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R.

S. MADANAPPA AND ORS.

v.

CHANDRAMMA AND ANR.

March 5, 1965

[K. N. WANCHOO, J. R. MUDHOLKAR ANDS. M. SncRJ, JJ.]

Indian Evidence, s. 115 and Equitable Estoppel-When conduct

does not amount to

estoppel-Mesne profits-Past and future-When

can be awarded.

. The plaintiff instituted the suit for possession of her half share in

the suit properties anci for mesne profits. The first defendant,

what

was the plaintiff's sister, admitted the plaintiff's ciaim and herselfi

claimed a decree against the other defendants in respect of her half

share in the suit properties. The second defendant was

their

fatheJ'

and the suit properties were in his possession. He and the other

defendants, who were his second wife and children by her, contested

the suit. The trial court decreed the plaintiff's claim, but held that

the first defendant was estopped from claiming possession of her

share. On appeal by the first defendant, the High Court passed .a decree!

in her favour also for possession of her half share in the suit proper­

ties, and for past and future mesne profits.

On appeal to thi~ Court against the decree in favour of the

first defendant,

it was contended on behalf of the other defen­

dants: (i) that the first defendant was estopped by her conduct from

claiming possession of

her half share of the properties because (a)

she

had not replied to a notice from the plaintiff to join with her in the

suit for obtaining possession and division of the suit properties; (b)'

she had written a letter to her step-mother stating that she wished to

have no interest in the suit properties then in her father's possession;

(c) she and

her husband had attested a will executed by the father on

25-1-1941 which covered the disposition of the suit properties; and

(d)

that the first defendant's conduct was either covered by s. 115 Evi­

dence Act or fell within the principle of "equitable estoppel"; (jjy

even if the first defendant's claim to the half share in the suit pro­

perties could not be denied, she must be made to pay for half the cos~

of various improvements of those properties effected by the secondi

defendant in the bona fide belief that the properties belonged to him,

as she had acquiesced in the expenditure being incurred; (iii) that no

decree can be passed in favour

of a defendant who has not asked for

transposition

as plaintiff in the suit; and (iv) that it is not

open to a

1

court to award future mesne profits to a party who did not claim them

in the suit.

HELD:

(i) The first defendant was neither estopped from

claim·

ing possession of her half share of the properties nor could she be

made liable to

pay half the costs of improvements alleged to have

been made

by the second defendant; (a) It cannot be implied from

the conduct of the first defendant in not replying to the notice given

by the plaintiff

that she had admitted that she had no interest in the

properties; (bl The second defendant's case

that the properties belong­

ed to him having been negatived, there was no possibility of

an

erroneous belief being created in the mind of the second defendant

that he had title to the property because of what the first

defendant

had sa'd in her letter to her step-mother; (c) The attestation of the

will by the first defendant and her husband, by which the second

defendant purported to make a disposition

of the suit properties in

favour of the other defendants could not operate as an estoppel, as

284

StJPREME COURT REPORTS

[1965) 3 S.C.R.

no interest had accrued in favour of those defendants on the date of

the suit. As •far a~ .the second defendant was concerned, he knew

the true legal pos1t10n and could not say that an erroneous belief

was created m his mmd by reason of the first defendant and her

husband attesting the will. [286 G-H; 287 C; 287 F]

Quaere: Whether the Court, while determining whether the

conduct of a particular party amounts to an "equitable estoppel"

could travel beyond the provisions of s. 115 of the Evidence Act

[288 Bl .

Case Jaw reviewed.

(ii) No man who knowing fully well that he has no title to pro~

perty, spends money on improving it, can be permitted to claim pay~

ment for improvements which were not effected with the consent of

the true owner. [290 CJ

Ramsden v. Dyson, L R.I.H.L.App. 129, 140 distinguished.

(iii) Both the plaintiff and

the first defendant claimed under

the

same title and though the other defendants had urged special defences

against

the first defendant, they had been fully considered and

·ad­

judicated upon by the High Court while allowing her appeal. The

High Court could, while upholding her claim, have transposed her as

a pla'ntiff.

It either over-looked the technical defect or felt that

under

Order XLI rule. 33, it had ample power to decree her claim. However

that may be, the provisions of s. 99 C.P.C., would be a bar to inter­

ference

by the Supreme Court with the High Court's decree upon

such a

gm1nd. [290 G-H]

Bhupendra v. Rajeshwar, 58 I.A. 228, referred to.

