A. Gopal Reddy, J.
1. Since these two appeals are preferred against the judgment and decree passed by the Subordinate Judge, Madanapalle dated 3-9-1990 in OS No. 24/1980, whereunder suit filed by the plaintiff (Respondent No. 1 herein) for partition of her 1/7th share and separate possession in the plaint schedule properties was decreed, were heard together and disposed of by this common judgment.
2. Defendants 8 and 9 who are the subsequent purchasers from D-5, who purchased the property from D-3 and D-4, who are the sons of P. Ismail Beig, filed AS No. 2710/90 for claiming equities. Whereas the LRs of the 1st and 7th defendants filed AS No. 1722/1992.
3. For the sake of convenience, the parties will be arrayed as they were appearing before the Trial Court.
4. The brief facts which give rise to the controversy are as under: Plaintiffs, D-1 and D-2 are the daughters and Defendants 3 and 4 are the sons of late Ismail Beig and Sakina Bee. D-7 is the husband of D-1. D-5 who purchased the disputed item of property sold the same to defendants 8 and 9. As per the plaint averments, the plaint 'A' and 'B' schedule properties belonged to the father and mother of plaintiff and defendants 1 to 4. They died 11 years and 4 years prior to the filing of the suit respectively. On their death, they succeeded to the plaint schedule properties and they are in joint possession. The plaintiff and defendants 1 to 4 being the co-sharers and co-owners are enjoying the plaint schedule properties in proportion to their respective shares. In the plaint schedule properties, the plaintiff is entitled to 1/7th share, whereas defendants 1 and 2, 1/7th share and defendants 3 and 4 together entitled to 4/7th share. Defendants 3 and 4, at the instigation of defendant No. 7, who is the husband of the first defendant alienated half of the extent of item No. 41 of the plaint 'A' schedule land situate at Kumaanatham Village including the shares of the plaintiff and defendants 1 and 2 to the fifth defendant under a registered sale deed dated 22-2-1978 for a sum of Rs. 30,000/-. They again sold other half of the extent of item No. 41 including the shares of the plaintiff and D1 and D2 to D5 under a registered sale deed dated 29-3-1978 and realized a sum of Rs. 30,000/-. Again on 7-6-1978, they sold out the half share in Dewanji Chenu in item No. 33 of plaint 'A' schedule land situate at Arikila, erstwhile Punganur Taluk, at the instance of D-7 to the sixth defendant under a registered sale deed for a sale consideration of Rs. 5,000/-. Defendants 3 and 4 sold the said properties without the knowledge and consent of the plaintiff. The vendees i.e., D-5 and D-6 though had knowledge of the plaintiff's share purchased the properties, therefore, the sale will not bind the plaintiff so far as her share of properties are concerned. Since the defendants 3 and 4 without the knowledge of plaintiff and without the consent of co-sharers alienated the properties, the plaintiff demanded D-1 to D-4 for her 1/7th share in the plaint schedule properties by metes and bounds and put her in separate possession. Though plaintiff convened a mediation for the division of the plaint schedule properties through elders, they did not heed the words of the elders at the advice of D-7. Therefore, the plaintiff got issued a notice twice to D-3, D4 and D-5 on 30-3-1979 and 5-5-1979 and D-6 on 26-5-1979. Defendants 3 and 4 though received the lawyer's notice dated 5-5-1979 along with earlier lawyer notice, failed to give any reply. So also, defendants 5 and 6 though received did not reply to the notice issued by the plaintiff. D-8 and D-9 who are the subsequent purchasers from D-5 were added as parties to the suit in IA No. 995/1981 dated 21-1-1982. D-10, who is the brother of D-7 and purchaser of certain properties, was added as party in IA No. 1006/1981 dated 21-1-1982. D-11 who purchased certain properties was added as party to the suit in IA No. 114/82. Originally the suit was instituted against D-1 to D-6 only. D-7 was added subsequently as per the orders of the Court in IA No. 757/81 dated 30-10-1981. During the pendency of the suit, D-1 died and her sons and daughters were added as D-12 to D-17 and her husband-D-7 was already on record. The plaint was amended as per orders in IA No. 155/83 dated 28-3-1983 by adding Para 6(a) to the plaint. The plaintiff's further case as per the amended plaint is that D-7 is the husband of D-1 and also the brother of D-10. After his marriage, the parents of the plaintiff and defendants 1 to 4 made him Manager of the suit properties. They had nominally kept some properties in his name jointly with their names in items 39 to 41 of plaint 'A' schedule property to evade land ceiling proceedings. Though the sale deeds jointly stand in the name of the parents of the plaintiff and defendants 1 to 4 with the seventh defendant were never acted upon and they were joint and undivided without any sub-division. The properties were purchased with the moneys of the parents of the plaintiff and defendants 1 to 4. D-7 created a nominal sale deed in respect of item No. 41 in favour of D-10. Whereas D-5 disposed of his land to D-8 and D-9, which he had purchased from D-3 and D-4. Since the plaintiff is not a party to any of the sale deeds, she is not bound by said sale deeds to the extent of her 1/7th share in all the suit schedule properties.
5. In the written statement filed by the first defendant on 23-10-1980, she admitted the allegation that plaintiff and defendants 1 to 4 owned the suit schedule properties except items 39 to 41 of the plaint 'A' schedule. She further pleaded that said three items belong absolutely to her husband, D-7. The plaintiff never in joint possession and enjoyment of the suit schedule properties much less items 39 to 41. The plaintiff and defendants 1 to 4 are entitled to their respective shares in other properties of their parents except items 39 to 41. Her husband, D7 alone is the owner of the said properties and has been in possession of the same by paying land revenue. D-1's husband, D-7 got the sale deed executed in respect of items 40 and 41 both in his name and nominally in the name of her father and in respect of item No. 39 in his name and nominally in the name of her mother on the premise that he could not hold extensive lands in his name. Her parents are not the owners of these three items and they ever in possession and enjoyment. Therefore, neither the plaintiff nor defendants 1 to 4 is acquired any title or right over the said three items of the property.
6. In the additional written statement filed by the first defendant on 15-12-1981, it was stated that in case the plaintiff's claim is allowed for partition, D-1's share in items 39 to 41 of plaint 'A' schedule may be allotted to be in contiguity with her husband, D-7 lands. D-7 is not a party to the transactions made by D-3 and D-4. Due to the influence and power of D-3 and D-4 are having over the ryots of Cherlopalli and Arikela Villages, it is difficult for her to enjoy her share in the properties. Therefore, she prayed that her share of properties in the said villages may be compensated by requisite share to be allotted to her near the lands of her husband in items 39 to 41 of plaint 'A' schedule properties.
