Judgment :- MOHAN, J. 1. The first defendant is the appellant before us in this appeal which arises out of the judgment and decree in O.S. 2307 of 1973 on the file of the learned VI Assistant City Civil Judge, Madras. The first respondent filed the suit for declaration that he is entitled to the suit property and for a direction to defendants 1 and 2 to quit and deliver vacant possession of the suit property and also for direction to defendants 3 to 6 to continue to pay the rents to him. The plaint averments are briefly as follows— The suit property originally belonged to Thangavelu, the plaintiffs maternal grandfather. His wife is Annammal through whom he had a daughter Krishnaveniammal who is none other than the mother of the plaintiff. Krishnaveni had a daughter, namely, the sister of the plaintiff, by name, Saraswathi, whose son is the first defendant. By his last will and testament, dated 1st April, 1951, the suit property, was bequeathed to his daughter Krishnaveniammal for her life time and after her life, absolutely to the plaintiff. The plaintiff filed O.P. 57 of 1957 on the file of this Court and prayed for the probate of the Will. The mother of the plaintiff Krishnaveniammal contested the proceedings and ultimately she withdrew her statement of defence as veil as the caveat. Thereafter, by a judgment, dated 22nd January, I960 in T.O.S. 2 of 1957, the plaintiffs title was recognised. He was directed to take the property after the life time of his mother Krishnaveniammal. The said Krishnaveniammal died on 26th March, 1971. Afterwards the plaintiff took possession of the property and let out the same to the second defendant. He has been collecting rent from April, 1971. The tenant in the first floor of the property is one Shaw Richobdas who vacated the premises and at the instigation of the plaintiff, the second defendant took charge of the same. The plaintiff wanted this portion to be kept vacant for some time for the purpose of whitewashing it so that he could re-let it to somebody else. But the second defendant had fraudulently inducted his son-in-law, namely, the first defendant, into this portion and actually the first defendant is not living in Madras and is employed in Erode. The plaintiff wanted this portion to be kept vacant for some time for the purpose of whitewashing it so that he could re-let it to somebody else. But the second defendant had fraudulently inducted his son-in-law, namely, the first defendant, into this portion and actually the first defendant is not living in Madras and is employed in Erode. The first defendant claims to be the legatee under the Will said to have been executed by Krishnaveniammal in respect of the suit property. She cannot have any right whatsoever over the suit property after the judgment in T.O.S. No. 2 of 1957. The proceedings in the said testamentary original suit are binding on Krishnaveniammal. Equally, the first defendant will also have no right over the suit property. Defendants 3 to 6 are tenants. They had been prevailed upon not to pay the rent to the plaintiff. Hence the suit. 2. In the written statement filed by the first defendant it was contended that the suit property was the absolute property of Krishnaveniammal since the very purchase by. Thangavelu under Ex. A1, dated 28th May, 1929 is in the name of Annammal. Therefore, it cannot be contended that the said property is benami purchased by Thangavelu, Annammal being only the name lender. The Will, dt. 1st April, 1951 executed by Thangavelu was contested by Krishnaveniammal but later she withdrew the caveat and the probate was issued. Krishnaveniammal did not admit the right of Thangavelu. Therefore, the grant of probate could not affect the right, title and interest of Krishnaveniammal. As the daughter of her mother Annammal, she has every right to succeed to the property in that capacity. She had therefore every right to execute a valid Will and the plaintiffs suit is liable to be dismissed. In the reply statement, the averments made in the written statement were denied. The plaintiff gave up his claim as against defendants 3 to 6. On the basis of the above pleadings, the following issues were framed— 1. Was not Krishnaveniammal, the absolute owner of No. 5, Vinayaka Mudali St., Madras-1? 2. Was not Krishnaveniammal in possession and enjoyment of the suit property in her own right? 3. Has the second defendant got any right or title to the suit property? 4. Whether the defendant had possession of the property in his own right? 5. Was not Krishnaveniammal, the absolute owner of No. 5, Vinayaka Mudali St., Madras-1? 2. Was not Krishnaveniammal in possession and enjoyment of the suit property in her own right? 3. Has the second defendant got any right or title to the suit property? 4. Whether the defendant had possession of the property in his own right? 5. Whether Krishnaveniammal had perfected her title to the property by adverse possession? 6. To what relief? 