M. Gopalakrishnan and another vs G. Ramulu Reddi and others

Ramachandra Iyer, C.J.—This is an unfortunate litigation, which, like a snow ball, gathered volume and momentum, as it progressed during

the last 18 years. In essence, it started originally as a suit for recovery of a half share of the properties left by one Govindammal. The suit has now

been permitted to be converted into one for recovery of possession of the entire properties by reason of certain subsequent events, which we shall

refer to presently. One Govinda Reddi, who was the owner of the suit properties, made a gift thereof in favour of his permanently kept concubine

Govindammal. She bore him as many as 16 children. But at the time of her death, in the year 1938, only two daughters, Meenammal and

Kamakshi, and three sons, and a grandson by a predeceased son, the former of whom figures as defendants 1 to 3 to the suit, survived her. The

sons got into possession of the properties. They alienated a part of item 1 and the whole of item 2 in favour of defendant 4, who put up thereon a

cinema theatre. Meenammal instituted the suit, which has given rise to this appeal, on 1st October, 1945 for recovery of her half share in her

mother''s properties from defendants 1 to 3 her brothers, and their alienees. Kamakshi was impleaded as the 6th defendant to the action, and she

claimed that she should be given her half share in that very suit, she being willing to pay the necessary court-fee for such a decree. Whether the

relief could be given to her, having regard to the decisions in Adhikarai Vishnumurthayya v. Authayya AIR 1919 Mad. 736 and Koraprolu

Veerabhadrayya Vs. Jajala Seethamma and Others, it is unnecessary to consider as the litigation up till now has proceeded on the footing that it

could be done. The trial Court, in the first instance, by its judgment dated 27th December, 1946 granted a partial decree to the two sisters, holding

that under the terms of the gift deed made by Govinda Reddi, each one of the surviving children and grandson would be entitled to an equal share.

Kamakshi was declared entitled to recover possession of her share on her paying the necessary court-fee. Meenammal and Kamakshi were,

however, dissatisfied with the decree granted to them. They filed jointly A.S. 529 of 1947 in this Court claiming that each will be entitled to a half

share in the properties to the exclusion of their brothers. It appears that, pending appeal, they were able to obtain possession of a half share in each

of items 11 to 14. By his judgment dated 24th January, 1951, Viswanathe Sastri, J. who disposed of the appeal, held that the sisters were

preferential heirs to the properties left by their mother, as the gift made by Govinda Reddi was to his concubine absolutely, and not for the benefit

of the children. The learned Judge directed the lower Court to pass a decree granting to each one of the sisters a half share in the suit properties.

The alienees�defendants 4 and 5�filed L.P.A. No. 49 of 1951, under Cl. 15 of the Letters Patent, against the judgment of Viswanatha Sastri

J., During the pendency of that appeal Kamakshi died on 13th May, 1954 leaving as her heirs her three daughters who were subsequently

impleaded as defendants 28 to 30 in the suit (respondents 19 to 21 herein). The alienees applied to this Court in C.M.P. No 7288 of 1954 to

bring them on record in the place of their deceased mother, whose right to a half share in the suit properties had been declared under the judgment

appealed against. Notice of that Application was given to Meenammal through her Advocate. She did not object to her sister''s daughters being

brought on record as legal representatives, although under the law she (Meenammal) would be preferentially entitled to the half share in her

mother''s properties to which her sister, Kamakshi, had been declared entitled; for under the law as it existed prior to the enactment of Hindu

Succession Act, (Act XXX of 1956), the stridhana property of a female would, in the first instance, go to her daughters equally. They will enjoy as

tenants in common with no rights of survivorship inter se. They being females, would however be entitled only to the limited interest recognised

under the Hindu Law. It one among them dies leaving her share of the property without having effected any valid disposition, that property would

then descend upon the heir of the original owner who had the absolute estate.

In the present case, as Kamakshi had died prior to the coming into force of the aforesaid enactment, her interest in a half share of her mother''s

properties would have been inherited by Meenammal, as the heir of Govindammal.

Whether due to any desire on her part to allow her sister''s children to take what their mother was declared entitled to, or to other causes,

Meenammal allowed them to come on record without claiming that she, and not they, should be recorded as the legal representative of the

deceased Kamakshi. Defendants 28 to 30 thereupon entered appearance in this Court by Counsel. The same Counsel who appeared for

Meenammal was engaged for them. The record reveals that they paid him a fee equal to what Meenammal herself paid. The Letters Patent Appeal

by the alienees proved unsuccessful, and the judgment of Viswanatha Sastri, J., which directed a preliminary decree being passed in favour of

Kamakshi as well as for a half share in the properties, was affirmed, with defendant 28 to 30 being mentioned in the record as her legal

representatives. That would mean that the direction of this Court was, that the decree for possession in regard to Kamakshi''s share should be in

favour of her daughters.

