(1) This is a plaintiff's appeal against the decree and judgment of the Court of the District Judge of Krishna at Masulipataam confirming that of the Subordinate Judge of Masulipatam in O. S. 31 of 1944 a Suit filed by the appellant for partition and sepasrate possession of his 1/3 share in the plaint schedule property and for mesne profits.
(2) The relevant facts may be briefly narrated. The last male-holder was one Jagarlapudi Venkappa. He died issueless was one Jagarlapudi Venkappa. He died issueless in the year 1891 leaving behind him his widow Subbamma. He died possessed of 13 acres and 9 cents of land situated in three villages Nimmalur, Nimmakur and Kapavaram and three vacant sites. He had also some debts. On 3-1-1893, his widow sold the entire 13 acres 9 cents underEx. D.1 to the 1st defendant Sarva Surayya and one Nibhanupudi Balakrishnayya for Rs 950. Items 1 and 2 situated in the village of Nimmaour and of the extent of 6 acres 39 cents, were part of the property sold under the said document.
On 19-1-1893, she sold item 3 of the plaint schedule under Ex. D.28 to one Venkataswami for Rs.90/- Subsequently on 17-12-1900, she sold item 5 of the plaint schedule to one Nibhanapudi Balakrishnayya for Rs.75/- Under Ex. D. 30 Subbamma died on 1-3-1942. The plaintiff and his brothers, defendants 21 and 22, are the next reversioners to the estate of Venkappa. The plaintiff filed the suit as one of the next reversioners for partition and possession of his 1/3rd share in the properties of the last male-holder after setting aside the aforesaid alienations. As the appeal is not directed against item 5 of the plaint schedule, the facts and contentions in respect thereof need not be stated.
(3) The contesting defendants, that is, the alienees and others in possession, contended that the plaintiff elected to take the benefit under the compromise that was effected in a suit filed by his father as presumptive reversioner, and, therefore, he is estoppel from questioning the validity and the bidning nature of the alienations under Exs. D.1 and D.28, and that the said sale deeds were executed for necessity and therefore they were binding upon the reversioners. As regards ite 4 defendants 10 to 15, who were alleged to have trespassed upon the said item, pleaded that they derived title to the said land from their ancestors. The learned Subordinate Judge upheld the contentions of the defendants and dismissed the suit. On appeal, the learned District Judge accepted the conclusions of the Subordinate Judge and confirmed his decree. Hence the appeal.
(4) I shall first take up the question whether the plaintiff is estopped from questioning the validity and the binding nature of the sale deeds Exs. D.1 and D.28. To appreciate the contentions of the parties and to furnish a sastisfactory answer, it would be necessary to notice the facts relevant to that question, Ex. D.1 was executed by subbamma on 3-1-1893, conveying 13 acres 9 cents comprising among other extents items 1 and 2 to the1st defendants Sarva Surayya and one Nibhanapudi Balakrishnayya. Ex D. 28 dated 19-1-1893, is another sale deed executed by subbamma conveying item 3 to Venkataswami. At the time the said sale deeds were executed, the father of the plaintiff and defendants 21 and 22 Paradeswaravadhanulu was the presumptive reversioner. On 27-1-1893, he filed O. S. No. 81 of 1893 impeaching the alienations under Exs. D.1 and D.28. The widow and the alienees filed written statement alleging that the sale deeds were executed for necessity and for other binding purposes. That suit was compromised.
Ex. D.21 dated 2-12-1893 was the compromise petition filed therein. On the basis of the compromise, the suit was dismised. As part of the compromise, the vendees under ex. D.1 executed a sale deed Exhibit D.2 dated2-3-1894, conveying 3 acres 30 cents of Nimmakur lands and 2 acres 93 cents of Kapavaram land in favour of the plaintiffs father and his minor sons, plaintiff and 21st defendant represented by their father as guardian. Admittedly, the father was put in possession of the property and the family, including the plasintiff and his brothers, were enjoying the property till their father's death in 1911. At the time of the father's death, the plaintiff was 26 or 27 years old. Even after the death of the father, the plaintiff and his brothers were in possession and enjoyment of the land conveyed to to them under Exhibit D.2. The three brothers partitioned the said property, along with their joint family properties. the plaintiff sold his share to D. W. 7 under Ex. D.8 dated 29-3-1938 and to one Lakshmikantham, under Ex. D.16 dasted 29-3-1938. So too, his brothers sold the land that fell to their shares under Ex. D.9 dated 7-10-1935 and under Ex. d.15 dated 17-8-1934.
