1. Appeal No. 354 of 1316.— This appeal relates to item 1. It was purchased by Dr. Clough in December 1884 and was subsequently sold by him to the present appellants. The plaintiff as reversioner to the estate of Kesavulu Naidu sues to recover possession of this and other properties on the ground that the alienations by Kesavulu's widow Lakshmi Devi are not binding on him. It is in evidence that on the death of Kesavulu his mother created disturbances and that suits were brought to establish Lakshmi Devi's right. The litigation ultimately ended in favour of the widow. This was between 1874 and 1878. During this period and subsequently the widow was alienating her husband's properties piecemeal. In 1884 she executed two documents (Exs. 19 and 20), the one being an agreement to sell and the other the actual conveyance. The plaintiff contends that this conveyance Ex. 20 is not binding on him. The Subordinate Judge has held that necessity was not proved and has directed the appellant to remove the materials within a fixed time.
2. We are unable to uphold the decree. There can be no question on the evidence that the purchaser paid full and adequate consideration for the sale. We see no reason to disbelieve the evidence of D.W 1. The deed of sale refers to two previous documents as having been discharged, Exs. 16 and 18. In Ex. 16 it is recited that Rs. 300 was borrowed to execute repairs to the bungalow standing on item 1. This recital is evidence after the lapse of nearly 30 years from the date of the sale of the representation that was made to the purchaser: see Nanda Lal v. Jagat Kishore Acharjya(1). That recital is corroborated by the evidence of D.W 1. We see no reason for holding that the sum of Rs. 300 was not paid for effecting the repairs upon the bungalow which was let out for rent to the Municipality. To this extent we hold that necessity has been proved. The Subordinate Judge was inclined to take this view but he did not act upon his inclination because the widow derived benefit by the improvement. We are unable to follow him in this. As regards the rest of the consideration we have reluctantly come to the conclusion that its binding character has not been made out. Ex. 18, which refers back to Ex. P. deals only with the personal debts of the widow. There is no evidence to connect these debts with liabilities binding on the estate. It is true that the purchaser seems' to have taken legal advice before purchasing. The extent of the advice given and the amount of the information disclosed to the legal adviser have not been spoken to by anyone. We are unable to say therefore that the necessity for the remainder of the purchase money has been made out. The only question now is how should the equities between the parties be adjusted. We are not satisfied that Section 51 of the Transfer of Property Act is not applicable to the present case. Raj Kishore Das v. Joint Singh(2) gives no reason for holding that transferees from limited owners are not within the purview of the section. There is nothing in the language of it to lead to such a conclusion. We are therefore inclined to hold that S. 51 is applicable. Even if the section is not applicable in terms we think the principle of it is applicable to the case. We feel no hesitation in holding that the purchaser acted honestly in believing that he secured an absolute right by the transfer from the widow. He took legal advice and secured some documents showing that there were previous debts. We accept the reasoning in Mathunsa Rowthan v. Apsa Bin(3) and hold that where the purchaser acts honestly and to the best of his information he is protected by Section 51 of the Transfer of Property Act. It is found that the purchaser spent nearly Rs. 10,000 in putting up a bungalow on the premises. Under these circumstances the proper decree to be passed will be to direct the appellant to pay the reversioner the difference between the present market value of the land without taking into account the building thereon and the sum of Rs. 300 which we hold is binding on the estate. We feel no doubt that the plaintiff ought to have intervened to prevent the costly building being put up on the premises. He may not be bound to sue for declaration but his failure to sue is an element to be taken into account in considering whether the present holder should not be allowed to retain the property. We think that under the circumstances of the case it would be highly inequitable to turn the appellant out of the property. The Subordinate Judge must be asked to report to this Court within six weeks from this date the present market value of item 1 eliminating from his consideration the value of the building existing on it. Ten days will be allowed for filing objections.
Appeal No. 355 of 1916.