But Meenammal''s attitude changed after the case went back to the lower Court she filed I.A. No. 938 of 1955 in the trial Court to implead

herself as the legal representative of her deceased sister. That application being opposed by defendants 28 to 30, was withdrawn and dismissed.

Meenammal then filed I.A. No. 1370 of 1955, for amending her plaint, claiming that, by reason of the death of her sister pending suit, she was

entitled to recover the entire properties from her brothers. She was permitted to amend her plaint. Defendants 28 to 30, who opposed the

application for enlarging the scope of the suit, countered the move by filing more than one application for their being recognised as the legal

representatives of their mother Kamakshi. Although they were not successful in that regard in the trial Court, this Court by its order in C.R.P. 1632

of 1958 held that inasmuch as they had been impleaded as the legal representatives of their mother in L.P.A. No. 49 of 1951, they should be

deemed to have been duly brought on record in the subsequent stages of that litigation, namely, the suit. But Rajamanner C.J., who disposed of the

civil revision petition, observed, during the course of his judgment, that the question whether the share declared in favour of Kamakshi was

heritable estate or not, would have to be decided in the suit, as an issue had been settled in regard to that controversy.

Meenammal died shortly thereafter, after executing a settlement in respect of the suit properties in favour of her two sons, who have been

impleaded as plaintiffs 2 and 3 to the action. The validity of the settlement deed was impugned before the lower Court and the learned Subordinate

Judge found that although the settlement deed had been executed with suspicious haste, it should be held to be valid to convey such title as the

settlor possessed in favour of the settlees. That finding has not been challenged before us. But it is obvious that in the absence of the daughters of

Meenammal who would be entitled to take her properties, in case they had not been validly disposed of, no final determination as to the validity

and binding nature of the settlement can now be made.

The learned Subordinate Judge held that, having regard to the order of this Court in A.S. No. 529 of 1947 and L.P.A. 49 of 1951, it would not

he open to the plaintiffs to claim more than a half share of the properties and that whatever rights Kamakshi had in the suit properties should go to

her heirs, namely, defendants 28 to 30. In that view a preliminary decree for partition and separate possession of a half share alone was granted in

favour of the plaintiffs.

From the findings given by the learned Subordinate Judge, and indeed by force of the direction given by Viswanatha Sastri J., in A.S. No. 529

of 1947, defendants 28 to 30, standing as they do in the shoes of the 6th defendant (Kamakshi), will, on payment of the necessary Court fee be

entitled to a similar decree.

There was yet another question for consideration by the lower Court. The alienee of Items 1 and 2, who had put up a superstructure thereon,

claimed that she was entitled to compensation for what they had put up on the properties, as that should be considered as an improvement thereto.

The learned Subordinate Judge fixed the value of the improvement at Rs. 21000 and passed a decree directing plaintiffs 2 and 3 to pay that

amount as value of the improvements effected by the 4th defendant. Even under the judgment of this Court in A.S. No. 529 of 1947, the 4th

defendant was entitled to recover a sum of Rs. 1300 which she had advanced for clearing off a mortgage binding on the property. An executable

decree was granted in favour of the 4th defendant for recovery of both the amounts. This decree has also formed the subject matter of controversy

between the parties in this appeal.

Two questions, therefore, arise for consideration in this appeal:

Whether the settlers of Meenammal, namely, plaintiffs 2 and 3, have acquired a valid right to the entire property or only to the half share,

originally claimed by Meenammal?

Whether defendants 4 and 5, the latter having died pending suit, were entitled to be paid compensation for the Superstructure put up by them,

there being no controversy as to the liability of the plaintiffs and the sixth defendant (Kamakshi) to pay the sum of Rs. 1300?

Before we take up the consideration of these questions, we would like to refer to one matter, namely, the propriety of the amendment of the plaint

granted by the lower Court in I.A. No. 1370 of 1955, whereby Meenammal claimed that she was entitled to recover possession of the half share

directed to be allotted to Kamakshi, as, by reason of the death of the latter pending suit, she (Meenammal) became entitled to it as heir to her

mother''s properties. While in regard to the half share claimed by Meenammal, originally the cause of action arose on the death of Govindammal in

the year 1938, that in respect of the claim for the other half share declared in favour of Kamakshi Ammal could have arisen only on the death of

the latter, which was on 13th May, 1954. The causes of action for the two claims are therefore distinct. It has been recognised that it will be open

to a Court to take note of subsequent events and mould the relief in a suit accordingly. But whether in a particular case such relief should be

permitted to be granted in respect of an event happening subsequent to the institution of the suit, is a matter within the discretion of the Court.