3. In an omnibus finding on issues 1 to 5, the learned Subordinate Judge came to the conclusion that the plaintiff is the actual owner of the property, firstly as the legatee and secondly, as the legal heir of his mother Krishnaveniammal, that Krishnaveniammal was not the absolute owner and, that she was not in possession of the property in her own right. Issue No. 3 was answered to the effect that the second defendant has no right or title to the property. Under issue No. 4, it was answered that the first defendant has no right to be in the suit property in his own right and under issue No. 5 that neither Krishnaveniammal nor the first defendant had perfected their title to the suit property. In the result the suit was decreed as against defendants 1 and 2 with costs and dismissed as against defendants 3 to 6 as they were given up and defendants 1 and 2 were directed to deliver vacant possession of the suit property and to pay mesne profits at the rate of Rs. 50 per mensem from the date of plaint till date of possession and the plaintiffs right to collect rents from the tenants was declared. The court-fee due to the Government was directed to be paid by defendants 1 and 2. Thus the appeal. 4. Respondents 2 and 3 who have been impleaded as parties in this appeal have filed the Memorandum of cross objections questioning the quantum of mesne profits granted by the court below. 5. Mr. V. Krishnan, learned counsel appearing for the appellant urged the following contentions for our consideration—(i) Merely because of Ex. A-2, settlement, it cannot be said that the appellant is estopped from questioning the title of Thangavelu. Ex. A1 stands in the name of Annammal. Therefore, ostensibly she is the owner. If it is the case of any person claiming under Thangavelu, pleading benami, it must be specifically pleaded and proved. A-2, settlement, it cannot be said that the appellant is estopped from questioning the title of Thangavelu. Ex. A1 stands in the name of Annammal. Therefore, ostensibly she is the owner. If it is the case of any person claiming under Thangavelu, pleading benami, it must be specifically pleaded and proved. Such a case was not put forth by the plaintiff; (ii) As reg ards benami, there is absolutely no evidence as to who provided the funds. The self-serving statement of Thangavelu in Ex. A2 will not be enough to prove this. More so, by Ex. A3, Ex. A2 had been withdrawn; and (iii) It is well settled in law, that the probate proceedings cannot decide questions of title. Therefore, any statement or concession given by Krishnaveniammal would not preclude the appellant from re-agitating the question of benami. This is the case to which either by reason of the cancellation of Ex. A2 or by reason of the court proceedings, it can clearly be seen that S. 14(1) of the Hindu Succession Act alone will come into play. Lastly, it is urged that there is no estoppel whatsoever because the probate proceedings would not constitute either res judicata or estoppel as laid down in Hem Malini v. Isolyne Sarojbashini 1. The fact that by Exs. A13 and A14, the appellant herein sought for revocation of probate cannot militate against his right in agitating the title of Annammal. 6. Mr. S.K L. Ratan and Mr. M. Srinivasan, learned counsel appearing for the respondents contend that this is a case in which under Ex. A2, the title of Thangavelu was asserted to which Krishnaveniammal was an attestor. Therefore, irrespective of the revocation of the document that will be evidence enough to show that Krishnaveniammal stood by the title of Thangavelu. Under these circumstances, she cannot once again turn round and say that Thangavelu had no title. As a matter of fact, it is on the very basis of that settlement she filed the suit for ejectment as seen from Ex. A25. Under the deed of settlement Ex. A2, Krishnaveniammal was conferred a Hindu womans right. Whether such a right could be conferred by means of a settlement is a moot question. Leaving that aside, such a right will not be enlarged under S. 14(1) of the Act. The clear authority on this is the decision rendered in V. Thulasamma v. Sesha Reddi. A2, Krishnaveniammal was conferred a Hindu womans right. Whether such a right could be conferred by means of a settlement is a moot question. Leaving that aside, such a right will not be enlarged under S. 14(1) of the Act. The clear authority on this is the decision rendered in V. Thulasamma v. Sesha Reddi. 2. This is a case of estoppel by conduct because probate proceedings cannot decide questions of title. Therefore, these clauses came to be incorporated by reason of a private agreement between the parties. Certainly that agreement which amounts to a clear conduct on the part of Krishnaveniammal would estop the first defendant herein who is the grandson of Krishnaveniammal to question the title. The question of benami is no longer left open. Only in such a case it will be incumbent upon the plaintiff to satisfy the test as to benami as laid down in Bhim Singh v. Kan Singh 3 and Ponnuswami v. Narayanan, 4. As regards mesne profits, the very admission of the appellant is that he is getting a rental income of Rs. 250 per mensem besides his own living in a portion of the suit property. Therefore, at least, that must have been decreed in favour of the plaintiff. 7. Having regard to the above contentions, four questions arise for our determination. They are: (i) What is the evidenciary value of Ex. A2 in spite of its cancellation by Ex. A3; (ii) whether the probate proceedings by themselves would estop the appellant from disputing the title of Thangavelu; (iii) Whether S. 14(1) or S. 14(2) of the Hindu Succession Act would apply to the facts of this case; and (iv) what is the quantum of mesne profits to be awarded in favour of the plaintiff. 