3. We agree with the Subordinate Judge that it is not shown that the sale of item 4 by Lakshmi Devi under Ex. B to Bapayya was for necessity or for the benefit of the estate. We must therefore uphold his decree in so far as it directs defendants 15, 16 and 17 to deliver possession of that property. It is clear that these defendants added to the original extent by purchasing from others. The Subordinate Judge has held that as the property sold under Ex. B could not be conveniently enjoyed by the plaintiff without the added property the plaintiff should be given possession of the whole plot and that the appellants should be paid Rs. 45 as compensation. We think the Subordinate Judge is wrong in this. Plaintiff claimed and is only entitled to the properties of Kesavulu. No question of equitable adjustment by asking defendants to give up their property can arise in this suit. We must modify the decree by deleting the portion relating to compensation and by directing that plaintiff be put in possession only of the properties purchased under Ex. B. Each party will bear his own costs in this Court.
4. In compliance with the order contained in the above judgment in Appeal No. 354 the Temporary Subordinate Judge of Guntur submitted the following.
FINDING
5. I have been directed by the High Court to report the present market value of item 1 eliminating from consideration the value of the bungalow existing on it. The total extent of the site is 5 acres 26 cents. The plaintiff alleged in the plaint that at the date of the sale to Dr. Clough in 1884 the suit site with the building which then stood on it was worth Rs. 3,000. The value of the building having been estimated in the plaint at Rs. 1,600 the site according to plaintiff was worth Rs. 1,400 at the date of the sale. It was pleaded by defendant 1 in his written statement that the site was worth at that date including the building on it, only the price paid for it, namely, Rs. 1600. The building having been valued in the written statement at Rs. 600, the value of the site according to the defendant, was Rs. 1,000 at the date of sale. My predecessor held that the building was worth only Rs. 600 as alleged by the defendant. It follows from that finding, that the site without the building, worth at the date of the sale Rs. 1,400 according to the plaintiff and Rs. 1,000 according to the defendant. Bearing that in mind, we have to see what its present market value is.
6. The plaintiff has now examined 9 witnesses, and defendant 1, besides recalling and examining Mr. Baker (D.W 9), has examined three witnesses. While the plaintiff's witnesses value the suit at one rupee or one and a quarter rupee per square yard, Mr. Baker, who represents the Mission, and his second witness Punnayya depose that the suit site is worth only about Rs. 600 per gorru and that the whole site does not therefore exceed in value Rs. 1,000. The plaintiff's witnesses state that, if the suit site is parcelled-out and sold for building purposes, it would fetch about Rs. 25,000 at Re. 1 to Re. 1-4-0 per square yard. Mr. Baker and his second witness depose that the suit site, being situated at the northernmost extremity of Ongole Town, is not likely to be taken up for building purposes at all. Mr. Punnayya, the witness examined by the Mission, was for a long time Municipal Councillor and for nearly 4 years Chairman of the Ongole Municipality. He corroborates Mr. Baker's statement that the Town of Ongole has extended east, west and south, but has shown no tendency to extend and will not extend northwards for several reasons and that ordinary dwelling-houses will never be constructed on the suit site, as?, those reasons are specially applicable to, it. They are: (1) its vicinity to cemeteries., and Panchama quarters, (2) its vicinity to exposed beef and meat stalls, (3) its; situation in the midst of cultivated lands, (4) its isolation and consequent liability to attack from thieves and (5) its proximity to the tank into which all the village water is drained. It is admitted on behalf of the plaintiff that the suit site is within a very short distance of the Municipal market which was constructed about 25 years ago, and that the northern and eastern portions of the market measuring about 1 acre odd have been lying absolutely vacant. It is proved by Mr. Punnayya that the Municipal market, which was constructed for the sale of both vegetables and meat, ceased to be a vegetable market on account of its distance from the dwelling-houses and its vicinity to exposed beef stalls. The few houses west of the Municipal market are mostly occupied by Mahomedans. The two Telaga residents in that locality occupy very humble positions in life being schoolmasters. It is not denied that there is a large stretch of nearly 80 acres of land list of the Donka which forms the eastern boundary of item No. 1. There has been admittedly no attempt to build houses in all that area. A few cattle sheds and houses have no doubt been built on Survey Nos. 80 to 86 marked in the Commissioner's plan Ex. EE, but it is elicited from P.W 3 that those houses and cattle-sheds are owned by persons whose cultivable lands lie immediately behind them.
