1. The subject-matter of the dispute in this case is a three-storeyed house situated in the town of Muttra. On the 20th May 1911, the site of this house and certain materials were sold by two separate deeds of sale. The site of the house was sold to one Ram Chand or Ram Chander who is the own brother of the present appellant Shiam Lal. The materials were gold to a man named Jamna Das and were afterwards sold by him to Ram Chander the man whose name has just been mentioned. The site was sold for Rs. 400 and the materials for Rs. 250.
2. Both these sale deeds are printed at pages 21 et seq. of our record. The vendors were Gopal Das and his son Piare Lal. The latter was acting for himself and for his two minor sons.
3. It appears that after these sales took place Ram Chander re-built the house. Then in the year 1914 a suit was filed by Mitthu Lal and others who were members of the family of Gopal Das. This suit eras brought in the Court of the Additional Subordinate Judge of Muttra, on the allegation that the sales made by Gopal Das, his sons and grandsons were not binding inasmuch as the property which had been sold was joint family property. The plaintiffs alleged themselves to be members of ii joint family with Gopal Das, and they, therefore, asked that the deeds of the sale might be cancelled and that Ram Chander might be ejected from the premises.
3. Ram Chander defended this suit and raised a variety of pleas. He denied that the family of the plaintiffs and Gopal Das, his vendor, was a joint family. He denied that property was joint family property and pleaded that he had acquired the whole of these premises from Gopal Das. He sat up a defence under Section 41 of the Transfer of Property Act and pleaded moreover that in no case could he be ejected without payment by these plaintiffs of the sum of Rs. 5,000, the amount which he had spent on the re-erection of the house.
4. The suit was decreed in the Court of the Subordinate Judge of Muttra to this extent, namely, that the plaintiffs were given a decree for joint possession of the premises. That decree was upheld in appeal in this Court by the judgment in First Appeal No. 199 of 1916 which was delivered on the 2nd of January 1919.
5. Mitthu Lal and his co-plaintiffs having thus got a decree for joint possession the suit out of which this appeal has arisen was instituted in November 1920 by Radha Ballabh and others, some of the successors-in-interest of the plaintiffs in the earlier suit. The suit is a suit for partition. The learned Subordinate Judge baa ordered the sale of the premises and has-directed distribution of the sale proceeds according to the shares of the parties. We gather from the judgment of the Court below that Shiam Lal, the defendant-appellant now owns 45172 of the house. Shiam Lal, it may be mentioned, alleged that in a partition arrived at between himself and his brother Ram Chander this house had fallen to his share. It further appears that since the date of the earlier suit Shiam Lal or his brother Ram Chander had been buying in some of the shares of the other co-tenants.
6. One of the claims made by the defendant-appellant Shiam Lal in this suit for partition was that ha was entitled to claim s from the plaintiffs a sum of Rs. 5,500, on account of improvements which he had made on the property. The Subordinate Judge came to the conclusion that it I might be inferred that ho had spent a sum of Rs. 5,000 on re-building these premises. Compensation, however, was refused to Shiam Lal on the ground that ho and his predecessor Ram Chander were only trespassers and that he laid out the money at his own risk.
7. It is this finding which is contested here and it is argued on behalf of Shiam Lal that the judgment of the Court below is erroneous. It is said that in these partition proceedings he is entitled in equity to compensation for the money he laid out in restoring these premises.
8. On the other side it has been argued that this question of compensation is no longer open in view of the findings which were come to in the earlier suit of 1914, to which we have referred.
9. A copy of the judgment of the Additional Subordinate Judge in that earlier suit is to be found at page 27 of our record. In that case the learned Subordinate Judge was asked to hold that the plaintiffs could not recover possession of the premises without paying to Ram Chander the money which he had laid out in re-building the house. The learned Subordinate Judge refused to decide this question. He stated that at that stage it was not necessary to decide this issue but that subsequently in a partition suit, if the rules of equity would allow, Ram Chander would be entitled to receive compensation for repairs and improvements effected by him.
