The Secretary of State for India in Council vs Duggappa Bhandary and Others

Phillips, J.—This is a case of an alleged escheat of the properties of an Aliyasantana family of South Kanara. The undisputed facts are as

follows: About 1850 the Haladi family consisted of two members, Puttu Shettithi and her son, Daraya Shetti. One Venkamma Shettithi was then

adopted from another family and she had a daughter, Kollu Shettithi, who married Daraya Shetti''s son Nandiappa Shetti and died in 1872. They

had a daughter Durgi Shettithi, who died while still a minor in 1876. In 1864, Daraya Shetti executed what is called a Tahanaman, Ex. DD, in

which he stated that there were no other heirs in his family except himself and Kollu Shettithi. He then entrusted the management of the family and

the family property to his son Nandiappa Shetti and he also made a provision that if Kollu Shettithi had no issue, Nandiappa Shetti should enjoy

the property mentioned therein. Daraya Shetti died in 1866, and from that time Nandiappa Shetti appears to have been in possession and

management of the family property. Kollu Shettithi died at about the age of 20 in J 872, and her daughter Durgi Shettithi died in 1876. In 1878

four persons belonging to the Kavanjur family brought a suit against Nandiappa Shetti and others on the ground that they were members of Daraya

Shetti''s family entitled to succeed to his estate. In the Appellate Court, the suit was dismissed and from that date Nandiappa Shetti appears to

have remained in possession of the property. In 1886, he sold the property to his wife Venkamma Shettithi and his son Koraga Shetti. In 1898 in

pursuance of a compromise of pome litigation in this Venkamma Shettithi and her fop. re-sold the property to Veeranna Shetti, an elder brother of

Nandiappa Shetti. After Veeranna Shetti''s death defendants Nos. 1 and 2 came into possession. In 1903 one Koraga Shetti, P. W. No. 12, sent

in petitions to the Kevenue Authorities stating that the property of Daraya''s family had become escheated to Government, and an enquiry was

held, but in 1905 the proceedings were dropped. They were revived inl910 on the petition of one Ganapa Shetti, and'' in 1911 the Government

ordered the property to be escheated.

The main question for determination is whether this property has escheated to Government. The Subordinate Judge has found that there were

reversionary heirs alive at the time of Durgi''s death. In coming to this conclusion he seems to have thrown the burden of definitely proving the

absence of heirs upon the Government and, inasmuch as the Government dropped the escheat proceedings in 1905, he holds that there was an

admission by the Government that there was an heir to the property in existence when Durgi died. In cases of this sort, as pointed out in Gridari

Lall Roy v. Bengal Government 1 Ind. Dev. 28, it is for the Government to prove at least -prima facie, that the last holder died without heirs and

then it is open to the claimant to prove either his own title, or to set up the title of a third party. The first question then for determination is, has

Government proved at least prima facie that Durgi Shettithi died without heirs? On this point we have the fact that in 1850 the family was becoming

extinct and an adoption was considered necessary. The adopted lady had only one daughter and she died leaving only Durgi Shettithi, who died

without issue. We then have the recital by Daraya Shetti in Ex. DD that in 1864 there were no other heirs in the family and a provision was made

that on the extinction of the ""family, Daraya Shetti''s son was to succeed to the property. Under the Aliyasantana Law, this son was in no sense an

heir. When the last family member died in 1876, no heirs came forward until 1878, when the members of the Kavanjur family filed their suit. Their

claim was negatived and since that date, no claimant came forward until the Government issued a notice in 1903 inviting claimants to the property.