7. The second defendant filed written statements supporting the claim made by the plaintiff.
8. The third defendant filed a memo adopting the written statement and additional written statement filed by the fourth defendant.
9. The fourth defendant filed a written statement denying the allegation that the heirs of late Ismail Beig and Sakinabee i.e., plaintiff and defendants 1 to 4 have in possession of the plaint schedule properties. He further stated that D-3 and D-4 alone have been in possession of the plaint schedule properties and they have perfected their right and title to the plaint schedule properties by adverse possession. After the death of D-4's father, namely, Ismail Beig, plaintiff and D-1 and D-2 have given up and abandoned their rights devolved on them by succession in the plaint schedule properties. His father purchased lands with tamarind trees with his money nominally in the name of the plaintiff's husband in the village of Arikela, who is none other than Ismail Beig's sister's son. After the death of Ismail Beig, the plaintiff was allowed to enjoy the suit schedule properties in lieu of her giving up her rights in the plaint schedule properties. Items 39 to 41 of plaint 'A' schedule properties were purchased by Ismail Beig and kept the same nominally in the name of 7th defendant and his wife Sakina Bee. After the death of Ismail Beig, the first defendant was allowed to enjoy half of the full extent in the said items in lieu of her giving up rights in the plaint schedule properties. Similarly, the second defendant also gave up her rights in the plaint schedule properties acquired by her father after the death of her father on the ground that her family was well off and that the third defendant was a dumb and deaf person. Consequently, the plaintiff and defendants 1 and 2 are entitled to claim any share in the plaint schedule properties. The sale deeds executed by D-3 and D-4 in favour of D-5 and D-6 in respect of items 33 and 41 of plaint 'A' schedule properties are binding on the plaintiff and defendants 1 and 2. The fifth defendant sold the property purchased by him from D-3 and D-4 to defendants 8 and 9 and D-8 hypothecated the said property to Punganur Land Development Bank and developed the said property. Even if it is held for any reason that defendants 3 and 4 are entitled to 4/7th share the extent sold by them to the fifth defendant under registered sale deeds dated 22-2-1978 and 5-6-1978 in respect of item 41 of the plaint 'A' schedule properties will not exceed their share. Therefore, the sale deeds cannot be questioned. So far as item No. 39 of the plaint 'A' schedule properties, the excess extent said to have been sold by D-3 and D-4 in excess of 4/7th share can be compensated to the plaintiff for her share in other items of plaint 'A' schedule properties in the share of defendants 3 and 4 on the principle of equity.
10. The fourth defendant filed an additional written statement on 30-3-1982 pleading that the land and tamarind trees that are purchased by D-8 and D-9 from the fifth defendant to whom defendants 3 and 4 have sold may be allotted to D-8 and D-9 by way of equities.
11. The seventh defendant filed written statement and additional written statement on 5-12-1981 and on 30-3-1982 respectively. He also filed additional written statement on 6-4-1983 after amendment of the plaint as per orders in IA No. 155/83. The gist of the above written statement is that the items 39 to 41-C of the plaint 'A' schedule properties were purchased by him exclusively for himself with his own monies and in apprehension of land ceiling proceedings, the sale deeds were obtained in the name of himself and his father-in-law and mother-in-law as they promised that they would never lay any claim over the said properties. His father-in-law and mother-in-law i.e., parents of the plaintiff and D-1 to D-4 did not spend any money to purchase the above three items of property, and never in possession of the said property and the recital of their names in the sale deeds was nominal and they did not confer any right or title to these properties. Since the date of purchase of the said properties, he has been in exclusive possession and enjoyment of the same continuously and uninterrupted and he perfected his title by adverse possession to the half share claimed by the plaintiff and D-3 and D-4. The alienation of certain land made by defendants 3 and 4 to D-5 will not confer any right or title over those lands. D-7 dug a big well in S.No. 288 i.e., in items No. 41 of the plaint 'A' schedule property with his own money and erected sheds, constructed houses and has installed oil engine, electric motor and a sugarcane crusher. He borrowed money from Khadi and Village Industries Board. The aforementioned properties are the absolute properties of D-7, of which plaintiff and D-1 to D-4 cannot lay any claim. Since he is owner and has got exclusive right and title over items 39 to 41, he sold some land to D-10 in S.No. 488/1 and he has been in possession of the same and plaintiff cannot claim over the said land.
12. On impleadment, D-8 filed written statement and additional written statement on 30-3-1982 and 22-4-1984 respectively stating that himself and his wife purchased an extent of Ac.6-67 cents comprised in S.No. 288/1 comprised in item No. 41 and another extent Ac.1-40 cents in S.No. 288/2 comprised in item No. 41-A of the plaint 'A' schedule properties with specific boundaries and it is a separate and divided plot containing 44 tamarind trees, which are also purchased by them and since the date of purchase they have been in exclusive possession and enjoyment of the same. It is further stated that the land along with 44 tamarind trees had fallen to the share of D3 and D-4 during the partition and division of items 41 and 41-A to C between themselves and the other co-owners. Defendants 3 and 4 had sold the same in favour of D-5 under two registered sale deeds dated 22-2-1978 and 29-3-1978. The defendants 8 and 9 are the subsequent purchasers of said plot of land together with 44 tamarind trees from the fifth defendant under two separate registered sale deeds dated 29-8-1979. Exercising their rights, they executed usufructuary mortgage deed in favour of one M. Sami Raja in respect of 44 tamarind trees and he is in possession of the same. Defendants 8 and 9 have discharged the loan in respect of the said land in the Land Mortgage Bank and improved the said plot of land by spending huge amount in bringing it under cultivation. They dug and constructed a well and fixed up an oil engine and pump set and they also planted 500 coconut plants about two years ago in the said land. In case, the plaintiff is entitled to any share in the properties, which were purchased by them, may be allotted to D-3 and D-4 under equity. Since D-8 and D-9 are bona fide purchasers for value and without notice of the alleged rights of the plaintiff in the said survey numbers, they are entitled to equities namely for the allotment of the plots to them which they had purchased.
13. 9th defendant filed a memo adopting the written statement filed on behalf of D-8.
14. D-10 filed a separate written statement on his impleadment taking the similar pleas as that of the seventh defendant.
15. On these pleadings of the parties, the Trial Court settled the following issues and additional issues for trial :
'1. Whether the parents of the plaintiff were the owners of items 39 to 41 of plaint schedule and whether they were in possession and enjoyment of these properties?
2. Which are the properties owned and possessed by the parents of the plaintiff are available for partition after their death?
3. Whether the plaintiff and defendants 1 and 2 relinquished their rights in the suit properties in favour of D-3 and D-4 and whether such relinquishment is true and valid?
