Pathumma Amina Beevi and Others vs Vasu Vasudevan and Others

Vithayathil, J.—Both the appeals are from the same decree. A.S. No. 515 of 1951 is by the second Defendant while A.S. No. 559 of 1951 is by the first Defendant. The suit is for setting aside two sale deeds and for incidental reliefs. This fifth Defendant is the mother of the Plaintiff and the fourth Defendant is the mother of the fifth Defendant. Plaintiff and Defendants 4 and 5 are members of an Eahava Marumakkathayam sub-tarwad.

Plaint schedule items 1 and 2 belonged 10 the sub-tarwad. Item 3 is a building in item 1 and item 4 is a "building in item 2. Plaint items 1 and 2 were purchased in the name of the fourth Defendant under Ex. A dated 8-1-1065 with money advanced by the fourth Defendant''s mother. According to the Plaintiff, the acquisition inured to the benefit of the sub-tarwad.

Defendants 4 and 5 sold item 1 to the first Defendant under Ex. B dated 20-9-1104 and item 2 to the second Defendant under Ex. C dated 30-9-1111. It is alleged that these sale deeds are not supported by consideration and necessity binding on the sub-tarwad and that Defendants 4 and 5 were not competent to execute the same. The building in item No. 1 was put up by the first Defendant and that in item 2 by the second Defendant.

According to the Plaintiff, Defendants 1 and 2 had no right to put these buildings and the buildings are, therefore, liable to be removed by them at their cost. Plaintiff, however, offered to pay Rs. 25/- for the building in item 1 and Rs. 200/- for the other building. Plaintiff brought the suit on behalf of his sub-tarwad for cancellation of the sale deeds and for recovery of possession of the properties with mesne profits, past and future, at the rate of Rs. 180/- per year.

Defendants 1 and 2 filed separate written statements in the case. Their main contentions are identical. They contended that plaint items 1 and 2 were separate-properties of the fourth Defendant, that the Plaintiff or his sub-tarwad had no manner of right in the properties, that the sale deeds executed by Defendants 4 and 5 were supported by consideration and good faith, and that the Plaintiff was not competent to question the same.

Defendant 1 further contended that he had put up a building in item 1 and effected other improvements in the property and that in any case he was entitled to get the value of those improvements which he estimated at Rs. 1,425/-. Defendant 2 contended that he put up item 4 building at a cost of Rs. 4,000/- and constructed the foundation of Anr. building at a cost of Rs. 1,200/-. He further contended that out of the consideration for the sale of item 2 a mortgage deed was taken in the name of the Plaintiff, that that mortgage was accepted by the Plaintiff and that, therefore, the Plaintiff was estopped from questioning the validity of the wale deed. Both the Defendants contended that the rate of mesne profits claimed in the plaint was excessive.

The main point in dispute between the parties was whether the acquisition under Ex. A enured to the benefit of the sub-tarwad of the fourth Defendant or whether it was her own acquisition. On this question, the finding of the Court below is in favour of the Plaintiff. It was held that the acquisition was for the benefit of the sub-tarwad. It was, therefore, held that Defendants 4 and 5 could alienate the properties only for consideration and necessity binding or the sub-tarwad.

The Court found that the sale deeds, Exs. B and C, were not supported by consideration and necessity binding on the sub-tarwad. The sale deeds were accordingly set side. It was held that Defendants 1 and 2 were entitled to the value of the building, put up by them. Questions relating to the value of the buildings and the rate of mesne profits were left to be determined in the final decree.

Plaintiff was given a preliminary decree for recovery of possession of the properties on payment of the value of the buildings and also for recovery of past mesne profits for three years and future mesne profits at the rate to be fixed by the final decree.

When the appeals came up for hearing before a Division Bench of this Court that Bench inferred the appeals to a Full Bench since the question of law raised in the appeals was considered to be of some importance. The question is whether, in the case of an acquisition by a Marumakkathayee Ezhava mother with her own funds in the name of her daughter before the date of the Travancore Ezhava Act, the presumption is that it was taken by the daughter as her absolute property or as the property of her thavazhi. This is the main question that has to be decided in the two appeals.

The Travancore High Court has been consistently taking the view that under the Marumakkathayam Law before it was amended by legislation, a gift by the husband to the wife or by the father to any of his sons was presumed to be for the benefit of the sub-tarwad of the donee.