In 1905 the defendant''s predecessor set up his title under a transfer from Nandiappa Shetti, but it is not disputed that Nandiappa had no legal title

to the property. Another claimant who came forward then was one Anthaya Shetti of the Ghoradi family, who claimed to be a member of

Daraya''s Haladi family. It is admitted by P. Ws. Nos. 3 and 12 that Anthaya Shetti belonged to a family which had long ago been divided from

Daraya''s Haladi family, but the question is whether the relationship was not so remote as to debar that family from claiming as heirs. Anthaya

Shetti had a brother named Sesha Shetti, who attested Ex. DD in which there is the recital that the Haladi family had no other heirs. In revenue

proceedings of 1865 Kollu Shettithi wife of Nandiappa Shetti, filed a vakalat in which she referred to this Ghoradi Sesha Shetti as her brother in

the family. The vakalat ia not now in evidence, but there is secondary evidence of this recital. The Subordinate Judge seems to think that this

vakalat has been suppressed by the Government, but there is really no basis for this supposition. The Government Pleader of South Kanara at that

time appears to have attached extreme importance to the above recital in the vakalat and apparently treated it as an admission that Sesha Shetti

was related to Kollu Shettithi and accordingly, when it was proved that Anthaya Shetti was a brother of this Sesha Shetti, the Government Pleader

expressed his opinion that the Government had not a good case. This recital is contained in a document executed by a girl, who was a minor or at

any rate very young at the date of execution, and, in my opinion, too much importance was attached to the recital. It is notsuggested that Sesha

Shetti was really her uterine brother, and the expression may be due either to the fact that in many proceedings before the Revenue Authorities,

parties were only allowed to be represented by Vakils or by friends or relations, or it may be due to the fact that this Shesha Shetti was a member

of the natural family of Kollu Shettithi''s mother, or again it may be a mere honorific term. This recital is all that can be opposed to the strong

circumstantial evidence showing that no heirs existed at the time of Durgi Shettithi''s death. The judgment in the appeal in which the Kavanjur

family''s claim was dismissed is rejected by the Subordinate Judge as merely deciding that the Kavanjur members were not undivided members of

the Haladi family. Some of ^he passages in the judgment support this inference, but it must be remembered that there is no clear evidence as to the

law of inheritance to an extinct Aliyasantana family. It has been definitely laid down in the case of Marumakathayam families in Malabar, which are

governed by rules very similar to those applicable to Aliyasantana families, that when a tarwad, or family, becomes extinct, the other tanvads who

had become divided from that branch are entitled to succeed but in this Presidency it has never been definitely decided which branch has the

preferential claim, whether the branch which is most nearly related in blood or the branch which became divided at the latest point of time. In any

case it cannot be held that a divided family, however long it may be since the division took place, necessarily succeeds, and I think there is

considerable force in the observation in Mr. Justice Sundara Iyer''s Book (Professional Ethics) at page 191 that ""there must at least be community

of pollution in order to constitute heirship"". Under Hindu Law heirs must come within 14- degrees of the deceased and similarly there must be

some limit to the remoteness of relationship in Aliyasantana families, and it is unlikely that heirship would extend to a remote relation who did not

observe pollution. In the present case it is in evidence that Anthaya Shetti of Ghoradi family was divided off from the Kavanjur family, and it is

alleged that they both originally formed one family jointly with the Haladi family. Inasmuch, as the claim of the Kavanjur family has been negatived

by the decision of the District Court, prima facie the Ghoradi family which was a branch of the Kavanjur family would equally be disentitled to

succeed. In these circumstances Government must be held to have adduced sufficient evidence to make outa primafacieoase that Durgi Shettithi

died without heirs. If the defendants wish to negative this contention, it lies upon them to prove that this Anthaya Shetti, or any other person whom

they may choose to set up was actually an heir to Durgi Shettithi. For proving this they merely rely on the fact that the Government dropped the

escheat proceedings in 1905 and on the evidence of P. Ws. Nos. 3 and 12 that tha Haladi family and Anthaya Shetti''s family divided long ago, but

both these witnesses couple this admission with a statement that Durgi Shettithi had not any heirs, thus showing that, in their opinion, the

relationship was too remote to constitute heirship. It is, therefore, unnecessary in this case to decide a point which has been argued at some length,

viz, the exact nature of kinship which would constitute a person an heir under the Aliyasantana Law. On this point, therefore, (find that Dargi

Shettithi died without heira and that the property escheated to Government.

