Marten, C.J:— This appeal requires determination on a very unusual state of facts. The suit was brought by the plaintiff as the adopted son of Nagappa, who died in 1894, to recover the property which was alienated by Nagappa's widow Nagawa in 1906 in favour of the defendants. Nagawa purported to adopt the plaintiff on 27th June, 1910 but it is clear, although she has denied it, that she had formed an illicit intercourse with one Sharnappa after, if not before, the death of her husband Nagappa and that there were two or more children born of that union. The contention of the defendants is that Nagawa in fact married Sharnappa by Udki marriage in 1907. They further contend that the adoption of the plaintiff in June 1910 never took place or alternatively it was invalid because Nagawa had remarried, and in any event they claim that they were entitled to be allowed the value of certain improvements made by them is 1918.
2. Now, as regards the question whether Nagawa could in law adopt the plaintiff, it is conceded for the purpose of this case that by the law of this Presidency she could not adopt if prior to that date she had remarried on the other hand it has been laid down by Sir Norman Macleod and Fawcett, J., in Basvant Mushappa v. Mallappa Kallappa(1), that in the Presidency of Bombay a Shudra widow though unchaste can make a valid adoption. The evidence goes to show that Nagawa was leading an unchaste life with Sharnappa right away down from 1894 to 1910, but on the above ruling this would not affect her power to adopt. (His Lordship discussed evidence and holding Udki marriage of Nagawa not proved proceeded). We were however, referred to several authorities on the question whether the Court ought not to presume a marriage from the fact that the parties have lived together for a large number of years as man and wife, and had been so regarded by their neighbours and friends. So far as the law of Scotland or England is concerned, I have no doubt that as a general proposition the contention of the appellant is sound in that respect. I may refer to The Breadalbane Case: Campbell v. Campbell(2), where the headnote runs:
“Cohabitation, with the required repute, as husband and wife, is proof that the parties between themselves have mutually contracted the matrimonial relation. It demonstrates that interchange of consent which alone constitute marriage in Scotland. The law of habit and repute, however, is not peculiar to Scotland; although in countries where the facilities of matrimony are less than in Scotland, the evidence to establish the marriage must be stronger. Marriage, technically, is not constituted, but evidenced, by habit and repute, which, for that purpose, must be uniform and positive. A connexion commencing in adultery may, on ceasing to be adulterous, become matrimonial by consent, and may be evidenced by habit and repute, the parties being at liberty to intermarry.”
3. Chellammal v. Ranganatham Pillai(3), was also relied on to show that a similar, presumption would arise in India though it might be rebutted by proof of facts which show that no marriage had taken place. On the other hand, other cases exemplify that one has to consider all the facts, and that if, for instance, you find that the relations between a man and woman have started as those of man and concubine, then it may well be that no presumption of marriage ought to be made merely by the fact that the parties lived for a long time in that relationship. For instance, in Mt. Jariut-oll Butool v. Mt. Hoseinee Begum(4), it is said (p. 209):
“If it were once conceded that a woman once a concubine could be converted by judicial presumptions into a wife, merely by lapse of time and propriety of conduct, and the enjoyment of confidence with powers of management reposed in her, when and after what period of time should such presumption arise? The ordinary legal presumption is, that things remain in their original state.”
4. So, too, in Ghazanfar Ali Khan v. Kaniz Fatima(5), it was held by the Judicial Committee that the presumption of marriage in that case which might-have arisen from a prolonged cohabitation did not apply because the mother before she was brought to the father's house was admittedly a prostitute.
5. I think that at any rate the evidence relied on as proving that the parties were living as husband and wife by repute must be satisfactory and strong. The ordinary case which the English authorities had in mind was that of a man and woman living together as man and wife in the ordinary way, and regarded as such by their friends and neighbours. To my mind that is not the effect of the evidence in the present case. In my judgment there is not that evidence of habit and repute which is sufficient to bring the present case within the presumption referred to in those authorities. In my opinion a further reason for not applying that presumption here is that the status of the man was lower than the wife's, that the intercourse between them was admittedly illicit for a large number of years, and there was no satisfactory reason why we should presume that they entered into a marriage in 1907 any more than in any other year during their connexion. Further, if the evidence, standing by itself is insufficient to establish an Udki marriage, I do not think that the failure to establish the presumption I have alluded to could really assist the plaintiff or vice versa. In other words, in the present case I do not think that two unsuccessful points taken before the Court should produce one good point or turn either of those two points individually into a good one.
