Moidu v. Santha — 1999 DIGILAW 217 (KER)

JUDGMENT S. Sankarasubban, J. 1. The above appeal is filed by defendants 2 to 4 in O.S. 29/1992 on the file of the Sub Court, Vadakara against the judgment and decree in the said case. The suit was filed by respondents 1 and 2 as plaintiffs for partition of their 2/5th share in plaint items 1 and 2. The case of the plaintiffs was that the plaint schedule properties were allotted as per Ext.A1 settlement deed dated 4.9.1975 to the plaintiffs, the first defendant and two of their brothers Gangadhara Kurup and Balakrishna Kurup. Plaint schedule item No. 1 has got an extent of 60 cents, while item No. 2 is 39 cents. According to the plaintiffs, both Gangadhara Kurup and Balakrishna Kurup have assigned their 2/5th share in item No. 1 to the second defendant. Thus, plaintiffs and defendants 1 and 2 are the joint owners of plaint item No. 1. The second defendant is in possession of the property on behalf of the plaintiffs as well. So far as item No.2 is concerned, both Gangadhara Kurup and Balakrishna Kurup have assigned their right in favour of defendants 3 and 4. Hence, with regard to that item, plaintiffs and defendants 1, 3 and 4 are joint owners. Defendants 3 and 4 are in possession of plaint item No.2 on behalf of the coowners. The plaintiffs came to know during January 1992 that their rights in the plaint items have been assigned while they were minors. Thus, their rights in item No.1 have been assigned to the second defendant, while their rights in item No. 2 have been assigned to defendants 3 and 4. The assignments are not for their benefit and permission was not obtained under S.8 of the Hindu Minority and Guardianship Act before the assignments were made. Hence, so far as their rights are concerned, the assignments have no validity in law. The consideration shown in the document is not proper. There is an alternate prayer for setting aside the assignment deeds in case it is necessary. The plaintiffs prayed for partitioning the plaint schedule items into five equal shares and allotting two shares to the plaintiffs. 2. The first defendant has filed a written statement. According to her, she is entitled to 1/5 share in plaint item No. 1 and 1/5 share in item No.2. The plaintiffs prayed for partitioning the plaint schedule items into five equal shares and allotting two shares to the plaintiffs. 2. The first defendant has filed a written statement. According to her, she is entitled to 1/5 share in plaint item No. 1 and 1/5 share in item No.2. She also contended that the assignment made in favour of defendant No. 2 with regard to item No. 1 and assignment with regard to item No.2 were executed at the time when she was a minor and without obtaining previous permission from the Court. Hence, the assignments are not valid and binding. She came to know of the assignment only in January, 1992. She has also prayed for partition by metes and bounds of her 1/5th share. 3. The second defendant filed a separate written statement. In that written statement, it was contended that neither the plaintiffs nor the first defendant have any right in item No. 1. This item exclusively belongs to him. One of the sharers of item No. 1, Gangadhara Kurup, assigned his rights in item No.1 in favour of the second defendant on 7.4.1978 by Ext.B8. Subsequently the shares of Balakrishna Kurup, the first defendant and the plaintiffs were also purchased by the second defendant on 19.4.1978. This is evident from Ext.A2 dated 19.4.1978. The minors were represented by their guardian, their father, and the property was sold for valid consideration. The first defendant was made to understand that the property was being sold for the benefit of the minors. The second defendant further contended that the plaintiffs have to prove their age with valid documents since according to him they have attained majority long back. The second defendant has been in possession of the property for more than 12 years and he has effected title by adverse possession. He further contended that the first defendant is not entitled to any relief, since she has not filed a suit. 4. A separate written statement was filed by defendants 3 and 4. The same contentions as are taken by the first defendant are also taken. It was further stated that the first defendant had executed a release deed, Ext.A3, as though she was a major. Her age has been given as 20 years. Hence, she cannot have any complaint against the document. The same contentions as are taken by the first defendant are also taken. It was further stated that the first defendant had executed a release deed, Ext.A3, as though she was a major. Her age has been given as 20 years. Hence, she cannot have any complaint against the document. Both defendant No.2 and defendants 3 and 4 have contended that in case it is found that the documents are to be set aside, the parties should be directed to restore to the defendants the benefits received by them. Further, it was contended that valuable improvements have been made in the property and they are entitled to the value of the same. 