4. Whether the sales effected by defendants 3 and 4 in respect of items 33 and 41 are valid and binding on the other sharers and if not whether D-3 to D-6 are entitled to claim any equities as alleged in the written statement of D-4?
5. Whether items 30 to 41 belong to the husband of first defendant and whether he has perfected his title for the said properties by adverse possession?
6. Whether the suit is bad for non-joinder of the husband of the first defendant as a party to the suit?
7. Whether the plaintiff is entitled for partition and separate possession and if so, in which properties?
8. To what relief ?'
Additional Issues framed on 25-6-1982:
1. Whether D-8 and D-9 are entitled for the extents of land in items 41 and 41-A of plaint schedule in view of the purchases made by them as alleged in the written statement of D-8 and whether they have perfected their title by adverse possession for the same?
2. Whether D-8 and D-9 made any improvements for the lands alleged to have been purchased by them, and if so, to what extent?
3. Whether D-8 and D-9 are entitled to claim any equities in allotment of shares?
4. Whether item 38 is the self acquired property of D-3 and D-4 as contended by them in their additional written statement?
5. Whether D-10 is entitled for the extents of Ac.3-15 cents and Ac-96 in item 41 as claimed in his written statement and whether he is in separate possession and enjoyment of the same?
Additional issues framed on 16-6-1983:
1. Whether the 7th defendant was the benamidar of the plaintiff in respect of the properties covered by items 39 to 41-A of the plaint schedule?
2. Whether the rights of 10th defendant are not protected under Section 41 of the Transfer of Property Act?
16. In order to prove the claim of the plaintiff, she herself examined as P.W.3. Apart from her, she examined her husband as P.W.1 another witness as P.W.2 and got marked Exs.A-1 to A-7. Ex.A-1 is the registered copy of sale deed dated 7-6-1978 executed by D-3, D-4 and D-8 on behalf of D-5. Ex.A-2 is the office copy of notice dated 30-3-1979 issued by the plaintiff to D-3, D-4 and D-5. Ex.A-3 to A-5 are the postal acknowledgements dated 11-5-1979, 5-5-1979 and 28-5-1979 respectively. Ex.A-6 is the refused cover. Ex.A-7 dated 22-2-1978 is the registered coy of sale deed executed by the plaintiff to D-3 and D-4 in favour of D-5. On behalf of the defendants, D.Ws.1 to 15 were examined and got Exs.B-77 were marked. 12th defendant who is the son of D-1 was examined as D.W.1. The husband of the second defendant was examined as D.W.2. The son of Ismail Baig's cousin sister, who said to have supervised the harvest operations of tamarind trees was examined as D.W.3. Fourth defendant, who is the elder brother of the third defendant, himself was examined as D.W.4. To establish that Ismail Saheb purchased Navlakh Thota and Rani Thota, and who said to have looked after and managing the properties of Ismail Beig was examined as D.W.5. D-8 who is the husband of D-9 was examined as D.W.6. The Accountant working in Co-operative Agricultural Development Bank, Punganur was examined as D.W.7 to speak the borrowal of loan by D-8 by mortgaging the sale deeds dated 20-8-1979 and 29-8-1979. D.W.3 is an independent witness to speak about digging of a well and construction of revetment as per instructions of D-8 and D-9. D.W.9 is a practising advocate appointed as commissioner to inspect the physical features and improvements. D.W.10 and D.W.11 are examined to prove that D-7 purchased some lands and houses. D-7 himself was examined as D.W.12. To prove that some thota was in possession and enjoyment of D-7 was examined as D.W.13. The person who purchased four acres of land under registered sale deed from D-7 was examined as D.W.14. The attestor who attested Ex.B.76 was examined as D.W.15. Ex.C-1 to C-3 and Exs.X-1 to X-6 were marked.
17. On appreciation of oral and documentary evidence, on issue No. 6 the Trial Court held that originally the suit was filed against defendants 1 to 6 and in view of the plea taken by the first defendant that D-7 was the owner of items 39 to 41-C of plaint 'A' schedule properties, the plaint was got amended and all the proposed parties were added. In the view of the subsequent developments, the issue does not survive for consideration and the same was answered accordingly. On issue Nos. 1 and 5, the Trial Court held that it has not accepted the plea of either party, namely, items 39 to 41-C of plaint 'A' schedule properties were purchased either by the plaintiff or defendant No. 7 has no capacity to purchase the properties and same was kept in the name of D-7 by the father of plaintiffs, and D-1 to D-4. When the children of vendors under Exs.B-10 and B-11- sale deeds filed in OS No. 2/70 against the present plaintiff, D-1 to D-4 and D-7, D-7 in the present suit (D-5 in that suit) filed a written statement, which was adopted by other defendants, namely, the plaintiff and D-1 to D-4 herein, categorically admitted that the properties were purchased by him and the parents of the plaintiff, and all the parties are jointly enjoying the properties. Further in the declaration filed before the Land Ceiling Tribunal by D-7, D-4 and others, they admitted that the properties covered by items 39 to 41-C of the plaint 'A' schedule properties are the joint properties of D-7, Ismail Beig and Sakina Bee. Except oral evidence, there is no evidence whatsoever placed before the Court below either by the plaintiff or by D-2 to D-4 and it is not open for D-7 to claim exclusive rights over the said properties de hors sale deeds under Exs.B-10 and B-11 and Exs.B-15 and B-29. Further in the land ceiling declaration under Ex.B-23 dated 10-4-1975, D-7 declared that he is the half share holder of the property and Sakina Bee and Ismail Beig are the owners of the remaining half share under Exs.B-10 and B-11. The said declaration was finalized by the Land Ceiling Tribunal as per the orders under Exs.B-24 and B-25 accepting the plea of D-7. The plea taken by both the parties that the properties covered by the items 39 to 41-C of plaint 'A' schedule properties are the properties of D-7 and wife of Ismail Beig. Further benami plea taken is not available to both parties and properties covered by items 39 to 41-C of the plaint 'A' schedule are the properties of D-7, wife of Ismail Beig and D-7 and Ismail Beig and consequently D-7 is having half share in all the above items of property and the plaintiffs, D-1 to D-4 are to succeed the other half share of Sakina Bee and Ismail Baig. Learned Judge held that when documents Exs.B-23 to B-25 are within 10 years prior to the suit and in view of clear admission made by D-7, it is open for D-7 to plead adverse possession, unless his possession is hostile to the title holders under Exs.B-10 and B-11 and their successors. Further co-sharer in possession would be constructive trustees on behalf of the co-sharers who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee. The Trial Court further held that either parties fail to establish adverse possession