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Judgment
P. R. Gokulakrishnan, J.—The legal representatives of the first plaintiff and plaintiffs 2 to 4 are the appellants. The suit was for a declaration
of title and recovery of possession of the plaint schedule properties.
The suit properties originally belonged to one Srinivasagam Pillai. He died in 1909 leaving a registered Will, dated 12th January, 1909. This Will
was probated in O.P. No. 291 of 1909, on the file of the District Court, Tirunelveli. As per the Will the suit properties should be enjoyed by the
testator''s daughter Kothai Grace Devadoss Ammal and on her death they should be taken by her children, plaintiffs 1 to 4 being her sons and
plaintiffs 5 and 6 being her daughters. Appellants 4 to 6 are the legal representatives of the first plaintiff who died during the pendency of the first
appeal. During the life-time of Kothai Grace Devadoss Ammal, she made several alienations in respect of the suit properties and ultimately the
properties comprised in the eight schedules appended to the plaint came into the hands of defendants 1 to 8. In December 1962, Kothai Grace
Devadoss Ammal died and the plaintiffs in the suit, as the children of Kothai Devadoss Ammal, claimed interest in the suit properties.
The defence was, the properties in the hands, of Kothai Grace Devadoss Ammal were her absolute properties, having been got in a partition
between herself and her brothers. Kothai Grace Devadoss Ammal sold the plaint-scheduled properties under Exhibit B-l., dated 17th March,
1941 in favour of one Arumugham and others. After changing many hands, the properties ultimately came into the possession of defendants 3 to 8.
The aforesaid sale deed Exhibit B-l has been attested by plaintiffs 1 and 3. Exhibit B-l recited that Kothai Grace Devadoss was the absolute owner
of the properties conveyed thereunder. Therefore, according to the defence, the plaintiffs are estopped from contending that Kothai Grace
Devadoss Ammal had only a life-interest in the properties.
The first defendant is a direct purchaser from Kothai Grace Devadass Ammal under Exhibit B-l1 dated 29th February, 1948, in respect of
Schedule 1 of the suit properties. It was alleged by him that plaintiffs 1 and 3 by their having attested Exhibit B-l sale deed made others believe that
Kothai Grace Devadoss Ammal had an absolute interest in the suit properties and as such the plaintiffs are estopped from putting forth the present
claim.
It has also been the contention of the defendants that they are bona fide purchasers for value in good faith, that they effected improvements to
the properties and that therefore in any event the value of the improvements should be paid by the plaintiffs.
The trial Court decreed the suit. The lower appellate Court found that Kothai Grace Devadoss Ammal did not have absolute interest in the suit
properties, that plaintiffs 1 and 3 are estopped from putting forth any claim in respect of the suit properties and that the one-third interest of the
plaintiffs 1 and 3 in the suit properties passed on to the alienees viz., defendants 3 to 8 . The lower appellate Court also found that there is no
question of any estoppel as pleaded by the first defendant but that the first defendant is entitled to the value of the improvements effected by him in
relation to Schedule 1 of the suit properties, viz., a sum of Rs. 9,371. It has also held that defendants 3 to 8 are also entitled to the value of
improvements effected by them but that equities could be adjusted while allotting the properties. The result was the plaintiffs on record got a
decree for declaration and possession in respect of plaint Schedules 1 and 2 and a two-thirds share in plaint Schedules 3 to 8.
Aggrieved by the decision of the lower appellate Court, the legal representatives of the first plaintiff and plaintiffs 2 to 4 have filed this second
appeal. Thiru Parasaran, the learned Counsel appearing for the appellants, contended that the defendants are in the position of co-owners and that
they cannot claim the value of improvements except under specified circumstances. He also submitted that the rule of estoppel cannot be invoked
by the defendants successfully. Thiru P. Balasubramanian, the learned Counsel appearing for the respondents-defendants started by arguing the
cross objections filed by them which, are inter alia to the effect the Kothai Grace Devadoss Ammal had an absolute interest in the suit properties
and that the Will in her favour under A-l did not include the suit properties.
It has been held by both the Courts below that Kothai Grace Devadoss Ammal could have only a limited interest in the suit properties. This is a
finding of fact arrived at on a proper appreciation of the evidence on record and as such I confirm the said finding.
Thiru P. Balasubramanian next contended that Exhibit B-l sale deed has been attested by plaintiffs 1 and 3 after taking active part in bringing
about Exhibit B-l, that they are, therefore, definitely estopped from questioning the sale under Exhibit B-l and that in view of that defendants 3 to 8
are entitled at least to the extent of the share belonging to plaintiffs 1 and 3 in the suit properties. The learned Counsel cited the decision in
Nayakammal v. Munuswamy L.W. 222 : 84 I.C. 231 : AIR 1924 Mad. 819 for the following position:
It is the commonest thing in this country for attestations to be obtained from persons having a possible interest in the property with the object of
binding them later on.
