NAGENDRABALA DASEE Vs. PANCHANAN MOURIE

JUDGEMENT

(1.) In 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 V/s. 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 under Section 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 Narayanaswami Ayyar V/s. Rama Ayyar . 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.