ORDER
K.P. Mohapatra, J.
1. In this revision the impugned order passed by the learned Additional Subordinate Judge, Cuttack allowing amendment of the plaint has been challenged.
2. The plaintiff (opposite party 1) instituted Title Suit No. 348 of 1980 for partition of the suit property, claiming one-third share therein. During trial of the suit her evidence and the evidence of defendant 2 (opposite party 2) had been closed and defendant 1 (petitioner) had already examined seven witnesses. At that point of time the plaintiff filed a petition under Order 6, Rule 17 of the Civil P.C. (‘Code for short) for amendment of the plaint for inclusion of two more reliefs (i) claiming rendition of accounts and (ii) recovery of mesne profits in addition to the original prayer for partition. The petitioner opposed the amendment on the ground that the proposed reliefs claiming rendition of accounts and recovery of mesne profits were barred by limitation. After hearing both parties, however, the learned Court below allowed the amendments limiting the claim for mesne profits for a period of three years prior to the institution of the suit.
3. The only point that falls for consideration is whether the reliefs claiming rendition of accountsand mesne profits should not have been allowed to be introduced by way of amendment of the plaint.
4. In order to decide the point, it is necessary to make reference to a few decisions. The Full Bench of the Madras High Court in a case reported in AIR 1951 Mad 938, Basavayya v. Guravayya, held as follows : —
“……….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 all the profits received by the manager since that date, so that the profits should also be divided and his proper share given to him.
XX XX X The cases cited above were all reviewed by Somayya, J. in Raghava Mannadiar v.
Theyunni Mannadiar, (1946) 2 Mad LJ 117 : (AIR 1947 Mad 106) and the learned Judge held that the mere fact that the preliminary decree for partition did not direct an enquiry into profits subsequent to the date of the suit did not preclude the parties from applying for or the Court from awarding such profits by its final decree. The learned Judge was of the opinion that in a partition suit where a plaintiff asked for his share in common lands, a right to an account of the profits, accruing from such lands during the pendency of the suit is appurtenant to the plaintiffs share and need not be separately asked for.
The absence of a specific prayer in the plaint was held to be no bar to the award of such profits in the final decree.”
Having examined the scope of the preliminary and the final decree, the following conclusion was derived : —
“We may now summarise our conclusions. A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree, Jadunath v. Parameswar, ILR (1940) 1 Cal 255 : (AIR 1940 PC 11). In such a suit the Court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property the property to be divided. The preliminary decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered and decided before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated land to the share of the alinor and other similar matters. Even after the passing of the preliminary decree it is open to the Court to give appropriate directions regarding all or any of these matters either
suo motu or on the application of the parties. Order 20, Rule 18, Civil P.C., does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the Court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step, towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree,”
This court relied upon the principle laid down in the above decision and held in AIR 1954-Orissa 223. Basu Behera v. Dombaru Behera; that there is nothing in Order 20, Rule 18 of the Code to indicate that the power of the court to give directions in respect of any of the matters in dispute between the parties should be exercised only at the time of passing the preliminary decree or that the power is exhausted if it is not so exercised at that stage. The absence of prayer in the plaint for ascertaining mesne profits from the date of suit will not debar the court from entertaining an application for such profits at a later stage before the final decree is passed. The same principle was followed by a Division Bench of this Court in AIR 1961 Orissa 111, Udekar v. Chandra Sekhar Sahu. It was held that a claim for accounts in a partition suit is implicit in the original suit for partition by metes and bounds and it ought to be settled at the time of the preparation of the final decree. If one of the sharers is found to be in possession of more than his legitimate share of the joint property the claim for adjustment of accounts should be made and the equities between the parties adjusted in the final decree itself. It will not be a separate cause of action so as to confer on a party the right to bring a separate suit subsequently. Nor can it be said to be a merely discretionary matter with a party to claim such accounts in the original partition suit, reserving to himself the right to bring a separate suit if such a discretion was not exercised earlier. The same view was adopted by this High Court in a case reported in
(1970) 1 Cut WR 441, Radhamohan Panda v. Parikhit Panda and by the Madras High Court in cases reported in AIR 1963 Mad 171, Ponnuswami Udayar v. Santhappa Udayar, and AIR 1975 Mad 208 Lakshmi Animal v. Subbaraj. In AIR 1977 Cal 99. Saraswati Debi v. Satya Narayan Gupta, a Division Bench followed AIR 1951 Mad 938 (FB) (supra) and AIR 1961 Orissa 111 (supra) and held :-
‘We have no doubt that in a partition suit like the one before us, where different properties and businesses are involved, the question of accounts and joint liabilities and assets of the estate to be partitioned becomes essential and for that purpose no separate prayer for rendering accounts need be mentioned in the plaint. In the case before us, however, besides the prayer for partition of the properties and business, there was, in addition a prayer for accounts made by the plaintiff in the plaint.”
In AIR 1977 Orissa 154, Ghanashyam Martha v. Brundaban Pradhan, the principle laid down by the Full Bench of the Madras High Court (supra) was also quoted with approval.
5. The consensus of judicial opinion is, therefore, that in a suit for partition amongst co-sharers, relief for rendition of accounts and claim for rents, income and profits is implicit. Even if the plaint does not contain such a prayer and the suit appears to be for partition simpliciter, after the preliminary decree is passed and in the final decree following it, it is the duty of the court to settle all outstanding disputes between the parties including those for rents, accounts and profits so as to prevent multiplicity of litigations. In the present suit, the relief claimed was partition simpliciter, By amending the plaint, the reliefs for rendition of accounts and mesne profits were introduced. Even though the plaint was not amended in the above manner, yet in the event of passing of a preliminary decree it would be the duty of the court to take account of rents, income and profits and apportion the same to the shares of the parties in the final decree. This being the settled position of law, the learned court below, in my view, did not commit any impropriety, nor did he exercise jurisdiction vested in him illegally by allowing the plaint to be amended except to the extent that in
the event of a preliminary decree, accounts should have to be taken and rents, income and profits apportioned to the shares of the parties from the date of the institution of the suit till the date of the final decree. The impugned order, therefore, stands modified to this limit.
16. For the foregoing reasons, the civil revision is allowed in part and the impugned order is modified to the extent that in the event of passing of a preliminary decree, accounts of rents, income and profits should be taken from the date of the institution of the suit till the passing of the preliminary decree and the same should be apportioned to the shares of the parties. Prayer portion of the plaint should be corrected accordingly. Parties shall bear, their own costs. The lower court record be sent back at once.