This is an appeal by Defendants 3 to 8 from a decision of the High Court of Mysore passing a decree in favour of Respondent 1 who was Defendant 1 in the trial court, for possession of half the property which was the subject-matter of the suit.
Facts in brief
The plaintiff who is the elder sister of the first defendant instituted a suit in the Court of District Judge, Bangalore for a declaration that she is the owner of half share in the properties described in the schedule to the plaint and for partition and separate possession of half share. According to her the suit property was the absolute property of her mother Puttananjamma, and upon her death this property devolved on her and the first defendant as her mother’s heirs. Since, according to her, the first defendant did not want to join her as co-plaintiff in the suit, she was joined as a defendant.
It is common ground that the property was in possession of the second defendant R.S. Maddanappa, father of the plaintiff and the first defendant, and Gangavva, the second wife of Maddanappa and her children.
Briefly stated his defence is that though the suit properties belonged to Gowramma, the mother of Puttananjamma, she had settled them orally on the latter as well as on himself and that after the death of Puttananjamma he has been in possession of those properties and enjoying them as full owner. He further pleaded that it was the last wish of Puttananjamma that he should enjoy these properties as absolute owner. The plaintiff and the first defendant had, according to him, expressly and impliedly abandoned their right in these properties. Finally he contended that he had spent more than Rs 46,000 towards improvement of the properties. These improvements, he alleged, were made by him bona fide in the belief that he had a right to the suit properties and consequently he was entitled to the benefit of provisions of Section 51 of the Transfer of Property Act.
The first defendant admitted the claim of the plaintiff and also claimed a decree against the other defendants in respect of her half share in the suit properties. The other defendants contended that she was estopped by her conduct from claiming any share in the properties. We are concerned with a limited question and that is whether the High Court was right in awarding a decree to the first defendant for possession of her half share.
We will consider the question of estoppel first. The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consists of her attitude when she was served with a notice by the plaintiff, her general attitude respecting Bangalore properties as expressed in the letter dated 17th January, 1941, written by her to her stepmother, and the attestation by her and her husband on 3rd October, 1944, of the will executed on 25th January, 1941 by Maddanappa.
In the notice dated 26th January, 1948 by the plaintiff’s lawyer to the first defendant it was stated that the plaintiff and the first defendant were joint owners of the suit properties which were in possession of their father and requested for cooperation of the first defendant in order to effect division of the properties. The first defendant, however, sent no reply at all. We find it difficult to construe the conduct of the first defendant in not replying to the notice and in not cooperating with the plaintiff in instituting a suit for obtaining possession of the properties as justifying the inference of estoppel. It does not mean that she impliedly admitted that she had no interest in the properties.
It is true that in Ex. 15, which is a letter sent by her on 17th January, 1941, to her Step-mother she has observed thus: “I have no desire whatsoever in respect of the properties which are at Bangalore. Everything belongs to my father. He has the sole authority to do anything…. We give our consent to anything done by our father. We will not do anything.”
But even these statements cannot assist the appellants because admittedly the father knew the true legal position. That is to say, the father knew that these properties belonged to Puttananjamma and that he had no authority to deal with these properties. No doubt, in his written statement Maddanappa had set up a case that the properties belonged to him by virtue of the declaration made by Puttananjamma at the time of her death, but that case has been negatived by the courts below. The father’s possession must, therefore, be deemed to have been, to his knowledge, on behalf of the plaintiff and the first defendant. There was thus no possibility of an erroneous belief about his title being created in the mind of Maddanappa because of what the first defendant had said in her letter to her stepmother.
Insofar as attestation of the will is concerned, the appellants’ position is no better. This “will” purports to make a disposition of the suit properties along with other properties by Maddanappa in favour of Defendants 3 to 8. Attestation of the will by the first defendant and her husband, would no doubt affix them with the knowledge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of Defendants 3 to 8 or even in favour of Maddanappa. The will could take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to Defendants 3 to 8 even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and therefore, could not say that an erroneous belief about his title to the properties was created in his mind by reason of the conduct of the first defendant and her husband in attesting the document.
Apart from that there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage.
Counsel, however, says that subsequent to the execution of the will he had effected further improvements in the properties and for this purpose spent his own moneys. According to him, he would not have done so in the absence of an assurance like the one given by the first defendant and her husband to the effect that they had no objection to the disposition of the suit properties by him in any way he chose to make it. The short answer to this is that Maddanappa on his own allegations was not only in possession and enjoyment of these properties ever since the death of Putananjamma but had made improvements in the properties even before the execution of the will. In these circumstances, it is clear that the provisions of Section 115 of the Indian Evidence Act, which contain the law of estoppel by representation do not help him.