and D-7 is having half share in the suit schedule properties covered by items 39 to 41-C and the remaining share was owned by Ismail Beig and his wife Sakina Bee and subsequently the plaintiff and D-1 to D-4 succeeded to the said property and answered issue Nos. 1 and 5 accordingly. In view of answering issue Nos. 1 and 5, issue No. 2 was answered in favour of the plaintiff holding that plaintiff and D-1 to D-4 are entitled for partition of the above properties. On issue No. 3, the Trial Court answered the issue in favour of the plaintiff and against the D-3 and D-4 since D-4 who is examined as D.W.4 could not adduce any clinching evidence to establish relinquishment. On additional issue No. 1 framed on 16-6-1983, the Trial Court answered the issue in favour of D-7 and against the plaintiff holding that 7th defendant was not a benamidar in view of finding on issues 1, 2, and 5 that he is having half share in items 39 to 41-C of plaint 'A' schedule properties. On issue No. 5, additional issue Nos. 1 and 3 dated 25-6-1982, the Trial Court held that the properties which were sold by D-3 and D-4 and purchased by D-5 and from whom purchased by D-8 and D-9 are part and parcel of properties covered under Exs.B-10 and B-11, the title of which stands in the name of D-7 and Ismail Beig, father of the plaintiff and plaintiff issued notice under Ex.A-2 claiming share in all the plaint schedule properties, which was served on D-3, D-4 and D-6 on 5-5-1979, whereas notice issued to D-5 was returned as refused. When the original purchaser D-5 was served with notice and since D-8 and D-9 are subsequent purchasers and in view of the admission made by D-8 examined as D.W.6 that he is aware of the claim of the plaintiff and once the properties are not the exclusive properties of D-3 and D-4, D-8 and D-9, who made alleged improvements during the pendency of the suit very well known that there is defect in their title. When the extent covered by sale deeds executed by D-3 and D-4 is more than the extent for which they are entitled, they (D-8 and D-9) are not entitled to any equities, in the absence of establishing good faith in purchasing the property. On additional issue No. 5 dated 25-6-1982 and additional issue No. 2 dated 16-6-1983, the Trial Court held that D-10 may have his share carved out from the share allotted to his vendor D-7 and beyond that he cannot claim any equities. In view of the findings arrived on earlier issues, the Trial Court answered issue No. 7 in favour of the plaintiff and decreed the suit of the plaintiff holding that plaintiff, D-1 and D-2 are entitled to 1/7th share each, D-3 and D-4 are entitled to 2/7th share each. Defendants 8 and 9 are the purchasers from D-3 and D-4 their shares will be worked out in the shares allotted to D-3 and D-4. D-10 who is a purchaser from D-7, his share will be worked out in the share allotted to D-7 and the same will be considered at the time of passing of the final decree. Accordingly a preliminary decree was passed. Assailing the correctness of the same, the present appeals have been preferred. In the present appeals, we are confined only to items 39 to 41-C of plaint 'A' schedule properties. D-7 and D-12 to D-16 in their appeal i.e., AS No. 1722/1992 claimed that D-7 is entitled for declaration that he is the absolute owner of the properties and Ismail Beig and Sakina Bee, father and mother of plaintiff and D-1 to D-4 will not have any right over the said properties and their names under Exs.B-10 and B-11 are kept nominal, but the same was purchased by D-7 with his own funds. Whereas D-8 and D-9 filed AS No. 2710/90 claiming equities in their favour. In view of the same, it is not necessary to go into other issues, which are not the subject-matter of challenge in the above appeals.
18. Sri K.V. Reddy, learned Counsel for appellants-D-7 and heirs of D-1, who are D-12 to D-16 in AS No. 1722/1992, made the following submissions:
1. In the suit notice dated 30-3-1979 under Ex.A-2 or in the original plaint, the plaintiff never claimed that the properties covered by items 39 to 41-C of plaint 'A' schedule properties are exclusive properties of Ismail Baig and Sakina Bee. She claim the same only after amendment of plaint through IA No. 155/83 dated 28-3-1983 substituting items 39, 40, 41 and 41-A to C. Either in the suit notice or original plaint no plea was taken that they are the absolute owners of the said property. In the original plaint, only 1/2 share is shown by the plaintiff towards the share of Sakina Bee and Ismail Beig. In Exs.B-10 and B-11 sale deeds which were obtained in the name of D-7 and Sakina Bee and D-7 and Ismail Beig respectively, no survey numbers were mentioned but only paimaeshi numbers were mentioned. 'A' schedule consists of several numbers. The suit as such instituted is in collusion in between the plaintiff and his sisters D-1 and D-2 and brothers D-3 and D-4, which is evident from the evidence of D-2's husband who is examined as D.W.2 supporting the claim of the plaintiff and without there being any permission and leave plaintiff's husband was examined first as P.W.1 and she tendered her evidence later. The admission of 7th defendant in OS No. 2/70 filed by Jagirdars for cancellation of sale deeds was alone taken into consideration in exclusion of other independent documents. Except Ex.X-3 (Ex.B18) dated 22-2-1978 there is no evidence about doing tamarind business by D-3 and D-4. Similarly, under Ex.X-4 (Ex.B-17) dated 29-3-1978, D-5 who purchased the property from D-3 and D-4 never enjoyed the same as from whom D-8 and D-9 purchased under Exs.X-1 dated 20-8-1979 and Ex.X-2 dated 29-8-1979.
2. It was strongly urged that properties under Exs.B-10 and B-11 covering items 39 to 41-C of plaint 'A' schedule were purchased by D7, which is evident from the promissory note Ex.B-35 as the relationship between Zamindar and D-7 was cordial as Zamindar indebted to D-7.
3. In the absence of any source of income and capacity of Ismail Beig and Sakina Bee to purchase the said property, evidence adduced by the defendants is sufficient to accept the plea that said properties were purchased by D-7 with his own income and the names of Ismail Beig and Sakina Bee are nominal, in anticipation to see that defendant No. 7 will not be declared as surplus land holder on implementation of ceiling laws. In the absence of exercising any ownership by Ismail Beig and Sakina Bee, plaintiff will not acquire any right over the properties covered under items 39 to 41-C. In the absence of any documents filed by the plaintiff to prove the title of Ismail Beig and Sakina Bee or their possession over the properties covered by Exs.B-10 and B-11, they cannot claim joint possession. Court fee paid under Section 34(2) of Andhra Pradesh Court Fees and Suits Valuation Act, 1956 claiming joint possession is not correct. When contesting defendants 3 and 4, who are the sons of Ismail Beig and Sakina Bee though claimed joint possession, no documents were filed and they admitted that their mother Sakina Bee did not have any property.