8. Ex. A1 sale is dated 28th May, 1929. The ostensible owner, as seen from the deed, is Annammal. The sale consideration is Rs. 4,000. of this, Rs. 2,000 was paid by Annammal as recited in the deed and the balance of Rs. 2,000 was paid by Thangavelu as seen from the endorsement of the registration. If the matter has stood there, of course, the plea of benami must be proved by the plaintiff. It is well settled in law that the person who pleads benami has to establish the same because there is no presumption in law that a female cannot own any property. If the matter has stood there, of course, the plea of benami must be proved by the plaintiff. It is well settled in law that the person who pleads benami has to establish the same because there is no presumption in law that a female cannot own any property. Therefore, the ostensible holder would get title unless the plea of benami is pleaded and proved. The law relating to the test of benami transaction is succinctly laid down in Bhim Singh v. Kan Singh 1, wherein their Lordships of the Supreme Court have observed as follows:— “The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus—(I) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money; and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc.” Close on the heels of this, we have the decision in Ponnusami v. Narayanan 2. We do not think the question as to whether Thangavelu was the real owner or Annammal was the real owner is any longer open to be decided. Our reasons are as under: In Ex. A.2, the settlement dated 25th October, 1950 it is stated in unequivocal terms as follows: “Whereas house and ground bearing No. 5, Vinayaga Maistry Street, G.T. Madras, more particularly described in the schedule attached hereto was originally purchased by the settlor herein from and out of his own and separate funds from one M.B. Sharma by a duly registered deed of sale dated 29th May, 1929 in the name of his wife Annammal, but benami for him”. The settlor is none other than Thangavelu himself. The settlor is none other than Thangavelu himself. It is this statement which has been stood by as Krishnaveniammal had attested this document. We may, in passing, state that though an argument was sought to be raised by Mr. Ratan that she was the executant herself, we cannot accept that argument because Krishna veniammal herself had no right as far as the property is concerned excepting what she got under the terms of the settlement. It is further stated in the settlement as follows:— “The first settlee therefore may possess and enjoy the said property for her life taking in it Hindu Womans estate and on her demise the second settles may quitely and absolutely possess and enjoy the said property without any let, hindrance or interruption, claim or demand either by the settlor or any person claiming under or deriving title under or purporting to claim under or in trust for the settlor”. Therefore Krishnaveniammal not only accepted the title of Thangavelu but also stood by the same. She was rest content in taking what we call ‘a life estate’. It requires to be noted very carefully that based on this settlement, as seen from Ex. A27 the suit for ejectment was filed by Krishnaveniammal herself. As to the question whether by means of a document a Hindu Womans estate could be conferred, we do not think we would dwell on it at this stage. We will put that by. No doubt, this document Ex. A2 came to be cancelled by the deed of revocation Ex. A3 dated 31st March, 1952. That by itself does not mean that the stand of Krishnaveniammal gets obliterated. We are only referring to the stand of Krishnaveniammal and not as to the legal effect of the settlement which came to be cancelled by Ex. A3. One other factor remains to be mentioned and it relates to the mention made in Ex. A3 that the purchase by the settlor was benami for his wife Annammal. Under these circumstances, we have not the slightest hesitation in holding that Krishnaveniammal by reason of her attestation and acceptance of life estate, will be precluded from raising the question whether the real owner is Annammal. That is our answer to question No. 1. 9. As regards question No. 2, it is well settled that probate proceedings cannot decide questions of title. That is our answer to question No. 1. 9. As regards question No. 2, it is well settled that probate proceedings cannot decide questions of title. In T.O.S. 2 of 1957 by judgment, dated 22nd January, 1960, Ex. A.9 Ganapatia Pillai, J. ordered as follows:— “That probate of the last Will and Testament of Thangavelu Mudaliar, the deceased above named, dated 1st April, 1952, to have effect within the State of Madras do issue herein, and be granted to P.K. Sadhananda Mudaliar the plaintiff herein subject to the conditions mentioned in the succeeding clauses”. This order was by consent of the parties. One thing which is beyond dispute is that if this decree were to be put in execution, certainly Krishnaveniammal could not have got possession because the Probate court was concerned with the truth and genuineness of the will dated 1st April 1951, executed by Thangavelu. The fact that Krishnaveniammal withdrew her statement of defence and the Caveat could not discharge the burden cast on a Probate court. It was only because of the contest, O.P. 57 of 1957 was converted into a testamentary original suit (T.O.S. 2 of 1957). Notwithstanding the with drawal of the statement of defence and the Caveat, yet, the court is bound to go into the truth and genuineness of