The next point for consideration relates to the alleged mulgeni rights created by Daraya Shetti in the plaint property. In 1836 he granted a

mulgeni lease to the Kolkebail family. This was transferred (excepting one small portion bearing a rental of annas 4) to Nandiappa Shetti, Daraya''s

son-Vide Ex. III. Again in 1862 Daraya Shefti executed another mulgeni lease in favour of his wife Krishnarna Shettithi. It is contended for the

respondents that these two mulgeni leases are binding on the property. So far as the first lease in favour of Nandiappa Shetti is concerned, we find

that after the judgment of 1856 there is no record of its existence; on the contrary we see that in Ex. which definitely refers to the mulgeni lease in

favour of Krishna Shettithi there is no reference to the lease in favour of Nandiappa Shetti. Inasmuch as Nandiappa Shetti was very intimately

concerned in Ex. DD, the omission, I think, is very important. Both the above mulgeni leases are in respect of plaint item No. 2 in Sch. A, and it

would appear from the fact that the second mulgeni lease is said to be in respect of property with a beriz of lis. 72 that it included the whole of item

No. 2. The mulgeni lease in favour of Nandiappa Shetti was for land bearing a beriz only of Rs. 24. It is, therefore, very probable that the prior

mulgeni in favour of Darayya''s son was merged in the later geni chit in favour of his wife whose heir the son would be."" It is certainly quite clear

from Nandiappa Shetti''s dealings with the property after 1876 that he never specifically put forward a claim to his mulgeni right. It may, therefore,

be inferred in the absence of evidence to the contrary that this mulgeni right ceased to exist, at any rate before 1864 when Ex. DD was executed.

As regards the second mulgeni in favour of Krishna Shettithi it is argued by the learned Government Plaader that it was an invalid grant and is not

binding on Government. That it is not a valid grant may be conceded, for the proceedings evidenced by the judgment Ex. VII go to show that the

transaction was a collusive one entered into by the manager of the family in order to benefit his wife. As there was at least one other member of the

family living on the date of the grant it would not be binding on her unless it were for family necessity, and of this latter there is no evidence. It is

then contended for the respondents that the Government has no right to object to the geni chit, firstly, on the ground that no reversionary heir can

question an alienation made by a member of the family, and secondly, that the right to question it is barred by limitation. In support of the first

contention the respondents rely on Thayyil Mammad v. Purayil Mammad (1920) M.W.N. 768 : 39 M.L.J. 702 : 29 M.L.T. 45 in which it was

held that under Maramakathayam Law, the Attaladakkam heir, i. e., the reversionary heir succeeds only to such of the properties of the tavazhi as

have not been disposed of by its last members. This decision appears to be opposed to an unreported decision in Second Appeal No. 857 of

1884, and accordingly it would seem only natural that when a reversionary heir succeeds to the right of a person entitled to question the alienation,

the reversioner himself would prima facie have that right. It is, therefore, possible that the decision in Thayyil Mammad v. Purayil Mammad 39

M.L.J. 702 : 29 M.L.T. 45 may require re-consideration, but for the purpose of this suit, I think the question can bo decided on the second

contention raised by the respondents, viz., the bar of limitation.

The mulgeni chit was granted in 1862 when Kolly Shettithi was alive. She was then aged about 10. She attained majority whether we fix the age

of majority at 15 or 18 years at least two or three years before her death in 1872. The period of limitation thus began to run before her death and

would not be interrupted by the minority of Durgi Shettithi. The right of the family to set aside the alienation was, therefore, barred in 1874, i. e.,

before the death of Durgi Shettithi. The right of Government, therefore, to question this alienation is barred by limitation and the property can -only

be recovered subject to the mulgeni right created in 1862.