4. D-4 who was examined as D.W.4 and who executed Exs.B-17 and B-18 sale deeds along with D-3 clearly admitted that properties were owned by their father and on his death they succeeded to all the properties of his father. But there is no evidence that properties fell to the share of Ismail Beig and Ex.X-3 and X-4 show that 'A' schedule properties were conveyed whereas 'B' schedule was given as security for the remaining half share but no mentioning of constructions made in the properties covered by Exs.B-10 and B-11.
5. Mistaken admission cannot be taken into consideration in the absence of any contra evidence adduced by the plaintiff to declare that her father and mother are half share holders of the properties covered under Exs.B-10 and B-11.
6. In view of the evidence of attestors, i.e., D.Ws.10 and 11 to prove that D-7 purchased the property ad names of Ismail Beig and Sakina Bee are kept nominal to the said documents and entire consideration was paid by D-7, the Court ought to have dismissed the suit of the plaintiff.
7. Ex. 10(1) account under Ex.B-73 shows that D-7 was in exclusive possession and when D-7 is in enjoyment and possession of the properties since the date of purchase and made constructions like cattle sheds, and installed motors etc., he perfected his title by adverse possession and so possession delivered by D-3 and D-4 to D-5 under Exs.B-17 and B-18 is only nominal, so also by D-5 to D-8 and D-9. D-6 is also not a bona fide purchaser. Therefore, they are all not bona fide purchasers.
19. Sri S.V. Bhatt, representing Sri E. Kalyan Ram, learned Counsel for the respondents 5 and 6 in AS No. 1722/1992 and who are appellants in AS No. 2710/1990 urged as follows:
1. A reading of the documents Exs.B-10 and B-1 1 under which defendant No. 7 and plaintiff's mother P and father, Ismail Beig and Sakina Bee purchased the property mentioned therein, do not disclose any nominality. Whereas transfer of mortgage deed and three loans obtained by the vendor under Exs.B-10 and B-11 clearly show that indebtedness claimed by the vendor under Exs.B-35 and B-36 was never the consideration for executing Ex.B-11. In the absence of any evidence to disapprove the transaction mentioned in Ex.B-11, it is not open for D-7 to plead nominality and it is for D-7 to prove that other co-sharers have no means to contribute the sale deed. In view of the same, the parties to the documents will have half share each in the schedule properties covered under those sale deeds.
2. Lineal descendants of vendors under Ex.B-11 filed OS No. 2/1970 against the plaintiff as well as D-7. D-7 in his written statement categorically admitted that he is only half share holder and the remaining half share succeeded to by the plaintiff and D-1 to D-4 who are in joint possession of the property and the said suit which was ended in compromise also shows the honest intention of D-7 that he was having only half share in the suit schedule properties. Subsequent to the said written statement, D-7 in his declaration under Ex.B-23 categorically stated that he is only half share holder and Ismail Beig and Sakina Bee are the owners of the remaining half share. Under Ex.B-24 report submitted by Land Ceiling Authority based on the declaration discloses that land ceiling case was finalized and D7 was declared as non surplus land holder. Since 1946 to 1976 till D-7 files a declaration and its finalization, D-7 never claimed exclusive ownership of the property covered under Exs.B-10 and B-11 and is now estopped to claim that he is the exclusive owner and in support of the said contention he relied upon a judgment of the Supreme Court in Basant Singh v. Janki Singh, AIR 1967 SC 341.
3. To prove nominality and benami, it is for the defendants to establish nominality of Sakina Bee and Ismail Beig and their names were kept for nominal sake and in support of the same, he relied on the judgment of a Division Bench of this Court in M. Pullayya v. C. Guravayya, 1969 (1) An.WR 209.
4. As there is no plea is taken by the defendants about the Court fee and relief on which they have to seek declaratory relief and in the absence of any plea and issue framed, it is not open for D-7 to contend that Court fee paid is insufficient and plaintiff has to seek for declaration.
5. D.Ws.10 and 11 who are attesting witnesses are not competent to speak that the names of Sakina Bee and Ismail Beig are kept nominal in the sale deeds under Exs.B-10 and B-11.
6. In Ex.B-73, which was obtained on 25-2-1987, there is no reference to fasli to show exclusive possession of the claimant. In the absence of any reference to the fasli exclusive possession of the claimant cannot be inferred from the beginning and similarly cist receipt Ex.B-70 which was obtained on 24-4-1986, will not help D-7 since there was no reference to survey number for which land revenue was paid.
7. Learned Counsel further contends that once compromise decree Ex.B-30 is passed in terms of the compromise between the parties to which Court puts its seal after following the procedure under Order 23, D7 ought not have to speak lie that he is the exclusive owner of the property, which was rightly disbelieved by the Trial Court and for the said proposition, he relief upon the judgment of the Supreme Court in Sailendra Narayan v. State of Orissa, : 1SCR72 , and in Shankar Sitaram v. Balkrishna Sitaram, : 1SCR99 .
8. D-7 is hardly anything to do with the recitals of securities in 'B' schedule and it is not open for him to claim title or right passed on under Exs.B-17 and B-18 to D-5.
20. Coming to appeal i.e., AS No. 2710/ 1990 filed by D-8 and D-9, learned Counsel submits that property purchased by D-8 and D-9 is lesser in extent than the land to be allotted to the vendors of their vendors D-3 and D-4. In the absence of any opposition for equities in the written statement of D-2 and their vendor, finding by the Court below that the defendants developed the properties during the pendency of the suit is erroneous. Advocate-Receiver took possession of the property in November, 1981 and said developments were made prior to taking possession of the properties by the advocate-Receiver. Notice issued under Ex.A-2 to D-3, D-4 and D-5, was received by D-3 and D-4 only but not by D-5. Ex.A-6 shows that it was returned but not refused. The advocate who was appointed as commissioner in IA No. 1226/ 85 submitted his report under Ex.C-2 along with plan Ex.C-3, which shows that defendants 8 and 9 borrowed monies from Agricultural Development Bank under Ex.X-6. Even D.W.4 in his evidence pleaded that properties which were sold by them may be allotted to them and the finding of the Trial Court for refusing equities is erroneous and contrary to evidence. Reasons given by the Trial Court are palpably wrong since S.Nos. 288/1 ad S.No. 288/2 are comprising 41 acres and even if half of the share of the father of the plaintiff and D1 to D4 is taken as 20 acres and odd, the plaintiff, D-1 and D-2 are put together entitled only 7 acres and the remaining 13 acres and odd will altogether entitle to by D-3 and D-4. Whereas property purchased by defendants 8 and 9 is only 8 acres and there is no reason why the said property shall not be allotted to D-3 and D-4 and if the equities are worked out it will not infringe the rights of co-owners. Whereas Counsel for first appellant-D-7 in AS No. 1722/1922 opposing claim for equities contended that since decree under Ex.B-30 is a consent decree and in the absence of any compromise between defendants, land ceiling declaration and statements are made only to limit ceiling area and to save the property from declaring it as excess. D-7 is in exclusive possession of the property as per admission made by D.Ws.10 and 11 attestors, coupled with the evidence with regard to construction some structures D-7 which has been admitted by P.W.1. When the sale deeds executed in favour of the vendor of D-8 and D-9 are only nominal and since there is no good faith in purchasing of the property by D-8 and D-9, Section 41 of the Transfer of Property Act will not protect their rights. Under Ex-B-30 a sum of Rs. 14,000/- was paid by D-5 i.e., Appellant No. 1 (D-7 in the suit). Therefore, the matter requires to be remanded to the lower Court to adduce further evidence on behalf of the parties.