6. The result is that in my judgment the learned Judge arrived at a correct conclusion in finding that the Udki marriage was not established. (The judgment then discussed evidence and holding adoption proved proceeded). That brings one to the last point in the case, and it is one of some difficulty, viz., whether the defendants are entitled to any sum for improvements made in 1918. The case here is a special one. The original purchaser in 1906 defendant 1 died during suit. Defendants 2 and 3 her sons are young men and cannot depose to what took place in 1906. Therefore the defendants are not in a position to prove that their mother made the necessary enquiries and took the necessary steps which would enable them to prove that the alienation in 1906 made by Nagawa was for family necessity. As regards their claim for improvements, prima facie it may be taken that defendant 1, who bought the property in 1906, thought that she was getting a good title to the property. People do not generally buy unless they will get a good title, and the fact that she remained in undisturbed possession of this land down to 1922 when the present suit was brought would tend to confirm the defendants in their belief that they had a good and valid title to the land. That would be strengthened by this fact that if the adoption of the plaintiff in 1910 was valid, as we have held it to be, then no steps were taken by the plaintiff for nearly twelve years after that date to challenge this alienation in 1906, although in 1912 he did bring a suit, though unsuccessful, to challenge another alienation that was made.
7. Further, the evidence shows that in 1918 or thereabouts when the improvements were mile, the property was in a tumbled down and uninhabitable condition. Accordingly, the improvements then effected by defendants consisted in rebuilding the main doors and walls, and building two new rooms and a portion of the kitchen. This will be found in the commissioner's report, Ex. 81, where it was found by the Panch that in all the costs of this work would be about Rs. 4,000, and that the value of the premises, inclusive of the furniture, was about Rs. 10,000.
8. Now the value of these improvements is claimed under Section 51 of the Transfer of Property Act, or alternatively under general principles of equity. Take first S. 51. There the transferee of immovable property has to believe in good faith that he is absolutely entitled thereto when he makes an improvement on that property. In that event if he is subsequently evicted by a person having a better title, then he has certain rights in the nature of compensation. We have, therefore, to consider whether in 1918 the defendants believed in good faith that they were absolutely entitled to the property. On the facts of this peculiar case we think that they did bona fide believe that they were absolutely entitled to the property.
9. We appreciate that in two cases, viz., in Nanjappa Gounden v. Peruma Gounden(6) and Hans Raj v. Mt. Somni(7), the alienees were held disentitled to compensation because they had not made proper enquiries as to the power of the widow herself to alienate, and consequently it was there held that they were not acting in good faith. But, as I have already indicated, the facts of the present case stand on a peculiar basis, particularly having regard to the inaction of the plaintiff after his adoption in 1910, notwithstanding that he was then a man of adult age.
10. I may here refer to Kidar Nath v. Mathu Mal(8), a decision of the Privy Council from the Punjab, where it had been argued in the Court below that there was no evidence whatever to show that the plaintiff knew or acquiesced in the making of the improvements, and that as the defendants had purchased from a widow, whose estate they must be taken to have known was of a limited nature, it was not unreasonable to hold that any improvements effected by them were done at their own risk. In that case the Panjab Chief Court allowed the alienees the sum of Rs. 1,400 and though the contest in the Privy Council turned on whether that sum should be increased and there was no proper appeal as to the Rs. 1,400, still there is nothing in their Lordships' judgment to indicate that the Punjab Court had been wrong in awarding any compensation at all to the alienee from Hindu widow whose alienation had been set aside.
11. Apart from Section 51 of the Transfer of Property Act—for it has been held in this Court that the Transfer of Property Act is not exhaustive—we may refer to general principles of equity. Thus in Story's Equity Jurisprudence, Vol. I, p. 368, it is stated:
“If a man, supposing be has an absolute title to an estate, should build upon the land, with the knowledge of the real owner, who should stand by and suffer the erections to proceed, without giving any notice of his own claim, he would not be permitted to avail, himself of such improvements, without paying a full compensation therefor; for, in conscience, he was bound to disclose the defect of title to the builder. Nay a Court of equity might, under circumstances, go farther, and oblige the real owner to permit the person, making such improvements oo the ground, to enjoy it quietiy, and without disturbance,”
12. So, too, in Nijalingappa v. Chanbasawa(9), this Court allowed compensation for improvement to the mortgagee, although no express provision to that effect was to be found in the Transfer of Property Act. And, indeed, in Henderson v. Astwood(10), which was a case between a mortgagor and mortgagee coming from Jamaica, Lord Macnaghtea, speaking of the mortgagee, said (p. 163):
“It would be contrary to common justice to deprive Davies of the benefit of the money laid out by him on those improvements, so far as they enhanced the value of the premises.”
