Chacku Chummar v. Rossa — 1953 DIGILAW 110 (KER)

JUDGMENT : The defendant is the appellant in this second appeal. The suit is for declaration of the plaintiffs’ right as lessees of the plaint property, for setting aside the decree in O.S. No. 449 of 1117 of the Ernakulam Munsiff’s Court obtained by the defendant and for a permanent injunction restraining the defendant from executing that decree. The plaint schedule property which is a paddy land two acres and 16 cents in extent belonged to Chacku the father of the defendant. Chacku partitioned his properties among his sons under Ext. 1 dated 15.3.1109. The plaint property fell to the share of the defendant who was a minor at the time. The plaintiff’s case is that long before the partition Chacku had leased the property to their father Lonan under an oral lease and that Lonan had effected improvements in the property by way of putting up an embankment and removing sand from a portion of the property. During the minority of the defendant Chacku, acting as his guardian, sold the property to one Pisharodi on 29.10.1112. Ext. D is the sale deed. Pisharody issued notices to Lonan demanding pattam. Lonan died in 1114. After Lonan’s death his heirs, the plaintiffs and their mother Ealy, continued to hold the property on lease. Plaintiffs were minors and Ealy was their guardian. On 14.11.1115 Ealy attorned to Pisharodi and executed a fresh lease deed in his favour. Ext. E is that lease deed. Pattam was being paid to Pisharodi after the date of Ext. E. In the meanwhile, the defendant attained majority and on 2.7.1117 he filed O.S. No. 449 of 1117 to set aside the sale deed, Ext. D. Pisharodi was the first defendant in the suit. The plaintiffs and their mother were impleaded as defendants 2 to 5. The mother was appointed guardian of the minor defendants. A Proclamation staying suits for eviction of verumpattamdars was promulgated by His Highness the Maharaja of Cochin on 13.4.1117. Pisharodi contended in the suit that the sale deed, Ext. D, was not liable to be set aside. The plaintiff’s mother Ealy filed a written statement claiming the benefit of the Proclamation. She also contended that Lonan and herself had effected valuable improvements in the property. During the pendency of the suit, viz., on 19.7.1118, the Cochin Verumpattamdars Act came into force. D, was not liable to be set aside. The plaintiff’s mother Ealy filed a written statement claiming the benefit of the Proclamation. She also contended that Lonan and herself had effected valuable improvements in the property. During the pendency of the suit, viz., on 19.7.1118, the Cochin Verumpattamdars Act came into force. No issues were however framed in the case with regard to the contentions raised by the plaintiff’s mother. The trial court held that Ext. D was invalid and gave the present defendant a decree for recovery of possession of the property with mesne profits on payment of certain amounts to Pisharodi. Ext. B is the decree. It is dated 8.4.1119. Pisharodi appealed from this decree. The defendant also preferred an appeal in respect of certain portions of the decree which were not in his favour. The District Court set aside the decision of the trial court and dismissed the suit. The defendant filed a second appeal in the High Court as S.A. No. 101 of 1120. While the matter was pending in the High Court Pisharodi and the defendant compromised the dispute between them. The defendant was allowed to recover possession of the property, but Pisharodi was exonerated from liability for mesne profits and costs. Ext. VI is the copy of the decree passed by the High Court. Ext. C is the copy of the judgment. When the defendant sought to recover possession of the property on the basis of the compromise decree the present suit was instituted by the plaintiffs for the reliefs mentioned above. 2. The plaintiffs alleged that the decree in O.S. 449 of 1117 was not binding on them and the leasehold interest in the property for the following reasons. The first plaintiff had attained majority on 25.6.1120 before the second appeal was filed in the High Court. She was, however, impleaded only as a minor in the second appeal. The appeal decree is therefore a nullity so far as the first plaintiff is concerned. Though the guardian of the plaintiffs put in a written statement in the trial court she did not do anything further in the case. The Court was not moved to frame issues relating to the contentions raised by her. No documents were produced in the case and no evidence was adduced. No appeal was filed by her from the decree of the trial court. The Court was not moved to frame issues relating to the contentions raised by her. No documents were produced in the case and no evidence was adduced. No appeal was filed by her from the decree of the trial court. The plaintiffs had acquired fixity of tenure in respect of the plaint property by virtue of the Verumpattamdars Act. It was owing to the gross negligence of the guardian that a decree happened to be passed for recovery of possession of the property from the lessees. Since the property was being held on lease by their father even before the date of the sale deed in favour of Pisharodi and since the lease in favour of Pisharodi was only a renewal of the old lease the present defendant was not entitled to a decree for possession in the suit brought by him for setting aside the sale deed. On these grounds it was alleged that the decree was not binding on them and the leasehold interest in the property. 