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mesne profits

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amendment of final decree adding share in stored iron ore negitived= It is well settled in law that subsoil rights do not form part of surfacial rights of the land. The pattedar / owner of the land is entitled only for the surfacial rights and subsoil rights normally vest in the State (See State of Andhra Pradesh Vs Duvvuru Balarami Reddy and others, AIR 1963 SC 264). Therefore, assuming for the sake of arguments that the appellant herein did, in fact, win the mineral from the decree scheduled property, the respondent is not entitled for the share in the same on the ground that she is entitled for a half share of the surface of the property from out of which, the iron ore was (allegedly) extracted. Extraction of the minerals is governed in this country by the Provisions of the Mines and Minerals Development and Regulatory Act, 1957, which requires a license to be acquired by any person interested in carrying on the mining activity. Such a license is granted under the said Act, subject to various rules and regulations

Non reportable IN THE SUPREME COUR OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2473 OF 2012 [Arising out of SLP (C) NO.30087 OF 2009]   K. Thippanna @ Thippeswamy. ….Appellant Versus Varalakshmi & Anr. ….Respondents     J U D G M E N T   Chelameswar, J. Leave granted. 2. This appeal arises … Continue reading

MESNE PROFITS =The Commissioner in his report under the heading observations has mentioned that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-. After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property. After completion of the examination of P.W.3 informed them that the existing market value for sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed. After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value. The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as the present existing market value per sq. ft is on an average of Rs.45/-. Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis for deciding the mesne profits. With regard to the quantum of mesne profits granted by the lower court, the lower court has granted mesne profits@ Rs.30/- per sq. feet as the plaintiff has claimed the same in the plaint. The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits. The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. The lower court has observed that the Commissioner has arrived the mesne profits @ Rs.46.06 ps per sq. feet. The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far back, the court below considered that the petitioners cannot claim more than what they pleaded in their original plaint. He further observed that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property. Therefore, he accepted the evidence of R.W.1 to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed the mesne profits for the suit schedule property at Rs.30/- per sq. feet. R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month. But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence. Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf. In the circumstances, both the parties have to bear their own costs.

HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A Nos.26 & 79  of 2008   Date: 28.02.2011   Between: M. Raja Gopala Rao and another ….Appellants. And: Sri K. Vinay Reddy …..Respondent. C.C.C.A No.79  of 2008   Between: Sri K. Vinay Reddy ….Appellant. And: M. Raja Gopala Rao and another …..Respondents. HON’BLE … Continue reading

