THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR PARTITION

Judgment Reserved on: 01.03.2011

Judgment Pronounced on: 18.03.2011

I.A. No. 14803/2010 in CS(OS) No. 1943/1998 Sita Kashyap & Anothers ..…Plaintiffs

- versus -

Harbans Kashyap and Others .....Defendants Advocates who appeared in this case: For the Plaintiff: Mr. S.K. Puri, Sr. Adv. with Mr. Praveen Kumar. For the Defendant: Mr. H.L. Kapoor for D-1. Ms. Maldeep Sidhu for D-2 & 3. CORAM:- HON’BLE MR JUSTICE V.K. JAIN V.K. JAIN, J

1. The following reliefs have been claimed in this

suit:-

a) (i) a decree of partition in respect of all that property comprised of land and building and bearing No.5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi, as per plan enclosed with the plaint;

(ii) a preliminary decree for partition of the suit

property No.5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 for dividing the said property by metes and bounds and if it is ascertained that this property is not capable of being divided by metes and bounds then to order sale of property No.5A, Guru Govind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 and to divide the proceeds in the ratio of

¼ share for each of the two plaintiffs and defendant No.1 and the remaining ¼ to defendants No.2 and 3 together;

(b) a decree of declaration that the plaintiffs have

inherited the contractual tenancy rights in respect of all that commercial premises being Shop No.2738, Municipal No.XVI, Ajmal Khan Road, to the exclusion of the defendants;

c) a decree of mandatory injunction requiring the

defendants to allow the plaintiffs user and quiet possession of the said commercial shop No.2738, Municipal No.XVI, Ajmal Khan Road, Karol Bagh, New Delhi.

d) a decree of declaration declaring the first plaintiff

as the owner of all the contents of locker No.20A Type with The Delhi Safe Deposit Company Limited, New Delhi, and to operate the said locker singly or with plaintiff No.2 who is the joint holder of the locker.

e) a decree of rendintion of accounts in favour of the

plaintiffs and against the defendants requiring the defendants to render true and full accounts in respect of business activity of the business named and styled “Banbasees” being run from commercial shop No.2738, Municipal No.XVI, Ajmal Khan Road, Karol Bagh, New Delhi-5, as on the death of Smt. Kartar Devi and to further render accounts in respect of earnings of the said business firm “Banbasees” with the capital and share in profits of the deceased as from the death of the deceased and of the proceeds of bank account of the deceased known to defendant No.1 and to pass a decree in favour of the plaintiffs in such sum as may be found due and payable to the plaintiffs; and

f) a decree of permanent injunction against the

defendants restraining the defendants from disturbing the status quo in respect of plaintiffs’

possession of the portion of the house property 5A, Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005 and restraining them from alienating, transferring or otherwise parting with possession of the said property or any portion thereof, till disposal of the suit.

2. A preliminary decree partitioning property No.5A,

Guru Gobind Singh Marg, (New Rohtak Road), Karol Bagh,

New Delhi 110 005 was passed by this Court on 10th May,

2007 holding that each party has ¼ undivided share in the

aforesaid property. A Local Commissioner was appointed by

the Court, who submitted a report stating therein that the

property was not capable of being divided by metes and

bound. The Court vide order dated 19th November, 2007,

passed a final decree of partition with respect to movable as

well as immovable properties, directing that the properties

being incapable of partition, the same would have to be

sold. In respect of property No. 5A, Guru Gobind Singh

Marg, (New Rohtak Road), Karol Bagh, New Delhi 110 005,

it was directed that the same be sold by public auction and

the parties would be entitled to bid in the public auction, to

the exclusion of their share.

3. I.A. No.13192/2009 has been filed by Ms. Benu

Puri, who claims that the first plaintiff Ms. Sita Kashyap,

who died during the pendency of the suit, had left a Will in

her favour.

4. Vide order dated 29th January, 2010 passed in I.A.

No.13192/2009 for bringing the L.Rs. of deceased plaintiff

No.1 on record, the following two issues were framed by this

Court:-

(i) Whether Ms. Benu Puri is the LR of deceased Sita Kashypa in terms of the registered Will dated 14.06.2004, registered on 15.06.2004 and if so, its effect?

(ii) Relief.