5. On the basis of the above contentions, the Trial Court raised 8 issues. On behalf of the plaintiffs, Exts.A1 to A7 were marked and the second plaintiff was examined as PW-1. On behalf of the defendants, Exhibits B1 to B15 were marked and the first defendant was examined as DW-1. The Court below passed a preliminary decree to the following effect:- "Item 1 of the plaint schedule property shall be divided into 5 equal shares. The plaintiffs are entitled to 2 such shares. The same shall be allotted to them separately. The first defendant is entitled to 1/5 share and the second defendant is entitled to 2/5 shares. Their shares shall be allotted to them separately. Item 2 of the plaint schedule also shall be divided into 5 equal shares. The plaintiffs are entitled to 2 such shares. They are to be allotted to them separately. The first defendant is entitled to 1/5 shares. The same shall be allotted to her separately. Defendants 3 and 4 together are entitled to 2/5 shares. The plaintiffs and first defendant are entitled to share of mesne profits from item No.1 from the second defendant and from item No.2 from defendants 3 and 4 for 3 years prior to the suit and from the date of suit till recovery of this share or for 3 years whichever is earlier. The quantum of the same shall be decided in the final decree proceedings." It is against the above judgment and decree that the appeal has been filed, 6. Learned counsel for the appellants Sri. The quantum of the same shall be decided in the final decree proceedings." It is against the above judgment and decree that the appeal has been filed, 6. Learned counsel for the appellants Sri. R. Bhaskaran contended that the Court below was wrong in decreeing the suit According to him, the shares of plaintiffs and first defendant were assigned to defendants 2, 3 and 4 for proper consideration and on account of the necessity felt by the coowners the properties were sold and it was for the benefit of the minors. The counsel contended that there has been no proper proof regarding the age of the minors. He further contended that in any event the alienation cannot be said to be void. It is only viodable at the instance of the minors. Here in this case even going by the case of the parties the minors have not come within three years after their attaining majority. So far as the first defendant is concerned, she became major on 26.5.1982. She has not filed a suit for declaration that the sale is not binding and in so far as the first defendant is concerned, she is not entitled to any relief. The learned counsel further contended that in any event, the plaintiffs and first defendant are bound to restore the consideration received by them under Exts.A2 and A3. It was also further contended that the defendants have made valuable improvements in the property and they are entitled to the value of the same. 7. Learned counsel appearing for the respondents 1 and 2 Sri. P.G. Rajagopalan supported the judgment and decree of the court below. He contended that no evidence has been adduced by defendant No.2 to show that Ext. A2 was supported by consideration with regard to minors. He further contended that in so far as the assignment was in violation of S.8 of the Hindu Minority and Guardianship Act, the assignment is void with regard to the shares of the minors. Evidence has been adduced by plaintiffs and first defendant to prove that they were minors at the time of the assignment deeds. Both the plaintiffs have come within three years of their attaining majority. Learned counsel appearing for the 3rd respondent contended that the first defendant had filed written statement in which she has taken the plea that the assignment deeds are not binding on her. Both the plaintiffs have come within three years of their attaining majority. Learned counsel appearing for the 3rd respondent contended that the first defendant had filed written statement in which she has taken the plea that the assignment deeds are not binding on her. With regard to item-1, it is true that she has made a contention after 12 years. But, with regard to item-2, it is within 12 years. But, the learned counsel contended that even with regard to item-1, no evidence has been adduced by the second defendant to show that he has perfected title by adverse possession especially when he is a co-owner. 8. Both sides cited certain decisions. After hearing the parties on either side, according to me, the following points arise for consideration: (i) Have the plaintiffs and first defendant proved their age to show that they were minors at the time of execution of Exhibits A2 and A3? (ii) In so far as Exts.A2 and A3 were executed without getting previous permission from the Court are the documents void or voidable with regard to the minors? (iii) Is the first defendant entitled to challenge Exts.A2 and A3 in these proceedings? (iv) Have defendants 2, 3 and 4 effected title with regard to the shares of the plaintiffs and first defendant by adverse possession and limitation? (v) Are the defendants 2 to 4 entitled to restoration of the consideration paid by them with regard to the shares of the minors? (vi) Are the defendants 2 to 4 entitled to value of improvements? 