(5) From the aforesaid statement of facts, it will be seen that the plaintiffs, as a minor, became a joint owner of some of the property conveyed under Ex. D. 1 by reason of the compromise effected in O. S. No. 81 of 1893 in the year 1894. He attained majority in or about the year 1903. Even after he attained majoirty, till the death of his father, in 1911, he was in joint enjoyment of the same. From 1911 to the year 1938 i.e., for a period of 27years he continued to enjoy,' the benefit derived by him under the compromise. In 1938, he alienated the land that fell to his share to third parties on the basis that he was absolute entitled to the same. The defendants successfully contended in the court below that the plaintiff was estopped from questioning the validity of the sales under Exhibits D. 1 and D. 28.
(6) The learned. Advocate General appearing for the plaintiff argued that the principle of election based on the theory of benefit has to application to the facts of the case as, at the time Ex. D.2 was executed, the plaintiff was a minor and his enjoyment of the property conveyed under Ex. D.2 after the death of his father was consistent with the title derived from the father, and therefore, from the said act of enjoyment, it cannot be held that he had ratified the transaction entered into during his minority by his father. He asked, with some force whether there was any duty on the part of the plaintiff to reconvey the land inherited by him from his father to the alience with the risk of losing his reversionary rights when succession opened.
(7) Before I attempt to meet the argument advanced, it may be convenient at this stage to consider some of the cases on the subject cited at the bar. The leading case is that of the Judicial Committee in -- 'Rangaswamy Goundan v. Nachiappa Goundan', AIR 1918 PC 196 (A). There a widow made an alienation of her husband's estate to a third party from whom a prospective reversioner took a mortgage of a portioin of it. It was argued that when succession opened, the mortgagee-reversioner was estopped from disputting the validity of the alienation. The Judicial Committee held that he was not estopped. At page 538, their Lordships laid down the principle in clear terms as follows:
'An alienation by a widow is not a void contract, it is only voldable -- 'Bijoy Gopal Mukherji v. Krishna Mahishi Debi', 34 IA 87(PC) (B). Now in all cases of voidable contracts there is a general equitable docrtrine common to all systems that he who has the right to complaint must do so when the right of action is properly open to him and he knows the facts. If, therefore, a reversioner, after he became in tutulo to reduce the estate to possession and knew of the alienation, did something which showed that he treated the alienation as good, he would lose his right of complaint. This may he spopken of though scarecely accurately as ratification. In some cases, it has been expressed as an election to hold the deed good .......................... Of course, something might be done even before that time which amoiunted to an actual election to hold the deed good.'
(8) The Judicial Committee again in -- 'Ramgowda anagowda v. Bhau Saheb', AIR 1927 PC 227 (PC) (C), applied this principle to a different set of facts. In that case a Hindu died in 1846 leaving a widow who survived until 1912 and a daughter . On the death of the widow Annagowda was heir to her husbabnd's estate. In 1863 the widow had alienated nearly the whole property by three deeds executed and registered on the same day. By the first deed, she gave a property to her brother, by the second she sold half of another property to Annagowda, and by the third she sold the other half of that property to her son-in-law. The signature of each of the deeds was attested by the two other alieness Annagowda, who survived the widow for six years, did not seek to set aside any of the allenations. After his death, his son and grandsons brought a suit to recover the whole property. The Judicial Committee held tht Annagowda and his heirs were precluded from disputing the allenations. At page 229 the principle of the decision is taken in the following terms:
'It is settled law that an allenation by a widow in excess of her powers is not altogether void, but only voldable by the reversioners who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.................Annagowda himself being a party to and benefiting by the transaction evidenced thereby was precluded from questioning any part of it.'
(9) The aforesaid two and similar decisions were the subject to judicial scrutiny by a Full Bench of the Madras of Judicial scrutiny by a Full Bench of the Madras High Court in -- 'Ramakotayyav. Veeraraghavayya', AIR 1929 Mad 502 (FB) (D). There one Subbayya died in 1909 leaving a widow Seetamma and his mother Bapamma. In 1918, Seethamma executed a deed of gift ion respect of some of the properties that came to her from her husband in favour of her own brother Veeraraghaviah. The gift was effected by means of a document. The plaintiff executed another document relinquishing all his rights as propsecitve reversioner and also purporting to give full consent to the transaction evidenced by Ex. 1.