13. I quite appreciate that the present is not a case between a mortgagor and mortgagee. It does not depend on a contract, and accordingly the two last mentioned decisions do not apply. But I am disposed to think that here the plaintiff did stand by, and that the reason why he did not bring the suit earlier was that the house in question was in a dilapidated and uninhabitable condition. He at any rate brought a suit as regards other family property. Further these improvements were of a nature which anybody seeing the property would naturally observe. Although, then, as not unfrequently happens in the mofussil Courts, all these points have not been brought out in evidence, or even cross-examination, as clealy as they might have been. I am disposed to think that would be the proper inference to draw in the present case. However that may be, I prefer to base my judgment on this part of the case on the ground that the defendant has satisfied and brought himself within Section 51 of the Act.
14. That being so, then, as regards the quantum of compensation, the sum of Rs. 4,000, having regard to the commissioners report, seems to us to be the proper amount to allow as compensation. We quite appreciate that in awarding such compensation, we must consider how far the property has been improved in market value by that sum, and not merely consider the amount expended. But that figure on the evidence before us appears to be the correct one to arrive at.
15. Accordingly, in this respect I would allow the appeal, and reverse the decision of the learned Judge, and direct that as a condition of obtaining possession the plaintiff should pay to the defendants the sum of Rs. 4,000 with interest at six per cent from the date of suit as regards the rest of the appeal, the appeal must be dismissed. We will hear parties as to cost after my learned brother has deliverered his judgment.
16. Murphy, J.:— (After stating facts, the judgment proceeded.) The only remaining point is whether defendants should be allowed anything for the improvements they have effected in the property. These have been found by the Panch to be as follows: The main door and wall have been rebuilt, and two rooms to the rooms to the east and west have been added, the whole at an estimated cost of Rs. 4,000, including the newly built kitchen and wall. This valuation was not challenged by the other side. If defendants are to be given an allowance on this ground, it must either be under Section 51 of the Transfer of Property Act, or on general principles of equity. The requirements of S. 51 are, that they should have effected these improvements in good faith, believing that they had a title to the property in suit. In this case the property was purchased in 1908 by the defendants' mother, who was then a widow, the defendants' father having died in 1902. The house appears to have been in a dilapidated condition, and was rebuilt in 1918. Meanwhile, what had happened in connexion with the original owner of this property, was that she had carried out the adoption of the plaintiff in 1910, and it may be that she was reputed in the town to have married her lover Sharnappa in 1907, and that the plaintiff in 1912 brought a suit to recover possession of another property similarly alienated by his adopted mother, against another alienee, and had failed to establish his claim in that suit and had abandoned its prosecution. Also, after 1916, the plaintiff had given up calling himself by the name of his adopted father. One of the defendants has been examined, and at the time he made the statement in 1924 was twenty-two years old. It seems to me on the facts, history of Nagawa's reputation, the failure of the plaintiff to establish his adoption in the other suit which he brought, and also in view of the age of the defendants, it is reasonable to assume that they bona fide believed that they had a title to this property. It is in fact very improbable that they would have spent so much money on repairs and improvements in 1918, had they had any serious doubt on this point. I agree therefore that the facts are covered by Section 51 of the Transfer of Property Act, and to the order proposed to be made by the learned Chief Justice. Per Curiam.— Appeal allowed re-compensation, but it is to be awarded at Rs. 4,000 plus six per cent interest thereon from the date of suit. The rest of the appeal dismissed. Appellant to get costs of appeal on Rs. 4,000 and the respondent to get costs of appeal on Rs. 6,000. Similar order as to costs in Court below. Cross-objections dismissed with costs. Order for possession to be conditional on payment of above compensation within three months from the record reaching the lower Court. In default suit to be dismissed with costs.
17. Stay application dismissed. No order as to costs.
18. Appeal partly allowed.