Normally, a party will be entitled to relief only on the basis of his original claim. But such claims can at the discretion of the Court be added to or

enlarged by a cause of action arising subsequent to the institution of the suit, provided it can be done without injustice to the parties and where no

question of principle or of jurisdiction is contravened. In the present case, we have already pointed out that the direction of the appellate Court was

that a preliminary decree for one half of Govidammal''s properties should be passed in favour of Kamakshi; defendants 28 to 30, being impleaded

as her legal representatives, would be entitled to obtain that decree. It was not therefore, open to the lower Court, by allowing an amendment of

the plaint to enable the plaintiff to get over the directions given by the appellate Court. In C.R.P. No. 1632 of 1958, Rajamannar, C.J., no doubt

envisaged an adjudication by the lower Court on the issue as to whether Meenammal would be entitled to recover the entire property by reason of

her succeeding to the share till then owned by her sister, Kamakshi. We are unable, however, to regard that observation of the learned Chief

Justice as amounting to a direction to the lower Court to decide that point if otherwise it was not competent to the Court to do so, what all was

intended by that order was that, as there was an issue in regard to that question, it was needless to decide that point while considering the question

as to whether defendants 28 to 30 should be impleaded as the legal representatives of their mother in the suit. Even if one were to regard that there

was such a direction in the Civil Revision Petition, that would not preclude this Court, on appeal from the decree, to consider the correctness of the

order allowing the amendment of the plaint. In T.S. Pichu Ayyangar Vs. Sri Perarulala Ramanuja Jeer Swamigal, Dharmakartha and Manager of

Sri Alagia Nambirayar Temple, a preliminary issue was decided in favour of the plaintiffs in a suit. On revision, that finding was set aside. After

remand, the suit was dismissed in consequence of the order of the High Court in revision. There was an appeal to the High Court against the final

decision in the suit, when the propriety of the view taken by this Court in revision was sought to be canvassed. It was held that the order of the

High Court in revision being one made at an interlocutory stage and as it affected the decision of the case on its merits, it would be open to the

party to challenge that order under S. 105 (1) C.P.C., in the appeal against the decree in the suit. Therefore, notwithstanding the order passed in

C.R.P. No. 1632 of 1958, it will be open to us here to consider whether the amendment in I.A. No. 1370 of 1955 was properly allowed. We are

of opinion that, having regard to the circumstances of the case, the lower Court ought not to have exercised its discretion of permitting the plaintiff

Meenammal to plead a subsequent event as forming part of her cause of action and thereby claim additional relief by seeking to recover possession

of the share which, by her original plaint, she conceded to belong to her sister Kamakshi.

There is yet another ground on which the plaintiffs'' right in regard to the interest possessed by Kamakshi in her mother''s property has to fail.

Meenammal claimed that that interest had decended on her as the heir of her mother, to whom succession opened after her sister''s death.

Assuming that to be so, now that Meenammal is dead, the two settlers from her would be entitled to recover that property, only if she had a power

of disposition over the property so as to enure beyond her lifetime. In other words, if what Meenammal obtained was only a limited interest in the

property, she could not have validly conveyed, under the settlement deed executed by her in favour of her sons, any interest in that property

beyond her own lifetime. It becomes, therefore, material to consider what extent of interest Meenammal possessed in the property inherited from

her mother on the death of her sister.

It has been argued by Mr. D. Ramaswami Aiyangar, appearing for the plaintiffs, that, as, after the opening of the succession, Meenammal was

alive at the time when the Hindu Succession Act (Act XXX of 1956) came into operation, her interest in her mother''s property, albeit it was a

limited one till that date, became thereafter an absolute interest. Under S. 14 (1) of the Act;

Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner

thereof and not as a limited owner.

Sub-S. (2) to S. 14, however, limits the operation of Sub-S. (1) to cases other than those where, by the terms of a gift or Will or other instrument,

a limited estate has been given to the female. It is plain from the provisions of the section that except in the cases provided for under Sub-S. (2), a

Hindu female, who under the law obtains only a limited interest in a property, would get her rights enlarged, by force of the statute, into one of full

ownership.

