JUDGMENT
Ramesam, J.
1. This appeal arises out of a suit by the reversioners of one Anantha krishna Aiyar for possession of his properties after the death of the last intermediate female in 1918. The Subordinate Judge dismissed the suit. The plaintiffs appeal.
2. Ananthakrishna Aiyar died in 1858 leaving a widow and two daughters. The widow died about 1868-70. Her first daughter died in 1902. She had three sons, all of whom died before 1918 leaving no issue. The second daughter died in 1918 leaving the five plaintiffs surviving her. They are, therefore, reversioners to the estate of Anantha krishna Aiyar and are prima facie entitled to his properties. The following pedigree shows these facts at a glance:
ANANTHAKRISHNA AIYAR, died 1858,
| widow Thayammal,
| died 1868-70.
|
Two daughters
|
__________________________________________
| |
Thailammal, Lakshmi Amnlal,
died 1902 died 1918
|
_______________________________ |
| | | |
Ramaswami Vaidianatha Another. |
Iyer Iyer |
Died before 1918. |
|
_____________
|
_________________________________________________
| | | | |
Rama Subramania Muthu Srinivasa Sundara
Iyer. Iyer. Iyer. Iyer. Iyer.
|________________________________________________|
Plaintiffs
3. The facts on which the defendants resist the suit are as follows: On 22nd July, 1867, the widow executed four documents (Exs. III, IV, V and VI). By Ex. III, she purported to sell her house to her eldest grandson Ramaswami Iyer for Rs. 400. The object of this sale was ostensibly to pay off Rs. 300 promised to Lakshmi Ammal at the time of her marriage and Rs. 100 similarly to Thailammal. By Ex. V she conveyed lands in Radhanallur worth Rs. 380 and moveables of the value of Rs. 20 to the same Ramaswami Iyer in consideration of his having performed the funerals of Anantha krishna Iyer and of his undertaking to perform also her funerals. In Anaithavandavapuram she had pangu of lands. She gave away 1/4th pangu to Ramaswami Iyer by Ex. VI and the other 1/4th pangu to Rama Iyer (the eldest son of the 2nd daughter) by Ex. V. The defendants contend that these documents amount to a surrender by Thayammal accelerating the reversion; they also amount to a bona fide family settlement and that no reversion devolved on plaintiffs in 1918. The plaintiffs are also said to be estopped. The Subordinate Judge upheld these contentions.
4. In 1902, after the death of Thailammal, Lakshmi Ammal filed a suit to recover the properties conveyed to Ramaswami Iyer by Exs. III, V and VI and afterwards alienated by him and his brother Vythinadha Iyer to the predecessors-in-title of the present defendants under Exs. XIV and XV in 1884, on allegations which were obviously untenable (O.S. No. 12 of 1902). She withdrew it (Ex. 1-E, dated 9th September, 1903). The present suit is filed to recover the same properties, the plaintiffs being in possession of the properties conveyed by Ex, IV. The defendants also contended that the present suit is barred by the said withdrawal. The Subordinate Judge upheld this contention relying on 12 L.W. Short Notes, page 25. He seems to have been misled by the Short Notes which does not state the facts fully. The case is reported as Kadakkarai Nadan v. Nadakkannu Nadan 62 Ind. Cas. 752 : (1921) M.W.N. 342 : 13 L.W. 533. What was held was that a bona fide compromise of a litigation by a Hindu widow (suing on behalf of the estate and, therefore, representing the reversioners) in the exercise of her discretion and in the belief that it would be in the best interest of the estate is binding on the reversioners a principle impliedly recognised in 1863 by the decision in Katama Natchier v. Raja of Shivaganga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth. P.C.J. 520 : 2 Sur. P.C.J. 25 : 19 E.R. 843. In the present case, Lakshmi Ammal was not acting for the estate and on behalf of the reversioners. She was suing to recover possession of her limited estate of a daughter. There was no compromise but a withdrawal of the suit. The decision relied on by the Subordinate Judge does not apply. On principle, it is very difficult to understand how the present suit in 1918 by the plaintiffs on correct allegations of fact can be barred by the withdrawal of a suit in 1803 by their mother on false allegations of fact made to avoid the obvious bar by limitation, the plaintiffs’ suit in 1918 not being so barred. Lakshmi Animal’s succession opened on Thayammal’s death in 1868-70 and, if she chose to question Exs. III, V and VI, she ought to have done so within twelve years after her mother’s death. But plaintiffs’ right opened in 1918 and her withdrawal of her claim can have no bearing on plaintiffs’ suit. Mr. Ramaswami Iyer the learned Vakil for the respondents who argued the rest of the case most strenuously while not abandoning this point could urge no argument to support it. The cases of Aiya Ramalinga Mudali v. Arumuga Mudali 42 Ind. Cas. 512 : 33 M.L.J. 471, and Pandillapalli Singh Reddi v. Yeddula Subba Reddi 35 Ind. Cas. 185 : 39 M. 987 : 31 M.L.J. 48 : 20 M.L.T. 62 : (1916) 2 M.W.N. 1 : 4 L.W. 1,(where the earlier suit was by the reversioner himself) are against the contention.