3. The defendant raised the following contentions. The oral lease in favour of Lonan was after the date of the partition Ext. 1 and his father Chacku had no authority to grant that lease. Neither Lonan nor Ealy had effected any improvements in the property. The lease deed in favour of Pisharodi was not valid and binding on him. Since pattam was in arrears the plaintiffs and their mother were not entitled to any benefit under the Verumpattamdars Act. There was no negligence on the part of the guardian in the defence of the suit. If the 1st plaintiff became a major during the pendency of the suit it was her duty to get herself impleaded as such. For these reasons it was contended that the decree in O.S. No. 449 of 1117 was valid and binding on the plaintiffs. It was also contended that in any case the shares of Ealy and the 1st plaintiff were bound by the decree. 4. The main questions that were considered by the trial court were whether the oral lease in favour of Lonan was before or after the date of the partition Ext. 1, whether the lease deed, Ext. It was also contended that in any case the shares of Ealy and the 1st plaintiff were bound by the decree. 4. The main questions that were considered by the trial court were whether the oral lease in favour of Lonan was before or after the date of the partition Ext. 1, whether the lease deed, Ext. E, executed by Ealy was one in continuation of the oral lease in favour of Lonan, whether Lonan and Ealy had effected any improvements in the property, whether there was negligence on the part of the guardian of the plaintiffs in the defence of the suit, O.S. No. 447 of 1117, whether the 1st plaintiff’s share in the leasehold interest was bound by the decree in that case, and whether the plaintiffs were entitled to the injunction asked for in the suit. On all these points the findings of the trial court were in favour of the plaintiffs. It was held that the plaintiffs’ 5/7 share in the leasehold interest was not bound by the decree in O.S. 449 of 1117 and the defendant was restrained by a permanent injunction from proceeding against this 5/7th share and reducing it to possession. The plaintiffs were also allowed their costs. The appeal filed by the defendant from this decree in the District Court was also dismissed. 5. The points that were urged before me in this second appeal by learned counsel for the appellant are the following:- (1) The oral lease in favour of Lonan was surrendered after his death and Ext. E was a new lease taken by Ealy in her individual capacity. The plaintiffs have, therefore, no right in the leasehold interest in the property. (2) There was no negligence on the part of the guardian of the plaintiffs in the defence of the suit, O.S. No. 449 of 1117. (3) In any event the 1st plaintiff’s 1/7th share in the leasehold interest was hit by the decree in O.S. No. 449 of 1117. (4) The decree granting a permanent injunction without providing for the working out of the admitted right of the defendant is in any case wrong. 6. So far as the first point is concerned, learned counsel for the appellant did not press the argument advanced in the Courts below that the oral lease in favour of Lonan was after the date of the partition deed, Ext. 1. 6. So far as the first point is concerned, learned counsel for the appellant did not press the argument advanced in the Courts below that the oral lease in favour of Lonan was after the date of the partition deed, Ext. 1. The courts below have concurrently found that the lease was before the date of Ext. 1. The argument advanced before me was that the original lease was terminated and that Ext. E was a fresh lease taken by Ealy in her own right. On this point also the findings of both the courts below are against the appellant. Learned counsel, however, argued that Ext. E itself shows that it was a fresh lease taken by Ealy and not a renewal of the old lease. The following facts were relied on in her support of this contention: Ext. E was not executed by Ealy in capacity as the guardian of the plaintiffs. She swears as PW. 4 that Pisharodi wanted her to execute the lease deed as the guardian of the plaintiffs also but that she refused to do so. The wording of Ext. E shows that it was not a case of attornment to Pisharodi. The words used are: XXX A sum of Rs. 15 was paid as security for pattam under Ext. E. It was also expressly stated that the lease was for a period of one year. It was argued that all these facts go to show that the original lease was terminated and that Ext. E was a new lease taken by Ealy alone. The receipt for payment of pattam under the new lease was in favour of Ealy only as is seen from Ext. F. Ealy alone executed kychit in favour of the Village Officer before taking the harvest from the paddy field. It was argued that all these circumstances lend support to the contention that Ext. E lease deed was executed by Ealy in her individual capacity. 7. It is not disputed that after the death of Lonan Ealy was looking after the affairs of the plaintiffs. She must have continued in possession of the property not only in her individual capacity but also as the guardian of the plaintiffs. In Ext. E lease deed was executed by Ealy in her individual capacity. 