as expressed in the letter dated 17th January,
1941 written by her to her step-mother and the attestation by her
and her husband on 3-10-1944 of the will executed on 25th January,
1941 by Maddanappa. In the notice dated 26th January, 1948 by
the plaintiff's lawyer to the first defendant it was stated that the
plaintiff and the first defendant were joint owners of the suit properties which were in the possession of their father and requested.
for the co-operation of the first defondant in order to effect the division of the properties. A copy of this notice was sent to Maddanappa and he sent a reply to it to the plaintiff's lawyers. The first
defendant, however, sent no reply at all. We find it difficult to
construe- the conduct of the first defendant in not replying to the
notice and in not co-operating with the plaintiff in instituting a suit
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for obtaining possession of the properties as justifying the inference
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of estoppel. It does not mean that she impliedly admitted that she .
had no interest in the properties. It is true that in Ex. 15, which is
a letter sent by her en 17-1-1941 to her step-mother she has observed thus:
"I have no desire whatsoever in respect of the properties
which are at Bangalore. Everything belongs to my father.
He has the sole authority to. do anything .... We give our
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R.B. MADANAPPA v. CHANDRAMMA (Mudholkar, J.)
287
consent to anything done by our father. We will not do anything."
But even these statements cannot assist the appellants because
admittedly the father knew the true legal position. That is to say,
the father knew that these properties belonged to Puttananjamma'
and that he had no authority to deal with these properties. No
doubt, in his written statement Maddanappa had set up a case that
the properties belonged to him by virtue of the declaration made
by Puttananjamma at the time of her death, but that case has been
negatived by the ~ourts below. The father's possession must, there-·
fore, be deemed to have been, to his knowledge, on behalf of the
plaintiff and the first defendant. There was thus no possibility of an
erroneous belief about his title being created in the mind of
Maddanappa because of what the first defendant had said in her
letter to her step-mother.
In so far as the attestation of the will is concerned, the appellants' position is no better. This 'will' purports to make a disposition of the suit properties along with other properties by Maddan·
appa in favour of defendants Nos. 3 to 8. The attestation of thfl
will by the first defendant and her husband, would no doubt affix
them with the knoweldge of what Maddanappa was doing, but it
cannot operate as estoppel against them and in favour of defen•
dants Nos. 3 to 8 or even in favour of Maddanappa. The will could1
take effect only upon the death of Maddanappa and, therefore, no
interest in the property had at all accrued to the defendants Nos. 3
to 8 even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and therefore,
could not say that an erroneous belief about his title to the properties was created in his mind by re1son of the conduct of the first!
defendant and her husband in attesting the document. Apart from
that there is nothing on the record to show that by reason of the
conduct of the first defendant Maddanappa altered his position to
his disadvantage.
Mr. Venkatarangaiengar. however, says that subsequent to the
execution of the will he had effected further improvements in the
properties and for this purpose spent his own moneys. According
to him, he would not have done so in the absence of an assurance
like the one given by the first defendant and her husband to the
effect that they had no objection to the disposition of the suit properties by him in any way he chose to make it. The short answer
to this is that Maddanappa on his own allegations was not only in
possession and enjoyment of these properties ever since the death
of Puttananjamma but had made improvements in the properties
even before the execution of the will. In these circumstances, it is
clear that the provisions of Section 115 of the Indfan Evidence Act,
which contain the law of estoppel by representation do not help
him.
Mr. Venkatarangaiengar, however, wanted us to hold that the
law of estoppel by representation is not confined to the pr
SUPREME COURT REPORTS
(1965] 3 S.C.R.
of s: 115 of the Evidence Act, that apart from the provisions of this
scch?n there is what is called "equitable estoppel" evolved by the
English Judges and that the present case would come within such
"equitabk estoppel". tn some decisions of the High Courts reference has been made to "equitable estoppel" but we doubt whethe~
the court while determining whether the conduct of a particula~
party amounts to an e.stoppel, could travel beyond the provisions of
Sect10n 115 of the Evidence Act. As was pointed out by Garth C.J.
in Ganges Manufacturing Co. v. Saurjmull(') the provision of
s 115 of the Evidence Act are in one sense a rule of evidence and
are founded upon the well known doctrine laid down in Pickard v.
Sears(') in which the rule was stated thus:
"Where one by his word or conduct wilfully causes another
to believe for the existence of a certain state of thing and
induced him to act on that belief so as to alter his own previous position, the former is concluded from averring against
the latter a different state of things as existing at the first
time."
The object of estoppel is to prevent fraud and secure justice bet•
ween the parties by promotion of honesty and good faith. There·
fore, where one person makes a misrepresentation to the otheu
about a fact he would not be shut out by the rule of estoppel. if
that other person know the true state of facts and must consequent•
ly not have been misled by the misrepresentation.