Indian Succession Act, 1925 – Will – Execution of – Testator bequeathing property in absolute terms in favour of her daughters – Latter part of bequest purporting to vest the same property in their female offspring – Interpretation of – Held: It is clear from the Will that testatrix had made an unequivocal and absolute bequest in favour of her daughters – By the latter part all such property as remained available in the hands of the legatees at the time of demise, were to devolve upon their female offspring – Latter part is redundant since it was repugnant to the clear intention of testatrix in making an absolute bequest in favour of her daughters – Stipulation made in the second part did not in the least affect the legatees being the absolute owners of the property bequeathed to them – Upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by testatrix – Will. The original owner bequeathed certain properties in favour of her daughters `SA’ and `SR’. It was stipulated that after death of `SA’ and `SR’ the properties would devolve upon their female offsprings. `SA’ died intestate. The appellants, sons of `SA’, took possession of the property bequeathed in favour of `SA’. The respondents-daughter of `SA’ and others filed a suit for declaration of title over the suit property and for recovery of possession in view of the stipulation contained in the Will. The trial court dismissed the suit. The High Court set aside the order passed by the trial court and decreed the suit. Therefore, the appellants filed the instant appeal. =Allowing the appeal, the Court HELD:1.1 It is evident from a careful reading of Sections 84, 85, 86 and 87 of the Indian Succession Act, 1925 that while interpreting a Will, the courts would as far as possible place an interpretation that would avoid any part of a testament becoming redundant. The courts would also interpret a Will to give effect to the intention of the testator as far as the same is possible. Each document has to be interpreted in the peculiar circumstances in which the same has been executed and keeping in view the language employed by the testator. That indeed is the requirement of Section 82 of the Succession Act also inasmuch it provides that meaning of any clause in a Will must be collected from the entire instrument and all parts should be construed with reference to each other. [Para 16] [821-F-H; 822-A] 1.2 It is evident from a careful reading of clause 6 of the Will that the same makes an unequivocal and absolute bequest in favour of daughters of testatrix. The use of words like “absolute rights of sale, gift, mortgage etc.” employed by the testatrix make the intention of the testatrix abundantly clear. The testatrix desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only. There is no dispute that the testatrix had in no uncertain terms made an absolute bequest in favour of her daughters. The submission that the absolute estate of the `SA’ ought to be treated only as a life estate though attractive on first blush, does not stand closer scrutiny. It is said so because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor, in the instant case, the testatrix. The intention of the testatrix to make an absolute bequest in favour of her daughters is unequivocal. Secondly, the expression “after demise of my daughters the retained and remaining properties shall devolve on their females children only” does not stricto sensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix. The expression extracted does not detract from the absolute nature of the bequest in favour of the daughters. [Paras 6 and 17] [815-A-B; 822-C-D] 1.3 All that the testatrix intended to achieve by the latter part of clause 6 was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offsprings in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Thus, there is no real conflict between the absolute bequest which the first part of clause 6 of the Will makes and the second part of the said clause which deals with devolution of what and if at all anything that remains in the hands of the legatees. The two parts of clause 6 operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc. and the other regulating devolution of what may escape such sale, gift or transfer by them. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to the lot of the next generation females or otherwise. The stipulation made in the second part of clause 6 did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the testatrix. [Para 17] [823-A-F] 1.4 The judgment and order passed by the High Court is set aside and that passed by the trial court restored. [Para 18] [823-G] Sasiman Chowdhurain and Ors. vs. Shib Narain Chowdhury and Ors. AIR 1922 PC 63; (Kunwar) Rameshwar Bakhsh Singh and Ors. v. (Thakurain) Balraj Kuar and Ors. AIR 1935 PC 187; Radha Sundar Dutta v. Mohd. Jahadur Rahim and Ors. 1959 SCR 1309; Ramkishore Lal v. Kamal Narain (1963) Supp 2 SCR 417; Mauleshwar Mani and Ors. v. Jagdish Prasad and Ors. (2002) 2 SCC 468; Pearey Lal v. Rameshwar Das (1963) Supp 2 SCR 834; Ramachandra Shenoy and Anr. v. Mrs. Hilda Brite and Ors. 1964 (2) SCR 722; Kaivelikkal Ambunhi (Dead) By Lrs. and Ors. v. H. Ganesh Bhandary (1995) 5 SCC 444 – referred to. Case Law Reference: AIR 1922 PC 63 Referred to. Para 4 AIR 1935 PC 187 Referred to. Para 8 1959 SCR 1309 Referred to. Para 9 (1963) Supp 2 SCR 417 Referred to. Para 10 (2002) 2 SCC 468 Referred to. Para 11 (1963) Supp 2 SCR 834 Referred to. Para 12 1964 (2) SCR 722 Referred to. Para 13 (1995) 5 SCC 444 Referred to. Para 14 CIVIL APPELLATE JURISDICITION : Civil Appeal No. 2758 of 2004. From the Judgment & Order dated 4.3.200 of the High Court of Andhra Pradesh at Hyderabad in Appeal No. 1530 of 1998. Y. Raja Gopala Rao for the Appellants. I. Venkatanarayana, A. Chandramohan, T. Anamika for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO.2758 OF 2004 Sadaram Suryanarayana & Anr. …Appellants Versus Kalla Surya Kantham & Anr. …Respondents JUDGMENT T.S. THAKUR, J. 1. This appeal by special leave is directed against an order dated 4th March, 2003 passed by the High Court of Andhra Pradesh whereby … Continue reading

Hindu Adoption & Maintenance Act, 1956 – ss. 3 and 18 – Maintenance – Right of wife to reside in matrimonial home – Wife and children residing in the suit property – Decree for possession of suit property in favour of husband – Challenge to, by wife on the ground that she already obtained charged decree for maintenance over suit property – Dismissed by High Court holding that wife could not claim right of residence in matrimonial home so as to resist decree for possession – On appeal, held: Supreme Court in Mangat Mal’s and B.P. Achala Anand’s cases examined the question as to whether maintenance encompasses provision for residence – Matter remitted to High Court to consider the issues in the light of the ratio of aforesaid cases – Transfer of Property Act, 1882 – s. 39. The relationship between the respondent no. 1-husband and the appellant- wife were estranged. Respondent no. 1 filed suit for declaration of title and recovery of possession in respect of Schedule property where appellant and respondent no. 2 and 3-children were residing. Trial court and the First Appellate Court decreed the suit in favour of respondent no. 1. Appellant filed second appeal on the ground that she had right to reside in the matrimonial home situated in the Scheduled property and that she had already obtained charged decree for maintenance over the Schedule property. High Court dismissed the appeal holding that the wife could not claim a right of residence in the matrimonial home so as to resist a decree for possession. Hence the present appeal. =Disposing of the appeal, the Court HELD:1.1. Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady`s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purpose of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract s. 14 (1) of the Hindu Succession Act, 1956. [Para 9] [80-C-D-E] 1.2. The Hindu Adoption & Maintenance Act, 1956, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3 (d) to include “(1) In all cases, provision for food, clothing, residence, education and medical attendance and treatment.” [Para 11] [81-G] 1.3. The High Court did not consider the aspect whether maintenance encompasses a provision for residence as considered in Mangat Mal’s and B.P. Achala Anand’s cases. It will be appropriate for the High Court to consider the issues by re-hearing the appeal in the light of what has been stated in Mangat Mal’s and B.P. Achala Anand’s cases. [Para 13] [82-F] Mangat Mal (Dead) and Anr. vs. Punni Devi (Dead) and Ors. 1995 (6) SCC 88 and B.P. Achala Anand vs. S. Appi Reddy and Anr. 2005 (2) SCALE 105, referred to. Mulla’s Hindu Law (Sixteenth Edition), referred to. Case Law Reference: 1995 (6) SCC 88 Referred to. Para 6 2005 (2) SCALE 105 Referred to. Para 12 G. Prakash, for the Appellant. K. Rajeev, for the Respondents. =, , , 2008(14 )SCALE470 , 2008(12 )JT157