5. I now go to the merits of the case. As I have already said, the Subordinate Judge upheld the contentions of the defendants that the transactions of 1867 amount to a surrender by Thayammal, and also constitute a bona fide family arrangement binding on all the parties and also estop the plaintiffs.
6. It will be convenient to dispose of the last two contentions first, as it seems to me that they are obviously untenable. In discussing these questions, I assume that the transactions of 1867 do not amount to a surrender. For, if they amount to a surrender the defendants are entitled to succeed on that ground. We have to see at present, whether any ground of defence other than that the transactions operate as a surrender is available to the defendants.
7. It is well established that a bona fide family settlement of disputes of doubtful rights is binding on all the parties to the settlement. The rule in Stapilton v. Stapilton (1852) 21 L.J. Ch. 434, and Williams v. Williams (1867) 2 Ch. A. 294 : 36 L.J. Ch. 419 : 16 L.T. 42 : 15 W.R. 657, has always, been applied in India; but, where the object of the settlement is to affect a contingent reversionary interest in the nature of a spes succession is the only way of doing it is by means of a surrender, accelerating the reversion and converting its contingent nature into a vested interest and thus destroying its character as a spes succession is. That a spes successionis cannot be dealt with in anticipation was laid down so early as in Bahadur Singh v. Mohar Singh 29 I.A. 1 : 24 A. 94 : 6 C.W.N. 169 : 12 M.L.J. 56 : 4 Bom. L.R. 233 : 8 Sar. P.C.J. 152 (P.C.). The following sentences of Lord Davey have become classic: “According to Indian Law the claimants of 1847 were but expectant heirs with a spes succession is. The appellants claim in their own right as heirs of Mohar when the succession opened, and it would be a novel proposition to hold that a person so claiming is bound by a contract made by every person through whom he traces his descent.” This law has been faithfully applied in India till 1908 when some confusion was caused in Indian Courts by the supposed dictum to the contrary in Bajrangi Singh v. Manokarnika Bakhsh Singh 35 I.A. 1 30 A. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 3 M.L.T. 1 : 5 A.L.J. 1 : 17 M.L.J. 605 : 11 O.C. 78 (P.C.), of Sir Andrew Scoble. At page 16 of the Indian Appeals (at page 21 of 30 All.) he said: “The appellants who claim through Matadin Singh and Baijnath Singh must be held bound by the consent of their fathers.”
8. It gave rise to the Full Bench decision in Rangappa Naik v. Kamit Naik 31 M. 366 : 18 M.L.J. 309 : 3 M.L.T. 355, and various other conflicting decisions in other Courts till all doubts were set at rest by the decision of the Judicial Committee in Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 O.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1819) M.W.N. 262 : 28 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R.(P.C.) 66 (P.C.). The principle that an interest in the nature of a spes succession is cannot be affected has been meanwhile re-affirmed by the Judicial Committee in Amrit Narayan Singh v. Gaya Din 44 Ind. Cas. 408 : 45 I.A. 35 : 45 C. 590 : 23 M.L.T. 142 : 22 C.W.N. 409 : 27 C.L.J. 296 : 34 M.L.J. 298 : 4 P.L.W. 221 : 16 A.L.J. 265 : (1918) M.W.N. 306 : 7 L.W. 581 : 20 Bom. L.R. 546 (P.C). In that case the appellants father expressly purported to act for his wife and son in the reference to the arbitration and the compromise that followed. The Judicial Committee held that the appellant was not bound by the proceedings. In Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 O.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1819) M.W.N. 262 : 28 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R.(P.C.) 66 (P.C.). Lord Dunedin said at page 82 of the Indian Appeals (page 534 of 42 Madras):
But that is impossible unless the reversioner has a vested interest, whereas it is settled that he has only a spes successionis.