The third and last question for consideration relates to the right of the defendants to compensation for improvements made upon the land and the

right of Government to mesne profits in the past. When Government demanded possession from the defendants, an offer was made to pay Rs.

1,396-4-0 to defendants Nos. land 2 as compensation for the improvements effected since 1905, the Government thus recognising that owing to

their conduct in granting a patta to defendants Nos. 1 and 2 in 1905, they ought in equity to recognise the right of defendants to make

improvements after that date.

It is suggested for the respondents that the defendants are entitled under the customary law of South Kanara to compensation for all the

improvements effected on the land. They rely on cases reported as Darawima v. Mariamma 19 Ind. Cas. 371 : 21 M.L.J. 397 and Eam-appa v.

Abdulla B&ari 69 Ind. Cas. 282 : 41 M.L.J. 127. In the first place the right there considered was the right of tenants to improvements and the right

was limited to improvements which would be beneficial to the holding. In the present case, however, it cannot be said that the defendants are

tenants of the land under Government within the ordinary meaning of the law of landlord and tenant, and I do not think they can base their claim on

this ground. The ground on which they must rely is the right given u/s 51 of the Transfer of Property Act which says that when the transferee of

Immovable property makes any improvement on the property believing in good faith that he is absolutely entitled thereto, the transferee has the

right to require the persons causing eviction to have the value of the improvement estimated and paid. The question then arises whether the

defendants believed in good faith that they were absolutely entitled to the land. They are the heirs of Veeranna Shetty, the elder brother of

Nandiappa Shetti. Nandiappa Shetti obtained possession of the land after Durgi Shettithi''s death, knowing full well that he had no title thereto and

that he was a mere trespasser. Subsequent dealings with the land, as the result of which defendants Nos. 1 and 2 are in possession, did not affect

the original title in any way. The original possession wa3 gained by trespass and it can hardly be. said that a person who enters upon land

knowingly as a trespasser can bona fide believe that he is absolutely entitled thereto. It has been held in Narayana Aiyar v. Sankara-narayana

Aiynr 24 Ind. Cas. 240 : 1 L.W. 369 that it does not follow from mere negligence that the purchaser did not believe in good faith that he was the

full owner. This ruling is in accordance with the definition of ''good faith'' in the General Glauses Act, but under that definition it is essential to prove

that the transferee was in fact honest in his conduct. Negligence may in certain circumstances be consistent with honesty but where the title is

obviously founded on possession which is knowingly obtained by trespass, it is impossible to hold that the trespasser honestly believed that he was

the absolute owner. These remarks apply directly to Nandiappa Shetti only, but as the predecessor-in-interest of defendants Nos. 1 and 2 was

elder brother of Nandiappa, they are all members of one family This would apply equally to defendants'' Nos. 1 and 2 unless they prove positively

that they acted in ignorance of Nandi-appa''s conduct. This they have not done I would, therefore, hold that the defendants are not legally entitled

to the value of the improvements u/s 51 of the Transfer of Property Act. Inasmuch as the Government did recognise their possession of the land by

issuing a fresh patta in 1S05 and also made an offer to compensate them for improvement since that date, Ithink that they are now equitably

precluded from denying the defendant''s right to improvements made since 1905. The improvements have been valued by a Commissioner a

Supervisor and a Tahsildar, and the Subordinate Judge has come to a finding as to the value of the improvements. That valuation is not now

disputed and consequently.the defendants Nos. 1 and 2 will be entitled to the value of improvements effected since 1905 on the lands in their

possession. A great portion of the value will be payable to tenants and consequently'' the defendants will only be allowed to draw the amount

relating to lands in their actual possession.