21. Sri R. Vijayanandan Reddy, learned Counsel appearing for the R-1-plaintiff, who died during the pendency of the appeal and R-21 to R-26 were brought on record as per orders of this Court dated 27-9-1999 in CMP No. 23344/99, contended that notice to D-5 will amount to notice to D-8 and D-9 and it is not open for them to claim adverse possession. Since the properties which are purchased by D-8 and D-9 are alleged to be prime property, the plaintiff and defendants 1 and 2 cannot mulct the loss. D-8 and D-9 who are lis pendens purchasers cannot claim equities and placed reliance on the judgment of this Court in Dakshinamurthi v. Sitharamayya, 1958 (1) An.W.R. 85.
22. Sri N. Ashok Kumar, learned Counsel appearing for the respondents 3 and 4 supported the arguments of the appellants in AS No. 2710/90.
23. On these rival submissions, the points that emerge for my consideration are:
1. Whether the parents of the plaintiff, Ismail Beig and Sakina Bee are the exclusive owners of items 39 to 41-C of plaint 'A' schedule properties covered under Exs.B-10 and B-11 and the name of D-7 in the sale deeds is nominal or whether the same is the exclusive property of D-7 and names of the parents of the plaintiff are nominal in the sale deeds. If not, parents of the plaintiff and D-1 to D-4, and D-7 are entitled to half share each in items 39 to 41-C of plaint 'A' schedule properties and plaintiff and D-1 to D-4 are entitled to partition of the properties covered under those documents to the extent of half share owned by their parents?
2. Whether defendants 3 and 4 can claim exclusive rights over the said property as claimed by plaintiff and D-1 and D-2 relinquished their shares over the same?
3. Whether sales affected by defendants 3 and 4 in respect of items 39 to 41-C of plaint 'A' schedule properties are valid and binding on other co-sharers? If not, D-8 and D-9 are entitled to allotment of the properties covered under sale deeds to the extent of to their share on equity and plead that the properties covered by those sale deeds can be allotted to D-3 ad D-4?
24. In order to prove the claim of the plaintiff, she examined her husband as P.W.1 and herself as P.W.3 and one more witness was examined on her behalf as P.W.2, apart from marking Exs.A-1 to A-7. Relevancy of which was discussed by the Court below. Except Exs.A-3 to A-6 i.e., notice said to have been issued by the plaintiff and postal acknowledgments and copies of sale deeds Exs.A-1 and A-7 obtained by D-5 from D-3 and D-4 with regard to the plaint schedule properties, no other evidence is produced by her in support of her claim that her father and mother are the exclusive owners of the property covered by items 39 to 41-C of the plaint 'A' schedule properties and name of D-7 is nominal. Similarly D-7 who examined himself as D.W.12 and examined D.Ws.10 and D-1 1, attestors of two sale deeds Exs.B-10 and B-11. D-7 also examined D.W.13 only intended to speak of his possession. The evidence of D-12 who is the son of D-1 who was examined as D.W.1 and the husband of D-2 who was examined as D.W.2 is also no help in coming to the conclusion that the properties covered by Exs.B-10 and B-11 are the exclusive properties of plaintiff's mother and father. It is to be noticed that D-7 who has not claimed any declaration by way of counterclaim that he is the exclusive owner of the property covered under Exs.B-10 and B-11 and perfected his title by adverse possession. To prove his capacity, D-7 marked Exs.B-35 to B-58 documents like mortgage deeds, promissory notes, assessment orders made by Income Tax Department. Ex-B-60 is the income tax assessment order, Ex.B-61 is the income tax payment challan and Ex.B-62 is the certificate copy issued by the Commercial Tax Officer to show that he has business. Ex.B-63 is the copy of decree obtained against D-7, which shows that he borrowed certain amounts for sinking a well in the above lands. Apart from them, Exs.B-64 to 67 electricity bills are in the name of D-7. Similarly Exs.B-70 to B-72 are the tax receipts obtained in the name of D-7. Exs.B-73 is the certified copy of 10(1) account relating to items 39 to 41-C which shows that he was in possession of the suit schedule properly. The documents, which are filed only to show his capacity to pay the sale consideration and reflects his possession of the suit schedule property covered by Exs.B-10 and B-11. As rightly contended by the learned Counsel for D-8 and D-9, who are appellants in AS No. 2710/90 that in the sale deeds under Exs.B-10 and B-1 1 through which the parents of the plaintiff and D-1 to D-4 and defendant No. 7 purchased the property there is no mention about indebtedness of the vendor to D-7 and said indebtedness claimed by D-7 that Exs.B-35 and B-36 was not the consideration for executing Ex.B-11. In the absence of any evidence let in by either parties to disprove the transaction covered in Ex.B-11, it is not open for either party to plead that it is the exclusive property of either parents of the plaintiff or D-7. At the most they are only co-sharers and will have half share in the plaint schedule properties covered under those sale deeds. Burden lies on the party who sets up exclusive possession contrary to the recitals under the documents. It is not in dispute that the legal heirs of the vendor under Exs.B-10 and B-11 filed OS No. 2/70 against the plaintiff, D-1 to D-4 and D-7, in which D-7 filed written statement, which was adopted by other defendants, namely, plaintiff and D-1 to D-4. In the said written statement, it was categorically admitted by D-7 herein, who was D-5 in the said suit, that the properties were purchased by him and his mother-in-law, and by him and his father-in-law and so the plaintiff, D-1 to D-4 are having half share in the properties. Even after filing the written statement, D-7 filed a declaration under Exs.B-23, in which he declared that he is half shareholder of the properties covered by Exs.B-10 and B-11 and plaintiff and D-1 to D-4 are the other half shareholders, succeeded to the properties of their parents. The said declaration was accepted by the Land Ceiling Tribunal, which is evident from Exs.B-24 and B-25 and he was declared as non-surplus landholder. The documents under Exs.B-29 and B-23 to B-25 are the legal proceedings within 10 years before the filing of the present suit and the said suit was also compromised in between the parties, which is evident under Ex.B-30.