The case before us is not one where the Hindu female obtained by succession the property after the coming into force of the Act. According to

the plaintiffs, Meenammal obtained the property by succession immediately on the death of Kamakshi in regard to a half share. As that event

happened prior to the coming into force of the Act, Meenammal could have obtained only a limited right in the property at the time she succeeded.

That limited interest would have been converted into an absolute estate if Meenammal could be said to be possessed of the property at the date of

commencement of the Act. It becomes, therefore, necessary to consider the precise meaning of the word ""possessed"". There has been some

divergence of opinion between the various High Courts on the interpretation of that word, but there is an almost unanimity of view, that where she

by her own act was estopped from obtaining possession e.g., by selling her interest, she could not be deemed to be possessed of it, if actual

possession was with the alienees etc.

The word ""possession"" has been defined in Wharton''s Law Lexicon as:

The state of owning or having a thing in one''s own hands or power......It is either actual, where a person enters into lands or tenements descended

or conveyed to him;... in law, when lands, etc., have descended to a man, and he has not actually entered into them.....The primary meaning is

physical control. A secondary meaning is physical control by an agent or servant, or by relation back, e.g., by the owner having entered without

reaming in physical possession.

In G.T.M. Kotturuswami v. Veeravva 1959 Supp. 1 S.C.R. 968, the Supreme Court held that the word ""possessed"" in S. 14 was used in a broad

sense and that in the context it would mean ""the state of owning or having in one''s power."" Having regard to the manifest intention of the

Legislature to remove the difficulties which the women were subjected to in regard to property inherited or held by them under the pre-existing

law, the word ""possessed"" must be given a wide meaning conformable to such intention. It has, therefore, been held that the ""possession

contemplated by the section is legal or juridical possession and not merely an actual one. It would follow that where the property of a female, who

has only a limited interest therein, is in the possession of her agent, licensee, lessee or mortgagee or of her guardian or trustee, she must be held to

be in legal possession of the property, and S. 14 (1) of the Hindu Succession Act would apply to such a case, enlarging her interest in the property

into a full ownership. Again, having regard to the definition of the term possession as extracted above, a female heir who succeeds to property but

had not entered into possession, she would also be entitled to the benefit of S. 14(1). But where a female having a limited right, had sold the

property before the date of the coming into force of the Act, she could not be said to be in possession of that property, as such possession would

be with her alienee. It has been long recognised that a sale by a limited owner, though not for necessity, would be valid to create a title in the

alienee for the duration of her life. Consequently it has been held in a number of cases that where, before the Act came into force, a female owner

had sold any property in which she had only a limited interest and put the purchaser in possession of that property, she could not be regarded as

being ""possessed"" of the property, in order to entitle her to the benefit of S. 14 (1). The principle cannot obviously apply to a case where the sale

by the woman is a sham one, not intended to create any title in the purchaser.

In the present case, the sons of Govindammal had taken possession of the property, claiming rights thereto immediately on their mother''s

death. Neither Meenammal nor Kamakshi was in actual possession of her inherited property. It will, therefore, be a case of an heir not enforcing

into possession. It could be also said that possession which was with their brothers, was adverse to them. Meenammal, however, had instituted the

suit for partition and separate possession long before such adverse possession could be perfected into title in favour of the brothers. On the date

when the Act came into force, what Meenammal had was a direction by this Court to get a preliminary decree in her favour for partition and

separate possession of a half share. We have, therefore, to consider whether the female owner in those circumstances, could be said to be in

possession"" of the property. In S.S. Munna Lal Vs. S.S. Rajkumar and Others, at the time when the Hindu Succession Act came into force, there

was a preliminary decree in favour of the female member of a family for partition of her share of the family property. A question arose, whether in

such a case, where there was no actual possession of the property on the part of the lady, her rights could be held to be enlarged by reason of S.

14 (1) of the Act. The Supreme Court held that the right declared in favour of the female under the decree must be regarded as property and that

in the circumstances of that case, where the female died as a member of the family which was in possession of the property, she should be deemed

to be possessed of her share within the meaning of S. 14 (1). A certain amount of difference of view however exists on the question whether a

Hindu female, who is ousted from her possession by a trespasser, could be said to be ""possessed"" of the property. In Gaddam Venkayamma and

Others Vs. Gaddam Veerayya (died) and Others Viswanatha Sastri, J., observed:

Even if a trespasser is in possession of land belonging to a female owner on the date when the Act came into force, the female owner might

conceivably be regarded as being in possession of the land, if the trespasser had not perfected his title by adverse possession before the Act came

into force.