The rate of mesne profits has been determined by the Subordinate Judge and although his finding has been questioned the learned Government

Pleader does not seriously press this point, and the only question for determination is thedatefrom which such mesne profits are payable. Inasmuch

as the property really vested in Government from the date of escheat, viz., 1876 the Government would be legally entitled to mesne profits from

that date and this view was held in S. A. No. 221 of 1915. The claim in the plaint is, however, limited to the period since 1898 when the

predecessor of defendants Nos. 1 and 2 came into possession and there is no reason why the profits from that date should not be awarded. The

Government has a legal title to the mesne profits and although it is contended that they have by their laches disentitled - themselves, the

respondents'' Vakil is unable to point out in what their laches consist. It is suggested that inasmuch aa the Government has been a very long time in

establishing their right to an escheat they have been guilty of laches. It is impossible for Government Officers to become aware at once of every

case of escheat, and unless there was a neglect of duty in ascertaining the facts, it cannot be held that the Government or its officers have been

guilty of any dereliction of duty. The case relied on by defendants Jugger-nath Sahoo v. Syud Shah Mahomed Eossein 2 I.A. 48 : 3 Suth. P.C.J.

(P.C.) has, therefore, no application to the present case. The Government is entitled to the mesne profits at the rate found by the Subordinate

Judge from 1898 till date of possession with interest at 6 per cent 6 per annum.

The appeal is accordingly allowed and there will be a decree for the plaintiff as indicated above with proportionate costs throughout.

Respondent will pay costs on items 1 and 3 and on item 2 respondent will receive 2/3 costs and pay 1/3 to Government.

Ramesam, J.

This appeal arises out of a suit by the Secretary of State for India in Council to recover certain properties in South Kanara on the ground that

the last owner died in 1876 without leaving any heirs and the properties have escheated to the Secretary of State. The suit properties belonged to

an Aliyasantana family called the Haladi family. The following pedigree gives the admitted relationship of the last members.

Puthno Shettithi Chickayya. Nandamma.

Daraya Shetti, Adopted

died 1866 daughter

Venkamwa

Kothu Shettithi

Durgi Shettithi,

died 1876.

N.B. Shettithi is the feminine form of Shetti.

Daraya Shetti married Krishnamma and their son was Nandiappa Shetti who, like his mother, did not belong to the family of his father, the

Aliyasantana system being Matriarchal like Marumak-katayam system of Malabar. Nandiappa Shetti married Kollu Shettithi and was the father of

Durgi Shettithi but after the death of Kollu Shettithi he married a second time, and the second wife is the 3rd defendant in the suit. The following

pedigree is of the family of

Krishnamma Shettithi

(wife of Daraya Shetti of

the other family)

Rukmani Veeranna, Nandiappa,

married

Venkamma (1) Kollu Shettithi

(2) Venkamma,

defendant

No. 3.

Defendant Defendant

No. 1. No. 2.

Out of the items of property which are the subject of- the suit items 1 and 2 belong to muli warg No. l and were originally registered in the

name of Ganapayya Shetty who was referred to in Ex. DD dated the 1st June 1864 as ""my elder brother"" by Daraya Shetti. {Vide also Ex. W,

para. 3). He must have died prior to 1856 leaving Daraya Shetti as the sole male member in the family (See Ex. III). Venkamma Shettithi the

mother of Kollu Shettithi was adopted into the family. Daraya Shetti died in 1866 (Ex. G). On the petition of Kollu Shettithi Ex. D (13th August

1866) and with the assent of her husband Nandiappa Shetti the lands were registered in the name of the latter. Kollu Shattithi died in 1872 and

after her death her daughter Durgi Shettithi died in 1876 aged about 1J. In ltt78 certain persons claimed tore-cover the property from Nandiappa

Shetti, his brother Veerana Shetti and another on the ground that they are members of the family of Daraya Shetti and entitled to succeed to the

property. The District Munsif gave them a decree but on the appeal of the defendants the, suit was dismissed by the District Judge of South

Kanara, Mr. Best (afterwards Mr. Justice Best) Ex. CC, dated the 9th September 1881. Only the appellate judgment is available. From paras. 6

to 9 of the appellate judgment we see that it was admitted by both the parties that Venkamma who was adopted was the daughter of one Nandia

Shettithi who was the daughter of one Krishnamma. The plaintiffs in that case belonged to the Kavanjur house and they alleged that the Kavanjur

family and the Haladi family were branches of the same Aliyasantana family, whereas the defendants alleged it -was a distinct family. Though paras.