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No.3670 of 2005) Komalam Amma …..Appellant Vs. Kumara Pillai Raghavan Pillai and Ors. …..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of a learned Single … Continue reading

women are entitled to equal shares and also equally liable for joint family debts=in pending cases, the recent amendment of 2005 of Hindu succession act is applicable even after the preliminary decree is passed=whether the preliminary decree can be modified ?= In Phoolchand1, this Court has stated the legal position that C.P.C. creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the 14 It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of 15

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8538 OF 2011 (Arising out of SLP (Civil) No. 9586 of 2010) Ganduri Koteshwaramma & Anr. …. Appellants Versus Chakiri Yanadi & Anr. ….Respondents JUDGMENT R.M. Lodha, J. Leave granted. 2. The question that arises in this appeal, by special leave, is: … Continue reading

n the maxim nemo dat quid non habet (no one gives what he has not got) and the maxim nemo plus juris tribuit quam ipse habet (no one can bestow or grant a greater right and better title than he has himself) are based on the doctrine of a non habente potestatem (from one not having power) and from the philosophy of a non domino (from one who is not the proprietor). It is settled law that a title can be transferred by one who has authority to do so.

THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.477 of 1996 01-07-2011 Kothalanka Durga Vara Prasada Rao Datla chanraiah and others Counsel for the appellants :T.S. Anand Counsel for the Respondents: T. Venkata Ramana Rao & others :JUDGMENT: The plaintiff in O.S.No.552 of 1982 on the file of the Sub-Judge, Bhimavaram laid this appeal seeking for the … Continue reading