5. Mutation in the name of all the four co-owners has

been directed by this Court and the applicant has been

directed to be joined in place of late Ms. Sita Kashyap but ¼

share of the sale proceeds is to remain deposited in the

Court till the question of Will and the right of the applicant

to succeed to the estate of the deceased is decided.

6. It is alleged in the application under consideration

that the first plaintiff was in possession of a room in the suit

property at the time of filing of the suit, but, after passing of

preliminary decree that room was occupied by the

defendants, who are now in occupation and enjoyment of

whole of the property but have not offered to pay mesne

profits to the plaintiffs. According to the applicant, the

plaintiffs had not sought mesne profit in the main suit since

one of them was, at that time, in part occupation of the

aforesaid property. The applicant has accordingly sought a

direction to the defendant to vacate any portion equivalent

to ½ of the suit property or in the alternative deposit a sum

of Rs.40,000/- per month in the Court for use and

occupation of the share, which does not belong to them. The

applicant has also sought mesne profits at the above

referred rate from the date of preliminary decree or final

decree.

7. The application has been opposed by defendant

No.1, who claims that under the garb of the application, the

applicant is seeking possession, which is not permissible.

He has also claimed that the Will set up by the applicant is

a forged and fabricated document.

8. Order 20 Rule 18 of the Code of Civil Procedure to

the extent it is relevant, provides that where the Court

passes a decree for the partition of property or for the

separate possession of a share therein, then, if and in so far

as such decree relates to any other immovable property or

to movable property, the Court may, if the partition or

separation cannot be conveniently made without further

inquiry, pass a preliminary decree declaring the rights of the

several parties, interested in the property and giving such

further directions as may be required.

9. Admittedly, the plaintiff did not claim mesne

profits in the present suit. This is, according to the

applicant, was done since the plaintiffs at that time were in

part possession of the aforesaid property.

10. The learned counsel for the plaintiffs, in support of

his contention that mesne profits can be awarded even at

this stage, has relied upon the decision of Madras High

Court in Ponnuswami Udayar and Anr. v. Santhappa

Udayar and Ors., AIR 1963 Madras 171, A.R. Veerappa

Gounder v. Sengoda Gounder,(1975)1 MLJ 53 and the

decision of Punjab High Court in Rattan Lal vs. Madan Lal

Malhotra, 1979 (81) PLR 238. In the case of Ponnuswami

Udayar (supra), after passing of preliminary decree, an

application was filed under Order 20 Rules 12 & 18 of CPC

for enquiry and determination of mesne profits payable to

the plaintiffs by the defendants from the date of the

institution of the case till delivery of possession and for a

final decree, after such assessment of mesne profits. In the

plaint, however, no claim was made for recovery of future

mesne profits accruing after institution of the suit till the

date of delivery of the possession of the property allotted to

the share of the plaintiffs under the final decree and this

claim was made for the first time in the application. It was

held that an application for ascertainment of future mesne

profits can be filed and maintained so long as partition suit

has not been ended in a final decree. The view taken by the

High Court was summarized as under:-

“I am clearly of opinion that in a partition suit, an application for ascertainment of future mesne profits can be filed so long as the suit is pending and so long as no final decree has been passed even though the plaint does not specifically pray for the granting of such relief and the preliminary decree does not provide for it. The mesne profits accruing from the properties forming the subject-matter of the division and referable to the properties which are eventually allotted to the share of the successful plaintiff, form part and parcel of the corpus itself and are as much in the hotchpot as the lands themselves. It would be most inequitable and unjust to compel the plaintiff to sue separately for future mesne pofits, and it is certainly not the policy of the law to encourage multiplicity of proceedings.”