The question raised was whether by reason of his action he was precluded from challenging the transaction when succession opened. The Full Bench held that he was so precluded. The Full Bench distinguished the two principles of nomenclature viz., election ratification. The first is the well-known equitable doctrine stated in the leading case of -- 'Streatfied v. Streatfied', I White & Tuder 373 (E). It reads:
'Election is the obligation imposed upon a party by Courts of Equity to choose between two inconsistent or alternative claims or rights in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case or election, therefore, presupposes a plurality of gifts or rights, with an intention express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit or both.'
(10) This presupposes that the party affected by the operationof the principle should have taken a benefit. As regards the second principle the learned Judges observed at page 503 as follow:
'But there is a third doctrine of equity, an obviously indispensable one, which has received various legal tabels, sometimes belong spoken of as an election and sometimes as ratification. Its most authoritative exposition for an Indian Court is to be found in the Judgment of the Board in 'AIR 1918 PC 196 (A)'.'
(11) They extracted the passage, which i have already equoted. The learned Judges also dealt with the third principle of equity, which is embodied in Section 115 of the Evidence Act. The aforesaid three decisions authoritatively settled the principles governing the right of a presumptive reversioner, who has taken a benefit under or ratified a transaction entered into by a widow, to question the said transaction after succession had opened.
(12) I shall now deal with some of the cases cited at the bar in support of the contention that the bread principles laid down in the aforesaid decisions are restricted, or otherwise limited in their application to different circumstances. In -- 'Amrit Narayan Singh v. Gaya Singh', AIR 1917 PC 95 (F), the Judicial Committee formulated the provision applicable to the right of a Hindu reversioner to deal with the estate during the lifetime of the widow. There, a Hindu governed by the Mithakshara law died leaving a widow, a daughter and a daughter's son who was a minor. On the death of the widow a dispute arose with the agnates as to the daughter's right to succeed. Thematter was referred to arbitration. The daughter's husband acting for his wife and their infant son enteredinto a compromise, the effect of which was to completely extinguish the reversionaryinterest of the minor in his grand-father's estate. The arbitrators adopted the compromise. The mother did not acquiesce in the compromise the indeed protested against it.
After the dath of the daughter, her son brought a suitto set aside the compromise and the award. The Judicial Committee held that, until the death of the daughter, her son had no right or interest in the properties, which could be the subject of bargain and his rather's action in referring to arbitration any matter connected with his reversionary right was null and void. At page 97, their Lordships stated thus:
'A Hindu reversioner has no right or interest, in praesenti in the property which the female owner hold for her life; until it vests in him on her death should he survive her, he has nothing to assign or relinquish, or even to transmit to his heirs. His right becomes concrete only on her demise. Until then it is mere spes successionis. His guardian, if he happens to be a minor, cannot bargain with it on his behalf or bind him by any contractual engagement in respect thereot. Rajender's action therefore in referring to arbitration and matter connected with his son's reversinary interest was null and void.'
(13) the legal position stated by the judicial Committee is only re-statement of the principle well established in Hindu Law. No question of estoppel or ratification arose in that case; nor did their Lordships purport to make any observations on that question. Nor does the decision of Curgenven and Sundaram Chetty JJ. in -- 'Satyanarayana v. Venkanna', AIR 1933 Mad 637 (G), held the appellant. There a reversiner to the estate of a widow's husband had received some items of property from the widow in consideration of relinquishing his reversionary right to the remainder. His son inherited those items, which the father had received. The question arose whether the son could question the subsequent allenation by the widow in favour of others.
The learned Judges held that he could question the transactiion, as the plantiffs did not claim through their father, who entered into the transanction but directly as reversioners to the estate of the last male, helder. They further held that the circumsances that they had, after the death of their father taken by inheritance land transferred by way of gift to him couldnot make any difference. It does not appear from the facts of that case, that, except that they succeeded to the property, which they could not help as the heirs of their father, they ratified expressly or by necesary implication the alienation made by the widow.