Mysore (Religious and Charitable Inams) Abolition Act, 1955: Inam lands – Granted to eldest son with the consent of brother and other family members – Partition – Held: Inam lands cannot be regarded as individual property of grantee – In terms of provisions under the 1955 Act, inam lands liable to be granted to tiller of such lands who may be an archak/tenant/office bearer – Such grant is meant for benefit of family of tiller and not for his individual benefit – Thus, grant of land in favour of the eldest son, with the consent of other members of the family could not disentitle other members to exercise their right to claim share in the property/lands – Moreover, lands Tribunal granted occupancy right to grantee because his father was Archak of the temple and not because the conditions as laid down in s. 6(A) of the Act are fulfilled – Occupancy right, as granted to him, was not his individual right – Hence, the lands in question available for partition. Father of respondent Nos. 1 & 2 was serving as an Archak in a temple and had been cultivating the inam lands attached to the temple. After his death, the lands were granted by the authority to respondent No.1, the eldest son, with the consent of other members of the family. Respondent No.1 was also acting as the Manager of the ancestral and self-acquired property of his father. Appellant, son of respondent No.2, issued a legal notice to respondent No.1 demanding partition of the joint family properties including inam lands. Respondent No.1 refused to partition the immovable properties. The appellant filed a suit for partition claiming his share in the properties along with mesne profits. The Trial Court dismissed the suit holding that prior partition was established in view of the admission by respondent No.2 and as such the appellant could not demand partition. Aggrieved, the appellant filed an appeal, which was dismissed by the High Court. Review petition was also dismissed by the High Court. Hence the present appeal. Appellant contended that in respect of inam lands granted to respondent No. 1, the High Court had committed an error by holding that since the appellant and the respondent No.2 had not performed the duties as archak of the Inamdar Temple and they had not personally cultivated the lands, they were not entitled to grant of the inam lands. Counsel for respondent Nos. 1 and 3 submitted that respondent no.1 had got the properties, imam land in question, vacated from the tenants who had been cultivating it and thereafter he was personally cultivating the same and after coming into force of the Mysore (Religious and Charitable Inams) Abolition Act, an application for grant of occupancy rights was moved on his behalf and the right was conferred on him by the competent authority after proper inquiry and therefore, the appellant could not claim partition of the same; that respondent no.1 was admittedly the archak of the temple and he was also cultivating the properties personally for a continuous period of 3 years prior to the date of its vesting with him and therefore, he was entitled to apply for registration of his right in terms of provisions of the Act; and that the grant of such right is a personal right which cannot be characterized as an ancestral right because in this case, even if his father was alive, he could not have become entitled to grant of occupancy rights because he was not cultivating the lands. =Allowing the appeal, the Court HELD: 1.1 Under the scheme of the Mysore (Religious and Charitable Inams Abolition) Act, inam lands are liable to be granted to the tiller of such lands, be, as it may, as tenants, archaks or office bearers of the inamdar temple. Accordingly, this Court is of the view that such grants are meant for the benefit of the family of the tiller and not for him individually and for this reason, there can be no justification to disregard the rights of the junior members of the family if their eldest member was performing the duties of archak with the consent of others. For this reason and in view of the decision of this court in the case of Nagesh Bishto, this Court is of the view that grant of land to archak cannot disentitle the other members of the family of the right to the land and such granted land, therefore, is also available for partition. Furthermore, it also emerges from the judgment of the Trial Court that the tenants cultivating the land had stated that respondent no.2 had requested his father to allow him to cultivate the lands who accordingly gave his consent before the land tribunal also. Such being the position, if other members of the family had not objected to his becoming the archak of the temple because he was the eldest and also allowed him to cultivate the lands then, if subsequently he was, by virtue of the fact that he was the archak and also personally cultivating the lands, granted the lands, he cannot take away the rights of such other members of the family in the granted lands. (Para -13) [474-G-H; 475-A-D] Nagesh Bishto Desai Vs. Khando Tirmal Desai etc. (1982) 2 SCC 79 – relied on. 1.2 It is pellucid that respondent No.1 is relying only on Section 6A of the Act to submit that he was granted the occupancy rights. It is clear from Section 6A of the Act that respondent No.1 satisfied the conditions enumerated therein and for that reason, he was granted the occupancy rights. If seen in isolation, conclusion would be that since respondent No.1 had fulfilled the conditions of Section 6A of the Act, he was granted the occupancy rights and the question of bringing the other family members did not arise. However, this Court is not inclined to look at Section 6A in isolation. If seen in totality, it is discernible that the father of respondent No.1 gave his consent and allowed respondent no.1 to cultivate the land after taking the same from the tenants. Even the land tribunal, while passing the order granting occupancy rights, had not confined itself to the fact that the conditions in Section 6A were fulfilled. Rather, the land tribunal had observed that the father of respondent No. 1 was the archak and anubhavdar of the temple and this was a prime consideration in granting occupancy rights to the respondent No.1. Therefore, it would be wrong to hold that simply because the conditions in Section 6A were fulfilled, the respondent no. 1 was granted occupancy rights and it was his individual rights. The truth is that the respondent No.1 became the Archak after the death of his father because he was the eldest in the family and only then came the question of satisfying the conditions of Section 6A of the Act. (Para – 14) [475-E-H; 476-A-B] 1.3 It is wrong on the part of respondent No.1 to say that his father, even if he had been alive, would not have been granted occupancy rights because the lands at that time were cultivated by the tenants. For grant of occupancy rights, personal cultivation is just one condition. The other conditions include that if a person is managing the properties, which his father was doing, would also be entitled to the grant of occupancy rights. (Para – 15) [476-C-D] 1.4 Respondent No. 1 was made archak after the death of his father because he was the eldest member of the family. Being the archak, he cultivated the lands and obtained occupancy rights. In such circumstances, it would be highly unjust to deprive the other members of the family from getting their share in the properties by relying only on Section 6A of the Act. Therefore, this Court is also of the opinion that the granted lands are also available for partition and grant of occupancy to one member will not disentitle the other members. (Para – 15) [476-D-F] Appi Belchadthi & Ors. vs. Sheshi Belchadthi & Ors. (1982) 2 Karnataka Law Journal 565 – approved. Case Law Reference (1982) 2 SCC 79 Relied on Para – 12 (1982) 2 Karnataka Law Journal 565 Approved Para – 15 S.B. Sanyal, Rajesh Mahale for the Appellant. A.K. Ganguli, S.N. Bhat, N.P.S. Panwar and D.P. Chaturvedi for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5646 OF 2008 (Arising out of SLP (C) No. 21197 of 2006) K.V. Sudharshan …Appellants VERSUS A. Ramakrishnappa & Ors. …Respondents JUDGMENT TARUN CHATTERJEE, J. 1. Leave granted. 2. This is an appeal by special leave against the judgment and final order … Continue reading