the will because it is ultimately the courts conscience which has to be satisfied before the issue of probate. Here again, in our considered view, there must be two water-tight compartments, namely, (1) the issue of probate for the will executed by Thangavelu on 1st April 1951, and (2) the agreement as evidenced by the above extract of Ex. A9 enabling the defendant therein to occupy the suit premises for her life and appropriate the rent received from the property paying the petitioner-the first respondent herein a sum of Rs. 20 every month. This agreement undoubtedly would mean estoppel by conduct. In Bhau Ram v. Baijnath 1 what was laid down is as follows— “As to estoppel, reliance is mainly placed on the application of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. In that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was at we have already noted dismissed. It may be that Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. In that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was at we have already noted dismissed. It may be that Mrs. Bose in her application for Letters of administration showed this house as the property of her mother, Mrs. Mitter, but as we have already said proceedings leading to the grant of letters of administration have nothing to do with titles. Further, estoppel can only arise as is clear from S. 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose can be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mr. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter, the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in this case.” The reliance placed by Mr. V. Krishnan on this is misplaced, because here, as we observed above, it is by reason of the agreement between the parties the estoppel arises. The question is whether but for this could Krishnaveniammal have been put in possession or could she have continued in possession, is the important poser to be taken note of. The argument of the learned counsel for the appellant overlooks this aspect when he contends that no estoppel would arise. It is a clear case of estoppel by conduct, and, therefore, the above ruling of the Supreme Court has no application to the facts of this case. The argument of the learned counsel for the appellant overlooks this aspect when he contends that no estoppel would arise. It is a clear case of estoppel by conduct, and, therefore, the above ruling of the Supreme Court has no application to the facts of this case. To cap this all, the very appellant before us unsuccessfully questioned, as seen from Ex. A13, Apple No. 329 of 1972 in T.O.S. 2 of 1957, before a learned single Judge of this Court, for the revocation of the probate. That was dismissed. Thereafter the appeal in O.S.A. 28 of 1973 suffered the same fate as seen from Ex. A14, dated 5th April, 1977. Therefore, if all these do not constitute estoppel by conduct it passes our comprehension as to what could be so categorised. Accordingly we answer point No. 2 and hold that the appellant is clearly estopped from questioning the title of Thangavelu and setting up title in Annammal thereby to enable Krishnaveniammal to get title. 10. This is not a case to which S. 14(1) would apply at all. As a proposition of law, if the daughter is in such a destitute condition, she could always claim maintenance as against her lather. There are a few cases on this point. But, in the case on band, no foundation was laid for holding so, excepting the learned counsel for the appellant wanting to draw inferences from certain statements. Without a specific plea on his behalf, it will be unfair on the part of the plaintiff to allow this statement of facts to be raised by way of inferences. Clearly, if there was no pre-existing right, there is no possibility of S. 14(1) of the Hindu Succession Act applying at all. It is only S. 14(2) that would apply. But that it besides the point in this case, because, as we observed above, Ex. A2 has been cancelled by Ex. A3. It is not by virtue of probate proceedings but by reason of separate agreement that Krishnaveniammal got possession. This is our answer to point No. 3. 11. Lastly, turning to mesne profits, a sum of Rs. 250 is what is claimed by the first respondent-decree holder. The very appellant as D.W. 1 states that he is getting a rental income of Rs. 250 per mensem and that he is residing in a portion or the suit house. This is our answer to point No. 3. 11. Lastly, turning to mesne profits, a sum of Rs. 250 is what is claimed by the first respondent-decree holder. The very appellant as D.W. 1 states that he is getting a rental income of Rs. 250 per mensem and that he is residing in a portion or the suit house. On this very admission, these is no reason why the plaintiff will not be entitled to a sum of atleast Rs. 250 per mensem by way of mesne profit. Though in the memorandum of cross objections a sum of Rs. 350 is claimed, we are not inclined to accept that high figure since there is no evidence to this effect. Accordingly, in the memorandum of cross objections, we allow mesne profits of Rs. 250 per mensem from the date of plaint and accordingly we modify the judgment of the court below and allow the prayer in regard to mesne profits as claimed in the plaint. 12. In the result, the appeal fails and is hereby dismissed. There will be no order as to costs. However, the memorandum of cross objections will stand allowed with costs.