MAHADEO Vs. SOMAJI

JUDGEMENT

(1.) THE facts of this case which have led to the present second appeal are sufficiently clear from the judgments of the two lower Courts. The Subordinate Judge, Second Glass, held that the Defendant No. 3, Vithoba, was the de facto guardian of the minors plaintiffs, while their mother was the de jure guardian; that the farkhatnama dated 4th July 1914, had been duly executed and acted upon by Vithoba in favour of his deceased father Ramji; that the latter executed the will, dated 19th July 1909, in favour of the first plaintiff; that Vithoba had no interest in the properties concerned on the date of the execution of the sale-deed of 1920, that the plaintiffs and Defendant 3 were separate on that date; that the sale of 1920 was binding on the minors, inasmuch as the property was sold by the de facto guardian with the consent of the de jure guardian and that it was more in the interests of the minors to have sold the property than to have retained it; and that the suit was a collusive one as between the third defendant and the plaintiffs. On these findings the Subordinate Judge dismissed the plaintiffs' suit.

(2.) THE latter appealed to the Court of the District Judge, Nagpur. The lower appellate Court confirmed the finding of the first Court on the point of separation of Vithoba. It, however, held that the fact of the mother and the three plaintiffs having gone to live with Vithoba after Ramji's death and their having had common trading transactions with him was insufficient to rebut' the evidence of separation. The learned District Judge, however, further held that, although Vithoba as de facto manager had power to sell the house, this could only be exercised in case of necessity or for the benefit of the minor plaintiffs. He held that there had been no sufficient proof of necessity for the transaction and that, even if any benefit resulted therefrom, Vithoba who was separate shared therein. The learned District Judge agreed with the first Court that the suit was barred against the first plaintiff, but found that the other two plaintiffs were entitled to succeed. It was further found that there had been no sufficient proof of improvements, while as regards the plea of collusion the Judge of the lower appellate Court held that although Vithoba was undoubtedly on the plaintiffs' side this fact per se did not necessarily imply that the suit was not brought bona fide in the interests of the minor plaintiffs. The District Judge accordingly granted the second and third plaintiffs a declaration that the sale was not binding on them and ordered the Defendants 1 and 2 to put them in possession of the house in suit.

(3.) AGAIN , it has been urged on behalf of the appellants that in any event they were entitled to compensation for improvements. It is perfectly obvious in this connexion that considerable confusion has arisen in the minds of both the Judges who have dealt with this case on the question of improvements. Improvements have to be distinguished from necessary running repairs and no such distinction has been male. No clear and specific evidence of improvements as such has been forthcoming, and it is quite clear that the Subordinate Judge, by a process of guesswork in view of the discrepancy between the price paid for the house and the present value of the house, as given in the plaint, concluded that there must have been such improvements. Any such line of reasoning entirely overlooks the vital consideration that the price at the sale of 1920 would obviously be low for the simple reason that the vendees must have known very well that they were clearly acquiring a doubtful title. I can see no reason for remand of the case on this question of improvements, for I am satisfied that the District Judge's finding of fact in this connexion is a sound and justifiable one. I need hardly point out too that if the Defendants 1 and 2 were to receive compensation for improvement, they would have to account also for any profits acquired in the transaction in question.