R.S. Madanappa & Ors Vs.
Chandramma & ANR  INSC 57 (5 March 1965)
05/03/1965 MUDHOLKAR, J.R.
CITATION: 1965 AIR 1812 1965 SCR (3) 283
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 and for mesne profits. The
first defendant, who was the plaintiff's sister, admitted the plaintiff's claim
and herself claimed a decree against the other defendants in respect of her
half share in the suit properties. The second defendant was their father 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 properties, and for past and future mesne profits.
On appeal to this Court against the decree in
favour of the first defendant, it was contended on behalf of the other
defendants: (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 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 Evidence Act or fell within the principle of "equitable
estoppel"' (ii)even if the first defendant's claim to the half share in
the suit properties could not be denied, she must be made to pay for half the
cost of various improvements of those properties effected by the second.
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 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 claiming 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 b the plaintiff that she
had admitted that she had no interest in the properties; (b) The second
defendant's case that the properties belonged 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 said 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 no interest had
accrued in favour of those defendants on the date of the suit. As far as the
second defendant was concerned, he knew, the true legal position and could not
say that an erroneous belief was created in his mind 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 B] Case law reviewed.
(ii) No man who knowing full well. that he
has no title to property, spends money on improving it, can be permitted to
claim payment for improvements which were not affected with the consent of the
true owner. [290C] 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
adjudicated upon by the High Court while allowing her appeal. The High Court
could, while upholding her claim, have transposed her as a plaintiff. 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 interference by the Supreme Court with the High
Court's decree upon such a ground. [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 O. XX, r. 2,
C.P.C. The decree awarding mesne profits to the first defendant must be upheld
because the first defendant admitted the plaintiff's 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.  S.C.R. 1133, distinguished.
CIVIL APPELLATE 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
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 of
the High Court of Mysore passing a decree in favour of respondent No. 1 who was
defendant No. 1 in the trial court, for possession of half the property which
was the subject matter of the suit 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 partition and separate possession of half share and for mesne 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 coplaintiff in the suit, she was joined
as a defendant. It is common ground that the property was in the possession of
the second defendant R.S. Maddanappa, the father of the plaintiff and the first
defendant and Gargavva, the second wife of Maddanappa and her children.
Maddanappa died during the pendency of the appeal before this Court and his
legal representatives are the other defendants to the suit. Briefly stated his
defence, which is also the defence of defendants other than defendant No. 1 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 first defendant had, according to him, expressly and
impliedly abandoned their right in these properties, that his possession over
the properties was adverse to them and as he was in 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 claiming
possession of her half share in the properties left by her mother. The first
defendant preferred an appeal before the High Court challenging the correctness
of the decision of the trial court. The other defendants also flied 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 heard together in the High Court, which
dismissed the appeal preferred by defendants Nos. 2 to 8 as well as the cross objections
lodged by the plaintiff but decreed the appeal preferred by the first defendant
and passed a decree in her favour for possession of her half share in the suit
properties, and future mesne profits 286 against the remaining defendants.
Defendants Nos. 2 to 8 applied for a certificate from the High Court under
Articles 133(1)(a) and 133(1)(c) in respect of the decree of the High Court in
the two appeals. The High Court granted the certificate to defendants Nos. 2 to
8 in so far as defendant No. 1 was concerned but refused certificate in so far
as the plaintiff was concerned. We are therefore, concerned with a limited
question and that is whether the High Court was right in awarding a decree to
the first defendant for possession 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
(1) It is not open to a court to award future
mesne profits to a party who did not claim them in the suit;
(2) No decree can be passed in favour of a
defendant who has not asked for transposition as plaintiff in the suit.
(3) That the first defendant was estopped by
her conduct from claiming possession of her alleged half share of the
We will consider the question of estoppel
first. The conduct of the first defendant from which the learned counsel wants
us to draw the inference of estoppel consists of her attitude when she was
served with a notice by the plaintiff, her general attitude respecting
Bangalore 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 properties which were in the possession of their father and
requested for the co-operation of the first defendant in order to effect the
division of the properties. A copy of this notice was sent to Maddanappa 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, for obtaining possession of the
properties as justifying the inference 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 a letter is sent by her on 17-1- 1941 to her step-mother she
has observed 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 787 consent to anything
done by our father. We will not do anything." But even these statements
cannot assist the appellants because admittedly the father knew the true legal
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
courts below. The father's possession must, therefore, 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 appellants' position is no better. This 'will' purports to make
a disposition of the suit properties along with other properties by Maddanappa
in favour of defendants Nos. 3 to
8. The attestation of the will by the first
defendant and her husband, would no doubt affix them with the knowledge of what
Maddanappa was doing, but it cannot operate as estoppel against them and in
favour of defendants Nos. 3 to 8 or even in favour of Maddanappa. The will
couId take effect only upon the death of Maddanappa and, therefore, no interest
in the property had at all accrued to the defendants Nos. 3 re, 8 even on the
date of the suit. So far as Maddanappa is concerned, he, as already stated,
knew the true position and therefore, could not say that an erroneous belief
about his title to the properties was created in his mind by reason 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
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 properties 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 Indian 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
provisions 288 of s. 115 of the Evidence Act, that apart from the provisions of
this section there is what is called "equitable estoppel" evolved by
the English Judges and that the present case would come within such
"equitable estoppel". In some decisions of the High Courts reference
has been made to "equitable estoppel" but we doubt whether the court
while determining whether the conduct of a particular party amounts to an
estoppel, could travel beyond the provisions of Section 115 of the Evidence
Act. As was pointed out by Garth C.J. in Ganges Manufacturing Co. v. Saurjmull(1)
the provision of s 115 of the Evidence Act are in one sense a rule of evidence
and are rounded upon the well known doctrine laid down in Pickard v. Sears(2)
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 previous
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 between the parties by promotion of honesty
and good faith. Therefore, where one person makes a misrepresentation to the
other 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 consequently not have been
misled by the misrepresentation.