(iv) Though mesne profits prior to

the suit cannot be awarded

to a successful

party

unless a claim is made in respect of them, the

position regarding future mesne profits is governed by 0. XX, r. 2,

C.P.C. The decree awarding mesne profits to the first defendant musb

be upheld because the first defendant admitted the plaintiff'• claim

and in substance prayed for a similar decree

in her favour.

[291 B; 292

G-H]

Mohd. Amin and Ors. v. Vakil Ahmed and Ors. [1952] S.C.R. 1133,

distinguished.

C1v1L A1•PELLATE JURISDICTION: Civil Appeal No. 730 of 1962.

Appeal from the judgment and decree dated February 19, 1959.

of the Mysore High Court in Regular Appeal No. 208 of 1961-62.

S. K. Venkatarangaiengar and A. G. Ratnaparkhi, for the

appellants ,.,

S. T. Desai and Naunit Lal, for respondent No. 1.

K. K. Jain, for respondent No. 2.

The Judgment of the Court was delivered by

Mudholkar, J. This is an appeal by defendants Nos. 3 to 8

from a decision ol the High Court of Mysore passing a decre;: in

favour of respondent No. 1 who was defendant No. 1 in the trial

court, for posses5icn of half the property which was the subject

matter of the ·mit and also allowing future mesne profits.

The relevant facts are briefly these: The plaintiff who is the

elder sister of the first defendant instituted a suit in the court of the

District Judge, Bangalore for a declaration that she is the owner of

half share in the properties described in the schedule to the plaint

and for partiticn and' separate possession

of half share and for mesne

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1\.S. MA.DANAPPA ~. CHANDRAlOlA (MuiJholkar, J.) 285

profits. According to her the suit property was the absolute property

of her mother 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

co­

plaintiff in the suit, she was joined as a defendant. It is common

ground that the property was in the possession of the second defen­

dant R. S. Maddanappa, the father of the plaintiff and the first

defendant and Gargavva, the second wife of Maddanappa and her

children. Madanappa died during the pendency of the appeal before

thh Court and his legal representatives are the other defendants to

th,• suit. Briefly stated his defence, which is also the defence of the

defendants other than defendant No. I

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 Jirst

defendant had, according to him, expressly and impliedly

abandon­

ed their right in these properties, that his possession over the pro­

perties was adverse to them and as he was m adverse possession for

over the statutory period, the suit

was barred. Finally he contended

that

he had spent more than Rs.

46,000 towards improvements of

the properties which met partly from the income of his joint

ancestral property and partly from the assets of the third defendant.

These improvements, he· alleged, were made by him bona fide in

the belief that he had a right to the suit properties and consequently

he

was entitled to the benefit of the provisions

of Section 51 of the

Transfer of Property Act.

The first defendant admitted the claim of the plaintiff and also

claimed a decree against the other defendants in respect of her half

share in the suit properties. The other defendants, however, resisted

her claim and in addition

to what the second defendant has alleged

in his written statement contended that

she was estopped by

her

conduct from claiming any share in the properties.

The trial court decreed the claim of the plaintiff but held that

the

first defendant was estopped from

claimin~ possession of her

half share in the properties left by her mother. The first defendant

preferred an appeal before the High Court challenging the correct­

ness of the decision of the trial court. The other defendants also

filed an appeal before the High Court challenging the decision of

the trial court

.in favour of the plaintiff. It would appear that the

plaintiff had also preferred some cross-objections.

All the matters

were

h~rd together in the High Court, whiGh dismissed the

~ppeal preferred 9Y defendants Nos. 2 to 8 as well as the cross­

objections lodged by the plaintiff but decreed the appeal pr'!ferred

by th·~ first defendant and· passed a decree in her favour for posses­

sion of her half share in the suit properties, and future mesne profits

286 SUPREME COURT REPORTS (1965] 3 S.C.I\.

against th_e remaining defen.dants. Defendants Nos. 2 to 8 applied

tor a certificate from the High Court under Articles 133(1)(a) and

133(])(c) in respect of the decree of the High Court in the t\vo

appeals. The High Court granted the certificate to defendants Nos.

2 to 8 in so far as defendant No. 1 was concerned but refused

certipcate in

so far as the plaintiff was concerned. We are there­

fore,

concern~d with a limited question and that is whether the

High Court

was right in awarding a decree to the first defendant

for possess'on of her 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 :

(I) It is not open to a court to award future mesne profits

to a party who did not claim them in the suit;

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has not asked for transposition as plaintiff in the suit.