In Kotturuswami v. Veeravva 1959 Supp. 1 S.C.R. 968, the Supreme Court, referring to the above dictum, found it unnecessary, for the purpose

of the case before them, to express any opinion as to its correctness.

There can be little doubt that if a trespasser had perfected title by adverse possession to a property over which a Hindu female was having a

limited interest under the law, before the commencement of the Hindu Succession Act, such female owner could not be said to be in possession of

such property. But, where he had not so perfected his title, that is, in a case where it would be within the competence of the female owner to

recover possession of the property through Courts from the trespasser, the question will have to be considered whether she can be regarded as

being ''possessed'' of that property. The Supreme Court in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, held

that the term ""possessed"" should be interpreted in a broad sense and that it would comprise property which was in one''s power. If a person can,

by filing a suit, recover possession of the property, through Court, he must in our view, be regarded as having the power to reduce the property

into his possession. In Ramgulam v. Palakdhari Singh AIR 1961 60 the Patna High Court held that the possession, on the date of the coming into

force of the Act, by a trespasser as against a female owner would not be her possession and that she would not be entitled to the benefit of S. 14

(1) of the Act. The same view had been taken earlier by the Orissa High Court in Sansir Patelin and Another Vs. Satyabati Naikani and Another,

But in both the cases, the possession was with the purchaser from the female owner herself, and the decisions could be justified on the principle

that the alienor was personally disabled from recovering possession of the property by reason of her conveyance and that she could not be

deemed to be in possession of the property, which was with the alienee. A different note has been struck in Yamunabai and Another Vs. Ram

Maharaj Shreedhar Maharaj Pandit and Another, , where it was held that the possession contemplated by S. 14 of the Act was legal possession

and that property in the wrongful occupation of a trespasser, either directly or through tenants, would none-the-less amount to a possession by the

Hindu female, the owner thereof, within the meaning of S. 14 of the Act. As has been pointed out by Nayudu, J. in Annapuranamma v. Sankararao

AIR 1969 A.P. 359 to hold that in all cases where property owned by a female happens, on the date when the Act came into force, to be in the

possessions of a trespasser, she could not obtain absolute rights thereto (notwithstanding the fact of her ability to reduce such property to her

possession by filing a suit or otherwise) would be to limit the operation of the section to the property in the actual or constructive possession of the

female. That could not have been the intention of the Legislature. Let us illustrate what we mean by an example; if a female owner were to lose

possession to a trespasser on the day previous to the one, when the Act came into force, could it be said that she could not get absolute title to that

property which she could at any time within 12 years recover possession of. Obviously not. In our view, the term ""possessed"" in S. 14 should be

applied to every case where on the date when the Act came into force the true owner could recover the property under the law. We find

ourselves, therefore, in respectful agreement with the observations of Viswanatha Sastri, J.

The argument of Mr. D. Ramaswami Aiyangar, on behalf of the plaintiffs proceeded upon the footing that although Meenammal herself was not

in actual possession of the properties, she must be deemed to have been in possession on the date of coming into force of the Hindu Succession

Act, as she had filed the suit for recovery of her half share before the adverse possession of the brothers had perfected itself into title. He would

further contend that Meenammal should be similarly deemed to have been in possession on the date of the Act in regard to the share directed to be

decreed to her sister, Kamakshi. We are unable to agree with the latter part of the contention. From the facts stated above, it will be apparent that

Meenammal had acquiesced in her sister''s daughters coming on record as the legal representatives of the deceased Kamakshi in the Letters Patent

Appeal to obtain partition and separate possession of her share. That conduct would imply that she accepted the position that the right of

Kamakshi in the properties survived to her daughters and that they would be her legal representatives. But under the law, the position was

different. Meenammal would be the preferential heir to the property, which Kamakshi could have obtained had she been alive. This conduct of

Meenammal in not contesting the right of defendants 28 to 30 to come on record in the place of their mother, did certainly entail a change of

position on the part of the latter. They had to enter appearance in the High Court, engage a Counsel and expose themselves, in case the appeal

were to succeed, to a liability for costs. We consider that, under these circumstances, Meenammal should be held to be estopped from contending,

for the purpose of this suit, that defendants 28 to 30 were not entitled to the share directed to be decreed in favour of their mother. In Raja of Deo

v. Abdulla 45 Cal. 909 = 8 L.W. 163 (P.C.), the father of the Raja had purchased property benami in the name of another person. He then

directed the benamidar to execute a gratuitous conveyance of the property in favour of a dancing girl. He further assisted in the registration and

mutation of names in favour of the dancing girl. The transfer to her was without consideration. After his lifetime, his son the Raja impugned the

validity of the conveyance. The Privy Council held that, by reason of the conduct of the previous Raja, he became estopped from claiming the

property as his own and that his son would likewise be estopped. Considering the question whether there was a change of position on the part of

the dancing girl, which entitled her to claim the benefit of the estoppel, lord Dunedin observed:

