Milkhi Ram vs Jiwan Singh

Chopra, J.—This is defendant''s appeal in suit decreed against him by the two Courts below. Agricultural land measuring 9 bighas and 18 biswas was sold by Arjan Singh, a Jat of village Maur, to Milkhi Ram Mahajan of the same place with sanction of the Collector for the purposes of laying out a garden. The consideration for the sale was Rs. 1000/- and it was effected through a registered deed dated 26-10-1999 Bikram. Arjan Singh died in Poh 2000. Jiwan Singh and Mara minors, through the guardianship of their mother Sham Kaur, and Kheon Singh sons of Arjan Singh thereafter brought the suit giving rise to this appeal for possession of the land alleging that it was ancestral and that the sale was without consideration and necessity. Milkhi Ram controverted the allegations and resisted the suit on various grounds. In the alternative it was contended that the Plaintiffs could not get possession of the land without paying costs of the improvements made by him, and these he estimated at Rs. 5000/-. The trial Court decided all the legal objections with respect to the maintainability of the suit against the Defendant and further held that the land was ancestral, that necessity for a sum of Rs. 342/- only had been proved and that the Defendant was not entitled to any costs for improvements. A decree on payment of Rs. 342/- was, consequently, passed in favour of the Plaintiffs. It may here be observed that the items that the trial Court held for necessity amounted to Rs. 356/ 12/- and it was probably by mistake that the total thereof was given as Rs. 342/-. On defendant''s appeal the District Judge, Bhatinda, concurred with all the findings of the trial Court except that he found another sum of Rs. 224/- to have been proved for necessity and thus increased the amount on payment of which the Plaintiffs were entitled to get possession of the land to Rs. 580/12/-. As regards improvements he was of the opinion that it was not proved that any improvements had in fact been effected before the institution of the suit and that even if some of the improvements were so made the Defendant was not entitled to get from the Plaintiffs the amount spent on them because he had not acted bona fide in the transaction in question. The vendee Defendant has come in second appeal.

Shri Jagan Nath, the learned Counsel for the Appellant, has assailed the judgment of the District Judge only on two points, one of necessity and the other of costs for improvements. The sale consideration of Rs. 1000 consisted of the following items. (1) Rs. 200/- due to the vendee on a bond dated 29-11-1998. (2) Rs. 200/- paid to the vendor at home for household expenses and registration charges. (3) Rs. 600/- paid before the Sub-Registrar for household and agricultural expenses and for liquidating of debts due from the vendor. The Courts below have allowed the first and. disallowed the second item. Out of Rs. 600/- paid before the Sub-Registrar the trial Court. held for necessity items aggregating to Rs. 156/12/- while the District Judge added, another item of Rs. 224/- to it and this brought, the total to Rs. 380/12/-. As regards item No. 2 Rs. 200/-, it is contended that it was only, by mistake of the scribe that in the sale deed, this item was mentioned to have been paid at home for household and registration expenses, while in fact an equal amount was due to the vendee on a Bahi account. The position taken by the vendee at the trial was that to start with Rs. 41/- were advanced to the vendor fort the purchase of an ox on Har Badi 6, 1995 (Ex. DK was produced to evidence this debt), that a balance of Rs. 80/- in the year 1995 and another for Rs. 125/4/- in 1998 marked as Exs. DJ and DL respectively were struck in the account book and that an amount of Rs. 202/6/- was due to the vendee on this, account at the date of the sale. Rs. 2/6/- was given up and the rest of the debt was credited because it formed the part of the sale consideration. Marginal witnesses to prove the various entries in the account-book were produced but the entry on the credit side which recited the manner in which the debt was liquidated has remained unproved. If this entry is left out of consideration, as it should be, there remains no documentary evidence to prove that the debt, even if it was due, formed part of the sale consideration. The recitals in the sale deed, as already observed, were obviously against this assertion. According to the 1 deed the amount was received in lump sum at home and a part of it was to be utilised for registration expenses. If the entire amount was to be credited towards an antecedent debt] I cannot imagine that the scribe would have made a mistake to describe it differently and state that a part of it was meant for registration expenses. I am, therefore, in perfect agreement with the uniform finding of the Courts. below with respect to this item. (His Lordship then considered the question of the improvements made by the Defendant and the liability of the Plaintiffs to pay ''for them and disagreeing with the District Judge came to the conclusion that the total expenditure incurred by the Defendant came to Rs. 2500.)

The next question that has to be decided is whether the Defendant is entitled to be compensated before he is dispossessed of the land. Equitable principles do require that the Plaintiffs should be made to pay for the improvements before they are allowed to deprive; the Defendant of the fruits of them and start enjoying them themselves. Statutory recognition to this generally recognised principle of equity is given by Section 51, Transfer of Property Act, Section 41, Specific Relief Act and Section 68, Contract Act. The last of them refers to the claims for necessities supplied to a person in capable of contracting or on his account, and provides for reimbursement from the property of such incapable person. Section 41, Specific Relief Act empowers the Court to require a party for whom an instrument is cancelled to make compensation, and Section 51, Transfer of Property Act reads as follows:

When the transferee of immovable property makes an improvement on the property, believing in good faith that he is absolute entitled thereto, and he is subsequent evicted therefrom, by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee, at the then market-value thereof, irrespective of the value of such improvement.