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(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 esfoppel first. The conduct of

the

first defendant from which the learned counsel wants us to draw

the inference of estoppel con~sts of her attitude when she was

served with a notice by the plaintiff, her general attitude respecting

I!angalore 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 on 25th January,

1941 by Maddanappa. In the notice dated 26th January, 1948 by

the plaintiff's lawyer to the first defendant it was stated that the

plaintiff and the first defendant were joint owners

of the suit

pro­

perties which were in the possession of their father and requested.

for the co-operation of the first defondant in order to effect the divi­

sion of the properties. A copy of this notice was sent to Maddan­

appa and he sent a reply to it to the plaintiff's lawyers. The first

defendant, however, sent no reply

at all. We find it difficult to construe-the conduct of the first defendant in not replying to the

notice and in not co-operating with the plaintiff in instituting a suit

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for obtaining possession of the properties as justifying the inference H

of estoppel. It does not mean that she impliedly admitted that she .

had no interest in the properties. It is true that in Ex. 15, which is

a letter sent by her en 17-1-1941 to her step-mother she has observ-

ed thus:

"I have no desire whatsoever in respect of the properties

which are at Bangalore. Everything belongs to my father.

He has the sole authority to. do anything .... We give our

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R.B. MADANAPPA v. CHANDRAMMA (Mudholkar, J.) 287

consent to anything done by our father. We will not do any­

thing."

But even these statements cannot assist the appellants because

admittedly the father knew the true legal position. That

is to say,

the father knew that these properties belonged to Puttananjamma'

and that he had no authority to deal with these properties. No

doubt, in

his written statement Maddanappa had set up a case that

the properties belonged to him by virtue of the declaration made

by Puttananjamma at the time of

her death, but that case has been

negatived by the ~ourts below. The father's possession must, there-·

fore, be deemed to have been, to his knowledge, on behalf of the

plaintiff and the first defendant. There was thus no possibility of an

erroneous belief about his title being created in the mind of

Maddanappa because of what the first defendant had said

in her

letter to her step-mother.

In

so far as the attestation of the will is concerned, the

appel­

lants' position is no better. This 'will' purports to make a disposi­

tion of the suit properties along with other properties by Maddan·

appa in favour of defendants Nos. 3 to 8. The attestation of thfl

will by the first defendant and her husband, would no doubt affix

them with the knoweldge of what Maddanappa was doing, but it

cannot operate as estoppel against them and in favour of defen•

dants Nos. 3 to 8 or even in favour of Maddanappa. The will could1

take effect only upon the death of Maddanappa and, therefore, no

interest in the property had at all accrued to the defendants Nos. 3

to 8 even on the date of the suit. So far as Maddanappa is concern­

ed, he,

as already stated, knew the true position and therefore,

could not say that an erroneous

belief about his title to the pro­

perties was created in his mind by re1son 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

pro­

perties by him in any way he chose to make it. The short answer

to this

is that Maddanappa on his own allegations was not only in

possession and enjoyment of these properties ever since the death

of Puttananjamma but had made improvements

in the properties

even before the execution of the

will. In these circumstances, it is

clear that the provisions of

Section 115 of the Indfan Evidence Act,

which contain the law of estoppel by representation do not help

him.

Mr. Venkatarangaiengar, however, wanted us to hold that the

law

of estoppel by representation is not confined to the pr

SUPREME COURT REPORTS (1965] 3 S.C.R.

of s: 115 of the Evidence Act, that apart from the provisions of this

scch?n there is what is called "equitable estoppel" evolved by the

English Judges and that the present case would come within such

"equitabk estoppel". tn some decisions of the High Courts refer­

ence has been made to "equitable estoppel" but we doubt whethe~

the court while determining whether the conduct of a particula~

party amounts to an e.stoppel, could travel beyond the provisions of

Sect10n 115 of the Evidence Act. As was pointed out by Garth C.J.

in Ganges Manufacturing Co. v. Saurjmull(') the provision of

s

115 of the Evidence Act are in one sense a rule of evidence

and

are founded upon the well known doctrine laid down in Pickard v.

Sears(') in which the rule was stated thus:

"Where one by his word or conduct wilfully causes another

to believe for the existence

of a certain state of thing and

induced him to act on that belief

so as to alter his own

pre­

vious position, the former is concluded from averring against

the latter a different state of things as existing

at the first

time."

