Jambapuram Subbiah and Others vs Gundalapudi alias Mittameedi Venkatramayya

Oldfield, J.—Some argument was addressed to us on behalf of the defendants, appellants, with reference to the calculations, on which the

lower court''s judgment is based. We have not however been shown how any question of law is raised in connection with their correctness and we

therefore decline to interfere with the conclusions, in which those calculations result.

The remaining ground, on which the appeal is argued, is against the lower appellate court''s refusal to make any provision in its decree for an

award to the defendants on account of the improvements they allege they have made on the suit property. The suit property is part of a larger area

in common ownership of the plaintiff and the defendants. The plaintiff let his unascertained share to the defendants; and the present suit is brought

for the eviction of the defendants from that share, the form of the decree being of course a decree for partition by metes and bounds of the

plaintiff''s share and delivery to him of possession thereof. It cannot therefore at present be said that the improvements are on the portion, of which

the plaintiff will be entitled to delivery. But in any case we cannot see how one tenant in common, who makes improvements on the property of the

cotenancy, can ordinarily be entitled to compensation for doing so. The defendant''s argument has been based on the dictum of Mookerjee, J. in

Upendra Nath Banerjee v. Umesh Chander Banerjee (1910) 12 CLJ 25 that, ""if one joint owner has in good faith effected valuable improvements

upon the common property at his own expense, equity will take this fact into consideration upon a partition and in some way will make an

allowance to him therefor, in addition to his rateable share of the property"". The learned Judge has proceeded to explain the nature and the

grounds of this equity; but we prefer to decide whether any such principle as that relied on by him is really recognised by authority. Certainly it is

not recognised in the unqualified form, in which he stated it, in the cases referred to in his judgment. In Swan v. Swan 146 ER 1281 the Court

ordered a reference for an account to be taken of what had been expended by a co-tenant; and these qualifications were fully recognised in In re

Jones: F arrington v. Forrester (1893) 11 CH 461 No doubt the reference in that case to the observations of Cotton L.J. in Leigh v. Dickeson

(1884) 15 QBD 60 is at first sight in favour of the existence of a general right in one co-tenant to compensation for improvements made by him

against another. But the judgments of Brett M.R. and of the other learned Judge in Leigh v. Dickeson (1884) 15 QBD 60 amply sustained the

right, as subject to proof of the necessity for repairs or improvements or of the co-tenant''s concurrence, express or implied, in their execution. The

portion of the judgment of Cotton, L.J. to which reference has been made, appears, on a perusal of his judgment as a whole, to be concerned

solely with procedure, that is with the existence of a remedy in equity by a partition suit, which the common law could not afford. In the present

case the defendants have never in their written statement or elsewhere alleged the plaintiff''s concurrence, expressed or implied, in what they did;

and no issue on the point was framed or even asked for. In these circumstances this objection to the lower Appellate Court''s decree must fail.

The Second Appeal is therefore dismissed with costs, including costs of C.M. P. No. 2483 of 1921.