The same presumption would apply to acquisitions by the husband in the name of the wife or by the father in the name of any of his sons. The earliest reported decision of the Travancore High Court on the point is - Narayanan v. Parvathi Nangeh 5 Trav LR 116 (A) which was a case decided by Narayana Pillai and Kunhiraman Nair JJ. The learned Judges observed:

Gifts by the father known in the Travancore as Makkatlwyam, and, in British Malabar, as Futhravakasam, are ordinarily intended to benefit all the children of the donor by the same mother, and the properties which form the subject of this gift though was registered or acquired in the name of the mother are held by the mother, and children in common under the management of the mother or of the next senior competent male or female among the donees.

The learned Judges further observed:

The intention of the father of a Marumakkathayam family who makes a provision for the adequate maintenance of his children and their mother by giving them landed property is that the donees should enjoy the property in common by taking the usufructs of the property Jointly, and that the property should, in all respects, be subject to the incidents of other similar properties held by them as, members of the tarwad. This intention has invariably been respected by the people themselves, and has come to be regarded as a usage. We do not see why the Court should refuse to respect the well-known usage of the country.

In - Kunjukallyani v. Kunjipennu Lekshmi 11 Trav LB 139 (B) the property which was the subject-matter of dispute was acquired by the father in the name of one of the children. It was held that the presumption was that the acquisition was for the benefit of the sub-tarwad constituted by all the children and the mother.

In - Mathevan Kunjukunju v. Raman Krishnan 13 Trav LR 72 (C) Krishnaswamy Rao C.J., and Cosby J., held that in the case of an acquisition by the father in the name of one of his children the presumption was that the acquisition was for the benefit of all his children including those to be born afterwards.

To the same effeat Is the decision in - Padmanabhan v. Kumaran 18 Trav LR 215 (D) which was a case decided by Vencobachariar c.J. and Govinda Pillai J. In - Koshy Thorna v. Narayanan Krishnan 22 Trav LR 239 (FB) (E) which was a decision by a Full Bench consisting of Sadasiva Iyer C.J., and Govinda Pillai and Ramachandra Rao JJ., the question was discussed at length by Sadasiva Iyer C.J., who observed as follows:

So far as gifts to, or purchases in the name of, the eldest son or only son (whether he was the eldest child, then living or not, of his mother) we are of opinion, following 11 Trav LR 139 (B) and 18 Trav LR 215 (D) that in the case of a gift to the eldest son the presumption is in favour of its being a makkathayam gift. From, the observations at page 140 of 11 Trav LR 139 (B) and at page 217 of 18 Trav LR 215 (D), it is clear that the reason or one of the reasons why such a ''strong presumption'' arises, especially in the case of the eldest son, is because he is the natural karnavan of the sub tarwad.''

In A.S. Nos. 237 and 242 of 1077 (TC) (D1) also it was held that makkathayam properties are ordinarily acquired by a father in the name of his wife or the eldest son. There is nothing in these cases to show that unless the eldest son was also the then eldest child alive, the presumption would not arise.

There are observations in numerous case (especially in A.S. No. 68 of 1072 (TC) (D2), the judgment in which case was written by Mr. Justice Kunhiraman Nair, assented to by Mr. Justice Govinda Pillai) and that the presumption will arise in the case of a gift to, or purchase in the name of any child by either parent, but as before, it is unnecessary to go into that braider question and to express my agreement with or dissent from the same. So far as the eldest son is concerned, whether he was the eldest Child, or not, the authorities and the principle are clear and the same principle, applies with as much force in the case of a gift to (or purchase in the name of) an only son whether that only son had or had not elder sisters.

In - Narayana Pillai v. Krishnan Narayanan 22 Trav LR 278 (FB) (F), Anr. Full Bench consisting of Govinda Pillai, Hunt and Muthunayagam Pillai JJ. affirmed the decisions in 5 Trav LR 116 (A); 11 Trav LR 139 (B); 13 Trav LR 72 (C); 18 Trav LR 215 (D) and 22 Trav LB 239 (E) and also the unreported decisions in A.S. No. 248 of 1073 (TC) (E1) and S.A. No. 24 of 1079 (TC) (E2), and held that in the case of a gift by the father to the eldest son r any son the presumption was that it enured to the benefit of all the children of the donor.

It was also held that in the case of a gift to an eldest daughter who was unmarried the same presumption would arise but that if she was married the presumption would be that the gift enured to the benefit of herself and her children.