7. In support of his contention that the suit site is worth one rupee per square yard, the plaintiff's vakil relies upon 4 sale deeds which relate to sites not far off from the suit site. Ex. HH is a sale deed taken by P.W 3 of 6 gadis or 48 square yards of land for Rs. 90 for constructing a cattle-shed. P.W 3 admits that the sale deed was executed in his favour recently and that the price fixed thereunder was not intended to be the real price. It is elicited from him that the adjacent site belonging to his vendor has been proposed to be acquired by the Municipality for public purposes and that the price of the land covered by his sale deed, Ex. HH, was more or less fixed with a view to claim from the Municipality a high price for the land proposed to be acquired. Exs. GG and GG-1 relate to Survey No. 214. Ex. GG is a sale-deed executed in 1909. It shows that a portion of Survey No. 214 measuring 30 gadis or 240 square yards fetched a price of Rs. 100 Ex. GG 1, dated 5th January 1917, relates to a site immediately west of the site covered by Ex. GG. It shows that 63/4 gadis equal to 50 square yards were purchased under it for Rs. 44. It is elicited from P.W 2 who proves those sale deeds that Survey No. 214 is in the vicinity of Brahmin quarters. Survey No. 214 is situated at a fairly long distance from the suit site and in view of the admitted fact that it lies within the vicinity of Brahmin quarters, the price paid under Exs. GG and GG-1 cannot be accepted as a standard for fixing the value of the suit site. The next sale deed on the basis of which the plaintiff's vakil urges that the suit site should be valued at Re. 1 per square yard is Ex. JJ, dated 20th June 1917. Under it P.W 4 purchased 26 gadis of site for Rs. 200 in the Mahomean quarters west of the Municipal market. The purchaser is admittedly a contractor from the Municipality of the slaughter house situated in the vicinity of the site comprised in his sale deed. From the standpoint of his business it is an advantage to him to own a site in the vicinity of that slaughter house. The price paid by him cannot therefore be accepted as a standard for determining the value of the suit site. P.W 5, who recently purchased a site in that locality has not chosen to produce his sale deed which would throw light on the value of a site in that locality. He says that he paid Rs. 350 for that site but conveniently states that he does not know the extent comprised in his sale deed.
8. It is urged on behalf of the Mission that the suit site is not worth more than Rs. 1,000, and in support of that contention reliance is placed on Exs. 29 and 30 filed by witnesses 3 and 4 examined on remand. Ex. 29 is a sale deed dated 21st January 1917, relating to 17 cents of land immediately north of the suit site. That extent was purchased under that sale deed for Rs. 50 as proved by D.W 3. Ex. 30 is a sale deed dated 25th June 1917 relating to one acre and 29 cents of land immediately west of the suit bungalow. That extent was purchased under that deed for Rs. 200. If the value of the suit site is to be fixed with reference to the price paid under Exs. 29 and 30, the present market value of the suit site would no doubt not exceed Rs. 1,000. It is however elicited from Mr. Punnayya, the ex-Chairman of the Municipal Council, that the sites north and west of the suit site are certainly inferior in value to the suit site for building purposes. It is admitted that both these sites are situated at a lower level than the suit site; vide also the Commissioner's plan and report Exs. EE and EE-1. In this connexion the admission of the Mission that the suit site was worth Rs. 1,000 even in 1884 when it was purchased by Dr. Clough has to be borne in mind. It is a matter of common knowledge that the prices of lands have risen considerably within recent years.