9. Mr. Ramachandra Iyer relied on the cases in Sureshwar Misser v. Maheshrani Misrain 57 Ind. Cas. 325 : 47 I.A. 233 : 48 C. 100 : (1920) M.W.N. 472 : 39 M.L.J. 161 : 28 M.L.T. 154 : 2 U.P.L.R.(P.C.) 128 : 12 L.W : 461 : 18 A.L.J. 1069 : 25 C.W.N. 194 : 41 C.L.J. 433 (P.C.). Fateh Singh v. Thakur Rukmini Rawanji Maharaj 72 Ind. Cas. 8 : 45 A. 339 : 21 A.L.J. 235 : A.I.R. 1923 All. 387, and Sartaji v. Ramjas 79 Ind. Cas. 25 : 46 A. 59 : 21 A.L.J. 796 : 9 O. & A.L.R. 1013 : A.I.R. 1924 All. 166. The first case does not help the respondent as it was held that the compromise effected a surrender. So also Sartaji v. Ramjas 79 Ind. Cas. 25 : 46 A. 59 : 21 A.L.J. 796 : 9 O. & A.L.R. 1013 : A.I.R. 1924 All. 166, was a case of surrender. In Fateh Singh v. Thakur Rukmini Rawanji Maharaj 72 Ind. Cas. 8 : 45 A. 339 : 21 A.L.J. 235 : A.I.R. 1923 All. 387, it was held that a reversioner who actually consented to an alienation by a widow is himself estopped, though it may not bind his co-reversioners. It is not a case of a reversioner tracing his descent through a consenting party as in Bajrangi Singh v. Manokarnika Bakhsh Singh 35 I.A. 1 30 A. 1 : 12 C.W.N. 74 : 9 Bom. L.R. 1348 : 6 C.L.J. 766 : 3 M.L.T. 1 : 5 A.L.J. 1 : 17 M.L.J. 605 : 11 O.C. 78 (P.C.). The point was not decided in Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 O.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1819) M.W.N. 262 : 28 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R.(P.C.) 66 (P.C.). At page 87 of 46 I.A. (page 539 of 42 Madras) Lord Dunedin said: “Of course something might be done even before that time which-amounted to an actual election to hold the deed good.” Mr. Kamachandra Iyer relied on the following facts in the present case to attract the application of Fateh Singh v. Thakur Rukmini Rawanji Maharaj 72 Ind. Cas. 8 : 45 A. 339 : 21 A.L.J. 235 : A.I.R. 1923 All. 387, (1) The first plaintiff Rama Iyer attested the sale deeds Exs. XIV and XV in 1884. (2) He asserted his right to the lands covered by Ex. IV in a claim petition in 1905 in execution of the decree in his mother’s suit (O.S. No. 12 of 1902, Ex. 1-F. (3) There was a partition of the properties, given by Ex. IV between the plaintiffs (Ex. XXII).
