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TMI Blog1965 (3) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... her Puttananjamma and upon her death this property devolved on her and the first defendant as her mother s heirs. Since,according to her, the first defendant did not want to join her as coplaintiff in the suit, she was joined as a defendant. It is common ground that the property was in the possession of the second defendant R.S. Maddanappa, the father of the plaintiff and the first defendant and Gargavva, the second wife of Maddanappa and her children. Maddanappa died during the pendency of the appeal before this Court and his legal representatives are the other defendants to the suit. Briefly stated his defence, which is also the defence of defendants other than defendant No. 1 is that though the suit properties belonged to Gowramma, the mother of Puttananjamma, she had settled them orally on the latter as well as on himself and that after the death of Puttananjamma he has been in possession of those properties and enjoying them as full owner. He further pleaded that it was the last wish of Puttananjamma that he should enjoy these properties as absolute owner. The plaintiff and the first defendant had, according to him, expressly and impliedly abandoned their right in these proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half share and mesne profits. Mr. Venkatarangaiengar, who appears for the appellants accepts the position that as the certificate was refused to defendants Nos. 2 to 8 in so far as the plaintiff is concerned, the only points which they are entitled to urge are those which concern the first defendant alone and no other. The points which the learned counsel formulated are as follows: (1) It is not open to a court to award future mesne profits to a party who did not claim them in the suit; (2) No decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit. (3) That the first defendant was estopped by her conduct from claiming possession of her alleged half share of the properties. We will consider the question of estoppel first. The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consists of her attitude when she was served with a notice by the plaintiff, her general attitude respecting Bangalore properties as expressed in the letter dated 17th January, 1941 written by her to her step-mother and the attestation by her and her husband on 3-10-1944 of the will executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nappa was doing, but it cannot operate as estoppel against them and in favour of defendants Nos. 3 to 8 or even in favour of Maddanappa. The will couId take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to the defendants Nos. 3 re, 8 even on the date of the suit. So far as Maddanappa is concerned, he, as already stated, knew the true position and therefore, could not say that an erroneous belief about his title to the properties was created in his mind by reason of the conduct of the. first defendant and her husband in attesting the document. Apart from that there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage. Mr. Venkatarangaiengar, however, says that subsequent to the execution of the will he had effected further improvements in the properties and for this purpose spent his own moneys. According to him, he would not have done so in the absence of an assurance like the one given by the first defendant and her husband to the effect that they had no objection to the disposition of the suit properties by him in any way he chose to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. I am of opinion that, generally speaking, if a party having an interest to prevent an act being done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. It may further be mentioned that in Carr v. London N.W. Ry. Co.( L.R. 10 C.P. 307)four propositions concerning an estoppel by conduct were laid down by Brett, j. (afterwards Lord Reher) the third which runs thus: If a man either in express terms or by conduct makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it be acted upon in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistaken belief was caused in his mind by reason of what the first defendant said or did. According to the learned counsel, even if the first defendant s claim to the half share in the suit property cannot be denied to her she must at least be made to pay for the improvements effected by Maddanappa, according to her proportionate share in the suit property. As already stated the appellant was in enjoyment of these proportion after his wife s death and though fully aware of the fact that they belonged to the daughters he dealt with them as he chose. When he spent moneys on those properties he knew what he was doing and it is not .open to him or to those who claim under him to say that the real owners of the properties or either of them should be made to pay for those improvements. No man who, knowing fully well that he has no title to property spends money on improving it can be permited to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person. In our view, therefore, neither was defendant No. 1 estopped from claiming possession of half share of the properties nor ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the date of the institution of the suit, that is future mesne profits are concerned, the position is governed by Order XX, rule 2, C.P.C. which is as follows: (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree -- (a) for the possession of the property; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until:- (i) the delivery of possession to the decreeholder, (ii) the relinquishment of possession by the judgment debtor with notice to the decreeholder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. The learned counsel, however, relied upon the decision of this Court in Mohd. Amin and others v. Vakil Ahmed and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Sastrulu and others v. Kasibhatla Mallikarjuna Sastrulu(A.I.R. 1960 A.P. 45) and Ponnuswami Udayar and another v. Santhappa(A.I.R. 1963 Mad. 171) the decision of this Court was cited at the Bar and has been considered. The learned Judges have said that the authority of the decision in Babburu Basavayya and four others v. Babburu Guravayya(I.L.R. 1952 Madras 173) is not shaken by what this Court has said. One of the grounds given is that the former relates to a suit for partition while the latter to a suit for possession simpliciter. It is not necessary for us to consider whether the decision of this Court can be distinguished upon this ground, but we feel that when a suitable occasion arises it may become necessary to reconsider the decision of this Court as to future mesne profits. In the present case the plaintiff did claim not only partition and separate possession of her half share of the properties but also past mesne profits. The defendant No. 1 admitted the plaintiff s claim and in substance prayed for a similar decree in her favour. The decision of this Court would, therefore, not apply to a case like the one before us. In the result therefore we uphold the decree of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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