7. It is not disputed that after the death of Lonan Ealy was looking after the affairs of the plaintiffs. She must have continued in possession of the property not only in her individual capacity but also as the guardian of the plaintiffs. In Ext. E itself it is stated that the property has been leased to Lonan and that it was in pursuance to that lease that Ealy was in possession of the property and paying pattom. If Ealy was representing Lonan’s estate till the date of Ext. E there is no reason to think that she ceased to represent that estate when she executed Ext. E. In the circumstances undue importance cannot be attached to the words It was only one way of saying that she was attorning to Pisharadi. The other provisions in Ext. E are not inconsistent with the position that Ext. E was only a renewal of the original lease. The defendant himself had no case at the time of instituting O.S. No. 449 of 1117 that the old lease had been terminated and that Ealy alone had interest in the leasehold under Ext. E. If that was the case there was no reason why the plaintiffs should be impleaded in the suit. Ext. J is the copy of the plaint in O.S. No. 449 of 1117. What is stated in paragraph 9 of the plaint is that defendants 2 to 5 were impleaded in the suit as it was known that they had some interest in the property. It must have been with a purpose that the plaintiff in O.S. No. 449 of 1117 (the present defendant) did not admit in Ext. J. that defendants 2 to 5 were holding the property on lease. The Verumpattamdars Proclamation had already been promulgated and the plaintiff in that case obviously did not want defendants 2 to 5 to take advantage of the benefits of the Proclamation. Whatever that may be, it is clear that the present defendant had no case at the time of instituting O.S. No. 449 of 1117 that Ealy alone had interest in the leasehold. 7. It was alleged in paragraph 3 of the present plaint that the plaintiffs were holding the property on lease along with their mother in continuation of the oral lease in favour of Lonan. 7. It was alleged in paragraph 3 of the present plaint that the plaintiffs were holding the property on lease along with their mother in continuation of the oral lease in favour of Lonan. This allegation was not expressly denied in the written statement of the defendant. What is stated in paragraph 2 of the written statement is that the original lease and the lease in favour of Pisharodi were not valid and not that the original lease was terminated. It is true that in paragraph 3 of the written statement it is stated that the allegations in paragraph 3 of the plaint are denied by the defendant. But that does not amount to a denial of the particular allegation that the lease, Ext. E, was one in continuation of the original lease. The defendant filed a counter-affidavit in the case on 11.7.1121 in answer to the affidavit filed by the first plaintiff along with the application for a temporary injunction. This is what is stated in that counter-affidavit: XXX This amounts to an admission by the defendant that the plaintiffs and their mother are jointly interested in the leasehold. The defendant had no case that the original lease was terminated and that the plaintiffs ceased to have any interest in the leasehold. No issues were raised in the case relating to this matter. PWs. 1, 2 and 4 swear that after the death of Lonan his wife and children were holding the property on lease. The evidence of DW. 1 also is to the same effect. These witnesses were not cross-examined on this point. It is true that the defendant has deposed as DW. 4 that after the death of Lonan, Ealy alone was in possession of the property as lessee. He does not however say that there was a surrender of property by the heirs of Lonan. Both the courts below have believed the evidence of the witnesses who swear to the fact that the plaintiffs and their mother were jointly holding the property on lease after the death of Lonan. I find no reason to disagree with this concurrent finding. I, therefore, hold that there was no surrender of property by the heirs of Lonan and that Ext. E is only a renewal of the old lease. 9. I find no reason to disagree with this concurrent finding. I, therefore, hold that there was no surrender of property by the heirs of Lonan and that Ext. E is only a renewal of the old lease. 9. The second point for consideration is whether there was negligence on the part of the guardian of the plaintiffs in the defence of the suit, O.S. No. 449 of 1117. The guardian filed a written statement in the case raising the necessary contentions, the main contention being that the plaintiff in that case was not entitled to recover possession of the property from defendants 2 to 5 by virtue of the Verumpattamdars Proclamation. It was also contended that Lonan and after him the 2nd defendant had effected improvements in the property (vide Ext. IX). But except filing this written statement nothing further was done in the case by the guardian. The court was not moved to frame issues relating to the contentions raised in the written statement. Not even the lease deed Ext. E was filed in Court. No other evidence was adduced in the case to prove the lease. The guardian herself did not go into the witness box. If the lease in favour of Lonan was proved in the case it was not at all likely that a decree would have been given for recovery of possession of the property from defendants 2 to 5. Apart from the applicability of the Proclamation, if Lonan was in possession of the property as lessee even before the