9. The evidence recorded at the original trial shows that the building which stood on the suit site at the date of the sale to Dr. Clough fetched a monthly rent of Rs. 15. It is admitted by Mr. Baker that the Municipal Hospital was located in that building. In fixing the present value of the suit site the existence of that building and the rent which was realized from it cannot be ignored. My predecessor was of opinion that the income from the fruit-bearing trees which stood on the suit site at the date of sale was sufficient to cover the expenses of the repairs to that building. On a full consideration of the evidence adduced by both the parties I am clearly of opinion that the claim made by the plaintiff at Re. 1 per square yard is grossly exaggerated and that the Mission's estimate of the present market value of the suit site at Rs. 1,000 is unduly low. I accepted the evidence of Mr. Baker and Mr. Pnnnayya that the extension of the town northwards for the reasons mentioned by them highly problematical and that the construction of any houses on the suit site which is situated at the northernmost extremity of the town is utterly unlikely but at the same time I am not prepared to accept their statement that the suit site is not worth more than Rs. 600 per gorru. Taking into consideration the fact that the suit site with the building which stood on it at the date of the sale yielded an annual income of not less than Rs. 180 and taking also into account the admissions of the plaintiff and defendant 1 that at the date of the sale in 1884 the site without the building (which was valued by my predecessor at Rs. 600) was worth Rs. 1,400 and Rs. 1,000, according to the plaintiff and defendant 1 respectively, and the rise in the price of land since that date, I fix the present market value of that site at 20 times the aforesaid income and find that the present; market value of item 1, eliminating from consideration the value of the existing building, is Rs. 3,600.
JUDGMENT
10. Appeal No. 354.—We accept the finding of the Subordinate Judge and in modification of his decree direct that defendant 1 be allowed to retain possession of item 1 in the plaint schedule and that he be directed to pay to the plaintiff-respondent the sum of Rs. 3600, less Rs. 300 found binding on the plaintiff, with interest thereon at 6 per cent from the date of the plaint till the date of payment. Bach party will bear his own costs in this Court including the costs of the finding called for. Plaintiff is entitled to his costs against defendant 1 in the Court below. In other respects the decree of the Subordinate Judge is confirmed. Appeal No. 368.—On the merits we think the Subordinate Judge has come to the right conclusion. The evidence has been discussed by him fully and we see no reason to differ from him. At the last moment an argument was advanced to the effect that the decree against the appellant is a nullity. The facts bearing on this point are these: The case was argued after evidence was let in on 19th April 1916. It was adjourned to the 26th for further arguments. On the 20th defendant 14 died no legal representative of his was brought on the record and judgment was delivered on 3rd May holding among other things that the alienation in favour of defendant 14 was not binding on the plaintiff. The present appellant 2 is the legal representative of the deceased defendant 14 it is contended on her behalf that the decree passed behind her back after her husband's death was without jurisdiction and we are constrained to uphold this contention. Before O. 22, R. 6, was enacted it was held by this Court in Raghunatha Thatha Chariar v. Venkatesa Taioker(4) that a judgment pronounced after the argument was closed must be taken to speak not from the date on which it was actually pronounced but from and on the date that the judgment was reserved after argument. O. 22, R. 6, gives legislative sanction to this view of the law. After the new rule was enacted it was held in Subramania Aiyar v. Vaithinatha Aiyar(5) that a judgment pronounced under similar circumstances would be a nullity: vide., also Vishvanath Dnyanoba v. Lallu Kabla(6) and Narendra Bahadur Chand v. Gopal Sah(7). Mr. Ramadoss contended that the spirit of O. 22, R. 6, will be satisfied, if defendant 14's arguments were heard before his death although the other parties had not concluded their arguments. We are unable to accept this contention. O. 20, R. 1, to which the learned vakil for the appellants drew our attention contemplates that all the arguments should be heard before the case can be regarded as ripe for judgment. The view of the Judicial Committee in Badha Prasad Singh v. Lal Sahib Rai(8) is also to the same effect. We must therefore hold that the decree passed against appellant 2 was made without jurisdiction. That decree must be set aside and the case should be remanded to the Subordinate Judge so far as the appellant 2 is concerned. The lower Court will have to deal with any application that may be made to it to bring in the legal representative of defendant 14. The costs will abide the result. The appeal so far as defendant 11 is concerned is dismissed with costs.
S.N/R.K
11. Order accordingly.