In 25 Trav LR 58 (G) Hunt J. expressed the opinion that the presumption that would arise in the case of a gift to a son would not arise in the case of a gift to a daughter. Sadasiva lyer C.J., the other learned Judge, who took part in the decision did not express any opinion on the point.

Chakky Karumbi v. Kochittan Raman 26 Trav LR 11 (FB) (H) was a case in which Kilt was by a brother in favour of his two sister''s. The majority of the Judges held that the (sic) was that the donor intended that the donees should take the properties as their sub-tarwad properties. Muthunayakam Pillai J., observed:

The presumption, in such cases is that the don-(sic) views were What might be expected of him as a follower of the Marumakkathayam law and as affected by the ordinary sentiments and wishes of a member of a Malayalee community, and that the presumption therefore should be that he intended that his donees should take his properties as properties acquired by their branch as the exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with the Marumakkathayam usage which governed the donees.

Hunt, J., did not agree with this opinion and said:

There is no reason why a gift to a woman by a total stranger should not rank on the same footing as property acquired by her through her own exertions (22 Trav LR 278 (F)) and, for that matter, the same language may be said of a gift by a brother to his sister; but the case of a gift from a husband stands on quite a different footing, because, from the very nature of the union existing between the two, the law naturally presumes that the property was gifted partly (not wholly) for her benefit and for the benefit of her children, born and unborn of the existing union.

Ramchandra Rao, J., agreed with the opinion of Muthunayakam Pillai, J.

Kumaramma v. Madhavan Pillai 27 Trav LR 86 (I) was a case in which a Nanjanat Vellala governed by the Marumakkathayam law gave a property to two sisters as ukanthudama. It was held that the presumption was that the donor intended that the donees should take the property with the usual incidents of tarwad property.

The principle was affirmed in Raman v. Krishnan 13 Trav LJ 452 (FB) (J), Kunju Pillai v. Neelakantan 16 Trav LT 950 (K), Padmanabhan v. Sankaran AIR 1953 TC 460 (AIR V 40) (L) and Eravi Pillai v. Valli Amma 1954 Ker LT 295 (M).

A case of a gift by a paternal uncle as per the direction of the father came tip for consideration in Kochandan v. Gabriel 21 Trav LJ 958 (N). The case was decided by K. Parameswaran Pillai and P.K. Narayana Pillai, JJ. Narayana Pillai, J., who wrote the leading judgment discussed the question Exhaustively with reference to decided cases and'' held that the donees took the property as their sub-tarwad property and not as tenants-in-common.

The case of an acquisition by the mother, in the name of some of her children, came up for conside ration in A.S. No. 68 of 1072 (TC) (D2) of the Travancore High Court referred to by Sadasiva Iyer, C.J., in 22 Trav LR 239 (E) Kunhiraman Nair, J., observed in that case:

In the present case, there can be very little doubt upon the evidence that the mother of these parties supplied the money wherewith the acquisition of this property was made. And such (sic) by the parents of Marumakkathayam children may, in the absence of evidence to the contrary, be presumed to have been made for the benefit of all the children and not of those only in (sic) names the deeds are taken. Sentiment plays a great part in the selection of a son or daughter in whose name a title deed is to be drawn up. And no inference can be drawn adverse to the "interests of the eldest son simply because the title deeds were taken in the names of his juniors".

The Madras High Court also has taken the view that in the case of a gift by the Marumakkathayee husband to the wife or by the father to the children, the presumption is that the gift enures to the benefit of the thavazhi of the donee or donees as the case may be.

The leading case on the point is Kunhacha Umma v. Kutty Mammi 16 Mad 201 (FB) (O). Following the principle laid down by the Privy Council in Sreemuthy Soorjeemoney Dossee v. Denobundoo Mullick 6 Moo Ind App 526 (PC) (P) and Mohomed Bhumsool v. Shewukram 2 Ind App 7 (PO) (Q) the Full Bench consisting of Sir Arthur Collins, C.J., Muthuswami Iyer, Parker and Wilkinson, JJ., held that in the case of a gift of properties by a Marumukkathayee to his wife and children the presumption is that he intended that they should take them as properties acquired by (sic) branch or as the exclusive properties of their own branch with the usual incidents of tarwad property in accordance with the Marumakkathayam usage governing the donees.

