1. The facts are shortly these:-
In 1879 one Baraabaisaheb Patvardhan of Tasgaon died, leaving considerable property and a son named Ganpatrao, who was a lunatic. Ramabai left a will by which she appointed her daughter-in-law Shidhibai executrix, with directions to manage the property and look after the interests of her son Ganpatrao, Accordingly Shidhibai entered into possession and management of the property in question and obtained a certificate, under Regulation VIII of 1827, on the 19th April 1880. On the 12th November 1884, Shidhibai, under the powers given to her by the certificate of administration, sold the property in dispute to defendant No. 1. It was alleged by defendants 2 to 8 but held not proved, by the Subordinate Judge and his finding on that point has not been impugned before us, that defendant 1 had made a gift of this property to defendants 2 to Section Since the gift fails, we must hold that the defendants 2, 3, 5, 6 and 7 have been in possession without any title. In 1895 Ganpatrao died leaving the plaintiff his son, a minor, as his heir. The plaintiff sued to recover possession of the property in dispute upon the ground that the sale by Shidhibai was unauthorized and is not binding upon him. Defendant 1 relies upon the sale and defendants 2, 3, 5, 6 and 7 plead that they have been in possession under a title derived from defendant 1 and have erected upon the land buildings at their own expense.
2. The First Class Subordinate Judge has held that the sale by Shidhibai in favour of defendant 1 was voidable, because Shidhibai under a certificate of administration granted to her by the
3. District Court, had only the powers of a Hindu widow or a manager of a joint Hindu family and that she could not sell unless there was justifiable or pressing necessity according to Hindu Law. So far the law is clear. As authorities for the proposition that the powers of an executor under a will of a Hindu to whom the Hindu Wills Act does not apply, are analogous to those of a manager of a joint Hindu family; see Maniklal v. Manchersha I L R (1876) 1 Bom. 269, Lallubhai Bapubhai v. Manhuvurhai (1876) I.L.R., 2 Bom. 388 At p. 408, Jugmohamlas v. Pallonjee I L R (1896) 22 Bom 1, Purshottam v. Kala Govindji I L R (1901) 28 Bom. 304. The Administrator General of Bengal v. Prem Lall Mullick I L R (1894) Cal, 732. The Subordinate Judge has found that there was no justifiable or pressing necessity for the sale by Shidhibai in favour of defendant 1 and we concur with him. It is proved that the defendants 2 to 8 have erected buildings of the value of Rs. 5,300 on the lands. The Subordinate Judge has by his decree directed that the plaintiff should recover possession of the property on payment of Rs. 6,300 to the defendants Nos. 2 to Section That sum includes the amount of Rs. 1,200 which defendant No. 1 had paid to Shidhibai as purchase money and which, according to the finding of the Subordinate Judge, was spent by her for the benefit of the minor plaintiff. The plaintiff does not object to the decree so far as it allows Rs. 1,200 to be paid by him to the defendants before recovery of the property. What he objects to is that portion of the decree, which directs that the plaintiff shall recover the property in dispute on payment of Rs. 5.300 to defendants 2 to Section These defendants are found to be in possession without any title. Their defence based on the deed of gift from defendant 1 has been negatived. The law is well established that if a stranger builds upon the land of another, although believing it to be his own, the owner is entitled to recover the land with the buildings. On it, unless there are special circumstances amounting to a standing by on the part of the real owner such as to induce the belief that he intended to forego his right. See Premji Jivan Bhate v. Haji Cassum Juma Ahmed I L R (1895) 20 Bom. 298. No such special circumstances exit in the present case.
4. The decree, therefore, should be:-
The plaintiff do recover possession of the property in dispute on payment of Rs. 1,200 to defendant 2 to 8. The plaintiff'to recover the land with liberty to the defendants forthwith to commence to remove their building and to restore the property to the condition in which it was when defendant 1 took possession, the same to be completed within one year from date of decree. In default the plaintiff be at liberty to remove the building at the expense of the defendants.
5. We do not interfere with the order of the Subordinate Judge as to costs in his Court. The appellant ought to have the costs of this appeal from the respondents.