In the case of Rattan Lal (supra), after passing of

a preliminary decree of partition and before passing of final

decree, an application under Order 20 Rule 12 of CPC was

filed by the petitioner seeking mesne profits. Relying upon

the decision of the Madras High Court in Ponnuswami

Udayar (supra), it was held that the application could not

be summarily rejected. The trial court was directed to

decide the application on merits after giving the parties

opportunity to prove their respective contentions. In the

case of A.R. Veerappa Gounder (supra), preliminary decree

for partition was passed on 16.08.1969. During final decree

proceedings, the revision petitioner filed an application

purporting to be under Order 20 Rule 12, and Section 151

of CPC for ascertainment of profits from the suit properties

and for allotment of a share therein to him. A final decree

was then passed on 17.09.1970, but, the profits claimed by

the revision petitioner had not been ascertained and had

not been incorporated in the final decree, despite the fact

that the application seeking ascertainment of profits and

division of the same, had been filed even before the passing

of the final decree. The Court took up the application after

passing of the final decree, and dismissed the same on the

grounds that the preliminary decree did not give any

direction for determining the profits in separate proceedings

and after the passing of the final decree, no application for

ascertainment of profits can be entertained. It was observed

by the High Court that in a suit for partition, the future

profits from the property ought to be ascertained as

property that is to be divided among the sharers and when a

preliminary decree directs partition of the suit properties

according to the shares declared therein, it is the duty of the

Court not only to divide the several items of properties

described in the plaint schedule but also the future profits

derived therefrom from the date of suit till date of final

decree, for, profits so derived are also '' property " liable to

be divided between the sharers. It was held that if one of the

sharers happens to be in possession of all the suit

properties and he had been deriving the profits therefrom

during the pendency of the suit, he is bound to account for

the same and the other sharers are entitled to their

respective shares in the net profits on such accounts. As

regards the contention of the respondent that having passed

the final decree, the Court had become functus officio, the

High Court was of the view that the mere fact that there is a

final decree in respect of the property described in plaint

schedule, which final decree does not incorporate the profits

derived after filing of the suit, is not a ground to refuse the

request that the profits should be ascertained and divided.

If certain items of properties had not been divided under a

final decree passed by the Court, the Court has not only the

power but also the duty to divide the remaining property

according to the shares declared in the preliminary decree.

During the course of the judgment, the High Court relied

upon the observations made in an earlier decision

Krishnamma vs. Latchumanaidu, AIR 1958 A.P. 520,

where the Court had, inter alia, observed as under:-

“In a proper case, therefore, where a supplemental final decree can be made, the Full Bench does not preclude the Court from ascertaining the profits and including the same in the supplemental decree. If a party to a partition files such an application for the ascertainment of future profits and the Court, without disposing of that application, makes a final decree in respect of the other matters and without incorporating any relief for profits, the legal position is that the entire subject matter of the suit has not been finally disposed of and, on that basis, it may be open to the Court to make another supplemental final decree in regard to profits.”

The Court was of the view that since the revision

petitioner had in fact filed an application for ascertainment

of the profit before the final decree was passed and the

Court below had not considered that application while

passing the final decree, it was not correct in dismissing the

application on the ground that it could not be maintained

after the final decree was passed.

11. However, in Thyagarajan & Ors. vs. Sundaravelu,

AIR 1972 Madras 216, the same High Court had earlier

held that after the passing of the final decree, there cannot

be another final decree regarding mesne profits on the

footing that the mesne profits merge in the property from

which it is derived.

12. In my view, since it is the boundant duty of the

Court to direct appropriate division/apportionment not only

of the common immovable property but also of the profits

earned/mesne profits which accrues from that immovable

property, even if no application for grant of profits is

pending at the time when the final decree is passed, would

not be material when suit continues to be pending before

Court for one reason or the other.

13. In B. Basavayya V.B. Guravayya v. B.

Guravayya, AIR 1951 Madras 938, a Full Bench of

Madras High Court was dealing with a case where in a suit

for partition of joint family properties, there was no prayer

for ascertainment of profits realized pending the suit. The

plaintiff applied by way of an interlocutory application, for

enquiry into such profits and for passing a final decree.

That application was opposed on the ground that in the

plaint no relief for recovery of such profits was prayed for

and there was no such direction in the preliminary decree.

The trial Court overruled these objections and directed an

enquiry into profits. Dismissing the civil revision pending

against that order, the Full Bench held as follows:-

“Where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of suit which, for one reason or another, continues to be pending, there is nothing in the Civil Procedure Code prohibiting the D.H. from applying to the Court during the pendency of such suit for an enquiry into further mesne profits or the Court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the D.H. to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree.

There is no express or implied prohibition in the Civil Procedure Code against awarding possession & directing an enquiry into future mesne profits by successive adjudication in a pending suit though the normal & ordinary procedure would be to pass a preliminary decree awarding possession & also direct an enquiry into future mesne profits.”

