24. The Subordinate Judge will take any evidence that may be adduced by the parties on all the issues on which findings have been called for (by the order of this Court, dated 15th August, 1924) and will submit fresh findings in supersession of the findings, if any, already sent. One month from this date is allowed for sending the findings and seven days for filing the memorandum of objections to the said findings.
25. In compliance with this order dated 9th September, 1924, and the order contained in the above judgment dated 15th August, 1924, the Subordinate Judge Of Mayavaram submitted the following.
Issue No. 14.--In case the sale of the house in Item No. 539 in Schedule B, Part I, is found to be not binding on the plaintiffs, to what equity, if any, are the defendants Nos. 1 to 6 entitled?
Issue No. 15.--Whether the present building on Item No. 29 in Schedule B, Part I, of the plaint, belonged to Anantha krishna Aiyar, and, if not, whether the plaintiffs have, any right to claim the same?.
Issue No. 17.--What, if any, is the amount of mesne profits due to the plaintiffs from the defendants Nos. 1 to 10 and their alienees?.
Issue No.19.--Were such of those properties as are in possession and enjoyment of defendants Nos. 11 to 17 obtained from defendants Nos. 1 and 9 in exchange for their own properties?.
Issue No. 20.--Are such exchanges true, valid and binding on the plaintiff's?.
Issue No. 21.--Are the alienees entitled to any and what amount for improvements effected by them? What further equities are the alienees entitled to, and if so, from whom?.
2. Fifteenth issue....There can be no doubt that the first half of the issue should be found in the negative.
3. The answer to the second half of the issue is that plaintiffs have no right to claim the house unless they are found to be entitled to retain it on the principle referred to, in Kandarpa Nath Ghose v. Jogendra Nath Bose 6 Ind. Cas. 141 : 12 C.L.J. 391, that improvements, made on property by a life-tenant thereof attach to the, estate and pass, to the reversioners or remainder-men at the expiration of the life-estate without any liability on his part to make any compensation therefor and that improvements made by a purchaser from one who holds a, limited interest likewise pass to the reversioner or remainder-men or,, it is held, under the 14th issue, that plaintiffs are entitled to take the house paying, or not paying compensation to defendants Nos. 1 to 6..................Consequently, the question whether plaintiffs have any right to, claim the, house,, depends upon the finding on the 14th issue as-to whether they can claim to retain the house paying or not paying compensation to defendants Nos. 1 to 6 according as it is decided that defendants Nos. 1 to 6 are, or are not, entitled to compensation.
4. Fourteenth issue:-The learned Vakil for defendants Nos. 1 to 6 has argued that they are entitled under Section 51 of the Transfer of Property Act or, at least under the principle underlying that section, to elect either to have the value of the house estimated and paid to them by the plaintiffs or to ask the plaintiffs to sell their interest in the property to them, and stated that defendants Nos. 1 to 6 in this case elect to ask the plaintiffs to sell their interest in the property to them for the market-value of the site of the house mentioned in the issue....
7....So I find that in this case the plaintiffs should be given the right to elect one of the two alternatives; and as their learned Vakil has stated that they elect to take the house, I come to the conclusion that plaintiffs are entitled to the house.
8. The other question remaining to be determined is whether they are bound to pay compensation for the house to defendants Nos. 1 to 6; and that depends upon the answer to the question whether the father of defendants Nos. 1 and 2 believed in good faith that he was absolutely entitled to the property, namely, the site of the house in question, when he built the house.... On all these grounds, I come to the conclusion that the father of defendants Nos. 1 and 2 cannot be held to have believed in good faith that he had absolute title to the site of the house in question when he built the house on it, and that, consequently, defendants Nos. 1 to 6 are not entitled to compensation for the house.
10. If it should be held that defendants Nos. 1 to 6 are entitled to compensation for the house, the amount of such compensation would have to be determined.... As I am of opinion that the finding on the first issue is binding upon the parties and that the Commissioner's account is entitled to greater weight than the testimony of the witnesses, I hold that the compensation payable to defendants Nos. 1 to 6 is Rs. 10,000 minus the value of the site of the house which has been agreed by the parties to be Rs. 1,500. And I also find that defendants Nos. 1 to 6 should be ordered to pay plaintiffs Rs. 1,500 as the market-value of the site, if it should be held that the choice lies with them of receiving compensation for the house or purchasing the site of the house.
11. Seventeenth issue:....I find that plaintiffs are not entitled to anything on account of mesne profits from defendants Nos. 7 to 10 or sixteenth and seventeenth defendants, that they are entitled to the price of 59 kalams of samba paddy at Rs. 1-12-0 per kalam minus Rs. 53 on account of land revenue and Rs. 25 on account of maramat per vali from defendants Nos. 1 to 6, the price of 33 kalams of samba paddy at Rs. 1-12-0 a kalam minus one half of the above-mentioned expenses from defendants Nos. 11 and 12 and Rs. 2-4-0 from defendants Nos. 13 to 15.
Issues Nos. 19 and 20....I find the ex changes alleged by defendants Nos. 11 and 12, 16 and 20, to be true and that alleged by defendants Nos. 13 to 15 to have not been proved. And on the twentieth issue, it has to be found that the exchanges are not binding on the plaintiffs as no ground has been shown for holding them to be binding on the plaintiffs.