The principle underlying these provisions of law is that no man should enrich himself at the expense of another and that consequently where the Defendant had made improvements in good faith as a bona fide occupant of land and in the belief that the land is his own, the Plaintiff who obtains the benefit of the expenditure which has increased the value of the property, ought to reimburse the Defendant for the expenditure so incurred. ''American Baptist Foreign Mission Society v. Pattabhiramayya'' AIR 1919 Mad 685 was a similar case in which the principles of Section 51, Transfer of Property Act were held to be applicable where a purchaser from a Hindu believing in good faith that he had acquired an absolute title to the property effected improvements on it, but it was afterwards found that there was no necessity for the sale. In - Lachmi Prasad Vs. Lachmi Narain and Another, a Hindu father, both on his own account and also as guardian of his son, executed a sale of joint family property and the transferee spent a considerable amount for improvement of the said property. The son brought a suit to'' recover the property and the Court found that there was no necessity for the sale. By the application of Section 51, Transfer of Property Act or Section 68, Contract Act the Plaintiff was held liable to pay compensation for improvements effected by the transferee.

In - Panachand Chhotalal Vs. Manoharlal Nandlal, a religious gift made by a Hindu widow of the whole or practically the whole of her husband''s property without authority from him was set aside on a suit by the reversioners, and yet the defendant''s claim for compensation for repairs and improvements made by him upon the property since he took possession was accepted and decreed. In - ''Rang Ilahi v. Mahbub Ilahi'' AIR 1926 Lah 170 Zafar Ali J. while holding that a Mohammadan mother has no power to alienate the property of her minor son, that such an alienation is void ''ab Initio'' and that the alienee''s position is no better than that of a trespasser ordered the son to refund the amount by which his estate and himself were benefited, before taking'' possession of the property. Section 41, Specific Relief Act was held to be applicable to the facts of the case.

To give benefit of the equitable principles to the Defendant it has now to be seen if e made the improvement believing in good faith that he was an absolute owner of the property. It has to be remembered that the pale in favour of the Defendant was on behalf of a full owner, with the restriction that he could sell, the ancestral property only for necessity. The fact that there were chances of the sale being questioned on that ground or the presumable knowledge of the Defendant that it may be so questioned does not necessarily lead to the conclusion that he did not fin good faith believe in the soundness of his title. The vendor has not been shown to be of extravagant habits or inimically disposed towards his sons and unmindful of their interests. The case might have been different if the sale had been on behalf of a sonless proprietor with the avowed object of depriving the collaterals of his estate and if the vendee had been a party to the foul intention of the vendor. If the vendee in a case like the present fails to prove necessity for a part of the consideration and for that reason the sale has to be set aside he can still be held to have believed in good faith that he was an absolute owner of the property sold to him. On the facts proved I do not think any mala fide or I bad faith can be attributed to the defendant. The learned District Judge presumed the absence of good faith mainly on the ground that one of the items of the sale deed appeared to have been fictitiously added. Even if that were so, I do not think it is sufficient by itself to jump to the conclusion that the Defendant did not in good faith believe that he was the rightful owner. The item might, have been added to inflate the price to ward off a. presumptive preemptor or for any other such reason. Payment of Rs. 800/- out of the full consideration of Rs. 1000/- cannot be doubted and there is nothing on the record that it was not a fair price for the land. The Defendant on the other hand has attempted to prove that the land was not worth more than this amount. Jit Singh D.W. produced a registered sale deed dated 6th Besakh 1997 in his favour of 14 bighas 17 biswas of land for Rs. 800/- Mst. Sham Kaur, mother and guardian of the minor Plaintiffs, admitted that the vendor of this Jit Singh was a collateral of the Plaintiffs and that the land sold to him (Jit Singh) adjoins the one in dispute in the present case. I am, therefore, inclined to think that the Defendant paid a fair price for the land he purchased. Every precaution to acquire a perfect and indefeasible title was taken by him. The Collector sanctioned the sale on condition that the land would be converted into a garden. The Defendant at once started to lay a garden with a view to get the mutation in his name attested. The revenue authorities sanctioned the mutation when they were satisfied that the purpose for which the sale was allowed, was being carried out. For all these reasons I cannot help concluding'' that the Defendant made the improvements under the bona fide belief of the soundness of his title to the property and consequently of his right to make the improvements and that he is entitled to be compensated for the same before he is deprived of the property.

I quite appreciate that in awarding suchcompensation, I must consider how far the property has been improved in market-value and not merely consider the amount expanded, but the difficulty in this case is that there is no clear, reliable and convincing evidence-as regards the present market-value of the property and I have to fall back upon the expenditure that undoubtedly stands prove to have been incurred by the defendant

In the result the decree of the District Judge is modified by providing that the Plaintiffs shall be entitled to get possession or the land on payment of Rs. 580/12/- plus Rs. 2500/- i.e. Rs. 8080/12/- to the defendant. The appeal is accepted to that extent and the-parties are left to bear their own costs.