(14) Strong reliance was placed by the learned Counsel for the Appellants on 'Binda Kuer Mt. v. Lalita Prasad', AIR 1936 PC 403 (H), a decision of the Judicial Committee. The facts of that case are rather complicated. It would, be enough to notice the broad facts relevant to the question now raised. One Bajrangi Lal died possessed of the plaint schedule property in the year 1861. His widow Amola Kaue died in 1916. The plaintiffs claimed declaration of their title and a decree for possession of a half share in the properties referred to in the plaint as having belonged to the said Bajrangi Lal. In 1885, when another member of the family, Bigu Lal's widow Anandi Kuer died, disputes arose between the members of the family. Ganesh, the head of the plaintiff's branch entered into a compromise with his nephew.
One of the terms of that compromise was, that on the death of Amola Kuer the entire property of Bajrangi Lal which he was in psosession of, should go to Naurangi Lal and that Ganesh and heirs should have no claim thereto. To put it shortly Ganesh the head of the plaintiff's branch, relinquish all his right in Bajrangi Lal's property during the lifetime of his widow. At the time of the compromise, the right of the next reversioner of Bigu Lal lay with Jayaram of the branch of Ganesh and another member of a different branch. Though the two branches are entitled to equal shares, Jayaram of plaintiff's branch got a large share and thus he took a benefit under the compromise.
The question is whether the plaintiffs are estopped by the acts of Ganesh, or Jayaram. Obviously, the acts of Ganesh or Jayaram could not bind the plaintiff who became entitled to the property as the hiers of Bajrangi Lal after the death of Amola Kuer in 1916. But reliance was placed on a document dated 4-3-1891, a deed of sale executed by Jayaram in favour of the plaintiffs, wherein the compromise of 1868 was referred to as explaining why Jayaram had two annas four gundas out of the 3 annas four gundas share of Bigu Lal. The question is whether by purchasing the property from Jayaram with knowledge of his title, the plaintiffs would be estopped from claiming as reversioners. The Judicial Committee held that Jayaram had title, that he could sell the propertywhich he sold that it was an accident that he sold it to the plaintiffs instead of to a stranger and that fact was not sufficient to support the case of ratification. At page 308, the Judicial Committee made the following observations:
'Unless the plaintiff's individual conduct makes it unjust that they shoud have a place among Bahrangi Lal's reversioners their legal rights should have effect. Their Lordships do not consider that the defendants have succeeded in showing that the compromise of 1868 or the actings of the plaintiffs or their kinsmen thereunder estop the plaintiffs from asserting that they are entitled as reversioners of Bajrangi Lal.'
(15) This case only lays down that a reversioner can ratify the act of a widow and whether he ratified it in a particular case depends upon the facts of that case. The mere fact that he purchased the property from a presumptive reversioner, who got it under a compromise whereunder he gave up his rights to claim as a reversione to the estate, was held not sufficient to preclude him from claiming his legal right as a reversioner.
(16) In -- 'Manmatha Nath Sett v. gobindala Sett' AIr 1939Cal 135 (I), a widow conveyed her interest in the estate of her deceased husband to a member of the familkty. The next reversioner who had concurred in the alienation, brought a suit to get aside the conveyance, but the suit was compromised and a consent decree was passed whereby it was agreed that the reversioner should take some land and the conveyance by the widow should be accepted as valid. On the death of the reversioner, but before the death of the widow the sons of the reversioner took possession of the land granted to their father under the compromise decree.
On the death of the widow, the sons, who were the actual reversioners, brought a suit as heirs of the last full owner to recover property alienated by the deceased widow. When it was contended that the sons were estopped from claiming as reversioners the learned Judge Lord Willaims J held that the actual reversioners were not prevented by estoppel or ratitification or acquiscence or otherwise from challenging the validity of the alienation. The learned Judge also held that the mere fact of succeeding to the father's estate was not sufficient to support a case of ratfication. It is unnecessary to multiply cases.
(17) The law on the subject may now be summarised. during the lifetime of the widow, a presumptive reversioner has only a spes successionis in the estate of the last male-holder and he cannot, therefore, purportto convey the said interest or otherwise deal with it. His rights in the property would be crystallised only after succession opens. But after succession opens or even during the widow's life-time he may elect to stand by the transaction entered into by the widow or otherwise ratify it, in which case he would be precluded from questioning the transaction.