West Bengal Premises Tenancy Act – s.13(6) – Notice for termination of tenancy – Validity of – Eviction suit – Decreed by trial court – First appellate court, however, set aside the decree holding that the notice of termination of tenancy was not valid as it did not end with the month of tenancy – High Court affirmed the decree of trial court – Respondent-tenant filed SLP – Matter remitted back to High Court to consider the validity of the notice of termination of tenancy having regard to the fact that the rent note / agreement of tenancy was unregistered – High Court affirmed the order of first appellate court holding that the notice of termination of tenancy fell short of the requirement stipulated by s.13(6) of the Tenancy Act – On appeal, held: Non-registration of the rent note /agreement of tenancy was rendered insignificant in view of the pleadings of the parties on the question of month of tenancy – The defendant did not question the facts material to the creation of the tenancy – Specific averment in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was overlooked by the first appellate court – The ejectment notice having been served on 15th January, 2000, the defendant-tenant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff – The first appellate court wrongfully held that since the tenancy in the instant case had started on the 11th day of the English Calendar month, in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the end of February, 2000 – Even if the unregistered rent note / agreement of tenancy was executed on a date other than the first of English or any other calendar month, the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month – Decree passed by trial court restored – Transfer of Property Act, 1882 – s.106. The plaintiff-appellant filed a suit for eviction and recovery of possession and mesne profits against the respondent. The plaintiff claimed that the suit property was let out to the respondent on month to month basis. The tenancy was, according to the plaintiff, for a period of five years only and was determined in terms of a notice issued under Section 13(6) of the West Bengal Premises Tenancy Act and Section 106 of the Transfer of Property Act. The trial court decreed the suit. Aggrieved, the tenant appealed to the first appellate court, which set aside decree passed by the trial court. On second appeal, the High Court set aside the order passed by the first appellate court and affirmed the judgment and decree passed by the trial court. The respondent-tenant preferred civil appeal by way of special leave petition which was allowed by this Court and the matter remitted back to the High Court to consider the validity of the notice of termination having regard to the fact that the agreement of tenancy executed between the parties was an unregistered document. The High Court, pursuant to the said order, examined the effect of the unregistered document and held that the same could be used in evidence for a collateral purpose and, when so used, the notice of termination of tenancy issued on behalf of the landlady fell short of the requirement stipulated by Section 13(6) of the West Bengal Premises Tenancy Act. The High Court accordingly dismissed the appeal and affirmed the dismissal of the suit by the First Appellate Court. The appellant filed the instant appeal assailing the correctness of the said judgment and order of the High Court. =Allowing the appeal, the Court HELD:1. The question regarding validity of the notice of termination can be examined by reference to the averments made in the pleadings of the parties. It is evident from a plain reading of the assertions in the plaint and the written statement that the defendant did not question the facts material to the creation of the tenancy nor was it disputed that the tenancy was a month to month tenancy on payment of a rent of Rs.500/- for every English Calendar month. It is true that the defendant-respondent had disputed the service of the notice terminating the tenancy of the defendant as also its validity and sufficiency but it is equally true that the legality of the notice was not assailed on the ground that the notice did not conform to the month of tenancy. As a matter of fact the assertion made by the appellant that the monthly rental of Rs.500/- was payable according to the “English Calendar Month” was not denied by the defendant in the written statement nor was any suggestion to the contrary made as was sought to be done at a later stage of the litigation between the parties. Such being the position, it was for all intents and purposes agreed and accepted between the parties that the rent settled for the demised premises was payable according to the English Calendar month. The issue related to the validity of the notice of termination, which had to be answered on the admitted premise that the tenancy was on a month to month basis and the rent of Rs.500/- p.m. was payable according to the English Calendar month. [Paras 7, 10] [939-D; 942-A-D; 941-G-H] 2. The trial court rightly examined the question of legality of the service of the notice on the basis of the available material and the pleadings on the subject and came to the conclusion that the notice in question received by the wife of defendant-tenant was duly served upon the defendant on the 15th January, 2000. The trial court further held that the ejectment notice having been served on 15th January, 2000, the defendant had one month’s clear time till the end of February, 2000 to vacate the premises and to deliver the possession thereof to the plaintiff. The issue was accordingly answered in favour of the plaintiff and against the defendant-respondent. The first appellate court, however, took a contrary view. It held that the notice of termination of tenancy was not valid as it did not end with the month of tenancy of the defendant. Relying upon the stipulation contained in the tenancy agreement, the first appellate court held that the tenancy in the instant case had started on the 11th day of the English Calendar month and that in order to be legally valid, the notice of termination ought to have demanded delivery of possession by the 11th and not the 29th February, 2000. The notice was accordingly held to be invalid and the suit filed by the appellant liable to be dismissed. In taking that view, the appellate court failed to appreciate that even when the unregistered agreement of tenancy had been executed on 11th of September, 1993, the same did not mean that the month of tenancy would commence from the 11th of every succeeding month, over the period for which the same was created. The first appellate court also failed to appreciate that even when the rent note/agreement of tenancy was executed on a date other than the first of English or any other calendar month the parties were always free to agree that the month of tenancy would commence from any other date including the 1st day of the succeeding month. That there was a specific averment made in the plaint to the effect that the rent for the premises was payable monthly according to the English Calendar was also overlooked by the First Appellate Court. That the said averment had not been disputed by the tenant was also not noticed by the first appellate court and even by the High Court. These facts were important and held the key to the determination of the question whether the notice had validly terminated the tenancy. The High Court had in the first order passed by it correctly held the notice of termination of tenancy to be legally valid. After the matter was remanded back to it to consider the effect of non-registration of the rent note/agreement of tenancy it has taken a view that is not appealing. It is true that the non-registration of the rent note does not debar the use of a document that is compulsorily registerable for collateral purposes but that aspect would in the instant case pale into insignificance keeping in view the state of pleadings on the question of month of tenancy and the legal implications thereof. [Para 11] [942-E-H; 943-A-G] 1.3. The impugned order passed by the High Court and that passed by the first appellate court are hereby set aside. Consequently, the judgment and decree passed by the trial court shall stand restored. [Paras 12] [943-H; 944-A] CIVIL APPLLATE JURISDICTION : Civil Appeal No. 10053 of 2010. From the Judgment & Order dated 16.09.2009 of the High Court at Calcutta in Second Appeal No. 29 of 2006. S.B. Upadhyay, Dharmendra Kumar Sinha, Santosh Mishra for the Appellant. Pijush K. Roy, Mithilesh Kumar Singh for the Respondent