date of the sale in favour of Pisharodi, the plaintiff could evict defendants 2 to 5 only in a separate suit brought for the purpose. But since the lease was not proved in the case the plaintiff was given a decree for recovery of possession of the property. The guardian did not choose to prefer an appeal from this decree. At the time of the hearing of the second appeal by the High Court the guardian’s counsel argued that defendants 2 to 5 were not liable to surrender possession of the property by virtue of the Proclamation and the Verumpattamdars Act. But the High Court could not grant any relief in the matter since the plaintiff had not admitted in the plaint that defendants 2 to 5 were lessees of the property and since no evidence was adduced in the case to prove the lease. But the High Court could not grant any relief in the matter since the plaintiff had not admitted in the plaint that defendants 2 to 5 were lessees of the property and since no evidence was adduced in the case to prove the lease. Their Lordships observed thus: “These defendants (defendants 2 to 5) filed a written statement in which they claimed that they were lessees in possession and that they were entitled to retain possession of the property by virtue of the Royal Proclamation staying suits against Verumpattamdars. After the written statement was filed it does not appear that these defendants took any further interest in the suit. Their claim to possession which may be taken to have been sufficiently indicated in the written statement was not made the subject-matter of an issue. They did not appear at the trial. They did not call any witnesses, nor did they file any documents. The judgments in both the courts below proceeded upon the footing that there was no question raised by them which required to be considered or decided.” Consequently the plaintiff was allowed to recover possession of the property as per the terms of the compromise entered into between the plaintiff and the first defendant Pisharodi. 10. Learned counsel for the appellant attempted to show that there was no negligence on the part of the guardian in the defence of the suit. It was pointed out that so far as the contention relating to improvements was concerned, it was found in this case that no improvements have been effected in the property by the lessees. As regards the contention based on the Proclamation, it was argued that so long as pattam was not paid to the present defendant who was the real landlord of the property but was paid only to Pisharodi, the lessees were not entitled to the benefit of the Verumpattomdars Act. In this view of the matter it is argued that no useful purpose would have been served by proving the lease in the case. According to the appellant the lessees could not claim the benefit of S. 50 of the Transfer of Property Act which protects a lessee who pays rent bona fide to a holder under a defective title by reason of the fact that they failed to take advantage of the provisions contained in Ss. According to the appellant the lessees could not claim the benefit of S. 50 of the Transfer of Property Act which protects a lessee who pays rent bona fide to a holder under a defective title by reason of the fact that they failed to take advantage of the provisions contained in Ss. 49 and 50 of the Cochin Tenancy Act (Act VI of 1115). S. 49 of that Act enables a tenant who is doubtful as to the person entitled to receive the rent to apply to the court for permission to pay the same through court. S. 50 provides that the order of the Court allowing the application shall be deemed to be a full acquittance to the tenant in respect of the amount deposited in court. Reliance was placed for this position on Gambhirya v. Sankharam ( AIR 1927 Nagpur 237 ). In that case a tenant who knew of the dispute between two rival claimants to the title of landlord paid rent to one of them. It was held that the payment could not be said to be a bonafide payment under S. 50 of the Transfer of Property Act. Reference was made in the judgment to the provision in S. 68 of the C.P. Tenancy Act corresponding to S. 49 of the Cochin Tenancy Act. I do not think that there is much force in this argument. In the first place the sale in favour of Pisharodi by the guardian of the defendant was only a voidable one and not void and there was no reason why the lessees could not treat the vendee as their landlord until the sale deed was set aside. In any case the plaintiff in O.S. 449 of 1117 had not put forward a case that defendants 2 to 5 had lost the benefit under the Royal Proclamation and the subsequent Verumpattamdars Act by reason of the fact that the rent of the property was paid by them not to them but to Pisharody. Under S. 4 of the Act fixity of tenure was granted to verumpattam tenants subject to the exceptions mentioned in S. 8. It was for the plaintiff landlord to allege and prove that the lessees forfeited that right for any of the reasons mentioned in S. 8. The court had no occasion to consider this question since the lease itself was not proved in the case. It was for the plaintiff landlord to allege and prove that the lessees forfeited that right for any of the reasons mentioned in S. 8. The court had no occasion to consider this question since the lease itself was not proved in the case. Apart from the applicability of the Proclamation and the Act, if the lease in favour of Lonan which was admittedly prior to the date of the sale Ext. D was proved in the case it was not likely that the court would have given a decree for possession against the lessees in a suit brought for setting aside the sale. In the circumstances I am clearly of opinion that there was gross negligence on the part of the guardian in the defence of the suit, O.S. No. 449 of 1117. 