Twenty-first issue:....I find that sixteenth and seventeenth defendants should be paid some amount as compensation for improvements but there is no proof of the amount if they are found entitled to compensation. But I find no defendant is entitled to anything on account of improvements or other equities from plaintiffs for the reasons given for holding defendants Nos. 1 to 6 are not entitled to compensation. It is unnecessary to decide the questions as between the defendants.
26. Mr. T.R. Venkatarama Sastriar, Advocate General, for the Appellants.
27. Messrs. T.R. Ramachandra Iyer, P.J. Kuppanna Rao and Ramasami Iyer, for the Respondents.
28. This appeal coming on for final hearing on the 13th October, 1925, and after the return of the findings of the lower Court upon the issues referred by this Court for trial, the Court (Mr. Justice Phillips & Mr. Justice Ramesam) delivered the following.
29. The main question for consideration is whether defendants Nos. 1, 3 and 4 are entitled to compensation for a building that they have erected on the land covered by the sale-deed, Ex. III. The Subordinate Judge has found that their father, who actually effected the improvements, did not bona fide believe that he was the owner of the property. This question of bona fides is a somewhat difficult question and it must depend upon the circumstances of each case. It has been held that bona fides is not incompatible with ignorance of law, Durgozi Row v. Fakeer Sahib 1 M.L.T. 433 : 17 M.L.J. 9, nor is it incompatible with a certain degree of negligence, as is clear from the definition in the General Clauses Act, Section 3, Clause 20. The degree of negligence is, of course, a matter to be determined according to the circumstances of each case. In this case, it is as well to set out what are the actual facts. In 1867, one Thayammal sold this property to her daughter's son under Ex. III and the only evidence available shows that money was paid. At the same time she executed another sale-deed and two gift deeds which disposed of the whole of the rest of her property in favour of the same grandson and another grandson by the younger daughter. In 1884 the purchaser under Ex. III and his younger brother executed Ex. XIV in favour of the first defendant's father, and it is noticeable that this document is attested by the first plaintiff in this suit. In 1898 the improvement was effected to an extent of Rs. 4,000 by the defendants' father, and he subsequently made an addition to the building at a cost of Rs. 1,500 in 1903. We see thus that for 30 years the alienation was not questioned by any body, not even by the daughters nor by their sons. It was only in 1902 that one of the daughters brought a suit. It is contended that, inasmuch as the defendants' father in 1902 raised no real defence to the suit by the reversioners, it must be deemed that he had no bona fide belief in his title, but it must be remembered that this statement was filed after consultation with a legal adviser, who probably told him that his case was bad, as has now been found to be the case; but it does not follow that in 1898 he did not believe that his case was good. The whole of the circumstances attending the original alienation by the widow are somewhat peculiar and they were acquiesced in by practically all the members of the family then alive, and possession having been undisturbed for 30 years, we think that it is quite reasonable to suppose that the defendants father believed that he had a good title, otherwise, he is hardly likely to have squandered such a large sum of money on property which he knew was likely to pass out of his possession.
30. As regards the improvement made in 1898, therefore, we must hold that the defendants' father bona fide believed that he was the owner of the property; but the improvements made in 1903 stand on a very different footing. Then suits had been filed by Thayammal's daughter and by her grandsons, for the recovery of the property and for declaration respectively. In, defence of the latter suit, after taking legal advice, the defendants' father had nothing to say. Notwithstanding this, a month or two before the suit was actually disposed of with findings against his title he proceeded to spend Rs. 1,500 on the building. At that time, it certainly has not been shown that he still believed that he was the owner of the property. As regards this latter sum the defendants are not entitled to compensation.
31. There remains then the question of the value of the improvements. The whole house, as it now stands, has been valued by the Commissioner at Rs. 10,000 and in coming to this estimate, he has adopted the rates in building materials prevalent in the neighbouring town of Mayavaram. These rates are apparently excessive for building, a house in a village, and when we remember that the money actually spent on the building in 1898 and 1903, was only Rs. 4,000 and Rs. 1,500, it is difficult to believe that in a country village, the value has now risen to very nearly double that amount. If we take it that the value has increased by about 50 per cent, we shall be nearer the correct value and we accordingly adopt the figure of Rs. 8,000 as the value of the whole structure. Defendants, who are entitled to compensation in respect of Rs. 4,000 out of Rs. 5,500 spent by their father; are entitled to 8/llth of Rs. 8,000 or roughly Rs. 5,800. We accordingly fix the compensation due to them at Rs. 5,800.
32. The question of election by the transferee was raised and it was contended that the choice lay with the transferee under the provisions of Section 51; Transfer of Property Act; but we are satisfied that under Section 51, the choice is with the person evicting. He can either pay the value of the improvement and take the land or sell the land to the purchaser.
33. If the portion that was built in 1903 can be definitely ascertained, defendants Nos. 1, 3 and 4 will be allowed to remove the materials thereof in the presence of an officer of the Court and of the plaintiff or his man, so as not to cause any diminution in the value of the remainder of the building. This removal must be carried out within one month of ascertainment by the Court whether this part of the building can be satisfactorily identified.
34. We accept the findings on the other issues.
35. The future mesne profits will have to be ascertained by the lower Court before passing a final decree.
36. The respondents will pay the appellants' costs of the appeal and in the lower Court.