Nagendrabala Dasee Vs Panchanan Mourie and Others

Ameer Ali, J.@mdashIn this suit the two matters in issue are: (1) whether the plaintiff is entitled to possession of the premises in question and (2) whether under the provisions of Section 51, T. P. Act, or upon general equitable principles, the defendants, if dispossessed, are entitled to compensation. At the hearing, the attention of counsel and of the Court, was mainly directed to the first question, which involved the discussion of a number of authorities on Hindu law. For this reason, although the evidence was given, I adjourned the case for an opportunity for further argument on the second question, namely the right to compensation, and that question has been discussed before me to-day. Mr. S. N. Banerjee (Jr.) appeared for one of the defendants Charupanna Seal whose position will appear, I think, from the facts given in the early part of my judgment Nagendrabala Dasee Vs. Panchanan Mourie, . He is a purchaser at a Court sale held in the suit against Saratchandra Mourie, one of the three co-sharers entitled to this property, the sale being in point of fact subsequent to the institution of the present suit The other co-sharers are Nagendrachandra Mourie and Atulkrishna Mourie, who are represented before me, but who in point of fact, have not formally claimed by any plea in their written statement or otherwise any right to compensation The claim therefore has been mainly argued on behalf of Charupanna Seal.

2. The points taken by Mr. H, D. Bose in answer to the claim are as follows: (1) that Nagendra and Atul not having formally claimed compensation and Charupanna Seal being in any event not entitled to more than part of the compensation, the claim is not sustainable; (2) that that claim is not sustainable u/s 51, T. P. Act, for reasons which I shall state in greater detail ; (3) that it cannot be supported on general equitable principles. With regard to the first point, although there is much to be said in favour of Mr. Bose''s contention that Nagen and Atul not being prepared to make or support a claim, and thereby involve themselves in possible liability for costs, should not be entitled to reap the advantage of the decision, should Charupanna Seal be successful. On the other hand, had I been satisfied that a right to compensation existed, I should not have allowed this to interfere with the affording of relief. The other points need more consideration. So far as Section 51 is concerned, it appears to me that the tests to be applied are as follows:�I assume that the claimant must be the evictee.�(1) Who can claim? The plaintiff contends that only the first transferee can claim. (2) If "transferee" includes "transferees," must all claim? That is the question of parties (already, referred to). (3) "Who must have made the improvements? The plaintiff contends that the claimant must be the "improver," which expression I shall retain for the purposes of this judgment. (4) Did the "improver," when making the improvements, believe that he was absolutely entitled to the property? (5) What kind of transferee can claim? The plaintiff contends that the Section applies only to the trans ferees as defined in Section 5, T. P. Act, and therefore does not apply to purchasers at Court sales.

3. Mr. S. N. Banerjee for Charupanna Seal argued the first point extremely well. He contended that any person in the line of transferees making improvements acquired a right. Taking this case as an example, Dhanamani, who made improvements, could have claimed. In point of fact, the two defendants Nagen and Atul are heirs or representatives in a certain ''degree from Dhanamani, and in this connexion he cites 128 Ind. Cas. 261 (Privy Council) . He goes further and contends that a purchaser from Dhanamani on eviction would also be entitled to claim on this basis, that the right obtained by Dhanamani, the improver, is the equivalent of the actual improvement made; that the purchaser when purchasing pays for that improvement, and thereby logically becomes the improver just as if he had made the improvement himself so that whether you look at it in this way or whether you look at it from the point of view of Dhanamani''s right being a right annexed to the property of the nature described in Section 8, T. P. Act, that right accrues in turn to each purchaser from the original improver. Bach succeeds to the right which is the equivalent of the improvement. With regard to the right of heirs or representatives, it appears to me that the ruling cited by Mr. Banerjee does support his contention to this extent: that, although the matter was not discussed or argued, the Court in India did allow the evicted sons of a transferee-improver to obtain compensation, and that such decision was upheld by the Board.

4. With regard to the argument relating to Section 51, I had best state my construction of that Section at once. If it was intended to provide for rights higher and wider than those that I shall now state, in my view, the Section should be re-drafted. I will paraphrase it as follows: X has a right to compensation provided that he is (1) a transferee, (2) he has made the improvement, (3) he has made such improvement believing in good faith that he was absolutely entitled "and (4) he was evicted. In my view, the section does not provide for these various capacities or qualifications being filled or fulfilled by different persons. It appears to to me that it was intended to provide for a right to compensation to an individual who fulfils all the conditions laid down. Mr. S. N. Banerjee did not confine himself to the section. He relied also upon general equitable principles, referring me to Section 188, Mulla''s Hindu Law, 7th Edn. at p. 199, and to a case Kidar Nath v. Mathu Mal (1913) 40 Cal 555. But before dealing with this I should mention the difficulty which occurs to me in reading the ruling of the Board in 128 Ind. Cas. 261 (Privy Council) as a decision that heirs are entitled to claim compensation, to which their father would have been entitled had he been evicted. I find great difficulty in coming to the conclusion that the relief given by Section 51, T. P. Act, is any species of property: see Section 6, T. P. Act. The Section provides for a relief granted upon equitable principles to a person who does something to property and thereby incurs expense, upon that person losing that property. The right does not appear to me to arise or to come into question until the property is lost. Speaking for myself, I do not see that on the law, as it stands, such a right is heritable or transferable.

5. With regard to equitable principles, I must say that one is first impressed by the injustice of dispossessing people (take this case) forty years after the sale. I consider the possibility of such a thing taking place a matter which calls for the attention of legal reformers. But at the same time there must be an equitable principle for this Court to apply, and I am not satisfied that there is any general equitable principle entitling the person dispossessed to compensation apart from what has been intended to be laid down in Section 51, T. P. Act. At first sight, it does appear to me illogical that if the father has a right to compensation on his eviction his sons should not have such right, but unless the right is property, it is necessary to see whether the sons themselves have any equitable right to assert. In the absence of clear authority it seems to me that I should be wrong in discovering equitable principles in order to remedy the wrong which I do think results to the person dispossessed on my decision at law. Mr. H. D. Bose has given me references of the following cases: Nanjappa Gounden v. Peruma Gounden (1909) 32 Mad 530 and Abhoy Churn Ghose v. Attarmoni Dassee 13 CWN 931, both as to the nature of tests as to good faith, and also to show that these cases were between the immediate parties to the transfer. For the purposes of argument I have assumed in this case, although it is not entirely clear that Dhanamani was an improver bona fide believing herself to be absolutely entitled.

6. Mr. Bose has also cited to me the ease of Harilal Ranchhod Vs. Gordhan Keshav, in which it is laid down that for the Section to apply it is not necessary that the person suing for possession or evictor should be the original transferor. That must be so. But that is not the question involved. The rea question under the section is whether the plaintiff must be the evictee and also the improver. As regards the claim by Charupanna Seal, that stands upon a particular footing. His purchase having been subsequent to the institution of this suit, and with notice of the claim, in my opinion, he, at any rate, on the facts, could not rely upon the section or upon general equitable principles. He cannot say:

Notwithstanding that I was not the actual improver, nevertheless, by reason of my purchase at a price including that of the improvement, I must be regarded as a bona fide improver.