25. In the case of Basant Singh (supra) the Supreme Court held that in Indian Law an admission made by a party in a plaint signed and verified by him maybe used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.
26. The facts in the cases relied on by Sri K.V. Reddy i.e., P. Ex.S. Co-op T.F.S. v. State of Haryana, : AIR1974SC1121 , Bharat Sing v. Bhagirathi, AIR 1966 SC 405, are completely different from the facts in the present case.
27. As seen from the evidence, not only under Ex.B-29 written statement in which D-7 pleaded that he is half shareholder and parents of the plaintiff and D-1 to D-4 are the remaining half shareholders but also declaration under the Land Ceiling Act declaring that he is half shareholder and the plaintiff and D-1 to D-4 are the remaining half shareholders, the consistent stand taken by D-7 from 1946 to 1976 clearly goes to show that he is half shareholder. But in the written statement filed on 5-12-1981 in the present case, he categorically stated that he is absolute owner of the said property, which is nothing but a faint clamour. However, in the cross-examination of D7 (D.W.12), he admitted that the vendor of Navlakh Thota had mortgaged the same to his father-in-law and himself under three different mortgage deeds and himself and his father-in-law purchased the said land subject to said mortgage. Further he admitted in his cross-examination that by the date of filing declaration before the Land Reforms Tribunal, there was no enmity between himself and his brothers-in-law i.e., D-3 and D-4 and he has shown only half share of the extent out of the total extent in S.Nos. 281/1 and 2 in his land ceiling declaration and he has given his statement before the Land Ceiling Tribunal, Madanapalle in CC No. 858/Pgr/75 dated 13-8-1976 in support of his declaration. Certified copy of his deposition is Ex.B-75. Further he admitted that himself and D-4 have shown each half in S.No. 288/2 in the land ceiling declaration. In view of the same, it is not open for D-7 to claim that names of the parents of plaintiff and D-1 to D-4 are only nominal.
28. A Division Bench of this Court in M. Pullayya (supra) agreeing with the view taken by the Supreme Court in Sree Meenakshi Mills Limited, Madurai v. Commissioner of Income-Tax, Madras, 0044/1956 : 1SCR691 , whereunder it was held 'that fundamental difference between these two classes of transactions, namely, a benami and a sham and nominal transaction, is that in the case of benami, there is an operative transfer resulting in the vesting of title in the transferee, but in the case of a sham and nominal transaction, there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases i.e., benami that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or to enquire into the question as to who paid the consideration for the transfer, but in the latter class of cases i.e., a sham and nominal transaction, the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid', held that in order to ascertain whether a transaction is sham or nominal, in addition to the test laid down by the Supreme Court as to whether any consideration was paid at all, it will also have to be seen what was the motive behind entering into such a transaction, whether possession of the property alleged to be transferred was given to the transferee and custody of the deed of transfer. Considering the above proposition of law and recitals in Exs.B-10 and B-11, it is difficult to accept the contention of the learned Counsel for D-7 that names of the parents of the plaintiff and D-1 to D-4 are only nominal and he is the real owner of the property.
29. Chief Justice S.R. Das speaking for the Constitutional Bench in Sailendra Narayana (supra) held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case and compromise decree precludes the plaintiff from re-asserting the title, which had been negatived by the compromise decree although it related only to his claim to a part of the lands.
30. Ex.B-30 clearly shows that D-5 in OS No. 2/70 i.e., D-7 herein, and D-7 to D-10/plaintiff, D-1 to D-4 herein are having a right and can enjoy the rights as per the sale deed dated 16-2-1956. Once D-7 admitted compromise during the course of his cross-examination, it does not lie in his mouth to contend that ceiling declaration made by him will not bind him. In view of the same, D-7 and the parents of the plaintiff and D-1 to D-4 are the owners of the suit schedule property to the extent of half share under the sale deeds Exs.B-10 and B11. The Trial Court rightly considered the evidence let in by the parties in this regard in Paras 15 to 19 and held that the nominality pleaded by the parties cannot be accepted and the properties covered by items 39 to 41-C of plaint 'A' schedule properties are the properties of D-7 and the wife of Ismail Beig and D-7 and Ismail Beig and consequently D-7 is having half share in all the above items of property and plaintiff, D-1 to D-4 are having the other half share which do not require any interference and the said finding is accordingly affirmed. The Trial Court rightly negatived the claim of D-7 that he is in exclusive possession of the property from the date of Exs.B-10 and B-11 do not constitute any adverse possession that co-share possession would be constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee and either parties could establish adverse possession against each other and rightly held that both parties are entitled to half share, which do not require any interference. Once the plaintiff and D-1 to D-4 are succeeded to the half share possessed by their parents over items 39 to 41-C of the plaint 'A' schedule properties, they are entitled to partition of their properties to the extent of their parents share. Point No. 1 is accordingly answered. In view of answering Point No. 1 against D-7, his Appeal No. 1722/92 is liable to be dismissed.
31. Point No. 2 : It is already held the plaintiff and D-1 to D-4 are succeeded to the half share possessed by their father and mother under items 39 to 41-C of plaint 'A' schedule properties covered by Exs.B-10 and B-11. When D-3 and D-4 contend that their sisters i.e., plaintiff, D-1 and D-2 relinquished their share in the said properties by taking some other properties, the same was denied by D-7. Therefore, burden lies on D-3 and D-4 to prove relinquishment of rights by plaintiff, D-1 and D-2. D-3 and D-4 have not produced any evidence about relinquishment pleaded and followed by delivery of possession. Moreover D-4 who was examined as D.W.4 failed to adduce any evidence and even in the written statement as well as in the evidence it was pleaded by him that in the event plaintiff, D-1 and D-2 are entitled to any share in the property sold by D-3 and D-4, to D-5 who in turn sold to D-8 and D-9, the same may be allotted to their share to complete the transaction. In view of the same, the Trial Court rightly answered issue No. 3 against D-3 and D-4 and in favour of the plaintiff. The point No. 2 is accordingly answered.
32. Point No. 3 : The only point that survives for consideration is, if D-3 and D-4 will not have any exclusive right over the property as held on Point No. 2 and cannot execute sale deeds conveying the property inherited by them along with plaintiff, D-1 and D-2 in favour of D-5, two subsidiary issues may arise i.e., (a) whether D-3 and D-4 are entitled to property sold by them to the extent of their share and the same would be allotted to them; (b) if they are entitled to 2/7th share each in the items 39 to 41-C, whether purchasers namely D-5, and D-8 and D-9 are entitled to any equities.