10. I do not see how the attestation of Exs. XIV and XV can affect the plaintiffs. In the first place, mere attestation of the sale-deeds cannot amount to a knowledge of the contents Parsotam Gir v. Dat Gir 25 A. 296 at p. 303 : A.W.N. (1903) 50, nor to concurrence Raj Lukhee Dabea v. Gokool Chunder Chowdhry 13 M.I.A. 209 at p. 229 : 12 W.R.P.C. 47 : 3 B.L.R.P.C. 57 : 2 Suth. P.C.J. 275 : 2 Sar. P.C.J. 518 : 20 E.R. 529. In any event, it cannot amount to such an affirmation of the conveyance by the widow in 1867 as to “amount to an actual election to hold the deed good.” As to the claim petition (Ex. 1-F) and the partition (Ex. XXII), I am unable to see how they can help the respondent. Under Ex. IV, Rama Iyer had some interest. It did not deal with a mere life-interest see Modhu Sudan Singh v. Rooke 24 I. A. 164 : 25 C. 1 : 1 C.W.N. 433 : 7 M.L.J. 127 : 7 Sar. P.C.J. 194 : 13 Ind. Dec. (N.S.) 1 (P.C.) and Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 I.A. 87 : 34 C. 329 : 5 C.L.J. 334 : 11 C.W.N. 424 : 9 Bom. L.R. 602 : 17 M.L.J. 154 : 2 M.L.T. 133 : 4 A.L.J. 329 (P.C.). The gift of the whole interest in the property is good against all the world until the reversion falls in, and, even then it is liable to be questioned by the actual reversioners only. When so questioned, if the attack is successful, the interest terminates. A person who asserts in 1905 such interest as he had or divides it with his brothers in 1907 cannot be precluded by such assertion or partition from asserting his claim as a reversioner in 1918. The plaintiffs had some interest between 1867 and 1918 and dealt with it for what it was worth. In 1867, the first plaintiff was a minor and could not consent to a family arrangement so as to make Fateh Singh v. Thakur Rukmini Rawanji Maharaj 72 Ind. Cas. 8 : 45 A. 339 : 21 A.L.J. 235 : A.I.R. 1923 All. 387, applicable. The plaintiffs Nos. 2 to 4 were not born in 1867 nor were they parties to (Ex. 1-F) in 1905. Neither did they attest any sale-deeds and the argument cannot possibly apply to them. Jiwan Singh v. Misri Lal 23 I.A. 1 : 18 A. 146 : 6 M.L.J. 47 : 6 Sar. P.C.J. 675 : 8 Ind. Dec. (N.S.) 804 (P.C.), Nurul Hossein v. Sheoshahai Lal 19 I.A. 221 : 20 C. 1 : 6 Sar. P.C.J. 205 : 10 Ind. Dec. (N.S.) 1 (P.C), and Rup Narain v. Gopal Devi 3 Ind. Cas. 382 : 36 I.A. 103 : 36 C. 780 : 6 A.L.J: 567 : 10 C.L.J. 58 : 13 C.W.N. 920 : 5 M.L.T 423 : 11 Bom. L.R. 833 : 19 M.L.J. 548 : 93 P.R. 1909 : 146 P.W.R. 1000 : 68 P.L.R. 1910 (P.C), are cases where the reversioners were held not to be estopped by having had some connection with the sales by the widow. I think that the present case is stronger than them and than Rangasami Goundan v. Nachiappa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 O.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1819) M.W.N. 262 : 28 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R.(P.C.) 66 (P.C.), where Lord Dunedin said (at page 87 of the Indian Appeals): “Now at the time of the mortgage the plaintiff did not know whether he would ever be such a reversioner in fact as would give him a practical interest to quarrel with the deed of gift. Why should he not take all that the mortgagors could give or propose to give? To hold that by so doing he barred himself from asserting his own title to part of what was mortgaged seems to their Lordships a quite unwarrantable proposition,” The decision in Joga Veerayya v. Makina Sallyya Patrudu 69 Ind. Cas. 389 : 16 L.W. 752 : A.I.R. 1923 Mad. 168, supports the appellant.
11. I am, therefore, of opinion, that unless the deeds of 1867 can amount to a surrender, there is no defence available in the suit.
12. This leads me to the discussion of what is the most important point, viz., whether Exs. III, IV, V and VI or some of them amount to a surrender.
13. The requirements of a surrender are now well established by various decisions of the Privy Council. It is unnecessary, to refer to them in detail. The leading case is Behari Lal v. Madho Lal Ahir Gayawal 19 I.A. 30 : 19 C. 236 : 6 Sar. P.C.J. 88 : 9 Ind. Dec. (N.S.) 603 (P.C.). In Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 46 I.A. 72 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 O.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1819) M.W.N. 262 : 28 M.L.T. 5 : 10 L.W. 105 : 1 U.P.L.R.(P.C.) 66 (P.C.). Lord Dunedin describes it as an effacement which opens the estate of the deceased husband to his next heirs at that date. In the present case, as the intermediate heirs consist of not only the widow but also the daughters, in order to effectuate a surrender in favour of daughters’ sons, there must be an effacement of the widow and the daughters. The renunciation must be of all the properties. In Basangauda Nagangauda v. Basangauda Dodangauda 27 Ind. Cas. 167 : 39 B. 87 : 16 Bom. L.R. 699. Beaman, J., describes it as the obliteration of a bar. The Subordinate Judge has stated the requirements of a surrender correctly but I regret I am not able to agree with his conclusion.