The learned Judge deciding the case observed:
I have rarely come across a case'' where a person having an interest present or contingent in the property has attested the deed, without enquiring
into its contents.
For the same position, he also cited the decision in Narayana Aiyar v. Rama Aiyar 20 (1915). 396 : 20 I.C. 625 : 35 M.L.J. 219 as also
Janakiram Sital Ram Firm v. The Chota Nagpur Banking Association Limited ILR (1936) Pat.75l, wherein it is stated:
Where a co-sharer mortgaged certain houses alleging them to be his self-acquisition and the other co-sharers stood by, and being aware of the
contents, attested the same and the mortgagee on his representation advanced the loan and in execution of a decree on the basis of the mortgages
purchased the mortgaged property, but was resisted at the time of delivery of possession by persons who claimed to have purchased in execution
of a money decree against the co-sharers of the mortgagor and under a sale deed executed by them, the attesting co-sharers and the purchasers of
their interest were estopped from challenging the title of the mortgagee auction-purchaser in this suit in ejectment.
The next case relied on by Thiru P. Balasubramanian, Ramaswamy Goundar v. Ananthapadmanabha Iyer (971) 1 M.L.J. 392, has held:
Where a person, having a tangible interest in the property affected by a deed, attests that deed, his attestation should be taken as proof of his
consent to and knowledge of the correctness of the recitals in the deed. Therefore, in the facts and circumstances of the case, A and R. were
estopped from contending that M had only a life interest and did not have an absolute interest in the property in question and consequently, the
plaintiff as the successor-in-interest of A and R, is also estopped from putting forward that contention.
Relying on the above decision, the learned Counsel argued that the plaintiffs are estopped from claiming any interest in the suit properties. But it is
clear from the facts of the case on hand that except the first and third plaintiffs the other plaintiffs cannot be non-suited on the plea of estoppel,
inasmuch as they were neither parties nor attestors to Exhibit B-l. The lower appellate Court has correctly held that plaintiffs 1 and 3 alone are hit
by the rule of estoppel. I am, therefore, in complete agreement with the finding arrived at by the lower appellate Court on the plea of estoppel.
On the question of ""improvements"" also, the lower appellate Court has, in detail, examined the nature of the improvements and the value
thereof and has given a finding thereon. This is a pure question of fact and as such I do not think there is any point of Jaw to set aside the finding as
regards value of improvements.
Thiru Parasaran, the learned Counsel appearing for the appellants-plaintiffs, cited the decision in Banwari Lal and Others Vs. Sukhdarshan
Dayal, and argued that the plea of estoppel is not available to the defendants in view of the following observations therein:
Besides estoppel is but a rule of evidence and except in cases like those u/s 43 of the Transfer of Property Act, when a grant is fed by estoppel,
the rule does not operate to create interest in property regarding which the representation is made.
On this, Thiru Parasaran submitted that unless Section 43, Transfer of Property Act comes into play, a party cannot sustain his claim or right on a
mere rule of estoppel. In that case,, the plaintiff who filed the suit in a representative capacity as purchasers of plots in the colony called
Chandrapuri Colony"" sought for a declaration that plot No. I9 was ear-marked for a Dharmasala and also for a permanent injunction restraining
the defendant from interfering with the construction of the Dharmasala and for possession of the plot after demolition of its boundary wall. The
defendant denied that plot No. 19 was reserved for the use of Dharmasala and contended that one Manohari Devi, who, under the sale in her
favour, had become an absolute owner of the plot, was entitled to sell it to him. Dealing with the facts of that case, the Supreme Court has made a
passing observation as stated above. I do not think the contention of Thiru Parasaran as if the rule of estoppel will be available only in cases where
Section 43, Transfer of Property Act, can be invoked, is made as a proposition of law for all types of cases. The observations of the Supreme
Court made in that decision is only in relation to the facts of that particular case and cannot be taken as laying dawn the principle of applying the
law of estoppel for all types of cases.
In S. Shanmugam Pillai and Others Vs. K. Shanmugam Pillai and Others, , the Supreme Court has held:
Equitable principles such as estoppel, election, family settlement etc., are not mere technical rules of evidence. They have an important purpose to
serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the
parties, Courts have been liberally relying on those principles. We would hesitate to narrow down their scope.
Thus it is clear that the rule of estoppel can be invoked in the interests of justice. The facts of the present case clearly permit the Court to give a
finding on the plea of estoppel. The lower appellate Court after elaborately discussing the question of estoppel and the various other aspects of the
case has given its considered judgment. I do not find any question of law or miscarriage of justice as such involved, for me to interfere with the
findings arrived at by the lower appellate Court.
In these circumstances, both the second appeal and the memorandum of cross-objections arc dismissed. But there will be no order as to costs
in either. No leave.