11. The third point for consideration is whether the 1st plaintiff’s 1/7th share in the leasehold interest is hit by the decree in O.S. No. 449 of 1117. The birth certificate, Ext. K, shows that the first plaintiff was born on 24.6.1102. She therefore became a major on 24.6.1120. The decree of the first appellate court was on 8.4.1120 and the second appeal was filed on 20.10.1120. It will thus seen that the first plaintiff was a major when the second appeal was filed. She was however impleaded as a minor in the second appeal. According to learned counsel for the appellant it was the duty of the first plaintiff to come on the record and conduct the defence herself. Reference was made to Sanyasi v. Yerran Naidu (1928 Madras 294) and Krishna Raju v. Sankara Iyer (29 TLJ 38). It was held in those cases that when a minor defendant comes of age during the pendency of the suit he may if he thinks fit, come on the record and conduct the defence himself and that, if he does not do so, he must be deemed to have elected to abide by the representation of the quondiam guardian and the judgment eventually passed will be binding on him. According to the courts below a decree passed against a person who was a major but was impleaded in the suit as a minor will be binding on him only if he had knowledge of the suit and allowed another person to conduct the defence on his behalf as guardian for the suit. According to the courts below a decree passed against a person who was a major but was impleaded in the suit as a minor will be binding on him only if he had knowledge of the suit and allowed another person to conduct the defence on his behalf as guardian for the suit. Reliance was placed on Devaki Amma v. Kunjunni Thirupad (26 Cochin 710) and Chettiar Firm v. Mg. Shew Hmun (AIR 1938 Rangoon 468). Both the courts below have found that the first plaintiff had no knowledge of the suit, O.S. No. 449 of 1117, before the date the decree passed by the High Court. The rulings relied on by the courts below relate to cases in which persons who were majors on the date of suit were wrongly impleaded as minors and not to cases in which minors who were properly impleaded as such in the suit came of age during the pendency of the suit but were not brought on the record as majors after they attained majority. I do not think that in the latter class of cases the decree can be held to be binding on the person who attains majority during the pendency of the suit only if it is proved that he had knowledge of the suit. In AIR 1938 Rangoon 468 referred to above Dunkely, J. observed that cases in which the defendant was properly sued as a minor but became a major during the pendency of the proceedings and was not brought on the record as such are clearly distinguishable from cases in which the defendant being a major on the date of suit was wrongly impleaded in the suit as a minor. It is, however, not necessary to discuss this point further in this case since the real question to be decided in the appeal so far as this part of the case is concerned is whether the first plaintiff is debarred from filing a suit to set aside the decree in O.S. No. 449 of 1117 on the ground of gross negligence on the part of the guardian in the defence of the suit by reason of the fact that she (1st plaintiff) had attained majority before the second appeal in that case was disposed of. 12. 12. As stated already, the first plaintiff, namely, the third defendant in O.S. No. 449 of 1117, came of age after the decision of the first appeal in that case. The negligence attributed to the guardian is in respect of the conduct of the defence of the suit in the trial court and her failure to prefer an appeal from the decree passed by the court. So far as the second appeal is concerned counsel for the guardian did argue the appeal, but the High Court found itself unable to do anything in the matter since the guardian had not proved the lease in the trial court and had not preferred an appeal in the District Court. There is nothing in the decisions in 29 TLJ 38 and AIR 1928 Madras 294 to show that under such circumstances the minor who is adversely affected by the negligence of the guardian cannot institute a suit to have the decree set aside for the mere reason that the minor came of age before the disposal of the second appeal by the High Court. What was held in 29 TLJ 38 was that when a minor defendant comes of age during the pendency of the suit and does not come on the record and conduct the defence himself the decree passed in the case would not be a nullity or one passed without jurisdiction. What was held in 1928 Madras 294 was that “the mere circumstance that a minor defendant had attained majority during the pendency of the suit and has not elected to continue the defence is not sufficient to enable him to have declared as not binding on him the judgment duly pronounced by the court.” Page 295 of the report contains the following passage: “It stands to reason and principle that an adjudication by the court which, we may take it, in the absence of any fraud, collusion, or gross negligence, is