The general principle of estoppel is stated thus by the Lord
Chancellor i,n Cairncross v. Lorimer('):
"The doctrine will apply, which is to be found. I believe, in
the laws of all civilized nations that if a man either by words
or by conduct has intimated that he consents to an act which
has been done, and that he will offer no opposition to it,
although it could not have been lawfully _done without his
consent. and he thereby induces others to do that from which
they otherwise might have abstained, he cannot question the
legality of the act he had so sanctioned, to the prejudice o~
those who have so given faith to his words or to the fair
inference to be drawn from his conduct. I am of opinion
that, generally speaking, if a party having an interest IOI
prevent an act being done has full notice of its being done,
and acquiesces in it, so as to induce a reasonable belief that
he consents to it, and the position of others is altered by
their giving credit to his sincerity, he has no more right to
challenge the act to their prejudice than he would have had
if it had been done by his previous license."
It may further be mentioned that in Cari" v. London & N_W_
Ry. Co.(') four propositions concerning an estoppel by conduct
i'I 1.L-R, 5CCnJ,. 669.
(2) 6 Ad •• ~ E. 469.
('I 3 Macq. s2;.
(" T,,Jt. 10 C.P. 307.
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were laid down by Brett, J. (afterwards Lord Reher) the third o~
which rum thus:
"If a man either in express terms or by conduct makes a
representation to another of the existence of a certain stattl
of facts which he intends to be acted upon in a certain way,
and it be acte:l upon in the belief of the existence of such a:
state of facts, to the damage 'Of him who so believes and
acts, the first is estoppel from denying the existence of such
a state of facts,"
This also shows that the person claiming benefit of the doctrine
must show that he has acted to his detriment on the faith of the
representation made to him.
This was quoted with approval in Sarad v. Gopa[('). It will thus·
be seen that here also the person who sets up an estoppei against
the other must show that his position was altered by reason of the
representation or conduct cf the latter and unless he does that even
the general principle of estoppe] cannot be invoked by him. As
already stated no detriment resulted to any of the defendants as a:
result of what the defendant No. I had stated in her letter to her
step-mother or as a result of the attestation by her and her husband
of the will cf Maddanappa.
Mr. Venkatarangaiengar then tried to urge before us that it
was a case of f~mily settlement by the father with a view to avoid!
disputes amongst his heirs and legal representatives after his death
and, therefore, the actions of defendant No. I can be looked at as
acquiescence in the family settlement effected by the father. A case
of fall'ily settlement was never set up by the defendants either in
the trial court or in the High Court and we cannot allow a new case
to be set up before us for the first time.
Finally on this aspect of the case the learned counsel referred
to the observations of Lord Cranworth in Ramsden v. Dyson(')
which are as follows:
"If a stranger begins to build on my land supposing it to be
his own and I (the real owner) perceiving his mistake, abstain
from setting him right, a!nd leave him to persevere in his
error, a court of equity will not allow me afterwards to
assert my title to the land, on which he has expended money
on the supposition, that the land was his own. It considers
that when I saw the mistake in which he had fallen, it was
my duty to be active and to state his
adverse title; and
that it would be dishonest in me to remain wilfully passive
on such an occasion in order afterwards to profit by the
mistake which I might have prevented.
The doctrine of acquiescence cannot afford any help to the appellants for the simple reason that Maddanappa who knew the true
state of affairs could not say that any mistaken belief was caused
(') L. R. 19 I.A. 20~.
(') L. R.I. JI. L. App. 129, 140.
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in his mind by reason of what the first defendant said or did.
According to the learned counsel, even if the first defendant's claim
to the half share in the suit property cannot be denied to her she
must at least be made to pay for the improvements effected by
Maddanappa, according to her proportionate share in the suit property. As already stated the appellant was .in enjoyment of the~e
proportion after his wife's death and though fully aware of the fact
that they belonged to the daughters he dealt with them as he chose.
When he spent moneys on those properties he knew what he was
doing and it is not open to him or to those who claim under him to
say that the real owners of the properties or either of them should'
be made to pay for those improvements. No man who, knowing
fully well that he has no title to property spends money on improving it can be permitted to deprive the original owner of his right
to possession of the property except upon the payment for the improvements which were not effected with the consent of that person.
In our view, therefore, neither was defendant No. 1 estopped from
claiming possession of half share of the properties nor can she be
made liable to pay half the costs of improvements alleged to have
been made by the second- defendant.
Now regarding the second point, this objection is purely
technical. The plaintiff sued for partition of the suit properties upon
the ground that they were inherited jointly by her and by the first
defendant and claimed possession of her share from the other
defendants who were wrongfully in possession of the properties.
Sl'e als;i alleged that the first defendant did not co-operate in the
matter and so she had to institute the suit. The first defendant admitted the plaintiff's title to half share in the properties and claimed
a decree also in her own favour to the extent of the remaining half
share in the properties. She could also have prayed for the transposition as a co-plaintiff and under Order I, rule 10(2) C.P.C. the
Court could have transposed her as a co:plaintiff. The power unde~
this provision is exercisable by the Court even suo motu. As pointed
out by the Privy Council in Bhupender v. Rajeshwar(') the power
ought to be exercised by a court for doing complete justice between
the parties. Here both the plaintiff and the first defendant claim
under the same title and though defendants 2 to 8 had urged special
defences against the first defendant, they.have been fully considered and adjusted upon by the High Court while allowing her-appeal.