14. Let us look at the situation in 1867. There were then five daughters sons, three of the elder daughter and two of the younger daughter, Rama Iyer the first plaintiff and another Krishna Iyer, since deceased. There is no surrender in favour of all the five daughters’ sons. It is said for the respondent that the intention of the widow was to give the property to all the five and the later enjoyment is relied on for this purpose. It does not appear that the properties covered by Exs. III, V and VI were shared by Ramaswami Iyer and his two brothers. Only one of them joined in the re-conveyance of these properties under Exs. XIV and XV. As to the properties covered by Ex. IV, the later partition under Ex. XXII was between the plaintiffs and their brother Krishna Iyer, four of whom were unborn in 1867. I do not see how this supports a renunciation in favour of the first plaintiff and Krishna Iyer only. A more insuperable objection seems to me that the renunciation should be in favour of all the then reversioners and of all the properties. What we have is a conveyance of certain properties to Ramaswami Iyer under Exs. III, V and VI and of certain other properties under Ex. IV to Rama Iyer. Assuming that Ramaswami Iyer represented himself and all his brothers and Rama Iyer also represented his own brother, there is a distribution of the properties among the reversioners. Mr. Ramachandra Iyer contends that Ex. III must be regarded as an alienation and after the distribution of Rs. 400 realised by it, the shares conveyed by Exs. V and VI and by Ex. IV were nearly three-fifths and two-fifths. The value of the properties given to the eldest daughter’s branch consists of Rs. 100 (Ex. III), Rs. 380 and Rs. 20 (Ex. V), Rs. 500 (Ex. VI) totalling Rs. 1,000. The value of the properties given to the other branch amounts to Rs.500, consisting of Rs. 500 (Ex. IV), and Rs. 300 (Ex. II). But I do not see how we can add the Rs. 300 and Rs. 100 which were given to the daughters, to the properties conveyed to the daughter’s sons. The respondents contend that Ex. Ill is a genuine transaction and the surrender is only under Exs. IV, V and VI. In the litigation of 1902, evidence was given that it was a bogus transaction on one side and the other side contended it was genuine. We have no means of deciding the truth at this distance of time nor is it necessary. On any view of the transaction covered by Ex. III, there can be no surrender in shares of three fifths and two-fifths. If the transaction was not a genuine one, the elder branch got properties worth Rs. 1,300 consisting of Rs. 400 (Ex. III), Rs. 380 and Rs. 20 (Ex. V), Rs. 500 (Ex. VI) and the younger branch got only properties worth Rs. 500 (Ex. IV). If the transaction was genuine, the cash realised by Ex. IV went to the daughters and the elder branch of daughter’s sons got Rs. 900 worth and the younger branch Rs. 500 worth of properties. In either way, the distribution was unequal. But there its he more important objection that to regard these documents as constituting (I) a surrender and (2) a partition between the two branches has no justification. Who represented the minors in the partition? Could they have set aside the partition as unfair after the minors attained majority? If Rama Iyer and his brother made such an attempt, they would have been met by the plea that the transactions were separate conveyances and one branch had nothing to do with the properties given to the other. The plea would have been successful. In my opinion, the contention of the respondents require us to strain the nature of the transactions-too far, for the purpose of upholding them as a surrender.
15. Again, there is no evidence that the daughters have surrendered their interests. All that we have is that, till 1902, the two daughters did not question the transactions of 1867. In 1902, after Thailammal’s death the second daughter questioned them but it was too late and she had to withdraw her-suit. The only witness examined in the case says that the daughters were present when the documents were executed. It is difficult to construe their mere presence, or subsequent silence or inaction as tantamount to surrender. The witness does not say that they renounced their interests. If the daughters chose to bring a suit to set aside the documents of 1867, within twelve years after their mother’s death, there was no defence to such a suit.
16. Again, the surrender must be of all the husband’s properties. Perhaps the properties covered by Exs. III, IV, V and VI were all she then had but there is no evidence to prove this. It is unnecessary to further discuss this point, in view of the other difficulties pointed out by me.
17. The truth seems to be that the idea of a surrender was then not known; otherwise there is no reason why the parties should disguise the real nature of the transaction, (a surrender and partition according to the respondent) and carry it out in some other form which does not effectuate the intention of the parties.