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO. 10053 OF 2010 (Arising out of SLP (C) No.34267 of 2009) Shibani Basu …Appellant Versus Sandip Ray …Respondent JUDGMENT T.S. THAKUR, J. 1. Leave granted. 2. This appeal by special leave is directed against a judgment and order dated 16th September, 2009 … Continue reading

Mesne Profits-Liability for mesne profits, principle of-Section 2(12) of the Code of Civil Procedure 1908 (Act V of 1908). Civil Procedure Code, 1908, Order XX Rule 12- Construction of decree explained-Nature of the decree of the Court dated April 22, 1958 clarified. Words and Phrases-”Whichever event first occurs” in Rule 12(1)(C)(iii) of order XX C.P.C.-Meaning of Civil Procedure Code. S. 144-Scope of. = Meriappa Gounder respondent No. 1 in C.A. 466/69 and appellant 1 in C.A. 2375/69 filed a suit on August 23, 1950 in the District Court, Trichur, for specific performance of an agreement dated May 22, 1950 made by one Soliappa Chettiar. The said Soliappa Chettiar pleaded inability to perform the contract in view of the refusal of one Neelakanta Iyer a lessee of the factory to give up possession. Pending the suit Late Kochivareed, husband of the appellant in C.A. 466/69 obtained an assignment of the lease from Neelakanta Iyer on March 5, 1951. On March 8, 1951 Soliappa Chettiar executed a sale deed of the suit property in favour of one George Thatil, a nephew of Kochivareed. In the course of the proceedings the trial court appointed a Receiver to manage the suit property. On March 21, 1951, Late Kochivareed obtained a lease, of the suit property at a rent of Rs. 15,000/-for a period of one year which was renewed for another year from the Receiver and a sum of Rs. 30,000/- SO collected as rent for two years was deposited in the Court by the Receiver. The District Court on August 28, 1952 decreed the suit for specific performance and mesne profits at a reduced rate of Rs. 15,000/- per annum, instead of at Rs. 30,000/- per annum as claimed. Against the decree two appeals were filed in the High Court by Kochivareed and George Thatil. The High Court allowed the appeals and dismissed the suit by its judgment dated March 21, 1953. The appeal filed by Meriappa Gounder (CA 129/56) was allowed by this Court as per its judgment and decree dated April 22, 1958. On the question of the liability of the mesne profits, the present appeals arose out of interpretation of the direction (e) of this Court’s decree dated April 22, 1958. Allowing the appeals by certificate in part the Court ^ HELD: 1. Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case can be laid down and the “Court may mould it according to the justice of the case”. Even so one broad basic principle governing the liability for mesne profits is discernible 59 from section 2(12) of the Code of Civil Procedure which defines ‘mesne profits’ to mean ‘those profits which the person in wrongful possession of property actually received or might with ordinary deligence have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.” [68G-H, 69A] Wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defandant’s liability therefor, Generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits. But, where the plaintiff’s dispossession, or his being kept out of possession can be regarded as a joint or concreted act of several persons, each of them who participants in the Commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of his confederates. Possession through another, such as a tenant may be sufficient to create liability for mesne profits, if such possession is wrongful. [69A-C and G] 2. In such a case, where the claim for mesne profits is against several tresoassers who had combined to Keep the plaintiff out of possession, it Is open to the Court to adopt either of the two courses. It may by its decree hold all such trespassers jointly and severally liable for mesne profits leaving them to have their respective rights adjusted in a separate suit for contribution; or it may, if there is proper material before it ascertain and apportion the liability of each of them on a proper application made by the defendant during the same proceedings. [69C-D] 3. A decree under Order XX Rule 12 of C.P.C., directing enquiry into mesne profits, howsoever expressed must be construed to be a decree directing the enquiry in conformity with the requirements of Rule 12(1)(c), 80 that the decreeholder is not entitled to mesne profits for a period (commencing from the date of the institution of the suit) extending beyond three years from the date of the preliminary decree. [69E-Fl Chitturi Subhanna v. Kudappa Subbanna, [1965] 2 SCR 661; referred to. 4. The words “whichever event first occurs” in sub clause (c)(iii) of clause I of Rule 12 of Order XX Civil Procedure Code imply that the maximum period for which future mesne profits can be awarded is three years from the date of the decree for possession and mesne profits, finally passed. The period of three years is to be computed from the date of decree of this Court i.e. from April 22, 1958 and it will expire on the date on which possession was delivered or relinquished by the defendant in favour of the decreeholder pursuant to that decree. In other words, the decree mentioned in sub clause (iii) of clause (c) would be the appellate decree dated April 22, 1958 of this Court. The period of three years mentioned in the said subclause is, therefore, to be reckoned from April 22, 1958. [73G-H, 74A- B] 5. Section 144 of the Code of Civil Procedure, in terms, says that for the purpose of the restitution, the Court may make any orders, including orders for the payment of interest, damages compensation and mesne profits which are