Counsel wanted us to hold that the law of estoppel by representation is not confined to the provisions of Section 115 of the Evidence Act, that apart from the provisions of this section there is what is called “equitable estoppel” evolved by English Judges and that the present case would come within such “equitable estoppel”. We doubt whether the court while determining whether the conduct of a particular party amounts to an estoppel, could travel beyond the provisions of Section 115 of the Evidence Act.
Provisions of Section 115 of the Evidence Act are in one sense a rule of evidence and are founded upon the well known doctrine laid down in Pickard v. Sears [1832] in which the rule was stated thus:
“Where one by his word of conduct wilfully causes another to believe for the existence of a certain state of thing and induced him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the first time.”
The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, where one person makes a misrepresentation to the other about a fact, he would not be shut out by the rule of estoppel, if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation.
The general principle of estoppel is stated thus by the Lord Chancellor in Cairneross v. Lorimer:
“The doctrine will apply that if a man either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct…. …..Generally speaking, if a party having an interest to prevent an act being done has full notice of it being done, andacquiescesin it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had, been done by his previous license.”
In Carr v. London & N.W. Ry. Co. four propositions concerning an estoppel by conduct were laid down, the third of which runs thus:
“If a man either in express terms or by conduct makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it be acted upon in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.”
This also shows that the person claiming benefit of the doctrine must show that he has acted to his detriment on the faith of the representation made to him.
It will thus be seen that the person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that even the general principle of estoppel cannot be invoked by him. As already stated no detriment resulted to any of the defendants as a result of what Defendant 1 had stated in her letter to her stepmother or as a result of the attestation by her and her husband of the will of Maddanappa.
Finally, on this aspect of the case, the counsel referred to the observations of Lord Granworth in Ramsden v. Dyson which are as follows:
“If a stranger begins to build on my land supposing it to be his own and I (the real owner) perceiving his mistake, abstain from setting him right, and leave aim to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land, on which he has expended money on the supposition, that the land was his own. It considers that when I saw the mistake in which he had fallen, it was my duty to be active and to state his adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion in order afterwards to profit by the mistake which I might have prevented.”
The doctrine of acquiescence cannot afford any help to the appellants for the simple reason that Maddanappa who knew the true state of affairs could not say that any mistaken belief was caused in his mind by reason of what the first defendant said or did.
According to the learned counsel, even if the first defendant’s claim to the half share in the suit property cannot be denied to her she must at least be made to pay for the improvements effected by Maddanappa. As already stated the appellant was in enjoyment of these properties after his wife’s death and though fully aware of the fact that they belonged to the daughters he dealt with them as he chose. When he spent moneys on those properties he knew what he was doing and it is not open to him or to those who claim under him to say that the real owners of the properties or either of them should be made to pay for those improvements. No man who, knowing fully well that he has no title to property spends money on improving it can be permitted to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person. In our view, therefore, neither was Defendant 1 estopped from claiming possession of half share of the properties nor can she be made liable to pay half the costs of improvements alleged to have been made by the second defendant.
Now regarding the second point, this objection is purely technical. The plaintiff sued for partition of the suit properties upon the ground that they were inherited jointly by her and by the first defendant and claimed possession of her share from the other defendants who were wrongfully in possession of the properties. She also alleged that the first defendant did not cooperate in the matter and so she had to institute the suit. The first defendant admitted the plaintiffs title to half share in the properties and claimed a decree also in her own favour to the extent of the remaining half share in the properties. She could also have prayed for her transposition as a co-plaintiff and under Order 1 Rule 10(2) CPC the Court could have transposed her as a co-plaintiff. The power under this provision is exercisable by the Court even suo motu. As pointed out by the Privy Council in Bhupender v. Rajeshwar, the power ought to be exercised by a court for doing complete justice between the parties. Here both the plaintiff and the first defendant claim under the same title.
The only other question for consideration is whether the High Court was justified in awarding mesne profits to the first defendant even though she was not transposed as a plaintiff. According to the counsel mesne profits cannot be awarded to a successful party to a suit for possession unless a claim was made in respect of them. The learned counsel is right insofar as mesne profits prior to the suit are concerned but insofar as mesne profits subsequent to the date of institution of the suit, that is, future mesne profits are concerned, the position is governed by Order 20 Rule 12 CPC.
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