18. Of the cases relied on by the respondents, Rajagopala Surya Rao v. Suryanarayana Jagapathi 64 Ind. Cas. 488 : 41 M.L.J. 208 : 14 L.W. 29 : (1921) M.W.N. 431, is a case in which the surrender (which was effected by the document of 1890) was in favour of both the daughters’ sons under a single document. The case in Satyalakshmi Narayana v. Jagannadham 42 Ind. Cas. 939 : 34 M.L.J. 229 : 6 L.W. 765 : (1917) M.W.N. 854 : 22 M.L.T. 498, came up on second appeal, with a finding, that there was an oral surrender. In Bhagwat Koer v. Dhanukdari Prashad Singh 53 Ind. Cas. 347 : 47 C. 466 : 37 M.L.J. 513 : 17 A.L.J. 1036 : (1919) M.W.N. 860 : 1 P.L.T. 1 : 2 U.P.L.R. (P.C.) 27 : 46 I.A. 259 : 22 Bom. L.R. 477 : 34 C.W.N. 274 : 12 L.W. 105 (P.C.), the only; difficulty was that the documents were drawn up on the footing of an acknowledgment of right and their Lordships held that this does not matter. There was only one reversioner, Mahabir, and a complete self-effacement of the widow in his favour. Here we have a transfer of one set of properties to one group of reversioners (at the best) and of another set to another group and we have to introduce a fictitious partition to read the transaction as a surrender. The cases do not help the respondents.
19. I have, therefore, to disagree with the conclusion of the Sub-Judge.
20. The hardship is only apparent. The transactions of 1867 were given complete effect up to 1918 when the reversion falls in and the Hindu Law takes its course. It is just in such a case, that one has to guard oneself against sympathy with the respondents arising out of a vague feeling, that an old transaction should not be cancelled. The truth is there is no unsettling of an old transaction. The old transaction has had its full legal effect and new rights arose in 1918.
21. The appeal will have to be allowed. But before doing so, a finding, has to be called for on the 14, 15, 17, 19 and 20 and 21st issues. Time one month, 10 days for objections.
Reilly, J.
22. I agree.
23. This appeal coming on for orders for being spoken to on 29th September, 1924, the Court made the following
ORDER.
24. The Subordinate Judge will take any evidence that may be adduced by the parties on all the issues on which findings have been called for (by the order of this Court, dated 15th August, 1924) and will submit fresh findings in supersession of the findings, if any, already sent. One month from this date is allowed for sending the findings and seven days for filing the memorandum of objections to the said findings.
25. In compliance with this order dated 9th September, 1924, and the order contained in the above judgment dated 15th August, 1924, the Subordinate Judge Of Mayavaram submitted the following.
Findings.
Issue No. 14.–In case the sale of the house in Item No. 539 in Schedule B, Part I, is found to be not binding on the plaintiffs, to what equity, if any, are the defendants Nos. 1 to 6 entitled?
Issue No. 15.–Whether the present building on Item No. 29 in Schedule B, Part I, of the plaint, belonged to Anantha krishna Aiyar, and, if not, whether the plaintiffs have, any right to claim the same?.
Issue No. 17.–What, if any, is the amount of mesne profits due to the plaintiffs from the defendants Nos. 1 to 10 and their alienees?.
Issue No.19.–Were such of those properties as are in possession and enjoyment of defendants Nos. 11 to 17 obtained from defendants Nos. 1 and 9 in exchange for their own properties?.
Issue No. 20.–Are such exchanges true, valid and binding on the plaintiff’s?.
Issue No. 21.-Are the alienees entitled to any and what amount for improvements effected by them? What further equities are the alienees entitled to, and if so, from whom?.
2. Fifteenth issue….There can be no doubt that the first half of the issue should be found in the negative.
3. The answer to the second half of the issue is that plaintiffs have no right to claim the house unless they are found to be entitled to retain it on the principle referred to, in Kandarpa Nath Ghose v. Jogendra Nath Bose 6 Ind. Cas. 141 : 12 C.L.J. 391, that improvements, made on property by a life-tenant thereof attach to the, estate and pass, to the reversioners or remainder-men at the expiration of the life-estate without any liability on his part to make any compensation therefor and that improvements made by a purchaser from one who holds a, limited interest likewise pass to the reversioner or remainder-men or,, it is held, under the 14th issue, that plaintiffs are entitled to take the house paying, or not paying compensation to defendants Nos. 1 to 6………………Consequently, the question whether plaintiffs have any right to, claim the, house,, depends upon the finding on the 14th issue as-to whether they can claim to retain the house paying or not paying compensation to defendants Nos. 1 to 6 according as it is decided that defendants Nos. 1 to 6 are, or are not, entitled to compensation.