14. Though the issue before the Full Bench was as to

whether the Court could direct an enquiry into profits after

preliminary decree for partition where relief for a share of

profits was claimed or directed under the preliminary

decree, the above referred observations do indicate a view

that if the facts and circumstances of the case so warrant,

the Court is empowered to pass more than one final decrees

in a suit for partition.

15. Another Full Bench of Madras High Court in

Gnanaprakasa Mudaliar and Ors. V. B.

Anandathanadavan & Ors., 1999(2) CTC 6 had an

opportunity to consider the decision in the case of

Basavayya (supra). In this case, the respondents had filed

a suit for partition. A preliminary decree was passed on 31st

March, 1962 followed by a final decree passed on 15th April,

1964. The plaintiffs took possession of the property on 26th

December, 1974 with respect to certain properties. The

final decree came to be passed separately on 15th July, 1976

since those items were subject matter of a second appeal,

which was disposed of in the year 1967. The plaintiffs took

possession of their share in the items, subject matter of that

final decree, on 22nd September, 1976. Thereafter, they filed

an application for ascertainment of mesne profits, which

was granted by the trial Court as well as the first appellate

court. The learned Single Judge of the High Court before

whom the second appeal came up for consideration referred

the matter to the larger Bench on the following question:-

“Whether in a partition action the lis got terminated for all purposes even with regard to future profits, not provided for in the final decree in the absence of any indication therein that something more remained to be done."

16. Relying upon the decision in the case of

Basavayya (supra), the Full Bench observed that the

preliminary decree should contain the relief of mesne profits

and even if it is not so, it is open to the parties to ask for the

enquiry with regard to the mesne profits during the

pendency of the suit which is till the passing of the final

decree. The decision in the case of Basavayya (supra) was

interpreted to mean that it is open to the Court to give

direction with regard to the enquiry into mesne profits

during the pendency of the suit and it was held that till the

passing of the final decree the suit is pending, but when

once a final decree is passed, it interdicts the rights of the

parties. The question referred to the Full Bench was

answered as follows:-

“In a partition action, the lis gets terminated for all purposes at the time of passing of the final decree even with regard to the future mesne profits and as such it is not open to the parties to claim to the relief of mesne profits beyond the date of passing of the final decree, unless the final decree provides for such relief.”

17. This issue also came up for consideration before a

Division Bench of Andhra Pradesh High Court in Azizabi v.

Fatima Bi and Others, 1977 (1) Andhra WR 136. In the

case before the Andhra Pradesh High Court, a preliminary

decree was passed on 30th July, 1972 followed by a final

decree passed on 7th October, 1972. The plaintiff thereafter

filed I.A. 2245/1972 on 3rd November, 1972 for appointment

of a Commissioner to ascertain profits. The application was

opposed on the ground that once a final decree for partition

was passed and properties were allotted to decree holder, no

petition for ascertainment of profits is, thereafter,

maintainable. The Division Bench, after considering the

decision of the Full Bench of Madras High Court in the case

of Basavayya (supra) held that there is nothing in the Code

which precludes the Court from making more than one final

decree in a suit for partition, one for partition and separate

possession of properties and the other for profits. The Court

was of the view that notwithstanding the final decree for

partition and separate possession, another final decree

directing ascertainment of profits and awarding a share

therein could be made by the Court. The respondents

before the High Court contended that even if the Court has

a power to make a separate final decree for profits, it would

not exercise that power unless a petition for ascertainment

of profit was filed before the final decree for partition and

separate possession was made and an application

subsequent thereto was not maintainable. Rejecting the

contention, the Division Bench, inter alia, held as under:-

“On the other hand, when even after a decree further proceedings have to be taken before the suit could be said to have been completely disposed of, such a

decree would still be preliminary and would not be a final decree. The Code does not enjoin that final disposal of the suit should be by a single adjudication on or under a single decree; nor does it enjoin that a single application should be filed for passing a final decree in respect of all the reliefs claimed in the suit or with reference to all the directions contained in the preliminary decree.

What is crucial for determining whether a petition or enquiry into profits is maintainable or not, once a final decree for partition of the properties is made, is to ascertain whether the suit has been completely disposed of, by any earlier order, and so long as the suit is not disposed of, there is nothing in the Code which prohibits the Court from passing one or more final decrees to completely dispose of the suit.