4 and 24 of the District Judge''s judgment (in which he says that Durgi Shettithi was not regarded by the plaintiffs as possessing joint rights with

themselves) may lead to the impression that he meant to find only that the plaintiffs'' branch was not related closely enough to the Haladi branch.

Paragraph 27 shows that he also found that the plaintiffs failed to establish their relationship with Daraya and other members of the Haladi house.

In para. 21 he also remarks that the genealogical table filed by the plaintiffs was incorrect. In fact a perusal of his whole judgmnt shows that his

opinion was that the Kavanjur house, the Manjurbeth house to which the adopted Venkamma belonged and the Haladi house were all distinct

families, though it may be also thought that in the same family distant branches are not entitled to inherit In 1886 the suit properties were sold by

Nandiappa Shetti to his wife and son, Ex. GG, dated the 5th January 1886. These again sold the same properties to his brother Veeranna Shetti

by Ex. HH, dated the 7th September 1898 and it is as the representative of the vendee of Ex. HH that defendants Nos. 1 and 2 are in possession

of suit properties. In 1902 one Koragu Shetti who is P. W. No. 12 in the case sent a petition to the Collector of South Kanara saying that the

properties have escheated. There was a notice in the District Gazette calling for claimants. Thereupon Ex. 6 was presented by one Anthayya Shetti

who claimed to be the heir. He belonged to Choradi and produced a pedigree which is now Ex. U. According to this pedigree, his own branch

and the natural family of the adopted Venkamma belonged to the same family as the Haladi family. According to him this family could not be the

Manajurbet house, for Manjamma grand-daughter of Subba Ohetty and P. W. No. 4 in the former suit (vide para. 22 of Ex. CC) does not appear

in the pedigree Ex. U. Exhibit U, therefore, is opposed to the findings of the District Judge in the former case. I do not say that Ex. CO is

conclusive against Anthayya Shetti. If the pedigree put forward by Anthayya Shetti is otherwise proved, it may be said that the Haladi family has

still heirs. But Anthayya Shetti never brought forward such proofs before the Collector nor did the defendants adduce such proof now. Anthayya

Shetti''s branch and the Haladi family can be shown to be connected by showing that Anthayya Shetti''s mother''s mother''s mother Parames-wara

Shettithi (though it appears as Ohen-namma Shettithi in another paper, vide para. 2 of Mr. Lansashire''s letter dated 14th December 1905 Ex. Q

and Puthoo Shetti''s-mother were sisters. In January `1904 Koragu Shetti repeated his petition Ex. Z-1. He gave the deposition Ex. BB in which

he said Anthayya Shetti is hot a member of the family of Daraya Shetti. He again filed the petition Ex. Z-2 in which he said that he was not at all a

member of the family of Durgi Shettithi and he does not also belong to the Gothra of the said Durgi Shettithi. This Anthayya Shetti belongs to the

Gothra of a Shetti. He again sent the petition Z-3 and gave the deposition Ex. EE in which he said ''either Seshi Shetti or Anthayya Shetti is not a

member of the family of Kollu Shettithi. Seshi Shetti was the elder brother of Anthayya Shetti. It would appear that in a vakalat executed by Kooly

Shettithi in 1866 in favour of Seshi Shetti the latter was described as ''brother in the family'' (vide Exs. Q and W.) Kollu Shettithi was at that time

aged only 14. Whether the expression ''brother was merely used for courtesy or whether Kollu Shettithi believed that her natural mother

Venkamma Shettithi was related, as cousin , analoguous to a sister, Jo Kollu Shettithi the mother of Anthayya Shetti or whether there was any

other reason for the description is not clear. Koragu Shetti denied any relationship in Ex EE. In Ex AA another statement by him he said that the

relationship was falsely given to justify the giving of the vakalat, as vakalat . should be given under the then Regulation to a Vakil or a relation. The