4. Fourteenth issue:The learned Vakil for defendants Nos. 1 to 6 has argued that they are entitled under Section 51 of the Transfer of Property Act or, at least under the principle underlying that section, to elect either to have the value of the house estimated and paid to them by the plaintiffs or to ask the plaintiffs to sell their interest in the property to them, and stated that defendants Nos. 1 to 6 in this case elect to ask the plaintiffs to sell their interest in the property to them for the market-value of the site of the house mentioned in the issue….
5. ….
6. ….
7….So I find that in this case the plaintiffs should be given the right to elect one of the two alternatives; and as their learned Vakil has stated that they elect to take the house, I come to the conclusion that plaintiffs are entitled to the house.
8. The other question remaining to be determined is whether they are bound to pay compensation for the house to defendants Nos. 1 to 6; and that depends upon the answer to the question whether the father of defendants Nos. 1 and 2 believed in good faith that he was absolutely entitled to the property, namely, the site of the house in question, when he built the house…. On all these grounds, I come to the conclusion that the father of defendants Nos. 1 and 2 cannot be held to have believed in good faith that he had absolute title to the site of the house in question when he built the house on it, and that, consequently, defendants Nos. 1 to 6 are not entitled to compensation for the house.
10. If it should be held that defendants Nos. 1 to 6 are entitled to compensation for the house, the amount of such compensation would have to be determined…. As I am of opinion that the finding on the first issue is binding upon the parties and that the Commissioner’s account is entitled to greater weight than the testimony of the witnesses, I hold that the compensation payable to defendants Nos. 1 to 6 is Rs. 10,000 minus the value of the site of the house which has been agreed by the parties to be Rs. 1,500. And I also find that defendants Nos. 1 to 6 should be ordered to pay plaintiffs Rs. 1,500 as the market-value of the site, if it should be held that the choice lies with them of receiving compensation for the house or purchasing the site of the house.
11. Seventeenth issue:….I find that plaintiffs are not entitled to anything on account of mesne profits from defendants Nos. 7 to 10 or sixteenth and seventeenth defendants, that they are entitled to the price of 59 kalams of samba paddy at Rs. 1-12-0 per kalam minus Rs. 53 on account of land revenue and Rs. 25 on account of maramat per vali from defendants Nos. 1 to 6, the price of 33 kalams of samba paddy at Rs. 1-12-0 a kalam minus one half of the above-mentioned expenses from defendants Nos. 11 and 12 and Rs. 2-4-0 from defendants Nos. 13 to 15.
Issues Nos. 19 and 20….I find the ex changes alleged by defendants Nos. 11 and 12, 16 and 20, to be true and that alleged by defendants Nos. 13 to 15 to have not been proved. And on the twentieth issue, it has to be found that the exchanges are not binding on the plaintiffs as no ground has been shown for holding them to be binding on the plaintiffs.
Twenty-first issue:….I find that sixteenth and seventeenth defendants should be paid some amount as compensation for improvements but there is no proof of the amount if they are found entitled to compensation. But I find no defendant is entitled to anything on account of improvements or other equities from plaintiffs for the reasons given for holding defendants Nos. 1 to 6 are not entitled to compensation. It is unnecessary to decide the questions as between the defendants.
26. Mr. T.R. Venkatarama Sastriar, Advocate General, for the Appellants.
27. Messrs. T.R. Ramachandra Iyer, P.J. Kuppanna Rao and Ramasami Iyer, for the Respondents.
28. This appeal coming on for final hearing on the 13th October, 1925, and after the return of the findings of the lower Court upon the issues referred by this Court for trial, the Court (Mr. Justice Phillips & Mr. Justice Ramesam) delivered the following.
Judgment.