33. Admittedly D-3 and D-4 executed two sale deeds in favour of D-5 i.e., Exs.A-1 and A-7 (Exs.B-17 and B-18 which are equal to Exs.X-3 and X-4), who in turn sold the same to D-8 and D-9 under Exs.X-1 and X-2 and on such execution of sale deeds, D-8 borrowed money from Agricultural Development Bank and made some improvements during the pendency of the suit. The finding of the Trial Court that D-8 made improvements during the pendency of the suit is erroneous since advocate-Receiver took possession of the property in November, 1981 and after they are added as parties to the suit there is no improvement.
34. Learned Counsel for the appellants-D8 and D9 in AS No. 2710/90 contended that the land purchased by D-5 from D-3 and D-4 is lesser in extent to the share which they have inherited on their succession. When D-8 and D9 developed coconut garden and dug a well and though plaint was amended on their impleadment, there was no opposition either in the plaint or in written statement filed by D-2 or in the additional written statement. Whereas appellants' vendor's vendors categorically stated that the land sold by them may be allotted to their share and similarly D-8 and D-9 are also pleaded that the land purchased by them from D-5, who purchased the same from D-3 and D-4 may be allotted to their vendor's vendors. It is not in dispute Ex.A-2 notice issued to D-3, D-4 and D-5 was received by D-3 and D-4, but not by D-5. Ex.A-6 cover clearly discloses that it was returned on his continuous absence but not refused. In view of the same, on coming to know of the suit filed by the plaintiff they got themselves impleaded in 1981 and any improvements made by them even if they have knowledge that plaintiff's have claim over the said properties, it cannot be said that such improvements were made during the pendency of the suit. When the properties were taken possession by Receiver who was appointed in IA No. 1226/85 filed his Ex.C-2 along with plan Ex.C-3, which shows that D-8 and D9 borrowed money from Agricultural Development Bank and cleared the debt. Sale deeds, no doubt are not binding on plaintiff, D-1 and D-2 but the fact remains that D-3 and D-4 are entitled to 2/7th share each, whereas plaintiff, D-1 and D-2 are entitled to 1/7th share each. I see no force in the submission made by Sri R. Vijayanandan Reddy appearing for the plaintiff, who died during the pendency of the suit and her LRs R-21 to R-26 were brought on record, that notice to D-5 will amount to notice to D-8 and D-9 and it is not open for them to claim adverse possession or equity and the said properties purchased by them is prime equity and the said properties purchased by them is prime property and the same will not bind on plaintiff, D-1 and D-2 nor they mulct the loss and D-8 and D-9 who are subsequent purchasers cannot claim equities. Once it is held that D-3 and D-4 are entitled to share in the property even if the properties sold by them is prime property, definitely they cannot deny a share in the said property. Similarly, the submission made by D-7 that D-8 and D-9 who purchased the property cannot claim equity under Section 41 of the Transfer of Property Act cannot be considered and once plaintiff, D-1 to D-4 succeeded to the property possessed by their parents, Court has to see that said properties covered by sale deeds can be allotted to their shares or not. Only in case sales made by D-3 and D-4 is more than the extent for which they are entitled to it, the same will not bind on other sharers namely plaintiffs, D-1 and D-2.
35. Reasons given by the lower Court in Para 25 of its judgment to deny equities are palpably wrong since S.Nos. 288/1 and 288/2 cover vast extent of 41 acres. Even if D-7 is entitled to half share, the plaintiff as well as D-1 to D-4 are entitled to the remaining half share i.e., Ac.20.50 cents. Out of which, plaintiff, D-1 and D-2 together entitled to 3/7th share, whereas D-3 and D-4 2/7th share each. If the properties are distributed among themselves as per succession D-3 and D-4 at least are entitled to Ac.11-72 cents. Whereas plaintiffs, D-1 and D-2 are entitled to Ac.8-78 cents of land. Whereas sales effected by D-3 and D-4 in favour of D-5 who in turn sold to D-8 and D-9 is only Ac.8-07 cents. It is not the case that D-3 and D-4 are having defective title or improvements made by D8 and D9 are under the defective title. D-3 and D-4 are having undivided share in the property. The finding that since D-5 refused to receive notice, he will have knowledge and therefore purchase made by D-8 and D-9 is not bona fide is erroneous. Since D-3 and D-4 are having joint title they can always dispose of their share in the property. If the equities are applied it will not infringe the rights of plaintiff, D-1 and D-2.
36. In the case of Mammathu v. Kathijumma, : AIR1965Ker207 , the Kerala High Court held that where it is impossible or impracticable to allot that portion of the property on which the improvement is situated to the co-tenant who erected the improvement, the other co-tenants may be required to pay their proportionate share of the enhancement of value resulting from such improvement. But if the co-tenant covers the whole of the estate with valuable improvements, so that it is impossible for his co-tenant to obtain his share of the estate without including a part of the improvements so made, the tenant making the improvements would not be entitled to compensation therefore, notwithstanding they may have added greatly to the value of the land. The equity of a co-tenant to have the part of the common property which he has improved allotted to him on a partition is not founded on the idea that he made the improvements with the consent, express or implied, of his co-tenants. If the improvements are well within the share that may fall to him the consent of the others is irrelevant.
37. Similar is the view taken by the Patna High Court in Abdul Sattar v. Mohd. Zahoor, : AIR1962Pat300 and Madras High Court in Nataraja Naidu v. Ramadoss Chetty, 1988 (1) Mad. LJ 389.
38. In view of the fact that land which was sold by D-3 and D-4 to D-5 and from whom D-8 and D-9 purchased is well within the shares to be allotted to D-3 and D-4, D-8 and D-9 are entitled to claim equities by allotting the said properties covered under the sale deeds to D-3 and D-4 which will not result any loss to plaintiff and D-1 and D-2 and it does not infringe the rights of other co-sharers and said land can be allotted to D-3 and D-4. Moreover, in fact D-3 and D-4 have consented in the written statement as well as in the evidence adduced by them for allotting their share to D-8 and D-9. Accordingly the finding that D-8 and D-9 are not entitled to any equities is liable to be set-aside and it is accordingly set-aside. The property sold by D-3 and D-4 to D-5, who in turn sold to D-8 and D-9 under Exs.X-1 and X-2, be allotted to D-3 and D-4 to complete the sale in favour of D-8 and D-9. Accordingly, preliminary decree is modified to the extent indicated above.
39. AS No. 2710/90 is allowed partly to the extent indicated above, and AS No. 1722/1922 is dismissed. Parties shall bear their own costs in each appeal.