This view was followed in Kalieni Amma v. Govinda Menon 35 Mad 648 (R). Sankaran Nair J. dissented from this view in his order of reference in Machikandi Parkum Maramittath Tharuvil Mootha Chettiam Veettil Chakkara Kannan Vs. Varayalankandi Kunhi Pokker and Others, But the Full Bench consisting of Sir John (sic) C.J., and Sadasiva Iyer and Sreenivasa Iyengar, JJ., affirmed the view taken in 16 Mad 201(O). Sir John Wallis, C.J., observed:

It seems desirable at the outset to point out that the decision of the Full Bench in Kunhacha Umma v. Kutty Mammi,(O) which is questioned in the reference merely decides that among the followers of the Marumakkathayam Law, when a gift is made by the father to the mother and her children, there is a presumption that they are intended to take such properties as the exclusive properties of the branch or thavazhi consisting of the mother and her children, that is to say, with the usual incidents of tarwad property.

In the absence of express provision the presumption is that the property is to be enjoyed by the mother and her issue in the way in which property is customarily held and enjoyed among followers of the Marumakkathayam Law. The decision proceeded on the authority of two decisions of Their Lordships of the Judicial Committee which laid down that the law governing the parties is one of the circumstances to be taken into consideration in ascertaining the intention of the donor.

As pointed out in the judgment of one of the Judges who made the reference to the Full Bench the presumption was arrived at in consideration of what were known to be the notions and wishes of persons in the position of the donor and also (sic) ordinary incidents of property in the district.

This view was accepted by the Full Bench of four Judges two of whom, Muttuswamy Iyyer and Wilkinson, JJ., were well acquainted with Malabar and that it was well founded is suggested by the fact that, the decision has not only boon accepted but has been given a considerable extension in the neighboring State of Travancore, as pointed out during the argument by my learned brother speaking from his experience as Chief Justice of that State.

It has also been followed, as I shall show, in numerous cases in this Court, and was not questioned before Ummanga v. Appadorai Pattar 34 Mad 387 (T) a decision of Sir Arnold White, C.J., and Sankaran Nair, J., in 1910, and it may be taken that many transactions have proceeded on the footing that it was correct. In these circumstances, notwithstanding the respect which I feel for the opinion of Sankaran Nair, J., especially in a matter affecting his own "community, I think we should be very slow to differ from the decision of the Full Bench unless we are absolutely obliged to do so, more especially as that decision merely relates to a presumption which it is always in the power of a donor to negative if so minded by express provision. If any change is to be made it should, it teems to me, be made by the legislature.

This decision was followed in Paru Amma v. Itticheri Amma AIR 1917 Mad 328 (AIR V 4) (U) and in Imbichi Beevi Uma v. Raman Nair AIR 1919 Mad 28 (AIR V 6) (V).

The question whether the same presumption will apply to the case of a gift by the mother does not appear to have come up for consideration before the Madras High Court. But, it the principle laid down by the Privy Council in 6 Moo Ind App 526 (PC) (P) and 2 Ind App 7 (PC) (Q) is to be accepted, we find no reason why a distinction should be made between a case of gift by the father and that by the mother.

That principle is that in construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. Sankaran Nair, J., does not seem to have made any distinction between the case of a gift by the lather and that by any other relative so far as the application of the rule of presumption is concerned in his order of reference in Machikandi Parkum Maramittath Tharuvil Mootha Chettiam Veettil Chakkara Kannan Vs. Varayalankandi Kunhi Pokker and Others, as can be Been from the following passage:

Very often a woman and her descendants live apart from the tarwad house in a house of their own with properties belonging exclusively to their branch, the senior member amongst them having all the rights and obligations of the karnavan of an ordinary tarwad. Such a branch or havazhi is constituted or created by gifts from the father of the woman or by gifts from a favorite brother or maternal uncle, or, it may be, by the self-acquisition of any member or that branch which he would often reserve for the sole benefit of the members of his branch.

Reference may also be made in this connection to the following passage in Sundara Iyer''s Malabar and Aliyasandana Law:

Another way in which the thavazhi comes to own property is by gifts from father or brother or uncle, for the matter of that, gifts from anybody provided that the gift is intended to enure for the Benefit of the branch as such and not merely for the benefit of the individual members. The only difference between the gifts last named and Ors. is that whereas there is generally a presumption in the former case (the extent of the presumption will be presently considered) that the gut is intended to enure for the benefit of the branch, in other cases it must be made out to be so. (Paragraph 96)

After referring to the decisions of the Madras High Court on the question of presumption in the case of gifts by Marumakkathayee to his wife or children the learned author says:

Putting aside the case of a grant to branch as such, and the case of a grant by a lather to his wife and children merely or to wife and all the children then existing or after the death of the wife to all the children - which is governed by the Full Bench, in AIR 1916 Mad 391 (AIR V 3) (S) it can by no means be said to be clear under what other circumstances the inference will be made.

