K. Jagannatha Shetty, J.
1. These appeals are directed against the Judgment and Decree dated August 21, 1974 made in O. S. No. 130 of 1968 on the file of the Civil Judge, Mandya.
2. Briefly stated, the facts are these:
P. P. Samuel was a businessman at Mandya. He had one son (defendant-2) and two daughters (plaintiff and defendant-3). The plaintiff was devoted to the religious life and so she joined Convent. In 1950 she became a Nun under the name 'Sister Lucinda'. In. 1961, Samuel died leaving behind his wife (defendant-1) and children with certain properties. In 1968, Sister Lucinda instituted the suit for partition claiming 2/9th share in her-father's estate more particularly described in the schedule annexed to the plaint. It was inter alia averred in the plaint that after the demise of P. P. Samuel, the suit properties were in the joint possession of the plaintiff and defendants 1 to 3. Defendant-2 without the plaintiff's consent or knowledge created some sort of interest in the suit properties in favour of third parties. The plaintiff is not bound by any such transactions.
Defendant-2 did not resist the suit. He conveniently kept himself away from the Court. He did not even file a written statement. Defendants 1 and 3, have joined hands with the plaintiff. They have also claimed their share in the suit properties.
The suit was resisted primarily by the alienees, defendants 4 and 6. Defendant-4 in her written statement claimed title in respect of item No. 1 in the plaint schedule. She has purchased the same under a registered sale, deed Exhibit D-1 dated May 7, 1966 for Rs. 48,000/- from defendants 1 to 3. She has also purchased item No. 2, under Exhibit D-5 dated May 31, 1966 for Rs. 10,000/-. She has contended that plaintiff who is a Nun cannot claim any right in the estate of her father and she had also voluntarily relinquished her rights.
Defendant-6 in his written statement has asserted that he is the owner of item No. 3 since purchased under sale deed Exhibit D-11 dated September 12, 1968 for Rs. 30,000/- from defendant-5. He had also referred to the earlier transaction by which Samuel during his life-time had himself alienated the same property. The contentions of the other defendants are not relevant in these appeals and, therefore, they are not set out:
3. On these pleadings, the trial, Court framed, among others, the following issues:
(1) Whether the plaintiff is entitled to 2/9th Share in the suit property?
(2) Whether the plaintiff has renounced the world and become a Nun in 1950 and hence not entitled to maintain the suit for partition and possession of any share?
(3) Whether the 4th defendant became owner of the suit items 1and 2 as urged by her?
(4) Whether the 5th defendant acquired title to suit item No. 3 and conferred valid title upon the 6th defendant in respect of the said property?
4. The plaintiff has examined herself as P.W.-1. There is no other evidence in support of her case.
5. On behalf of the defendants, D.Ws-1 to 7 have been examined including defendant- 4 as D. W.-3 and defendant-6 as D.W.-7. Defendants have also produced a, number of documents including the registered sale deeds in their favour.
6. The trial Court, upon an appraisal of the evidence, recorded the following findings:
That the suit properties belonged to the estate of Samuel in which the plaintiff could legitimately claim 2/9th share. The plaintiff could not be denied her share merely because she has become a Nun. Defendants have not proved that the plaintiff has relinquished her right. Item No. 3 was sold by Samuel during his lifetime, but it became a part of his estate when defendant-2 purchased it out of the amount belonging to the plaintiff and defendants 1 to 3. The plaintiff was not a party to any of the alienations made by defendant-2 and, therefore, those alienations were not binding on her. With these findings, the trial Court decreed the suit declaring 2/9th share to the plaintiff in all the suit properties. The trial Court has also held that defendants 1 and 3 could claim their shares in items Nos. 3 and 4 by paying the necessary Court-fees.
7. Challenging the validity of the decree for partition, defendants 4, 6 and 8 have preferred the appeals - R. F. As. Nos. 9/75, 163/74 and 23/75 respectively:
8. Upon the contentions raised by learned counsel on both sides, the following points arise for determination:
(i) Whether it is proved that the plaintiff has no right to claim her share in the estate of her father-Samuel?
(ii) Whether item No. 3 forms part of the estate left behind by Samuel or it became an accretion to his estate?
9. The first question should not detain us long. The contention urged in this regard is twofold. The first relates to the nature of the life of the plaintiff. The second is based on her voluntary relinquishment. The plaintiff is a Nun. She is devoted to religious life under certain vows and she lives in Convent. The case of the appellants is that because the plaintiff is a Nun, she is not entitled to any share in the suit properties. This contention, in our opinion, has no support of reason. The plaintiff is, no doubt, a Nun, but we find no statutory prohibition for her to claim legitimate share out of the estate of her father. The Indian Succession Act does not contain any such restraint. Nor there is any prohibition prescribed under ecclesiastical law. At any rate, no such law has been brought to our notice. We are therefore, not inclined to accept the contention that the plaintiff is not entitled to any share in the suit properties merely because she is a Nun.