In this position of affairs, not only did Raja Bhikam cause Lajjadhari to execute the conveyance, but when Rajeshwari proceeded to give effect to

that conveyance by applying for registration he actively assisted her. By so doing he caused her to change her position, for by registration she

became bound for all the State liabilities which attach to the registered holders of immoveable property.

The important thing to note in this decision is that the conveyance to the dancing girl by the previous Raja was without consideration ; so there

could have been no estoppel for the reason that the alienee was one who had parted with consideration. Nevertheless, the Privy Council held that

by reason of the conduct of the Raja, she rendered herself liable to pay the public revenues and as that amounted to a change in her position to her

detriment, the Raja would be estopped from claiming the property as his. Similarly, in the present case, by reason of the admission of Meenammal

to claim in the High Court that she, and not her sister''s daughters, was entitled to come on record in the Letters Paten Appeal, defendants 28 to

30 had to incur the expenses and the risks already referred to. Meenammal, must be held therefore to be estopped from contending that the

defendants 28 to 30 would not be entitled to possession of the properties which were allottable to their mother''s share.

The conduct of Meenammal can however prevent her only from claiming a decree for possession in the present litigation. It was perhaps open

to her to start a separate litigation, based on her preferential title to succeed to her mother, with respect to the properties to be allotted to her

sister''s share. But that she never did. Till she brought such a suit, the possession under which defendants 28 to 30 would obtain in this litigation

must be regarded as lawful in the sense that Meenammal could not say that it was otherwise and would be analogous to that of an alienee from her.

Therefore, such right to possession which Kamakshi had before her death, must be held, by reason of the operation of the estoppel, to vest in her

daughters, and not with Meenammal. That means, that the latter cannot be said to be possessed of that share of the properties. We are, therefore,

of opinion that the sons of Meenammal cannot get the half share in Govindammal''s properties attributable to Kamakshi, their mother not being

possessed of that share. On the date when the Act came into force, she could not have acquired any absolute rights thereto.

The next question in the appeal relates to the right of the 4th defendant to improvements. From what we have stated above, the position of the

4th defendant was that of a trespasser, as her alienors themselves were trespassers on the property. A trespasser would not be entitled to

compensation for improvements under S. 51 of the Transfer of Property Act. If he acts bona fide and erects a structure, his right will be to remove

such superstructure. In the present case, it is very doubtful whether the 4th defendant could be regarded as even a bona fide transferee. She must

have been aware of the defect in the title of her vendors. The properties stood in the name of Govindammal, and, under the law, they can be

inherited only by her daughters and not by her sons. The learned Subordinate Judge has held that the 4th defendant would be entitled to the value

of the improvements. We are unable to sustain that view. He has further stated that as both Meenammal as well as Kamakshi were aware of the

erection of the theatre and inasmuch as they did not object to the incurring of expenditure by the 4th defendant, they would be estopped, by reason

of their conduct, from contesting her right to improvements. But the 4th defendant put up the construction under a claim of title by reason of her

having purchased the property from the brothers of Meenammal and Kamakshi. It was not obligatory on the latter, where the trespasser at her

peril put up a superstructure, to prevent her from doing so. We are of opinion, and indeed this position has not been seriously contested by the

Learned Counsel appearing for the 4th defendant, that her only right will be to remove the superstructure, and she would not be entitled to be paid

any compensation therefor. The decree of the lower Court directing plaintiffs to pay the 4th defendant Rs. 21000 will be set aside. Instead there

will be a decree for possession of a half share in the suit items in favour of plaintiffs 2 and 3, with liberty to the 4th defendant to remove the

superstructure within a period of four months from this date. A decree for partition and separate possession of the other half share will also be

passed in favour of the defendants 28 to 30 on their paying the necessary court-fee. The decree of the lower Court will be modified accordingly.

Plaintiffs 2 and 3 will pay the costs of defendants 28 to 30. The 4th defendant will pay the costs of plaintiffs 2 and 3. No order as to costs in the

lower Court.