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Judgment
V. Kanakaraj, J.—This Appeal suit is directed against the judgment and final decree dated 31.7.1985 made in O.S. 107/58 by the court of Subordinate Judge, Vellore. Tracing the history of the case, what comes to be known is that the respondents in the above appeal as the plaintiffs filed the suit in O.S. 107/58 praying to set aside two alienations as invalid, void and not binding on the plaintiffs if need be for division and allotment of 2/5th share of the plaintiffs for recovery of Rs. 3,000/- as past mesne profits; for recovery of future mesne profits and for costs and the trial Court in its judgment and decree dated 27.4.1961 set aside the sale transaction of 22.8.1955 declaring the alienation deed dated 2.3.1952 to be binding only on the shares of the defendants 1 and 2 and further directed that the suit properties mentioned therein to be divided into five equal shares by metes and bounds having regard to the nature, quality and value of the properties allotting two such divided shares in favour of the plaintiffs and putting the plaintiffs in possession of the same declaring that the plaintiffs are entitled to the past profits from 1956-57 as against the alienation of the sale transaction dated 22.8.1955, the quantum to be determined in a separate enquiry in the final decree proceedings; that the future profits be determined under a separate enquiry under Order XX Rule 12 CPC; that the defendants 6 to 8 do pay to the plaintiffs a sum of Rs. 1089.69 being the proportionate costs of the suit and do bear their own costs and that the defendants 6 to 8 and 9 respectively do pay to the Government a sum of Rs. 1808.40 and Rs. 452.10 respectively being the Court Fee due on plaint and thus, passed a decree. The final decree petition before the lower Court in connection with the above decree had been made by the plaintiff''s therein in I.A. No. 976/82 for passing a final decree for partition in terms of the preliminary decree dated 27.4.1961, On the part of the respondents, having filed no counter, the trial Court on perusal of the Commissioner''s Report and Plan has ordered and decreed in the following manner"
that the extent in S. Nos. 80, 81,82/1,88/2,88/3 and 92/3 i.e., plaint schedule items 2,3,4,5,6 and 7 be delivered to the plaintiffs and the defendants 3 to 5;
that 6-24 acres in S. No. 79 i.e. item No. 1 of the plaint schedule be delivered to the plaintiffs and defendants 3 to 5;
that the items of properties mentioned in clause 1 and 2 above be delivered as per the Commissioner''s Plan ''A'' marked in red colour and attached to the Commissioner''s Report along with this decree;
that the plaintiffs and defendants 3 to 5 are entitled to their respective shares in both the wells and pump sets in S. No.79;
that the western portion of the house which is shown in the Commissioner''s Plan A be delivered to the plaintiffs and defendants 3 to 5;
that the plaintiffs and defendants 3 to 5 be allotted the northern portion of the house in item No. 2 of schedule which is shown in Commissioner''s plan and marked as ''B'';
that the plaintiffs and defendants 3 to 5 be allotted in item 3 of ''C'' schedule bearing door No. 38/638 the portion marked in the Commissioner''s Plan ''C'' marked in red colour.
that the above three items of house properties are subject to the insolvency proceedings pending before the Official Receiver, North Arcot at Vellore and the plaintiffs are entitled to the above said three items subject to the insolvency proceedings pending before the Official Receiver, North Arcot, Vellore;
that the mesne profits be determined in a separate proceedings on the petition filed by the plaintiffs;
that the Commissioner''s report and plan do form part of this final decree; and
that there be no order as to costs.
It is only challenging the said final decree passed by the Court below, the defendants 6 to 8 therein have preferred the above Appeal Suit on grounds as brought forth in the grounds of memorandum of appeal of which, the following are relevant.
i) The lower court has erred in accepting the report of the Commissioner that the fertility of the soil was uniform.
ii) The lower court ought to have directed a division of each and every item instead of allotting entire S. No. to the plaintiffs.
iii) The lower Court ought to have that the appellants are entitled to the equity prayed for by them.
iv) The lower Court ought to have found that the plaintiffs are not entitled to the final decree unless the amount of debt discharged, by them is deposited.
v) The lower Court ought to have considered the provisions of Section 33 of the Specific Relief Act.
vi) The lower Court ought to have found that the appellants are entitled to the value of the improvements effected by them on the suit properties.