In this connection, the cases have dealt with three different aspects of the principle of estoppel (1) that which is embodied in Section 115 of the Evidence Act (2) election in the stric senseof the term, whereby the person electing takes a benefit under the transaction, and (3) ratification i.e, agreing to abide by the transaction. A presumptive reversioner, coming under any one of the aforesaid categories, is precided from questioning the transaction when succession opens and when he becomes the actual reversioner. So, far, the law is well settled and there is no dispute.
But can there be any difference in principle if the presumptive reversioner is a minor at the time he has taken a benefit under the transaction? In such a case, the principle of estoppel will be controlled by another rule governing the law of minors. A minor obviously cannot be compelled to take the benefit of a transaction which will have the effect of depriving him of his legal rights, when siccession opens. But a minor can certainly after attaining majority ratify a transaction entered into on his behalf by the guardian. If he so ratifies the transaction entered into by his guardian and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election.
The effect would be the same. It is as if he was a major at the time the transaction was effected and the benefit was conferred on him. What he could not do at the time of the transaction must be deemed to have been done by him by his act of ratification. Itmay be that on attaining majority he was the option to diwon the transaction and discharge the benefit or to accept it and adopt it as his own. Whether, after attaining majority, the quondam minor accepted the benefit or disowned is a question to be decided on the facts of each case.
To illustrate, the father of a minor, affirms a sale by a widow and takes a benefit under the transaction. The father dies before the widow. The minor attains majority. He has no doubt the option to affirm the transaction or to disown it. But is it necessary that he should in exercising his option, return the property to the widow at the risk of otherwise losing his inheritance to the last male-holder? After his father's death, he succeeds to his interest in the property, for the widow cannot question the transaction entered into by the father during her life-time. The mere act of succession to the father may not amount to ratification as the son's enjoyment is consistent with his right of inheritance to the father. But he can either expressly or by necessary implication ratify the transaction entered into by the father. But if the original transaction conferring the benefit was in favour of the minor, different considerations would arise. His enjoyment of thebenefit after attaining majority may in itsself be a sufficient act of ratification. Ultimately, it is a question of fact to be decided in each case.
(18) If the aforesaid principles are applied to the present case, I have no doubt that the plaintiff ratified the transaction entered into by his father on his behalf after he attained majority. As I have already stated, dring the father's life time and for 27 years after his death, the plasintiff enjoyed the property as an absolute owner. After the death of the father, the three brothers, viz., the plaintiff and defendants 21 and 22 partitioned the properties covered by Ex. D-2 among themselves. The plaintiff sold his share of Nimmakur land to D. W. 7under Ex. D-8 and to one Lakshmikantham underEx. D-16. Similarly, the other brothers also sold their shares.
Under Exs. D-8 and d-15, the plasintiff sold the properties that fell to his share on the basis that he was the absolute owner. As the plaintiff enjoyed the properties after he attained majority absolutely for 35 years and sold the same as an absolute owner, it is unreasonable to hold that he had no knwoledge of Exs. d-1, D-2 and D-28 and that he was dealing with the property only as the heirs of his father, who would be entitled to enjoy the property during the life-time of the widow. I have no hesitation on the evidence to hold that the plaintiff had knowledge of Ex D-2 and that with that knowledge he enjoyed the property as an absolute owner till he sold the same in the year 1938. He clearly ratified the transaction Ex. D-2 under which he got the benefit after he attained majority. He cannot, therefore, question the sale deeds Exs. D-1 & D-28.
(19) The next question is whether the sale deeds were executed for purpose binding on the estate. The executed for purpose binding on the estate. The sale deed Ex. D-1 is dated 3-1-1893. The plaintff filed the suit for setting aside the alienation on 24-7-1944 i.e., after 51 years of the alienation. All the persons connected with the transaction are no more. Though one of the alienees was alive at the time of the trial, he was not in a position to give evidence. When a transaction 50 years old is sought to be set aside after all the parties connection with the transaction passed away it is not possible to adduce direct evidence in support of the said transaction; nor is it right on the part of courts to insist upon such evidence. The Judicial Committee in -- 'Bunga Cahndra Dhur Biswas v. Jagat Kishore Acharya Choudhri', AIR 1916 PC 110 (J), had to deal with such a situation. At page 111 they laid down the following principles for guidance:
'If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available the recitals would deserve but slight consideration and certainly should not be accepted as proof of the facts. But as time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital, consistent with the probalities and circumstances of the cases assumes grater importance, and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified proof of the necessity which justified the deed is not essential to establish its validity.