10. A faint attempt has been made by defendant-4 in the trial Court and also before us to prove that the plaintiff has relinquished her rights in the suit properties. In support of this contention, Exhibits D-9 and D-10 have been relied upon. Exhibit D-9 is a letter said to have been written by the plaintiff on March 30,1964 to the Manager of the Indian Bank at Mandya. The letter states that she has become a Nun and she has no claims to, her paternal properties. Exhibit D-10 is another letter dated March 30, 1964 said to have been written by Mother Superior. It states that the plaintiff joined Convent in 1950. None has been examined by the defendants to prove Exhibits D-9 and D-10. Even the Manager of the Bank to whom Exhibit D-9 was addressed has not been examined. Apart from that, the trial Court has compared the signature found in Exhibit D-9 with the undisputed signature of the plaintiff in the plaint. It has observed that they do not tally with each other. This opinion expressed by the trial Court is indeed justified. We have also compared the said signatures and we find a lot of difference between the two. Exhibits D-9 and D-10 are, therefore, only to be referred to, to be rejected. Even otherwise, the plaintiff who is entitled to a share in the properties of her father cannot be said to have relinquished her rights by merely writing a letter to third party. In the absence of any valid deed of surrender, the plaintiff cannot be estopped from claiming her legitimate, share.
11. Let us now turn to the alienations: Item No.1 of the plaint schedule was sold for Rs. 48,000/- by defendants 1 to 3 in favour of defendant-4. The transaction is evidenced by Exhibit D-1 dated May 7, 1966 to which the plaintiff was admittedly not a party. The property consists of a Saw Mill with appertaining land S. No. 182/1 measuring 1 acres 8 guntas. It has been sold by defendants 1 to 3 after the death of Samuel. This alienation, therefore, cannot bind the plaintiff and she is entitled to her share in that property.
12. Likewise is the transaction of Item No. 2 in the plaint schedule. It has been sold by defendants 1 to 3 to defendant-4. Defendant-4 purchased it for Rs. 10,000/- under Exhibit D-5 dated May 31, 1966. It is a piece of land adjacent to the Saw Mill under item No. 1. It was a land granted to Samuel by the Government, but the upset price was paid by defendants 1 to 3 after the death of Samuel. In this circumstance, the appellants asserted that it belonged to defendants 1 to 3 exclusively. The assertion of the appellants is misconceived. The law in this regard is well settled. The grantee is always the owner of the land granted. The fact that defendants 1 to 3 paid the price and took possession of this land makes little difference on the right acquired by Samuel. Even in respect of this alienation, the plaintiff was not a party and, therefore, it is not valid to the extent of her share.
13. This takes us to item No. 3 in the plaint schedule which is concerned in R. F. A. No. 163/74. It was the subject matter of many alienations. Plaintiff specifically stated that item No. 3 was also a property left behind by her father. This is now not in dispute and indeed cannot be disputed that Samuel was not the owner of it on the date of his death. Samuel and defendant-2 had sold item No. 3 and two other plots under Exhibit D-33 dated September 15, 1952. K. Muthuswarny with whom Samuel had several dealings was the purchaser thereunder. He purchased those properties for Rs. 13,0001/-. On December 5, 1961 Samuel died, on which day Muthuswamy was the owner of item No. 3. It could not form part of the estate left behind by Samuel. The plaint averments in this regard are thus misconceived.
After the death of Samuel, defendant-2 alone took the initiative and purchased from Muthuswamy items Nos. 3 and 4. He purchased them for Rs. 10,000/- under Exhibit D-13 dated April 6, 1962. Defendant-2 did not retain the property under item No. 3, He sold it to defendant-5.for Rs. 13,500/- under Exhibit D12 dated February 22, 1967. Defendant-5 in turn sold that property to defendant-6 for Rs. 30,000/- under Exhibit D-11 dated September 12, 1968. Defendant-6 has thus become the owner of it. Unlike in Exhibits D1 and D-5, the other heirs of Samuel were not parties either to Exhibit a 13 or to Exhibit D12.
The trial Court did not disbelieve the transaction made by Samuel. But it proceeded on the assumption that Samuel sold item No. 3 with an understanding that-it should be reconveyed by Muthuswamy. The trial Court also observed that defendant-2 did not produce any evidence to show that he purchased item No. 3 out of his own funds. It proceeded on the basis that item No. 3 was purchased by defendant-2 out of the family funds and, therefore, the plaintiff and defendants 1 and 3 cannot be denied of their shares therein.
14. Mr. Bhatta for the appellant has seriously criticized this conclusion of the trial Court, while Mr. Raghavendra Rao for the respondent-plaintiff sought to justify the conclusion by a new line of reasoning. Relying upon the recitals in Exhibit D-13, Mr. Raghavendra Rao urged that item No. 3 could not but form part of the estate of Samuel, since it was acquired by defendant-2 from out of the estate of Samuel. The counsel, alternatively, relied upon Section 90 of the Trusts Act to sustain the share declared by the trial Court.
