LUCY v.

MARIAPPA
AIR 1979 SC 1214
a
Aman Shukla
Karan Chaudhary
Abhishek
Chhabra

FACTS OF THE CASE

The plaintiff filed a suit on august 23. 1950 in the district court trichur for specific

performance of an agreement dated may 22, 1950, made by soliappa chettiar to

sale a factory known as sivakami tiles works for a consideration of rs 90,003.
Plaintiff made an advance payment on that very date of a sum of rs. 5,003 to

defendant 1 (soliappa chettiar). It was stipulated in the agreement that the sale
deed must be executed and registered on or before July 15, 1950.
It was further provided that out of the balanced of sale considerations, rs.50,000

would be paid by the plaintiff at the time of the registration and for the remaining
rs.35,000 , the plaintiff was to execute a mortgage of the suit property to be
redeemed on or before may31st, 1951.

 It was further agreed that on payment of rs.50,000 at the time of registration,

the plaintiff would be put in possession of the suit property.

The plaintiff pleaded that he was ready to perform his part of the agreement,

but came to know that defendant 1 was trying to evade his obligation under
the agreement.
Accordingly, the plaintiff sent a registered notice, dated July 7, 1950 through

his lawyer to defendant 1 to which the latter replied the same day, that the
factory was in possession of 1 neelakanta iyer as lessee, who had refused to
give up possession and therefore it had become impossible to give effect to
the agreement to sell the factory.

 The plaintiff further pleaded that the suit property was really in

possession of defendant 1 and the alleged lease in favor of

neelakanta iyer was a sham transaction and a device to evade
payment of income tax and hence defendant 1 was bound to carry
out the terms of the agreement to sale.

MESNE PROFIT
Under Sec.2 (12), Mesne Profit is defined as those profits

which person in wrongful possession of property actually

received or might with ordinary diligence have received
there from together with interest on such profit does not
include profits due to improvements made by person in
wrongful possession.

PARTLY PRELIMINARY AND PARTLY

FINAL DECREE
A decree may be partly preliminary and partly final eg. In

a suit for possession of immovable property with Mesne

profits where the court : a decrees possession of the
property b: directs and enquiry into the Mesne profit.

JUDGEMENT OF THE CASE

The case when initially went to the district court of trichur the

mortgaged property/factory was given to plaintiffs deceased

husband T.V. kochivareed(here referred to as defendant 3).
The suit property was given to George thatil on march 8, 1951

nephew of defendant 3. the trial court further appointed a receiver to

manage the suit property on 21 march, 1951 trial court ordered
defendant 3 to pay a rent @15,000 p.a to the receiver as the property
has been in questioned for 2 years, the rent amount is rs.30,000.

 On august 28, 1952 a decree for specific performance and Mesne

profit at a reduced rate of 15,000 was claimed by the plaintiff.

On march 31, 1953 defendant 3 and 2 filed two separate suits in

the high court.

The high court gave the decision that a sum of rs.85,000 were to

be paid by defendant 1 and 2 within 30 days. Also the high court

gave the decision that all the cost incurred by the plaintiff in the
court of district judge were to be paid by the above respondents.

Defendant 2 filed a suit that he was not liable for payment of Mesne

profit as he had never been in possession and management of the suit

property.
The district court on December 22, 1962 gave the decision that

defendants 1,2 and 3 were jointly liable for a amount of rs.10,162.67

on account of cost of the trial court and supreme court.
Defendant 2 was liable for rs.11,941.63 separately which included cost

recovery by defendant 2 from decree holder.

Interest by way of restitution and cost of high court.

Defendant 3 was liable for amount of rs.1,57,086.81 which included cost

of restitution rs.39,975 rent and interest or rs.1,08,63.71 as net Mesne

profit as he was found to be in possession and management of property.
He gave the court a sum of rs.48,321.
The council on the side of defendant 3 held that the defendant 2 as well

as the defendant 3 were jointly liable for Mesne profit as both of them
were in possession of property.
The court on this contention gave the judgment that only defendant 3 was

liable for Mesne profit as he had been using the property for the time the
suit was in question. Also he had signed an agreement with neelkanta iyer
that he was the owner of the factory on behalf of the plaintiff.

Here in this case the decree is partly preliminary and partly final the reason

being that the former part of the decree is final while the latter part is
preliminary because the final decree for Mesne profit can be drawn only
after enquiry and the amount due is ascertained.
The plaintiffs appeal was partly allowed as well as the defendants appeal

was partly allowed. Interest @6% was given on the sum of rent which
computed to rs.30,000 while the defendant was allowed to set off the sum of
rs.14,000 being the intreset on the sum of rs.50,000 interest on the
outstanding amount @6% p.a shall be payable till the date of payment.
In civil appeal 466 of 1969 the parties will bear their own cost in court.

THANK YOU