It is only necessary that a representation should have been made to the purchaser that such a necessity existed and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representtion and if the circumstances are such as to justify a rerasonable belief, that an enquiry would have confirmed its truth, then when proof of actual enquiry has become impossible for recital coupled with such circumsances, would be sufficient evidence to support the deed.'
In Ex D-1, the following recital is found:
'To discharge the debts contracted by my husband on khata from Malladi Nagabhushanam, to discharge the debts contracted through my sister's husband Nimmagadda Subbayya and others for the purpose of medicines etc., during the days of my husband's sickness when he stayed in my parent's house at Kondaparu, where he died, as also for his obsequies, and for my future maintenance and for the purpose or annual ceremonies I have sold the inam land of the extent of 13 acres 9 cents in the aforesaid three villages for Rs.950/-
(20) The evidence adduced in the case and carefully considered by the District Judge discloses the following circumstances: (i) Subbamma needed money for the treatment of her husband Venkappa during his illness, for his obsequies, for her own maintenance and for the annual ceremonies of Venkappa; (ii) in the written statement filed by the alienees in O. S. No. 81 of 1893, it was pleaded that Venkappa had contracted debts from Malladi Naghabhushanam; (iii) the consideration was not inadequate; (iv) there was no cogent evidence in regard to the actual income from the lands; and (v) the presumptive reversioners, who impugned the alienations Exs. D-1 and D-28 clearly admitted in the compromise petition that on enquiry they had come to know definitely that the suit property was sold by Subbayya for discharging the debts contracted by her husband.
The learned Judge having approahced the question from the right perspective and having regard to the aforesaid circusmtances, accepted the recitals in the document as representing the correct state of affairs at the time Ex. D-1 was executed. I cannot, therefore, say that the finding is vitiated by any error of law.
(21) The next sale deed is Ex. D-8 dated 19th January 1893. That document was executed after a fortnight after Ex. D-1. Under it 192 square yards of site in the village of Nummalur was sold for Rs.90/- in favour of the grandfather of the 13th defendant. This transaction also is sought to be questioned after 50 years when all the parties connected with it are no more. The sale deed having been executed soon after Ex. D-1, the same circumstances must also govern this sale. The recitals in Ex. D-1 show tht there were debts incurred by Subbamma's husband and by her sister's husband for meeting his medical expenses. She also borrowed for the obsequies and she required money for her maintenance. The consideration was adequate. The presumptive reversioners, who questioned it after enquiry admitted tht the debts of the husband were true and that the sales were necessary for discharging those debts. On those facts, when thelearned District Judge held that this sale was also for necessity I cannot say that the finding is vitiated by any error of law.
(22) Finally, it was contended that the learned Judge was wrong in dismissing the suit in respect of item 4 of plaint schedule. In the plaint, it is stated that defendant 10 to 15 unjustly trespassed into the 4th item after Subbamma's death, taking the opportunity afforded by the 4th item being adjacent to the items allenated in their favour and that the aforesaid items are in the wrongful possession of the respective defendants Defendants 13 to 15 in their written statement stated that they were in possession of the 4th item which they got from their ancesstors and predecessors in title. They defined that they trespassed into any portion of that item.
The learned Subordinate Judge held on the evidence that item 4 was a part of item 5. On appeal, the learned District Judge held that the said item is part of items 3 and 5. The learned counsel for the appellant contended that the courts have made out a new case for the defendants, for, in his written statement, they only pleaded that they got the property from their ancestors. The plaintiff has come to the court claiming that Venkappa died possessed by the 4th item. The 13th defendant has admittedly been in possesson of this item. He has examined as D. W. 20. He deposed in his evidence that that item was covered by Exs. D-26 and d-30 and he was not cross-examined. Even the plaintiff in his evidence admitted that the plaint schedules were copied from Exs. D-28 and D-30. In the circumstances, the learned Judge held that their item is part of items 3 and 5. The question is one of fact and there are no grounds for interference.
(23) In the result, the Second Appeal fails and is dismissed with costs. No leave. (Costs one set).
(24) Appeal dismissed.