During arguments, the learned counsel appearing for the appellants would submit that the suit has been filed by the plaintiffs, the respondents herein, claiming 2/5th share from the suit properties, which are landed properties; that originally, the properties were belonging to one Varada Rajan Chetty who had two sons namely K.V. Purushotham and K.V. Sriramulu, the first and the second defendants respectively; that the plaintiffs 1 to 4 are sons of the second defendant; that the plaintiffs filed the suit in O.S. 107/58 and Sriramulu, the second defendant filed another suit in O.S. 108/58; that the defendants 6 to 8 are the persons who have preferred this appeal; that the 9th defendant is the mortgagee and the 10th defendant is the Official Receiver; that the defendants 1 to 5 are other sharers; the suit was decreed; the first and the second defendants alienated the property by sale deed dated 22.8.1955; that both the first and the second defendants being the sons, they contested that the alienation by their father was not valid; that the trial Court decreed the suit upholding the contention of the plaintiffs and setting aside the alienation i.e., the sale deed; that the defendants 6 to 8 preferred appeal in A.S. 534/61 and A.S. No. 164/62 wherein the alienation was held valid by this court against which the defendants filed Civil Appeal Nos. 1102/70 and 1103/70 before the Hon''ble Supreme Court; that the Supreme Court allowed the appeals confirming the judgment of the trial Court setting aside the alienation and thus, restored the decree of the trial Court; that the Hon''ble Supreme Court held that the question of equity cannot be granted; that based upon that, plaintiffs filed the application for passing a final decree.
The learned counsel would further argue to the effect that they have made a number of improvements in the property and hence, they filed objections which were considered by the trial Court regarding improvements u/s 33 of the Specific Relief Act; that u/s 33 of the Specific Relief Act; once the fact of improvement comes to be proved, then, the parties are entitled to damages; that the trial Court did not at all consider the improvements effected by the appellants; that they have taken delivery on 3.7.1985 in E.P. No. 155/85; that there is no consideration by the trial Court of the improvements and no order had been passed regarding damages and that not even a finding is given on the improvements. Citing Order XX Rule 12 CPC, the learned counsel would submit that a separate enquiry should have been held to ascertain the quantum of improvements effected by the appellants. At this juncture, the learned counsel would cite a judgment reported in 1950 II MLJ 587 Vemana Venkama Naidu and Others Vs. Sayed Vilijan Chisty and Others, wherein a division bench of this Court while dealing with Section 41 of the Specific Relief Act (old) corresponding to Section 33 (new) held that "both on authority and the language of the Section, we have power to award compensation if we consider it just and equitable to do so in the circumstances of this case". The learned counsel would cite yet another judgment reported in K. Viswanathan Vs. Namakchand Gupta and Another, wherein it is held that
If a suit is laid under S. 39 of the Specific Relief Act for cancellation of an instrument which is either void or voidable the court can require the plaintiff under S. 41 to make such compensation as the justice of the case may require, as part of the adjudication. The plaintiff in this case prays for a declaration that the partnership deed is void and for an injunction restraining the defendants from interfering with the rights of the plaintiff in the business as its sole proprietor. In substance the suit is for cancellation of the deed of partnership. In the interests of justice the plaintiff should be directed as part of the adjudication that the instrument is void, that he should repay all the amounts received by him from the defendants on account of the partnership.
With this above argument, the learned counsel would conclude praying to allow the appeal as prayed for.
In reply, the learned counsel appearing on behalf of the respondents, would submit that the other side wants to get relief in the final decree petition what they filed to get in the preliminary decree. Citing the judgment reported in Prasad and Others Vs. V. Govindaswami Mudaliar and Others, wherein it is held that "From the evidence, both oral and documentary and circumstantial, held that the sale deed dated 22nd of August, 1955 was true and it was supported by consideration but only in part and that even the recited consideration in the sale deed was thoroughly inadequate, that the sale deed was executed only nominally for a collateral purpose and with a view to stave off creditors with the express understanding that the properties sold would be reconveyed to the vendors after the pressure of the creditors had subdued. In view of the finding arrived at there was no question of giving any equities to the vendees even if some of the amounts paid by the vendees to some of the creditors of vendors were genuine. As the transaction of sale was itself vitiated for the reason given above, no relief in equity would be granted to the vendees".
The learned counsel would remark that Section 33 itself is based on equitable relief; that it is the Supreme Court which held in this case itself while disposing of the appeal that the appellants are not entitled to equitable relief and cited the relevant passage from the Supreme Court judgment. The learned counsel would exhort that absolutely there is no merit in the case of the appellants; that pursuant to the final decree petition; the respondents have taken possession of their properties and thus the terms of the final decree petition have become final and there is nothing left for the appellants to do. Citing yet another judgment reported in Ammani Ammal v. Ramaswami Naidu Volume 37 M.L.J. 113=equivalent to AIR 1919 Mad 105= 10 L.W. 75 (at p. 81) the learned counsel would point out the relevant extract of a learned Judge as quoted in his judgment in the language of Lord Justice Romer which is as follows:
the short answer is that a Court of Equity cannot say that it is equitable to compel a person to pay any moneys in respect of a transaction which, as against that person the Legislature has declared to be void". So that apart from the statute they held that even where a minor has received a benefit under a void mortgage he cannot be compelled by any principle of equity to give compensation. The fundamental doctrine was stated in the judgment of the Privy Council in a case which is quoted in Nathu v. Balwant Rao, which is Ram Tuhul Singh v. Bisseswar Sahu. The doctrine is as follows: "It is not in every case in which a man has benefited by the money of another that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality.
