MUSAMMAT RAJ RUP KUNWAR Vs. GOPI

JUDGEMENT

(1.) THIS is an appeal from a decision of a single Judge of this Court, who made an order that possession of a certain property could he recovered by the plaintiff, provided that the plaintiff made a payment of a thousand rupees on account of improvements made by the defendants during the subsistence of a certain lease. The position was this. The lessees had taken what was described as a permanent lease from Musammat Asmedh Kunwar. She was a Hindu widow, and the lessees may have believed that she having acquired the property from her father had a right to grant a permanent lease. The matter when enquired into in the lower Courts showed that if investigations had been made by the lessees they would have ascertained that the interest of Musammat Asmedh Kunwar was a life- interest only. On the death of Musammat Asmedh Kunwar this suit was brought for possession by the plaintiff (reversioner). The question now arises whether the lessees are entitled to receive from the plaintiff the sum of Rs. 1,000 which has been put as a fair figure for the improvements. Section 51 of the Transfer of Property Act IV of 1882 lays down the conditions under which improvements may be compensated for. The section is in these words: When the transferee of immoveable property makes any improvement on the property believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted...the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid....

(2.) THE important words which have to be considered in connection with this case are, "believing in good faith that he is absolutely entitled thereto." If we had to construe this section without the aid of any authorities we should be inclined to say that the words "absolutely entitled thereto" meant a justified belief that he had the full proprietary right. In this case it is found that if the lessees had required Musammat Asmedh Kunwar to make clear to them the title under which she was acting, it would have been evident at once to them that on the death of the lady they were liable to be evicted. Indeed one may go further and say that even accepting the case as they themselves put it, they had no higher title than that of permanent lessees. In one or two decisions it has been stated in terms that Section 51 does not apply between landlord and tenant and that if there is any limitation of interest, the section does not apply. We might refer in passing to the case of Rajah of Venkatagiri V/s. Mukku Narsaya 7 Ind. Cas. 202 : 37 M. 1 at. p. 12 : 8 M.L.T. 258 : (1910) M.W.N. 369. A case very like the present was decided by the Madras High Court in 1914 and is to be found in Perumal Gramani v. Mohammad Kasim Sahib 28 Ind. Cas. 840. THEre in terms it was decided that the right to claim compensation does not extend to the person who is aware that he has got merely a permanent right of occupancy in the premises but that the person must in good faith believe that he is absolutely entitled to the land in question. In that case there was a permanent lease of religious trust property and improvements having been affected and eviction having taken, claimed compensation was sought. It was decided that that case did not come within Section 51 of the Transfer of Property Act. In the case of Hans Raj V/s. Musammat Somni 67 Ind. Cas. 314 : 20 A.L.J. 524 : (1922) A.I.R. (A.) 194 : 4 U.P.L.R. (A.) 118 : 44 A. 665, Mr. Justice Lindsay and Mr. Justice Kanhaiya Lal had to consider this very case of a transfer by a Hindu widow, and there they took what, in our opinion, was the right ground. THE transfer having been made by a Hindu widow those learned Judges decided that Section 51 of the Transfer of Property Act had no application because in the case of a Hindu widow a person dealing would ordinarily know that she had only a life-interest and that he ought also to be expected to make enquiries, for instance, in the case of a mortgage as to whether there was any legal necessity for the mortgage and any right in the widow to make the transfer. THE same arguments which satisfied that Bench seem to us sufficient here, and we cannot indeed find any distinction to be drawn between this case of Hans Raj V/s. Musammat Somni 67 Ind. Cas. 314 : 20 A.L.J. 524 : (1922) A.I.R. (A.) 194 : 4 U.P.L.R. (A.) 118 : 44 A. 665 and the case under consideration by us. We think that in the circumstances this appeal must be allowed and the decree of the lower Appellate Court restored with costs and fees in this Court on the higher scale.