However, the inference has been drawn in a case where the gift was by the uncle to his nieces, the mother being dead (E.P.A. No. 19 of 1916 (TC) (W)). Having regard to the usual origin of thavazhi property from fathers, uncles and brOrs. as stated by Mr. Justice Sankaran Nair in Chakkra Kannan v. Kunhi Fokker (S), it would seem legitimate in all those cases to draw the inference. In fact, Mr. Justice Sankaran Nair states in his judgment in Krishnan Nair v. Damodaran AIR 1916 Mad 751 (AIR V 3) (X), at p. 756 that such property is intended for the woman and her children.

The Cochin High Court has taken a different view on the question. In Kuttikrishnan Nair v. Cheetha Amma 10 Cochin 614 (FB) (Y), Narayana Iyer, C.J. and Narayana Menon, J. refused to follow the view taken by the Madras High Court in 16 Mad 201 (O) and AIR 1916 Mad 301 (AIR V(sic)) (S) while V (sic) , J. (as he then was) accepted the view taken by the Madras and the Travancore High Courts on the point.

Narayana Menon, J. in his leading judgment discussed the question elaborately and held that the principle laid down by the Privy Council in 6 Moo Ind App 526 (PC) (P) and 2 Ind App 7 (PC) (Q) would not apply to the case of a gift by a Marumakkathayee to his wife or children. As stated already, what the Privy Council held in those cases is that in construing the will of a Hindu it is not improper to take into, consideration what are known to be the ordinary notions and wishes of Hindus with respect, to the devolution of property.

Their Lordships further held that "it might be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family and that a Hindu knows that us a general rule women do not take absolute estate of inheritance which they can alienate".

According to Narayana Menon J. these considerations should not apply to a gift by a Marumakkathayee since followers of Mummakkathayam law can hold properties in their own right and not merely as members of their tarwad. Narayana Iyer, C.J. agreed with this view. This decision was followed in a good number of cases by the Cochin High Court (vide) Parukutty Amma v. Raman Menon 14 Cochin 363 (Z). Saidalikutty v. Kittunny 20 Cochin 42 (Z1), Subramonia Iyer v. Meenakshi Amma 27 Cochin 524 (Z2), Acbuthan Nair v. Devassy 28 Cochin 613 (Z3), Thankom v. Raman Menon 30 Cochin 131 (Z4), Bala Krishna Menon v. Thrichur Lourdes Church 34 Cochin 888 (Z5) and Gouri Amma v. Narayanan Nambiar 36 Cochin 27 (Z6).

The question again came up for consideration before Anr. Full Bench consisting of Krishnaswamy Ayengar, C.J. Krishna Menon and koshi JJ., in Tripurasundan Ammal v. Ar (sic) nabha Ayer 36 Cochin 759 (Z7). In that case Krishna Menon, J. sounded a dissenting note. But Krishnaswamy Ayengar, C.J. and I Coshi, J. (as he than was), adhered to the view that was being consistently taken by the Cochin High Court.

In a Cochin case that came up for consideration before this Court in Kaliyanikutty Amma v. Devaky Amma 1950 Ker LT 705 (FB) (ZH) Koshi, J. (as he then was), and Sankaran and Govinda Pillai, JJ. followed the view taken by the Cochin High Court in 36 Cochin 759 (Z7). Koshi J. observed:

When a gift is given to specified persons, in the absence of an express or necessarily implied intention to the contrary, the Cochin High Court has always held that the donees take the properties as co-owners or tenants-in-common even though the donees or both the donor and the donee may, belong to a Marumakkathayee community. The case law on this point is discussed by'' Krishnaswamy Ayengar, C.J. in his decision in 36 Cochin 759 (Z7). As observed there, the Cochin High Court struck an independent line for itself differing in this respect from both the Madras and the Travancore High Courts.