10. When the case came up to the High Court the same plea was again raised on behalf of Ram Chander; and this Court, agreeing with the judgment of the Court below, was of opinion that Ram Chander could not demand that the plaintiffs in, that suit should pay him money for compensation as a condition precedent to their getting a decree for possession.
11. We have considered carefully the judgments in this earlier suit, and we are of opinion that there is no solid foundation for the argument that the question of this claim to compensation as now raised is res judicata between the parties. All that was held in the earlier case was that Ram Chander, who was then in possession of the house, could not insist that the plaintiffs should pay him compensation before they were entitled to get joint possession. It seems to us that the question of any compensation which might, be allotted at the time of partition was left open in these earlier proceedings.
12. We have now to consider what the law is regarding a claim of this kind. We have bean referred in the course of argument to a treatise by a learned American author Freeman on Co-tenancy and Partition. According to this learned author the law is as follows : We quote from para 509 at page 678 of the book:
The fact that a co-tenant has located upon a particular portion of the lands of the co-tenancy and has enhanced its value by making improvements or by reducing it from a wild state to one fit for profitable cultivation, is a circumstance always deemed worthy of the attention of a Court charged with the duty of making a partition.... The law declines to compel one co-tenant to pay for improvements without his authorization; but it will not, if it can avoid so inequitable a result, enable a co-tenant to take advantage of the improvements for which he has contributed nothing. When the common lands come to be divided, an opportunity is offered to give the co-tenant who has enhanced the value of a parcel of the premises the fruits of his expenditure and industry, by allotting to him the parcel so enhanced in value, or as much thereof as represents his share of the whole tract. It is the duty of equity to cause these improvements to be assigned to their respective owners (whose labour and money have been thus inseparably fixed on the land) so far as can be done consistently with an equitable partition.
13. Continuing in para. 510 the learned author quotes the opinion of the Supreme Court of the States of Newyork in the following language:
Where one tenant-in-common lays out money in improvements on the estate, although the money so paid does not in strictness constitute a lien on the estate, yet a Court of equity will not grant a partition without first directing an account and a suitable compensation. To entitle the tenant-in-common to an allowance on a partition in equity for the improvements made on the premises it does not appear to be necessary for him to show the assent of his co-tenants to such improvements, or a promise on their part, to contribute their share of the expense; nor is it necessary for them to show a previous request to join in the improvements and their refusal. The only good faith required in such improvements is that they should be made honestly for the purpose of improving the property and not for embarrassing his co-tenants or encumbering their estate or hindering partition. But if one joint tenant or tenant-in-common 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 because it would be the improver's own folly to extend his own improvements over the whole estate and because it would be unjust to permit a co-tenant at his pleasure to charge another co-tenant with improvements he may not have desired. In such a case the improver stands as a mere volunteer and cannot without the consent of his co-tenant lay the foundation for charging him with improvements.
14. From the above statement of the principles which govern the award of compensation on partition it is apparent that the real difficulty arises in those cases where, as hero, the property is not susceptible of physical division. In the present instance we find that the house in dispute, although of three storeys, is not a large house, and as the co-sharers are many it would be quite impossible to make any physical division of the premises and so the learned Judge has been obliged to resort to the provisions of the Partition Act of 1893 and to direct a sale with the further direction that the sale-proceeds are to be divided between the interested parties.