The object of estoppel is to prevent fraud and secure justice

bet•

ween the parties by promotion of honesty and good faith. There·

fore, where one person makes a misrepresentation to the otheu

about a fact he would not be shut out by the rule of estoppel. if

that other person know the true state of facts and must consequent•

ly not have been misled by the misrepresentation.

The general principle of estoppel is stated thus by the

Lord

Chancellor i,n Cairncross v. Lorimer('): "The doctrine will apply, which is to be found. I believe, in

the laws of all civilized nations that if a man either by words

or by conduct has intimated that he consents to an act which

has been done, and that he will offer no opposition to 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 o~

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 IOI

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

Cari" v. London & N_W_

Ry. Co.(') four propositions concerning an estoppel by conduct

i'I 1.L-R, 5CCnJ,. 669.

(

2

) 6 Ad •• ~ E. 469.

('I 3 Macq. s2;.

(" T,,Jt. 10 C.P. 307.

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R.S. MADANAPPA v. CHANDRAMMA (Mudhotkar, J.) 289

were laid down by Brett, J. (afterwards Lord Reher) the third o~

which rum thus:

"If a man either in express terms or by conduct makes a

representation to another of the existence of a certain stattl

of facts which he intends to be acted upon in a certain way,

and it be acte:l upon

in the

belief of the existence of such a:

state of facts, to the damage 'Of him who so believes and

acts, the first is estoppel from denying the existence of such

a state

of

facts,"

This also shows that the person claiming benefit of the doctrine

must show that he has acted to his detriment on the faith of the

representation made

to him.

This was quoted with approval in

Sarad v. Gopa[('). It will thus·

be seen that here also the person who sets up an estoppei against

the other must show that his position was altered by reason of the

representation

or conduct cf the latter and unless he does that even

the general principle of estoppe] cannot be invoked by him. As

already stated no detriment resulted to

any of the defendants as a:

result of what the defendant No. I had stated in her letter to her

step-mother or as a result of the attestation by her and her husband

of the will cf Maddanappa.

Mr. Venkatarangaiengar then tried to urge before

us that it

was a case

of

f~mily settlement by the father with a view to avoid!

disputes amongst his heirs and legal representatives after his death

and, therefore, the actions of defendant No. I can be looked at as

acquiescence in the family settlement effected by the father. A case

of fall'ily settlement was never set up by the defendants either in

the trial court

or in the High Court and we cannot allow a new case

to

be

set up before us for the first time.

Finally

on this aspect of the case the learned counsel referred

to the observations of Lord Cranworth in

Ramsden v. Dyson(')

which are as follows:

"If a stranger begins to build on my land supposing it to be

his own and I (the real owner) perceiving his mistake, abstain

from setting him right, a!nd leave him to persevere in his

error, a court of equity will not allow me afterwards to

assert my title to the land, on which he has expended money

on the supposition, that the land was his own.

It considers

that when I saw the mistake

in which he had fallen, it was

my duty to be active and to state his adverse title; and

that it would be dishonest in

me to remain

wilfully passive

on such an occasion in order afterwards to profit

by

the

mistake which I might have prevented.

The doctrine of acquiescence cannot afford any help to the appel­

lants for the simple reason that Maddanappa who knew the true

state of affairs could not say that any mistaken belief was caused

(') L. R.

19 I.A. 20~.

(') L. R.I. JI. L. App. 129, 140.

290 ~UPREME COURT REPORTS (! 965) 3 S.C.R,

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 pro­

perty. As already stated the appellant was .in enjoyment of the~e

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 improv­

ing it can be permitted to deprive the original owner of his right

to possession of the property except upon the payment for the im­

provements 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 can she be

made liable to pay half the costs

of improvements alleged to have

been made by the

second-defendant.

Now regarding the second point, this objection

is purely

technical. The plaintiff sued for partition of the suit properties upon

the ground that they were inherited jointly by her and by the first

defendant and claimed possession of her share from the other

defendants who were wrongfully in possession of the properties.

Sl'e als;i alleged that the first defendant did not co-operate in the

matter and

so she had to institute the suit. The first defendant

ad­

mitted the plaintiff's title to half share in the properties and claimed

a decree also

in her own favour to the extent of the remaining half

share in the properties.

She could also have prayed for the trans­

position as a co-plaintiff and under Order I, rule 10(2) C.P.C. the

Court could have transposed her as a co:plaintiff. The power unde~

this provision is exercisable by the Court even suo motu. As pointed

out by the Privy Council in

Bhupender v. Rajeshwar(') the power

ought to be exercised

by a court for doing complete justice between

the parties. Here both the plaintiff and the first defendant claim

under the same title and though defendants 2 to 8 had urged special

defences against the first defendant, they.have been fully

consider­

ed and adjusted upon by the High Court while allowing her-appeal.