Government apparently thought that the description of Shesha Shetti in the vakalat taken with the fact that Anthayya Shetti was the brother of Seshi

Shetti would be fatal to their claim by escheat. The matter was then set at rest on 12th June 1905. See Ex. Q. In 1910, there is again a petition by

one Ganapayya Shetti reporting that the properties are liable. to be escheated and after further enquiry the Government passed proceedings Ex. Q

sanctioning the taking of further action. The present suit was launched in 1919. The statement in Ex. DD that there are no other heirs may refer only

to Daraya Shetti''s branch and may also be interested and thus is not conclusive. Two witnesses P. W. No. 3 and P. W. No. 12 have been

examined by the Government to make out a prima -facie case of escheat. Plaintiff witness No. 3 says that his father Ganapayya Shetti belonged to

Ghoradi family to which Anthayya Shetti and Seshi Shetti also belonged. This Ganapayya Shetti appears in Ex. U. He then says: ""After Durgi

Shettithi died she had not any chief heirs. By chief heirs I meant the nearer heirs such as older or younger brothers, etc. * * * I do not know

whether members of Patre Soorappa Shetti''s family had any right or not in the property of Durgi Shettithi''s family. They belonged to one and the

same family divided long ago. I have heard my father saying that the member of Patre Soorappa Shetti''s family and those of Durgi Shetti''s family

were members of one and the same family divided long ago. My father did not tell me when the partition was effected'' among them. My father told

me that partition was effected among them, between us and them a very long time ago. I do not know whether pollution was observed between the

members of my. father''s family and those of Durgi Shettithi''s family. I was then very young. So far as 1 know there are not any heirs in Durgi

Shettithi''s family."" It is evident from this witness that while to a certain extent he supports the plaintiff he goes on giving evidence tending to show

that the branch of his father, Seshi Shetti and Anthayya Shetti is related to the llaladi family, but gives no definite pedigree to prove the relationship.

If the family of Authayya Shetti is really related to the 11 aladi family I would be inclined to hold that their branch (and not single individuals of that

branch) would be entitled to the suit property. See Manjappa Ajri v. Marudevi Hengsu 30 M.L.J. 201 and Krishnan Nair v. Damodaran Nah 17

Ind. Cas. 769 : 13 M.L.T. 166 : 24 M.L.J. 240. But the question before us is, is any-such relationship proved? The evidence of P. W. No. 3 is

very vague and I also suspect him to have been tampered with by the opposite side. Plaintiff witness No. 12 also says: ""I say that there are distant

divided family members. I have heard it said by other persons that he is a divided family member * * * Thereafter I came to know of that * * * * *

The allegation that there are no proper heirs to the said Koolu Shettithi is true. But there are heirs to her in the family"". The evidence of this witness

is opposed to his former depositions, in Exs. EE and AA. His present statement that there are other divided members is not even evidence as he

does not mention. I think this witness was also tampered by the opposite side and no reliance can be placed upon him. The result is that though

two witnesses for the plaintiff throw out suggestions tending to show that, there are heirs, these suggestions are indefinite and do not amount to

proof of any definite pedigree. Under such circumstances, I am inclined to think that the plaintiff has discharged the burden that rests upon him of

making out a prima facie case that there are no heirs see Gridari hall Roy v. Bengal Government (I). So far as aay definite evidence can be given

the plaintiff has shown that there are no heirs. As to distant branches what we have is very vagae and it is for the defendant to prove any pedigree

showing the existence of a heir. I, therefore, think that the Government have established that the properties have escheated.

I agree with my learned brother that the plaintiff is now precluded from questioning the mulgeni lease of 1862. As this mulgeni lease covered

the whole of item t (vide para. 3 (3) of the plaint) it is un-nmessary to consider the first mulgeni lease of 1838 as it is a lmilted that it covered only a

portion of item 2. Probably it ceased to exist as my learned brother has found.