Since the trial court upheld the special defences urged by defendants 3 to 8 and negatived the claim of the .first defendant it may
have thought it unnecessary to order her transposition as plaintiff.
But the High Court could. while upholding her claim, well have
done so. Apparently it either over-looked the technical defect or
felt that under 0. XLI, rule 33 it had ample power to decree her
claim. However that may be, the provisions of s. 99 would be a
bar to interfere here with the High Court's decree upon a ground
such as this.
(') L.R. 58 l.A. 22~.
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CHANDRAMMA (Mudholkar, J.)
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fhe only other question for consideration is whether the High
Court was justified in awarding mesne profits to the first defendant
even though she was not transposed as a plaintiff. According to the
learned counsel mesne profits cannot be awarded to a successful
party to a suit for possession unless a claim was made in respect
of them. The learned counsel is right in so far as mesne profits prior
to the suit are concerned but in so far as mesne profits subsequent
to the date of the institution of the suit, that is future mesne profits
are concerned, the position is governed by Order XX, rule 2, C.P.C.
which is as follows:
"(]) Where a suit is for the recovery of possess'on 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 rent or mesne profits which have accrued
on the property during a period prior to the institution of the suit or directing an inquiry as to
such rent or 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 decreeholder,
(ii) the relinquishment of possession by the judgment debtor with notice to the decree-holder
through the Court, or
('ii) 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 nnal decree in respect of the rent or mesne profits
shali be passed in accordance with the result of such
inquiry."
The learned counsel, however, relied upon the decision of this
Court in Mohd. Amin and others v. Vakil Ahmed and others(').
That was a suit for a declaration that a deed of settlement was
void and for possession of the property which was the subject
matter of the settlement under that deed. The plaintiffs had not
claimed mesne profits at all in their plaint but the High Court had
passed a decree in the plaintiff's favour not only for possession but
also for mesne profits. In the appeal before this Court against the
decision of the High Court one of the points taken was that in a
ca;e of this kind, the court has no power to award mesne profits.
While upholding this contention Bhagwati J. who delivered the
judgment of the Court has observed thus:
"The learned Solicitor-Genera! appearing for the plaintiffs
conceded that there was no demand for mesne profits
as such but urged that the . claim for mesne profits
would. be included within __!_he expression 'awarding
I') [1952] S.C.IL 1!33, 1144.
)!/B(N)3SCl-6
292
SUPREME COURT REPORTS
(1965) 3 S.O.R.
possession and occupation of the property aforesaid
together with all the rights appertaining thereto'. We·
are afraid that the claim for mesne profits cannot be
included within this expression and the.High Court was
in error in awarding to the plaintiffs mesne profits
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 order to satisfy ourselves whether these observations related
to the award of past mesne profits or to the award of future mesne
profits we sent for the original record of this Court and· we found
that the High Court had awarded past as well as future mesne
profits. Mr. S. T. Desai, appearing for the respondent No. 1 stated
that a Full Bench in Babburu Basavayya and four others v. Babburu
Gar(Jvayya and another(') following the decision of the Judicial
Committee in Fakharuddin Mohomed Ahsan v. The Official
Trustee(') has held that even after the passing of the preliminary
decree, it is open to the court to give appropriate direction&y
amongst other matters regarding future mesne profits either suo
motu or on the application of the parties in order to prevent multiplicity of litigation and to do complete justice between the parties.
This decision has been followed in a large number of cases. In
Bachepalli Atchamma v. Yerragupta Rami Reddy(') Simma,
Krishnamma v. Nakka Latchumanaidu and others(') Kasibhaticl
Satyanarayana $astrulu and other$ v. Kasibhat/a Mallikarjuna
Sastru/u(') and Ponnuswami Udayar and another v. Santhappa(')
the decision of this Court was cited at the Bar and has been consi- •
dered. The learned Judges have said that the authority of the ..
decision in Babburu Basavayya and four others v. Babburu Guravayya(') is not shaken by what this Court has said. One of the
grounds given is that the former relates to a suit for partition while
the latter to a suit for possession simpliciter. It is not necessary for
us to consider whether the decision of this Court can be distinguished upon this ground, but we feel that when a suitable occasion
arises it may become necessary to reconsider the decision of this
Court as to future mesne profits. In the present case the plaintiff
did claim not only partition and separate possession of her half
share of the properties but also past mesne profits. The defendant
No. 1 admitted the plaintiff's claim and in substance prayed for a
similar decree in her favour. The decision of this Court would,
therefore, not apply to a case like the one before us.
In the result therefore we uphold the decree of the High Court
and dismiss the appeal with costs.
(') I.L.R. 1952 Madras 173.
(') 8 Cal. 178 (P. C.).
I') A.LR. 1957 A.P. 52.
(') A.I.R. 1958 A.P. 520.
1') A.I.R. 1980 A.P. 45.
(') A.I.R. 1963 Mad. 171.
Appeal dismissed.
A
B
c
D
E
F
G
B