Since the trial court upheld the special defences urged by defen­

dants 3 to 8 and negatived the claim of the .first defendant it may

have thought it unnecessary to order her transposition as plaintiff.

But the High Court could. while upholding her claim, well have

done so. Apparently it either over-looked the technical defect

or

felt that under

0. XLI, rule 33 it had ample power to decree her

claim. However that may be, the provisions of s. 99 would be a

bar to interfere here with the High Court's decree upon a ground

such as this.

(') L.R. 58 l.A. 22~.

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R.S. MADANAPPA '<'. CHANDRAMMA (Mudholkar, J.) 291

fhe only other question for consideration is whether the High

Court was justified in awarding mesne profits to the first defendant

even though she was not transposed as a plaintiff. According to the

learned counsel mesne profits cannot

be awarded to a successful

party

to a suit for possession unless a claim was made in respect

of

them.

The learned counsel is right in so far as mesne profits prior

to the suit are concerned but in so far as mesne profits subsequent

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:

"(]) Where a suit is for the recovery of possess'on of im­

movable 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 insti­

tution 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 judg­

ment debtor with notice to the decree-holder

through the Court, or

('ii) 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 nnal decree in respect of the rent or mesne profits

shali 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 others(').

That was a suit for a declaration that a deed of settlement was

void and for possession of the property which was the subject

matter of the settlement under that deed. The plaintiffs had not

claimed mesne profits

at all in their plaint but the High Court had

passed a decree

in the plaintiff's favour not only for possession but

also for mesne profits. In the appeal before this Court against the

decision of the High Court one of the points taken

was that in a

ca;e of this kind, the court has no power to award mesne profits.

While upholding this contention Bhagwati J. who delivered the

judgment of the Court has observed thus:

"The learned Solicitor-Genera! appearing for the plaintiffs

conceded that there

was no demand for mesne profits

as

such but urged that the . claim for mesne profits

would.

be included within

__!_he expression 'awarding

I') [1952] S.C.IL 1!33, 1144.

)!/B(N)3SCl-6

292 SUPREME COURT REPORTS (1965) 3 S.O.R.

possession and occupation of the property aforesaid

together with all the rights appertaining thereto'. We·

are afraid that the claim for mesne profits cannot be

included within this expression and the.High Court

was

in error in awarding to the plaintiffs mesne profits

though they had not been claimed

in the plaint. The

provision

in regard to the mesne profits will therefore

have to

be deleted from the

decree."

In order to satisfy ourselves whether these observations related

to the award

of past mesne profits or to the award of future mesne

profits we sent for the original record of this Court

and· we found

that the High Court had awarded past

as well as future mesne

profits. Mr.

S. T. Desai, appearing for the respondent No. 1 stated

that a Full Bench in Babburu Basavayya and four others v. Babburu

Gar(Jvayya and another(') following the decision of the Judicial

Committee

in Fakharuddin Mohomed Ahsan

v. The Official

Trustee(') has held that even after the passing of the preliminary

decree, it

is open to the court to give appropriate

direction&y

amongst other matters regarding future mesne profits either suo

motu

or on the application of the parties in order to prevent

multi­

plicity of litigation and to do complete justice between the parties.

This decision has been followed in a large number of

cases. In

Bachepalli Atchamma v. Yerragupta Rami Reddy(')

Simma,

Krishnamma v. Nakka Latchumanaidu and others(') Kasibhaticl

Satyanarayana $astrulu and other$ v. Kasibhat/a Mallikarjuna

Sastru/u(') and Ponnuswami Udayar and another

v.

Santhappa(')

the decision of this Court was cited at the Bar and has been consi-•

dered. The learned Judges have said that the authority of the ..

decision in Babburu Basavayya and four others v. Babburu Gura­

vayya(') 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

distinguish­

ed 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 the High Court

and dismiss the appeal with costs.

(') I.L.R. 1952

Madras 173.

(') 8 Cal. 178 (P. C.).

I') A.LR. 1957 A.P. 52.

(') A.I.R.

1958

A.P. 520.

1

') A.I.R. 1980 A.P. 45.

(') A.I.R. 1963 Mad. 171.

Appeal dismissed.

A

B

c

D

E

F

G

B