an adjudication on the merits of the controversy, need not be set aside as vitiated merely because a certain defendant is found to have attained his majority without the matter being brought to the notice of the court”. This by implication supports the view that a minor who comes of age before the final disposal of the suit is not precluded from instituting a suit to have the decree set aside on the ground of gross negligence on the part of the guardian in the defence of the suit. Whatever the position may be in the case of a minor who comes of age during the pendency of the suit in the trial court I am of opinion that a minor who attains majority after the decree is passed by the trial court and while the matter is pending in appeal is not precluded from instituting a suit for setting aside the decree on the ground of gross negligence on the part of the guardian in the defence of the suit. He may be able to prove negligence on the part of the guardian only in a fresh suit. The Court may have to hold an enquiry into the question and evidence may have to be adduced by the plaintiff to show that there was negligence on the part of the guardian in the defence of the suit. The minor who comes of age during the pendency of the appeal may not be able to satisfy the appellate court that there was negligence on the part of the guardian in the defence of the suit. One of the remedies open to a minor who has been adversely affected by the negligence of the guardian in the defence of a suit is a separate suit for setting aside the decree passed in the case (Vide Sham Lal v. Tharsita (23 Allahabad 459), Bhagwan Dayal v. Parem Sukh Das (39 Allahabad 8), Velayudha Panickar v. Kochu Pillai (21 TLJ 208) and Lekshmanaperumal Pillai v. Venkiteswara Aiyar (50 TLR 319) I do not think that the minor can be deprived of this remedy for the mere reason that he attained majority after the decision of the first appeal in the case and before the disposal of the second appeal. I, therefore, hold that the first plaintiff is entitled to have the decree in O.S. No. 449 of 1117 set aside as regards her share in the leasehold interest on the ground of gross negligence on the part of her guardian in the defence of that suit. 13. I, therefore, hold that the first plaintiff is entitled to have the decree in O.S. No. 449 of 1117 set aside as regards her share in the leasehold interest on the ground of gross negligence on the part of her guardian in the defence of that suit. 13. The last point that was argued in the appeal relates to the nature of the decree to be passed in the case. It is not disputed that Ealy’s 2/7th share in the leasehold interest is bound by the decree in O.S. No. 449 of 1117. By the decree passed in this case by the trial court the defendant is restrained from proceeding against the plaintiffs’ 5/7the share in the leasehold interest and reducing that portion of the property to possession. The decree in O.S. No. 449 of 1117 is for recovery of possession of the property. According to learned counsel for the appellant the effect of the decree passed in this case is virtually to nullify the decree in O.S. No. 449 of 1117 in its entirety without providing any remedy to the defendant to recover possession of 2/7th share belonging to Ealy. Learned counsel argued that the proper course to adopt will be to convert this suit into one for partition and to give the defendant a decree for recovery of the 2/7th share belonging to Ealy. I do not think it is possible to pass such a decree in this suit. The defendant will have to file a separate suit for partition and for recovery of possession of 2/7th share in the leasehold interest. The decree in O.S. No. 449/1117 will be modified to that effect. The defendant in this case, namely, the decreeholder in O.S. No. 449 of 1117, will be entitled to recover possession of 2/7th share in the leasehold interest in the plaint property by means of a separate suit. The permanent injunction granted in this case in respect of the 5/7th share belonging to the plaintiffs will not be a bar to the defendant instituting a suit for recovery of possession of the 2/7th share. 14. The only other question that remains to be determined is that relating to costs. The trial court directed the defendant to pay the full costs of the plaintiffs. 14. The only other question that remains to be determined is that relating to costs. The trial court directed the defendant to pay the full costs of the plaintiffs. The decree in O.S. No. 449 of 1117 was set aside only in respect of the plaintiffs’ 5/7th share although the suit was for setting aside the whole decree. The plaintiffs’ claim for value of improvements was also found against. In the circumstances I do not think that the trial court was justified in awarding the plaintiffs their full costs of the suit. I think that it will be proper to give the plaintiffs one-half of their costs in the trial court. So far as the costs in the lower appellate court and in this court are concerned there is no reason why the plaintiffs should not be paid their full costs. 15. In the result, I dismiss this second appeal and confirm the judgments and decrees of the courts below subject to the direction contained in paragraph 13 above. The plaintiffs will get one half of their costs in the trial court and their full costs in this court and in the lower appellate court from the defendant who will suffer his costs throughout. Dismissed.