We shall now examine the recitals in Exhibit D-13. Thereunder it was stated that Samuel had assigned his insurance policy in favour of Muthuswarny and Muthuswamy as an assignee had received in all Rs. 8,500/- out of that policy. In that deed, Muthuswamy has stated that he would be adjusting that sum towards the consideration of Rs. 10,000/- agreed to be payable by defendant-2 for the purchase of items Nos. 3 and 4. The balance of Rs. 1,500/-was paid in cash by defendant-2. According to Mr. Raghavendra Rao, since the insurance amount was a part of the estate of Samuel, the property purchased by the use of that money should also form part of his estate.
15. The contention though simple and attractive is bristled with difficulties. There is neither any pleading nor any evidence to substantiate this contention. The plaintiff came forward with a definite plea that item No. 3 was property left behind by Samuel. Mr. Raghavendra Rao had to admit that that plea in the plaint was incorrect. He, however, wanted to make out a new case in the appeal before us and that too relying upon some recitals in a document produced by the defendant.
The new plea now sought to be made out is inconsistent with the plea in the plaint. Admittedly item No. 3 was not in the ownership and possession of Samuel on the date of his death. It was purchased by defendant-2 after the death of Samuel. It was, therefore, necessary for the plaintiff to allege in the plaint that it became an accretion to the estate of Samuel by reason of the purchase out of their joint funds. The Court cannot make entirely a new case which has not been pleaded by the parties. Nor the Court could draw an inference inconsistent with the plea set up by the parties. The case should be determined either on the plea found in the pleadings or on the proved facts consistent with the case thereby made.
16. It is true that if there is no prejudice to the opposite party and if the material facts are already on record, the Court could dispose of the question raised. But we do not think that the case on hand falls within the last rule. The recitals in Exhibit D-13 are not sufficient to infer that item No. 3 was purchased with a view to add on to the estate of Samuel.
The parties to the suit take the estate as tenants-in-common. They do not form a joint family in the sense in which that expression is used with regard to Hindus. So, there is no presumption that any acquisition- made by one tenant is for the benefit of the other or to the family jointly. See: Krishnajiban v. Masiuddin, AIR 1921 Cal 653 and S. K. Sahul Hamid v. S. M. Sulthan AIR 1947 Mad 287.
The inference drawn by the trial Court that Samuel sold that property with an intention to have it reconveyed has no support of any evidence. Nor there is evidence as to why Samuel assigned his insurance policy to Muthuswamy and why Muthuswamy agreed to give set off of the proceeds thereon against the sale consideration on payable by defendant 2. These are all relevant considerations on which evidence must have been adduced and no conjectures could be made in favour of one party to the prejudice of the other.
17. Equally, the alternative contention urged by Mr. Raghavendra Rao on the application of Section 90 of the Trusts Act suffers from the same infirmity. There was neither a plea nor any evidence on the said question. Even assuming that a part of the consideration for purchasing item No. 3 came out of the estate of Samuel, there is no presumption that that acquisition was for the benefit of the plaintiff and others. In order to take advantage of Section 90 of the Trusts Act, it must be established by evidence that defendant-2 availed himself of his position to gain an advantage in derogation of the right of the plaintiff and defendants 1and 3. See: Gulabrao v. Baburao, AIR 1960 Bom. 159. The plaintiff has not even whispered in her evidence as to this legal requirement. There is, therefore, no basis for the application of Section 90 of the Trusts Act.
18. In this context, we may, however, observe that there is no challenge to the decree declaring a share in item No. 4 of the plaint schedule and what we have said about item No. 3 should not, therefore, apply to item No. 4.
19. R. F. A. No. 23/75 has been preferred by the Indian Bank (defendant-8). The counsel for the Bank submitted that the only grievance in the appeal is as to the costs awarded by the trial Court. The trial Court has awarded costs against the defendants. The counsel urged that the costs in a partition suit should ordinarily come from out of the estate and there is no reason to make an exception to this rule in this case.
We find no justification to accept this contention. Section 35 of the Code of Civil Procedure provides that costs of and incident to all suits shall be in the discretion of the Court. Such discretion must be a judicial discretion. The ordinary rule is that in a suit for partition, the parties would bear their respective costs up to the preliminary decree, and thereafter, up to the final decree, costs incurred may be apportioned as per the shares of parties. There is, however, an exception to this general rule. If a question of title is set up by one party against the other and decided in the preliminary decree, the Court may take the result of that issue into consideration while awarding costs. Since in this case the defendants have denied the title of the plaintiff in regard to suit properties, it is proper that they should bear the costs of the successful plaintiff. Similar view was taken by this Court in Krishna Bai v. Kalawati (1977) 2 Kant LJ 4.
20. In the result, we dismiss R. F.As. Nos. 9/75 and 23/75 and allow R. F.A No. 163/74. We modify the decree of the trial Court and dismiss the suit in regard to item No. 3. The rest of the decree is kept undisturbed.
In the circumstances, we make no order as to costs in these appeals.
21. Ordered accordingly.