As to improvement, the question arises only as to items 1 and 3as we have found that item 2 is subject to a mulgeni lease and the defendants

are not liable to be evicted, the plaintiff being only entitled to the rents. I agree with my learned brother that the defendants are not entitled tq

improvement a under the Customary Law of South Kanara but if at all, only u/s 51 of the Transfer of Property Act and that they are entitled to

improvements effected after 1905; it seems to me that the defendants are entitled to such of them as were effected after 1898 and before 1902. As

Durgi Shettithi died in 1^7(5 and as no claimant came forward and established his claim successfully by 1883 the wife and son of Nandiappa Shetti

who obtained the sale-deed Ex. GG from Nandiappa Shetti completed in 1888 a title by prescription against all possible claimants other than

Government. Between 1888 and 1V02 there is nothing to show that it was very clear that there were no possible heirs who might have-claimed the

property or that Veeranna Shetti the vendee under Ex. HH knew definitely that there were no heirs other than Government who might have

claimed the property. Thus, though prior to 1888 Nandiappa Shetti and his wife and son might be regarded as trespassers of the property,

Veeranna Shetti after his purchase in 1898 might have thought that his vendors had an absolute title of the property and that he himself purchased

an absolute title. It is true he being a brother of Nandiappa Shetti knew the immediate prior history of the family. But there is nothing in such prior

history or otherwise to show that, there might not be heirs who could claim the property between 1876 and 1882. It seems to me that it is more

likely that Veeranna Shetty might have bona fide thought that there might have been heirs who could have claimed the property but by their failure

to claim it he obtained an absolute title in 1898, than that he definitely knew that there are no other heirs entitled to the property and the

Government are, therefore, entitled to it by escheat and he has, therefore, not obtained an absolute title to the properties. Anyhow, the Tahsildar

issued the patta or kudtledar in Veeranna Shetti''s name (see Ex. Q) and, therefore, he was justified in thinking that even the Government has no

title. I, therefore, think that the defendants are also entitled to all improvements made on items 1 and 3 between 7th September 1898 the date of

Ex. HH to May 1902 when the case about escheat was started. I may also observe that a patta was issued to Veeranna Shetti for it is observed in

para. 6 of Ex. W: ""It is on this purchase right that Veeranna Shetti happened to be kudtledar in Fasli 1312"": vide N amy ana Aiyar v.

Sankaranarayana Aiyar 24 Ind. Cas. 240 : 1 L.W. 369 and Durgozi How v. Fakeer Sahib (9). Where the improvements are effected by tenants

their position is even better on the question as to whether they were effec-ed bona fide. But, as the period is small and the question is of

importance as to item 1 only, I do not think it necessary to differ from the order proposed by the learned brother.

The next point relates to mesne profits. The Government claim them from 1898. The respondents'' Vakil relied on Rama-swami Iyer v.

Venkatarama Iyer (10) and Subbe Goundan v. Krishnamachari (ll). But these cases relate to claims by members of joint families seeking to

repudiate alienations by a father or by a.manager of the family. In this case, repudiation by the plaintiffs involved a consideration of various equities

and in such cases it might well be said that the right to mesne profits arises only from the date of the repudiation. No such equity arises in the

present case. The respondent also relies on Juggernath Sahoo v. Syud Shah Mahomed Hossein 23 W.R. 99 : 14 B.L.R. 386 : 2 I.A. 48 : 3 Sar.

P.C.J. 419 : 3 Suth. P.C.J. 61. (P.C.), but it cannot be said that the Government are guilty of any laches in this case. Therefore, the Government

are entitled to mesne profits from the 7th September 1898 the date from which they claim, such profits being the actual profits of items 1 and 3 as

found by the Sub-Judge minus the assessment and land-cess, and the rent of Rs. 76 for item 2 minus assessment. I agree with my brother''s order

about costs.