This being a Travancore case we find no reason why we should not follow the view that wan being taken by the Travancore High Court from 6 Trav LR 1(sic)6 (A) onwards. We, therefore hold that in the case of a gift by a Marumakkathayee mother to her daughter or an acquisition by the mother in the name of the daughter before the coming into force of the Travancore Nair Act, or the Ezhava Act, as the case may be, the presumption is that it enured to the benefit of the sub-tarwad of the donee.

In the present case, there is nothing to show that the intention of the fourth Defendant''s mother in making the acquisition in the name of the fourth Defendant was that the property should belong to the fourth Defendant absolutely and not to the thavazhi consisting of herself and her children. We uphold the finding of the Court below that the acquisition under Ex. A was for the benefit of the sub-tarwad consisting of the Plaintiff and Defendants 4 and 5.

The fact that the fifth Defendant also joined in the execution of the sale deeds supports the Plaintiff''s case that the property was not the absolute property of the fourth Defendant. If it is the sub-tarwad property of the Plaintiff and Defendants 4 and 5 the sale deeds, Exs. B and C can bind the sub-tarwad only if they are supported by consideration and necessity binding on the sub-tarwad.

It was conceded by learned Counsel for the Appellant that there is no evidence in the case to show that the sale deeds are supported by consideration and necessity binding on the sub-tarwad. The recitals in Exs. B and C relating to consideration dearly show that they were not executed for meeting any necessity binding on the sub-tarwad. Out of the consideration of Rs. 550/- for (sic) Rs. 400/ was received as ready rush by the fourth Defendant and Rs. 150/- was reserved for subsequent payment to the fourth Defendant.

There is nothing in the case to show that this amount was utilised for the benefit of the sub-tarwad. The consideration for Ex. C is Rs. 340/-. Out of this Rs. 35/- was received by the fourth Defendant in advance, Rs. 100/- was utilised for taking a mortgage in the name of the Plaintiff, Rs. 185/- was received as ready cash and Rs. 20/- was .paid to one Aliumma. Ex. IV is the copy of the mortgage taken in the name of the Plaintiff. It was executed by one Ramankutty and according to the Plaintiff, he is the second husband of the fifth Defendant.

Ramankutty assigned the equity of redemption of the property in favour of a stranger who instituted a suit for redeeming the mortgage and obtained a decree. Ex. II is a copy of the judgment. Rs. 60/- was claimed by the Plaintiff in that case as damages for waste alleged to have been committed by the mortgagee. Although the fifth Defendant filed a written statement in the case nothing further was done by for and the suit was decreed in torms of the plaint. The mortgagee was made liable not only for the amount claimed in the plaint as damages but also for mesne profits and costs.

The present Plaintiff was a minor and the fifth Defendant was her guardian for the suit. Under the decree passed in the case the mortgage right under Ex. IV ceased to be of any value to the sub-tarwad of the Plaintiff. The Plaintiff has not accepted Ex. IV. There is also no evidence in the case to show that the sum of Rs. 185/- received as ready cash by Defendants 4 and 5 was utilised by them for constructing a house for the sub-tarwad and for paying off sundry debts of the sub-tarwad stated in the sale deed.

It follows that the sale deeds, Exs. B and C are not binding on the sub-tarwad of the Plaintiff and that they are liable to be set aside. Plaintiff is entitled to recover possession of the property on behalf of his sub-tarwad.

The Court below has held that the first Defendant is entitled to the value of item 1 building and the second Defendant to the value of item 4 building. Plaintiff has filed a memorandum, of objection to each of the appeals objecting to the finding that Defendants 1 and 2 are entitled to the value of the buildings put up by them.

It was contended on behalf of the Plaintiff that Defendants 1 and 2 should be compelled to remove the buildings put up by them. We rind no reason whatsoever why they should not be paid the value of the buildings. They had good reason to believe that the property belonged to the fourth Defendant, the sale deed Ex. A having been taken in her name alone. There is therefore no merit in the memoranda of objections.

The Court below has made Defendants 1 and 2 liable for past mesne profits for three years before the date of the suit and also for future mesne profits. In the circumstances of this case, we think it proper to make Defendants 1 and 2 liable only for future mesne profits from the date of suit. The quantum of mesne profits and the value of the buildings will be determined in the final decree to be passed in the case as directed by the Court below.

In the result, we confirm the preliminary decree passed by the Court below subject to the modification that Defendants 1 and 2 will not be liable for past mesne profits. The appeals are dismissed with costs, except to the extent mentioned above. The memoranda of objections are also dismissed.