properly consequential on variation or reversal of the decree. [77A-B] There is nothing in the decree, dated April 22, 1958 of this Court which expressly or by implication, prohibits the payment of interest on the sum of 60 Rs. 30,000/- withdrawn by defendant 3 by way of restitution. The trial court had rightly allowed interest. [77B-C] 6. The decree dated April 22, 1958 of this Court was a composite decree, partly final, and party preliminary. It was final in so far as it granted the reliefs of specific performance and possession on deposit of the price by the Plaintiff. It was preliminary in as much as it directed an inquiry with regard to the assessment of mesne profits and as to who out of the defendants was/were liable for payment of those mesne profits. But? it laid down in no uncertain terms that only such of the defendants would be liable for mesne profits “as may have been in possession of the property”. This direction in the decree means that only the defendant or defendants found in actual possession and enjoyment of the property would be liable for mesne profits. [70A-C] In the instant case: (a) The third defendant was in sole, actual possession and control of the suit property from March 3, 1951, when he obtained the alleged assignment of lease in his favour from Neelakanta Iyer. In terms of the decree of this Court, therefore defendant 3 alone is liable for mesne profits in respect of the period he was in possession (excepting the period during which the property was under the management of the Court Receiver). [71E-F] (b) The contention that the possession of defendant 2 was the legal possession of an owner while that of defendant 3 was derivative possession of a lessee or licensee under the former is not correct, since at no stage, in the Courts below defendant 3 took up the position that he was in derivative possession of the property under defendant 2. Nor was there even a whisper in the pleadings that defendant 2 and defendant 3 were joint-tortfeasors and therefore jointly and severally liable for mesne profits. [69H, 70C, G] (c) There is nothing in the decree of this Court dated April 22 1958, indicating that the amount deposited by the plaintiff towards the price should have been sel off against the liability of defendant 3 for mesne profits. On the contrary, it allowed deduction of the amounts found due against defendant 1 and defendant 2 from the deposit of Rs. 85.000/- to be made by the plaintiff towards the price, and further directed that after such deduction, the balance of such deposit made by the plaintiff, if any, shall be paid to the third respondent (defendant 2) who is the assignee of the second respondent (defendant 1) pendente lite. [71F-H] (d) The plaintiff was not bound to suffer a set off in favour of defendant 3, merely because defendant 2 or his assignee withdrew the price deposited by the plaintiff without furnishing any security for its refund or adjustment towards the liability of defendant 3, there being no evidence whatever, on record to show that such withdrawal was the result of any collusion or conspiracy between the plaintiff and defendant 2 and defendant 3. Even assuming that both defendants 2 and 3 were liable for mesne profits jointly and severally, then also, the plaintiff could at his option. recover the whole of the amount of mesne profits from either of them; and how such inter se liability of the defendants was to be adjusted or apportioned was a matter between the defendants only. [72A-C] (e) Defendant 3 entered into possession of suit property under a-l assignment of sham lease from Neelakanta Iyer on March 5, 1951 during the 61 pendency of the plaintiffs suit, which was instituted on August 25, 1950. The A plaintiff had deposited Rs. 50,000/- sometimes after the presentation of the plaint. Under the agreement of the sale, dated May 22, 1950 made by defendant 1 in favour of the plaintiff, the total sale considerations was fixed @ Rs. 90,003/-. Out of it Rs 5,003/- had been paid to defendant I on the very date of the agreement. It was further stipulated that out of the balance, Rs. 50,000/- would be paid by the plaintiff-purchaser at the time of the registration of the sale deed which was to be executed and registered on or before July 15, 1950. It was further stipulated that on payment of the further sum of Rs. 50,000/- the plaintiff would be entitled to be put in possession of the suit property. Thus when defendant 3 entered into possession, first under the garb of an assignee of sham lease from Neelkanta Iyer, and then further purchased the property with his on funds in favour of defendant 2 pendente lite, he was fully conscious that he was purchasing a litigation. His possession was therefore wrongful qua the plaintiff from its inception [72E-H] (f) Disallowance of the claim for deduction for interest on the deposit of Rs. 50,000 which the plaintiff had withdrawn on August 19, 1953 and had redeposited on 9-2- 1959 is incorrect. The defendant is entitled to interest @ 6% per annum for the said period, after deduction the interest for the period during which the property was under the management of the Receiver. [74D-E] (g) The plaintiff`s claim for mesne profits @ the rate of Rs. 25,000/- has correctly been negatived. Since the plaintiff did not object to the lease granted by the Receiver to defendant 3 on an annual rental of Rs. 15,000/- and since he did not produce any other reliable evidence, the High Court was not wrong in holding that the mesne profits should be on the basis of this rental value of Rs. 15,000/- [76A-C] (h) The plaintiff, in view of the long drawn out litigation is entitled to interest @ 6% per annum upto March 29, 1959. [76E-F]