Ultimately, remarking that the appellants are trying to get the relief of the Hon''ble Supreme Court denied in appeal and would cite yet another judgment reported in volume 5 Bombay 450 wherein it is held that no allowance could be made for repairs and improvements. The learned counsel would end up his arguments by saying that since the terms of the final decree order have been implemented, the appeal fails. The sixth respondent would adopt the arguments of the learned counsel for the other respondents.
In consideration of the facts and circumstances pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both what comes to be known is that the final decree petition is filed by the appellants in the suit before the trial Court praying to pass the final decree in terms of the preliminary decree dated 27.4.1961. It is a suit for partition and separate possession and for mesne profits filed on the part of the plaintiffs/respondents herein in the Court of the Subordinate Judge at Vellore and the suit had been decreed as prayed for. On appeal preferred by the aggrieved defendants, this court has given a reverse finding setting aside the judgment and decree passed by the trial Court but on appeal preferred in Civil Suits before the Hon''ble Supreme Court, the same had been allowed setting aside the judgment and decree passed by this Court and restoring the judgment and decree of the trial Court. Ultimately, the plaintiffs have filed the final decree petition in I.A. No. 976/82 and the trial Court has also passed its order on 31.7.1985 in I.A. No. 976/82 thereby allotting the respective shares in favour of the parties in terms of the preliminary decree with the assistance of the Commissioner''s Plan and Report as has already been extracted in para No. 2 above. Aggrieved, the defendants have come forward to institute the above Appeal suit.
From the Grounds of Appeal perused and upon hearing the learned counsel for the appellants, the grievance of the appellants seems to be that they have effected enormous improvements in the properties being in possession and enjoyment of the same for quite a long time and therefore, as contemplated u/s 33 of the Specific Relief Act, they are entitled to damages and this aspect has not at all been dealt with nor any damages granted in their favour since the trial Court did not at all consider the improvements effected by the appellants in the suit properties. It is also an admitted case on the part of the appellants that they have taken delivery of their allotment on 3.7.1985 in E.P. 155/85. Neither the trial Court considered this aspect nor any finding is recorded on this nor anything is granted as damages. The learned counsel would also site two judgments which are half a century old wherein passing remarks have been made by a learned Judge of this Court to the effect that in the circumstance of the case, allowance could be made in favour of those who effected improvements in the property.
On the contrary, the firm argument advanced on the part of the respondents is that neither the appellants are entitled to any equitable relief as it is claimed nor are they entitled to anything as damages under pretext that they have effected improvements in the suit properties, that the equitable relief sought for has been denied by the Hon''ble Supreme Court in its judgment and that the appellants failing to succeed in the preliminary decree now they are attempting to gain by means of this appeal.
A cursory glance into the judgments of the Hon''ble Supreme Court made in Civil Appeals Nos. 1102 and 1103 of 1970 concerned with the subject in hand reveals that the Apex Court has ultimately rejected the plea of the appellants for equitable relief. I extract the same hereunder:
In view of the finding arrived at, there was no question of giving any equities to the vendees even if some of the amounts paid by the vendees to some of the creditors of vendor were genuine. As the transaction of sale is itself vitiated for the reasons given above, no relief in equity would be granted to the vendees.
Therefore, the question of granting any relief in equity in favour of the appellants having already been sealed by the Apex Court, it is a finished chapter and the same cannot be raised or raked up before this Court on appeal against the orders passed in the final decree petition.
Therefore, it is easy to conclude that, what relief the appellants are seeking before this Court had not only been rejected by the Apex Court which dealt with the preliminary decree as passed by the trial Court and hence, there is no question of raising the same before this court. Even though it is alleged on the part of the learned counsel appearing for the appellants that the objections raised on their part have not been considered prior to arriving at a conclusion to pass the final decree by the lower court, still from the final decree order passed by the lower court, what comes to be known is that the appellants did not even file any counter nor did they contest the matter so seriously before the lower Court and therefore, they are not entitled to raise objections on appeal before this Court testing the validity of the final decree order passed in the final decree petition by the trial Court. In consideration of the position of law and the propositions rendered by different upper forums of law on the subject to the context of the facts and circumstances encircling the case in hand, the grievances, put forth on the part of appellants are not genuine and they fail. There is no merit in the appeal and the same fails and deserves to be dismissed.
In result, the above Appeal suit fails and the same is dismissed.
The judgment and final decree dated 31.7.1985 made in O.S. 107/58 by the Court of Subordinate Judge, Vellore, is "hereby confirmed.
However, in the circumstances of the case, there is no order as to costs.