29. The main question for consideration is whether defendants Nos. 1, 3 and 4 are entitled to compensation for a building that they have erected on the land covered by the sale-deed, Ex. III. The Subordinate Judge has found that their father, who actually effected the improvements, did not bona fide believe that he was the owner of the property. This question of bona fides is a somewhat difficult question and it must depend upon the circumstances of each case. It has been held that bona fides is not incompatible with ignorance of law, Durgozi Row v. Fakeer Sahib 30 M. 197 : 1 M.L.T. 433 : 17 M.L.J. 9, nor is it incompatible with a certain degree of negligence, as is clear from the definition in the General Clauses Act, Section 3, Clause 20. The degree of negligence is, of course, a matter to be determined according to the circumstances of each case. In this case, it is as well to set out what are the actual facts. In 1867, one Thayammal sold this property to her daughter’s son under Ex. III and the only evidence available shows that money was paid. At the same time she executed another sale-deed and two gift deeds which disposed of the whole of the rest of her property in favour of the same grandson and another grandson by the younger daughter. In 1884 the purchaser under Ex. III and his younger brother executed Ex. XIV in favour of the first defendant’s father, and it is noticeable that this document is attested by the first plaintiff in this suit. In 1898 the improvement was effected to an extent of Rs. 4,000 by the defendants’ father, and he subsequently made an addition to the building at a cost of Rs. 1,500 in 1903. We see thus that for 30 years the alienation was not questioned by any body, not even by the daughters nor by their sons. It was only in 1902 that one of the daughters brought a suit. It is contended that, inasmuch as the defendants’ father in 1902 raised no real defence to the suit by the reversioners, it must be deemed that he had no bona fide belief in his title, but it must be remembered that this statement was filed after consultation with a legal adviser, who probably told him that his case was bad, as has now been found to be the case; but it does not follow that in 1898 he did not believe that his case was good. The whole of the circumstances attending the original alienation by the widow are somewhat peculiar and they were acquiesced in by practically all the members of the family then alive, and possession having been undisturbed for 30 years, we think that it is quite reasonable to suppose that the defendants father believed that he had a good title, otherwise, he is hardly likely to have squandered such a large sum of money on property which he knew was likely to pass out of his possession.
30. As regards the improvement made in 1898, therefore, we must hold that the defendants’ father bona fide believed that he was the owner of the property; but the improvements made in 1903 stand on a very different footing. Then suits had been filed by Thayammal’s daughter and by her grandsons, for the recovery of the property and for declaration respectively. In, defence of the latter suit, after taking legal advice, the defendants’ father had nothing to say. Notwithstanding this, a month or two before the suit was actually disposed of with findings against his title he proceeded to spend Rs. 1,500 on the building. At that time, it certainly has not been shown that he still believed that he was the owner of the property. As regards this latter sum the defendants are not entitled to compensation.
31. There remains then the question of the value of the improvements. The whole house, as it now stands, has been valued by the Commissioner at Rs. 10,000 and in coming to this estimate, he has adopted the rates in building materials prevalent in the neighbouring town of Mayavaram. These rates are apparently excessive for building, a house in a village, and when we remember that the money actually spent on the building in 1898 and 1903, was only Rs. 4,000 and Rs. 1,500, it is difficult to believe that in a country village, the value has now risen to very nearly double that amount. If we take it that the value has increased by about 50 per cent, we shall be nearer the correct value and we accordingly adopt the figure of Rs. 8,000 as the value of the whole structure. Defendants, who are entitled to compensation in respect of Rs. 4,000 out of Rs. 5,500 spent by their father; are entitled to 8/llth of Rs. 8,000 or roughly Rs. 5,800. We accordingly fix the compensation due to them at Rs. 5,800.
32. The question of election by the transferee was raised and it was contended that the choice lay with the transferee under the provisions of Section 51; Transfer of Property Act; but we are satisfied that under Section 51, the choice is with the person evicting. He can either pay the value of the improvement and take the land or sell the land to the purchaser.
33. If the portion that was built in 1903 can be definitely ascertained, defendants Nos. 1, 3 and 4 will be allowed to remove the materials thereof in the presence of an officer of the Court and of the plaintiff or his man, so as not to cause any diminution in the value of the remainder of the building. This removal must be carried out within one month of ascertainment by the Court whether this part of the building can be satisfactorily identified.
34. We accept the findings on the other issues.
35. The future mesne profits will have to be ascertained by the lower Court before passing a final decree.
36. The respondents will pay the appellants’ costs of the appeal and in the lower Court.
