M. Gopalakrishnan and Another vs G. Ramulu Reddi and Others

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

during the last eight years In essense, 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 convened 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 sixteen 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 figure 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 sixth 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 Vishnumurthiayya v. Authaiya and Ors. 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 decrees to the two sisters,

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

share. Kamakshi was declared entitled to recovery 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 Appeal Suit No. 529 of 1947 in the 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 14th January 1951, Viswanatha 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 Letters Patent Appeal No. 49 of 1951, under Clause 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 Civil

Miscellaneous Petition 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 appeal 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 the 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 recognized under the Hindu law. If 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 estates.

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 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 for a half-share in the properties, was affirmed with Defendants 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 Interlocutory Application No. 928 of 1955 in the trial

Court to impleaded 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 Interlocutory Application 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 recognized 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 Civil Revision Petition No. 1632 of 1958 held that inasmuch as they had been impleaded as the legal representatives of their

mother in Letters Patent Appeal 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 Rajamannar, 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 Appeal Suit No. 529 of 1947 and Letters Patent Appeal

No. 49 of 1951, it would not be 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 heir, 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 Appeal Suit

No. 529 of 1947, Defendants 28 to 30, standing as they do in the shoes of the sixth 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 as Rupees twenty-one thousand and passed a decree directing Plaintiffs 2 and 3

to pay that amount as value of the improvements effected by the fourth Defendant. Even under the judgment of this Court in Appeal Suit No. 529

of 1947 the fourth Defendant was entitled to recover a sum of Rupees one thousand three hundred which she had advanced for clearing off a

mortgage binding on the property. An executable decree was granted in favour of the fourth 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 settlees 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 Rupees one thousand and three

hundred?

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 Interlocutory Application 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 one 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

recognized 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 a 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 Govindammal''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 Civil Revision Petition 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 Pichu Ayyangar v. Ramanuja Jeer Swamigal ILR [1940]

Mad. 901 a preliminary issue was decided in favour of the Plaintiffs in 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 u/s 105(1) of the CPC in the appeal against the decree in the suit. Therefore, notwithstanding the order passed in Civil Revision Petition No.

1632 of 1958 it will be open to us here to consider whether the amendment in Interlocutory Application 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 Plaintiff''s right in regard to the interest possessed by Kamakshi in her mother''s property has to fail.

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

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

power of disposition over the property so as to ensure 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 life time. 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 Ayyangar, 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. u/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-section (2) to Section 14, however, limits the operation of Sub-section (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-section (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 deemel to be possessed of it, if actual

possession was with the alienee, 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 physic control by an agent or servant, or by relation back, e.g., by the owner having entered without

remaining in physical possession.

In G.T.M. Kotturuswami v. S. Veeravva [1959] 1 S.C.R. 968 (Supp.) the Supreme Court held that the word possessed in Section 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 judicial position 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, Section 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 Section 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 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

Section 14(1). That 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 entering

into possession. It could be also said that possession which was with their brothers, was adverse to them. Meenambal, 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

Section 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 Section 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 Venkayamma v.

Veerayya AIR 1957 A. P. 280 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 G.T.M. Kotturuswami v. S. Veeravva [1959] 1 S.C.R. 968 [Supp], 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 G.T.M. Kotturuswami v. S. Veeravva [1959] 1 S.C.R. 968 [Supp], 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 Courts, he must, in our view, be regarded as having the power to reduce the property into his

possession. In Ram Gulam v. Palakdhari Singh ILR (1960) Pat. 775, 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 Section

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 Section 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 Section 14 of the Act. As has been pointed out by Sanjeeva Row

Nayudu, J., in Vadrevu Annapurnamma Vs. Vadrevu Bhima Sankararao and Others, , 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 possession 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 loose 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 twelve years recover

possession of. Obviously not. In our view, the term possessed in Section 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 Ayyangar, 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 those 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. Abdullah ILR (1918) Cal 909 , the father of the Raja had purchased a 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 Bhikham 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 immovable 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 not 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 omission 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 Patent 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

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, as their mother not being

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

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

the fourth 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 u/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 fourth 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 fourth 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 fourth Defendant, they would be estopped, by

reason of their conduct, from contesting her right to improvements. But the fourth 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 fourth Defendant, that her only right will be to remove the superstructure, and she would not be entitled to be

paid any compensation therefore.

The decree of the lower Court directing Plaintiffs to pay the fourth Defendant rupees twenty-one thousand 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 fourth 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 Defendants 38 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 fourth Defendant will pay the costs of Plaintiffs 2 and 3. No order as to costs in

the lower Court.