15. It is laid down in the above statement of the law that it is essential that the person claiming compensation should have acted in good faith. In the present case we think it may fairly be said on behalf of Shiam Lal or his predecessor that he acted in good faith in the sense contemplated : that is to say, he made the improvements' honestly for the purpose of improving the property and not in order to embarrass the other co-tenants or to encumber their estate or to hinder partition. He had no such object in view : for apparently he was under the impression that by the purchase made in the year 1911 he had become the owner of the whole of the estate. The law as stated in the quotation made above, relates to claims for compensation on account of 'improvements.' In this present case it is we think possible to say that the matter stands on a somewhat different footing for it carefully examined it seems to us that what have been called improvements in the course of the trial were really repairs. It is clear on all hands that when the appellants predecessor bought these premises the property was in ruins. There is evidence to show that a long time before the purchase was made the house had been a three storeyed house. When Ram Chander bought in the year 1911 the two upper storeys had disappeared; there was only the lowest storey and that was in ruins; it is quite clear that as matters then stood, the property was quite useless and unprofitable. It may be mentioned here that Gopal Das and the other members of the very large family to which he belonged did not reside in Muttra; some of them we are told resided in the Aligarh district and others of them at Calcutta; and it seems reasonable to suppose and there is evidence to that effect, that these people, being absentees had neglected these premises and allowed them to fall into decay. We find then that Ram Chander buys these premises in a state of ruin and thereby becomes a co-tenant. He spent a sum of money in reinstating the premises and making them fit for occupation. Having regard to all these circumstances we think that he may fairly be held entitled to some compensation for re-instatement. He has by the money he has laid out converted this building into something which is of use and which can bring in profit. In the state it stood when he purchased it was worth little or nothing at all.
15. We have decided, therefore, that in the circumstances to which we have referred, the defendant-appellant is entitled to some compensation, and we now proceed to determine what the amount of that compensation should be.
16. There is no very definite evidence on this point on the record, but in his own statement, 'which is to be found at page 11 of the record Shiam Lal stated that he had spent Rs. 5,000 or Rs. 6,000 in restoring these premises. This restoration ho said had taken place some ten years before the date on which he was giving his evidence. That would fix the date of the restoration in or about the year 1912. Obviously Shiam Lal was not able to produce any detailed account of his expenditure on these particular premises. It seems from his deposition that at that time he built three other houses as well, and that he had spent some Rs. 25,000 in erecting all four. He called two witnesses, Parbhu Lal and Munsbi Abdullah, one of whom is a contractor and the other a sub-overseer, and these men were examined with reference to an estimate which is printed at page 38 of our record and marked Ex. A. It may be mentioned here that both these men were called as witnesses in the earlier suit of 1914 and that this very estimate was produced in that case. Both these men who have some pretensions to be experts, and who drew up this estimate jointly, fixed the costs of re-building these promises at Rs. 5,480. Of course, when all is said and done this is an estimate Only. They themselves have no direct knowledge of the money that was actually spent in rebuilding the house. It was on these materials that the Court below came to the conclusion that in all probability Shiam Lal's predecessor Ram Chander, had spent about Rs. 5,000 in re-instating the property now in dispute and all things considered, we are of opinion that the conclusion of the Subordinate Judge is substantially correct. We should therefore be prepared to allow Shiam Lal a sum of Rs. 5,000 by way of compensation, but there is another fact which is to be taken into account and that is that Shiam Lal and his predecessor, so far as we can see have had the exclusive use of these premises for a considerable period. We do not know on the present state of the record whether the plaintiffs who are now seeking partition have received from Shiam Lal any profits accruing since the time when they were admitted to joint possession under the decree of this Court. We may refer in this connection again to para. 510 of Freeman's book where, dealing with the question of compensation for improvements, the author says:
The co-tenant against whom the improvements are charged will, therefore, be charged not with the price of the improvements but only with his proportion of the amount which at the time of the partition they add to the value of the premises. From this amount he will also be entitled to deduct any sum of which he may have a just claim for use and occupation of his moiety enjoyed by the co-tenant making the improvements.
16. We feel, therefore, that we must allow these plaintiffs some set-off on account of the use and occupation of these premises by the appellant and his predecessor. No definite material is to be found on the record; but we think, having regard to the value which is put upon the premises and to the probable rent which a building of this description would bring in, we shall not be doing the defendant any injustice if we hold that during the period of his occupation he has recouped himself to the extent of Rs. 1,000. Deducting this sum of Rs. 1,000 from the Rs. 5,000 just mentioned, we come to the conclusion that the appellant is entitled to compensation to the extent of Rs. 4,000 from the sale proceeds. The decree of the Court below, therefore, is modified and it is now declared that on sale of these premises the defendant-appellant will be entitled to deduct Rs. 4,000 out of the sale-proceeds. The balance can then be distributed amonst the various co-owners in proportionate shares. As regards costs we leave the parties to pay their own costs in both the Courts.