Once the suit is pending, the parties are at liberty to file a petition for disposing of the same by making a final decree and it is the duty of the Court to do so. The passing of a final decree for division of the properties cannot stand in the way of the Court completely disposing of the pending suit. Hence, in our view, another final decree could be passed for profits on an application made before or after the passing of the previous final decree for division of the properties by metes and bounds and thereby completely dispose of the suit.

In taking this view, the Division Bench of Andhra

Pradesh High Court also took support from the decision of

Madras High Court in Manicka Mudaliar v.

Munilakshmantmal, AIR 1973 Madras 157.

18. The Full Bench of Madras High Court in

Basavayya (supra) in this regard, inter alia, observed as

under:-

“A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit till he is put in possession of his share. He can not anticipate how long the suit would be pending or estimate even approximately what amount of profits would be realised during that period. He need not, therefore, specifically ask for any relief in respect of future profits, the prayer for general relief being sufficient to enable the Court to award him such profits. If during the pendency of the suit one or some of the co-sharers receive or realise the entire profits or more than their share of the profits of the common properties, they have to account to the other sharers for the excess. If the collecting co-sharer or tenant-in-common is not in a position to bring into the hotchpot his realisations subject to all just allowances in his favour, the court will, when passing a final decree, deprive him of a sufficient portion of the properties allottable to his share and allot the portion so taken away to the other sharers so as to give them the equivalent of their share of the profits in the shape of property. Or the court may impose a

charge on the share of the defaulting tenant-in-common for the amount for which he is accountable to the other sharers and thus equalise the shares. The theoretical allotments and the general declaration of rights in the preliminary decree have to be worked out with due regard to the realisations of profits and drawings by the parties subsequent to the institution of the suit till the passing of the final decree. The profits accruing from the common properties pending a suit for partition like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for an account of such profits and a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition. A suit for partition by a member of a joint Hindu family is substantially a suit for an account of the joint family properties on the date of the suit as well as the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him. If, as we think this is the true nature of the proceedings in a suit for partition, a direction for an enquiry into the profits of the common property received or realised by one of the parties during the pendency of the suit may be made even after the passing of the preliminary decree and there is nothing in Order 20 Rule 18 C.P.C. interdicting such procedure.”

19. In Indradeo Prasad Singh and another v.

Sheonath Prasad Singh and others, AIR 1980 Patna

201, the following question of law was referred to the Full

Bench of Patna High Court for consideration:-

“Whether an application by the plaintiff in the course of the preparation of the final decree for an enquiry into the profits of the properties realised by the defendants during the pendency of the suit and before the preparation of the final decree is maintainable or not?”

Answering the question in affirmative, the Full

Bench, inter alia, held as under:-

“A member of the joint Hindu family can file a suit for partition as well as for rendition of accounts. A preliminary decree can also be passed for partition and for rendition of accounts. A plaintiff can pray for an enquiry into the profits realised by the defendants at the stage of the preparation of the final decree though such prayer had not been made in the plaint, nor such direction has been given in the preliminary decree. It is necessary to demand such an enquiry in order to adjust equities arising between the parties. It will be within the discretion of the Court, to allow such prayer on the facts and circumstances of each case. Suppose a defendant is in possession of the suit properties and he has realised the income from the properties. If the plaintiff is not given share out of the profits realised by the defendant, a great injustice will be done to the plaintiff and the plaintiff will be deprived of his due share during the pendency of the suit.”

Though, it appears that in the above referred case

the final decree had not been passed by the time the

plaintiff applied for an enquiry into the profits realized by

the defendants during the pendency of the suit, that, to my

mind, would be inconsequential once it is accepted that it

was the duty of the Court to adjust the equities by directing

appropriate payments the other party received or with

exercise of ordinary diligence could have received and the

proceedings in the suit continue to remain pending before

the court even after passing of the final decree.