PETITIONER:L. KOCHIVAREED Vs. RESPONDENT:P. MERIAPPA GOUNDER AND ORS. DATE OF JUDGMENT07/02/1979 BENCH:SARKARIA, RANJIT SINGHBENCH:SARKARIA, RANJIT SINGHTULZAPURKAR, V.D.SEN, A.P. (J) CITATION: 1979 AIR 1214 1979 SCC (3) 150 ACT: Mesne Profits-Liability for mesne profits, principleof-Section 2(12) of the Code of Civil Procedure 1908 (Act Vof 1908). Civil Procedure Code, 1908, Order XX Rule 12-Construction of decree … Continue reading

Practice & Procedure-Details in pleadings-When deemed sufficient. Licensee Ejected, if liable to pay mesne profits. =The respondent filed a suit alleging that he was the owner of a house let out to the appellant as a tenant and claimed a decree for the appellant’s ejectment, arrears of rent and future mesne profits. The appellant admitted that the land over which the house had been constructed belonged to the respondent but pleaded that the house had been constructed by the appellant at his own cost on the condition that he would continue to occupy it until the amount spent by him on the construction was. repaid to him by the respondent. The trial court disbelieved the appellant’s version and also disbelieved the agreement as to the rent on which the respondent relied and held that the relationship of landlord and tenant had been proved and that the respondent was entitled to a decree for ejectment as well as to a reduced -amount by way of rent and directed the appellant to pay damages by way of use and occupation till the date of ejectment. On appeal the High Court held that the appellant must be deemed to have been in possession of the house as a licensee and treating the respondent’s claim for ejectment on the basis that the appellant was proved to be a licensee of the premises, the High Court confirmed the decree for ejectment; but it set aside the decree to pay past rent and mesne profits being of the view that even if the res- pondent’s case about the tenancy had been proved, such a tenancy would have been invalid because of the relevant statutory provisions then prevailing in the area. Both the appellant and respondent appealed to this Court : HELD : If a party asked for a relief on a clear and specific ground, and in the issues or at the trial, no other ground was covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But where the substantial matters relating to the title of both the parties to the suit are touched, though indirectly, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely fornication and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issueat the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter [290 F; 291 D-F] In the present case, having regard to all the facts, the High Court did not err in confirming the decree for ejectment on the ground that the appellant was in possession of the suit premises as a licensee. On the pleas taken by the appellant in his written statement in clear and unambi- guous language, only two issues could arise between the parties : is the 287 appellant the tenant of the respondent or is he holding the property as the licensee subject to the terms specified in the written statement? In effect, the written statement pleaded licence, subject to the condition that the licensee was to remain in possession until the amount spent by him was returned by the respondent. [292 G-H] Trojan & Co. Ltd. v. Rm. N. N. Nagappa Chettiar, [1953] S.C.R. 789 and Sheodhar Rai & Ors. v. Suraj Prasad Singh & Ors., A.I.R. 1954 S.C. 758, referred to. In regard to the respondent’s claim for past ‘rent, no interference was called for with the decree passed by the High Court, but its decree in relation to future mesne profits could not be sustained. Once it was held that the respondent was entitled to eject the appellant it followed that from the date of the decree granting the relief ejectment to the respondent the appellant who remained in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it was delivered to the respondent. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. [294F-H]

PETITIONER: BHAGWATI PRASAD Vs. RESPONDENT: SHRICHANDRAMAUL DATE OF JUDGMENT: 19/10/1965 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V. CITATION: 1966 AIR 735 1966 SCR (2) 286 CITATOR INFO : R 1980 SC 727 (10) RF 1987 SC1242 (6) ACT: Practice & Procedure-Details in pleadings-When deemed sufficient. Licensee Ejected, if … Continue reading

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