Court Can Direct Interim Sharing Of Joint Family Property Income With Married Sisters Having Constructive Possession: Karnataka High Court

The Karnataka High Court has held that married sisters' claim for maintenance from their brother is not maintainable in a partition suit. However, it said, if a prima facie case is made out that a co-owner (plaintiff) is being exclusively deprived of income from joint family property by another co-owner (brother) even though former is in constructive possession, the court may direct interim sharing of such income pending final adjudication of the suit. Justice Anant Ramanath Hegde in his order said:"If a prima facie case is made out to take a view that the plaintiff has share in the property, and the defendant is deriving the income from the suit property to the deprivation of the plaintiff, then in such cases, the Court as an interim measure, can direct the defendant in the suit, either to share or deposit the profits derived from the suit property, subject to the result of the suit. Such an application seeking interim mesne profits or profits gets more credence in appeals against the decree for partition or in final decree proceedings where the plaintiff established that the property is joint family property and defendant is exclusively deriving the income from the suit property though the plaintiff is in constructive joint possession of the same"The dispute arose from a partition suit filed by the three sisters seeking division of ancestral properties. During the pendency of the suit, the respondent-plaintiffs–married sisters of the petitioner-defendant brother, filed an application seeking subsistence allowance and maintenance, contending that although they had a share in the suit properties, they were not receiving any income from it and were unable to maintain themselves.The Trial Court allowed the application and directed the brother to pay interim maintenance of ₹4,000 per month to each of the sisters. Aggrieved by this order, the brother approached the High Court contending that once mesne profits had been claimed in the suit, interim maintenance could not be granted. It was further contended that a brother had no legal obligation to maintain his married sisters and that the latter were otherwise being maintained by their families.The issue before the High Court was whether, in a partition suit where mesne profits are claimed, the court could grant interim monetary relief in favour of married sisters against their brother, and whether such relief was legally sustainable."Going by the letter of the law, an application for maintenance filed by married sisters against their brother may not be maintainable. However, this is a suit for partition and not a suit for maintenance. The relationship between the parties is admitted. Prima facie, it is found that the suit properties are ancestral properties and have not yet been partitioned," the court said. It noted that although the expression “mesne profits” is often used in partition suits, under Section 2(12) CPC, it technically refers to profits derived by a person in wrongful possession of the property. The court said that while the sisters had alleged that the suit properties are joint family properties, the brother cannot be said to be in wrongful possession. It thus said that in this context, the expression “mesne profits” may be a misnomer in a suit for partition, though it is widely used."The expression “profits” may be more suitable in this context. In any case, whether termed "mesne profits" or "profits", a plaintiff who has a share in the property, if deprived of the income from said property, is entitled to a share in the profits derived by the defendant from the suit property. It is a settled position of law that the possession of one co-owner is the possession of another," the court said. It said that a plaintiff is deemed to be in constructive joint possession of the property along with the defendant(s), even if the plaintiff is not in actual physical possession. However, that cannot be a ground to deny profits or mesne profits if it is established that income is being derived by one party to the deprivation of another. The Court noted that it was not the brother's case that the sisters are in actual joint possession or are deriving income from the suit properties. It further observed that the brother had not contended that he was not deriving any income from the properties, nor was it his defence that he has been sharing that income with his sisters. It observed that the petitioner's contention that his sisters can only seek mesne profits or profits after the final decree for partition and delivery of possession though sounds theoretically well; it however ignores the reality that it takes an unrealistically long time to realize profits in a suit for partition. Therefore, it said, where a prima facie case shows deprivation of income, courts may exercise inherent powers to direct the sharing or deposit of income pending final adjudication.“The Court is of the view that if an application is filed in a suit for partition to direct...

Court Can Direct Interim Sharing Of Joint Family Property Income With Married Sisters Having Constructive Possession: Karnataka High Court

Preet Luthra

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