The general principle of estoppel is stated
thus by the Lord Chancellor in Cairncross v. Lorimer(3):
"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 of 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 to
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
Carr v. London & N.W. Ry. Co.(4)four propositions concerning an estoppel by
conduct (1) I.L.R. 5 cal., 669.
(2) 6 Ad. & E. 469. (3) 3 Macq. 827.
(4) L.R. 10 C.P. 307.
289 were laid down by Brett, j. (afterwards
Lord Reher) the third which runs thus:
"If a man either in express terms or by
conduct makes a representation to another of the existence of a certain state
of facts which he intends to be acted upon in a certain way, and it be acted
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.
Gopal(1). It will thus be seen that here also the person who sets up an
estoppel against the other must show that his position was altered by reason of
the representation or conduct of the latter and unless he does that even the
general principle of estoppel cannot be invoked by him. As already stated no
detriment resulted to any of the defendants as a result of what the defendant
No. 1 had stated in her letter to her step-mother or as a result of the
attestation by her and her husband of the will of Maddanappa.
Mr. Venkatarangaiengar then tried to urge
before us that it was a case of family 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. 1 can be looked at as acquiescence in
the family settlement effected by the father. A case of family 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(2)
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, and 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 appellants for the simple reason that Maddanappa who knew the
true state of affairs could not say that any mistaken belief was caused (1)
L.R. 19 I.A. 203.
(2) L.R.I. H. L. App. 129, 140.
290 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 property. As
already stated the appellant was in enjoyment of these 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 full well that he has
no title to property spends money on improving it can be permitted to deprive
the original owner of his right to possession of the property except upon the payment
for the improvements 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
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. She, also alleged that the
first defendant did not co-operate in the matter and so she had to institute
the suit. The first defendant admitted 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
transposition 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 under this provision is
exercisable by the Court even suo motu. As pointed out by the Privy Council in
Bhupender v. Rajeshwar(1) 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 considered
and adjusted upon by the High Court while allowing her appeal. Since the trial
court upheld the special defences urged by defendants 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 O. 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.
(1) L.R. 58 I.A. 228.
291 The 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:
"(1) Where a suit is for the recovery of
possession of immovable 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 institution 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 judgment
debtor with notice to the decree- holder through the Court, or (iii) the
expiration of three years from the date of the decree, whichever event first
(2) Where an inquiry is directed under clause
(b) or clause (c) a final decree in respect of the rent or mesne profits shall
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(1). 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 case 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
"The learned Solicitor-General 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 the
expression 'awarding (1)  S.C.R 1133,1144 B(N)3SCI--6 292 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 Garavayya and another (1) following the
decision of the Judicial Committee in Fakharuddin Mohomed Ahsan v. The Official
Trustee(2) has held that even after the passing of the preliminary decree, it
is open to the court to give appropriate directions, amongst other matters
regarding future mesne profits either suo motu or on the application of the
parties in order to prevent multiplicity 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(3) Simma Krishnamma
v. Nakka Latchumanaidu and others(4) Kasibhatla Satyanarayana Sastrulu and
others v. Kasibhatla Mallikarjuna Sastrulu(5) and Ponnuswami Udayar and another
v. Santhappa(6) the decision of this Court was cited at the Bar and has been
considered. The learned Judges have said that the authority of the decision in
Babburu Basavayya and four others v.
Babburu Guravayya(1) 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
distinguished 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.
(1) I.L.R. 1952 Madras 173.
(2) 8 cal 178 (P. C.).
(3) A.I.R. 1957 A.P. 52.
(4) A.I.R. 1958 A.P. 520.
(5) A.I.R. 1960 A.P. 45.
(6) A.I.R. 1963 Mad. 171.