Mesne profits how to evaluaate
vinaykala
(Querist) 07 April 2012
This query is : Resolved
dear sir,
mybrother was running an illegal guest house on a floor of a house at delhi which is owned by me.
i have filed a suit for possession and the high court judge ordered in aug 11 that the defendant will use the floor, of mine, which was used as a guest house, for future only as a residence till such time a decree is passed for its possession.
earlier i had worked out the mesne profits based on advertised room rent rates by the defendant.
i had not inclued the income generated through food and beverages in the guest house.
my query is :--
will mesne profits include income from rentals of the rooms and also income generated through food and beverages provided at the guest house.
kindly enlighten sir.
would be grateful if test cases of case laws are cited.
vinay kala
april 07,12
Adv.R.P.Chugh
(Expert) 07 April 2012
Dear Querist
Mesne profits includes profits ACTUALLY recieved by the person in wrongful possession or might have been recieved with ordinary dilgence alongwith interest. The income from food and beverages hence is also recoverable.
I am assuming that all this is not a result of expenditure/improvements incurred by brother on property, because if it is - you are not entitled.
vinaykala
(Querist) 07 April 2012
dear sir,
i still have a query.
the floor on which the guest house is run was a totally unconstructed second floor which was willed to me and was stated in the probated will as the unconstructed second floor.
over the years on ac of my absence from delhi he made unauthorised construction of three rooms which was reported regularly with MCD seeking demolition which was not done.
the additional unauthorised construction for which a notice was sent by mcd to the defendant still stands but the high court has decreed that it shall henceforth be used for residential prtposes till such time the case is decreed.
my query is
1. will an illegal construction be deemed as improvement on the property so that mesne profits are not due.
vinay kala
april 07,12
vinaykala
(Querist) 07 April 2012
dear sir,
the second floor willed to me was for residential use.
unauthorisedly the defendant made unaothorised construction of 3 rooms and changed the use to a commercial one by making it a guest house without consent of the plaintiff that is me.
hence would this be construede as improvment for which no mesne profits are due.
i have read over the internet that this unaothorised construdtion and change of character from residential to commercial would not quaalify as improvment by the defendant but as a tresspass
please enlighten
vinay kala april 07 12
Raj Kumar Makkad
(Expert) 07 April 2012
The illegal construction shall not be treated as of improvement on your part in the property so you can charge reasonable mesne profits.
vinaykala
(Querist) 08 April 2012
thanks makkad sahab,
just a clarification.
the second floor willed to me was totally unconstructed.
the defendant has constructed 3 unaothorised rooms without permission from MCD.
my query is that
would the unauthorised construction BY DEFENDANT be not deemed improvment of the property so that mesne profits are denied to me.
the unauthorised constructionn is on the defendant part.
can he take the plea that he had made improvment on the property by addition of 3 rooms and so i should be denied mesne profits.
kindly clairify sir
vinay kala april 08
V R SHROFF
(Expert) 08 April 2012
yes,m improvement made will be considered decreasing your share from mense profit.
yes all income food, residence , any other will be included in mense profit, and you will get it's share after expenses ded.