20. It would be only appropriate to note here that in

the case before the Full Bench, no proceedings were

pending in the trial Court at the time when the plaintiff filed

an application for ascertainment of mesne profits. However,

in the case before this Court, though a final decree was

passed by this Court on 19th November, 2007 in respect of

both movable and immovable properties directing that

properties being incapable of partition, the same would have

to be sold, the proceedings before this Court did not

terminate with the passing of the aforesaid order. This

Court while passing the final decree directed the Local

Commissioner to take steps for sale of jewellery and to

divide proceeds as per the shares of the parties. With

respect to property bearing No.5A, Guru Govind Singh

Marg, (New Rohtak Road), Karol Bagh, New Delhi, it was

directed to be sold by public auction, and be listed before

the Joint Registrar for settlement of proclamation of sale

and thereafter be listed before the Court for report of sale of

the properties. Even, thereafter, the matter came to be

considered by the Joint Registrar as well as by the Court on

a number of hearings. The matter was listed before the

Court on 31st March, 2008, 20th August, 2008, 12th

November, 2008, 25th February, 2009, 7th August, 2009,

14th October, 2009, 29th January, 2010 and 12th May, 2010.

All these proceedings took place before I.A. No.14803/2010

was filed. In fact, even I.A. 13192/2009 to implead the

applicant Ms. Benu Puri in place of deceased plaintiff No.1

was considered by the Court on 29th January, 2010 and

issues were framed on that date in order to decide that

application. The sale in terms of the final decree passed by

the Court on 19th November, 2007 is yet to be effected and

the sale proceeds can be divided only after the properties,

which were directed to be sold are actually sold. Thus, the

suit between the parties continues to be pending before the

Court despite passing of final decree. It is pertinent to note

here that no execution application has been filed and all the

orders subsequent to the final decree have been passed in

the suit itself. Therefore, the facts of this case are different

from the facts of the case, which came to be considered by

the Full Bench in Madras High Court in the case of

Gnanaprakasa Mudaliar(supra) and in the facts of this

case, it cannot be said that the lis between the parties got

terminated for all purposes on the passing of the final

decree dated 19th November, 2007.

21. In a suit for partition though there is no specific

prayer for awarding profits, the Court has power to direct an

enquiry into profits and grant a decree for plaintiff’s share

therein. This proposition was expressly approved by the

Madras High Court in the case of Basavayya (supra). In

fact, it becomes the duty of the Court in a suit for partition ,

to make an enquiry into profits even if there is no claim for

profits, so as to balance the equities between the parties. If

one of the co-owners has been deriving some profit by way

of rent etc. or is in possession of a portion disproportionate

to his share in the property subject matter of the partition,

it becomes the duty of the Court to adjust the equities by

directing appropriate division of profits, if any, earned from

the property, which is subject matter of the partition or by

directing appropriate payment by a person, who has been

occupying a portion larger than he ought to be occupying

considering his share in the property, to the sharer(s), who

is either totally divested of possession or has been in

possession of lesser portion as compared to his share in the

property. Of course, such payment/adjustment can be

directed by the Court only with respect to the mesne profits

subsequent to the filing of the suit. Any claim for mesne

profits which were earned or could on exercise of due

diligence have been earned, before filing of the suit, needs

necessarily to be specifically claimed and appropriate court

fee needs to be paid on the amount claimed towards share

in the mesne profits. But, it would be hyper technical to

take a view that merely because the Court did not direct

payment of mesne profits either in the preliminary decree or

in the final decree, the plaintiff should be deprived of his

share in the mesne profits. Of course, no order for such

payment/adjustment/apportionment can be passed by the

Court once it has become functus officio, in the sense that

no proceedings in the main suit are pending before it, but,

when the suit proceedings continue to be pending before the

Court for one reason or the other, there is no legal

impediment in passing such an order even after passing of

the final decree. In such cases, the Court is competent to

pass a supplementary/additional decree limited to the grant

of mesne profits.

22. For the reasons given in the preceding paragraphs,

it is directed that if the applicant is brought on record as

the legal representative of deceased plaintiff No.1, the Court,

while directing payment to the parties out of the sale

proceeds of the common properties, which the Court has

directed to be sold, appropriate adjustments would be made

with respect to mesne profits, if any, which the other parties

received or with due diligence could have received from the

portion occupied by him from the portion disproportionate

to his share in the common immovable properties, which

are subject matter of partition.

The application stands disposed of in terms of this

direction.

(V.K. JAIN)

JUDGE