9. Point No. (i): This is with regard to the age of the plaintiffs and first defendant. The main attack was with regard to the age of the first plaintiff and first defendant. According to the appellants, the first plaintiff had completed 20 years of age when the suit was filed and the first defendant had given her age in Ext.A3 document dated 1.7.1981 as 20 years. As I already stated, no oral evidence has been adduced by defendants 2 to 4. So far as the plaintiffs and first defendant are concerned, with regard to the proof of age they have produced copies of the S.S.L.C. Book. Of the three sisters, the first defendant is the eldest, first plaintiff is the next and the second plaintiff is the youngest. So far as the plaintiffs and first defendant are concerned, with regard to the proof of age they have produced copies of the S.S.L.C. Book. Of the three sisters, the first defendant is the eldest, first plaintiff is the next and the second plaintiff is the youngest. So far as the first plaintiff is concerned, she has produced Ext.A6, the S.S.L.C. Book. It shows her date of birth as 31.3.1971. So also Ext.A7, extract of the admission register of Narippatta South L.P. School shows the date of birth of the first plaintiff as 31.3.1971. With regard to the second plaintiff, Ext.A4 is the S.S.L.C. Book, which shows her date of birth as 26.5.1974. So far as the first defendant is concerned, Ext.B1 is the S.S.L.C. book and Ext.B5 is the extract of the admission register. Both these show her date of birth as 25.5.1964. On the basis of the admission register, the Court below held that the date of birth given in the S.S.L.C. book can be accepted. The Court below relied on the decision of this Court in State of Kerala v. Jose, 1989 (1) KLT 296 , for the position that even admission registers of private schools are relevant under S.35 of the Evidence Act On the basis of the above certificates, I am satisfied that the dates of birth given in Exts.A4, A6 and B1 can be accepted as the date of birth of the second plaintiff, first plaintiff and the first defendant. No contra evidence has been adduced by the contesting defendants 2 to 4. Thus, the dates of birth of the first plaintiff is accepted as 31.3.1971, second plaintiff 26.5.1974 and first defendant 25.5.1964. 10. Point No. (ii): Exts.A2 and A3 are the registration copies of the assignment deeds. Under Ext.A2 dated 19.4.1978, the rights of plaintiffs and first defendant in item No. 1 were assigned in favour of second defendant Their rights in item No. 2 were assigned by Ext.A3 dated 1.7.1981. Going by the dates of birth given earlier, both these documents were executed at the time when they were minors, ie. when the plaintiffs and first defendant were minors. I shall deal later with the contention with regard to the statement that the first defendant was a major in Ext.A3. So far as the plaintiffs are concerned, both these documents were executed when they were minors. when the plaintiffs and first defendant were minors. I shall deal later with the contention with regard to the statement that the first defendant was a major in Ext.A3. So far as the plaintiffs are concerned, both these documents were executed when they were minors. The first plaintiff became a major on 31.3.1989 and the second plaintiff became a major on 26.5.1992. The suit was filed on 1.2.1992, ie., within three years of the first plaintiff attaining majority, while the second plaintiff continued to be a minor. Admittedly no permission was taken from the Court as envisaged under S.8(2) of the Hindu Minority and Guardianship Act. The learned counsel for the appellants contended that the alienation in violation of the direction in S.8(2) is voidable and not void. Learned counsel fairly conceded that a Division Bench of this Court in Kunhiraman v. Vanaja, ILR 1997 (3) Ker. 252has held that under S.8(3) a transaction in violation of S.8(2) is void. Learned counsel brought to my notice a decision of the Supreme Court in Divya Dip Singh v. Ram Bachan Mishra, AIR 1997 SC 1465 , and relied on the observations in Para.7 which is to the following effect: - " As a matter of fact, S.8(3) of the Hindu Minority and Guardianship Act, 1956 expressly provides that any disposal of immovable property by a natural guardian in contravention of sub-s. (1) or sub-s. (2) of S.8 is voidable at the instance of minor or any person claiming under him. Sub-s. (2) of S.8 inter alia bars the natural guardian from encumbering or selling the immovable property without the previous sanction of the Court. Under the circumstances and in view of the admitted position that the minors have not challenged the sale within three years from their attaining majority, have no right to ignore the sale as void. Further, as noticed earlier, the appellants themselves have accepted the said sale by their father by writing a letter to the Collector of Bhojpur at Arrah and requesting to collect the loan arrears advanced against the suit lands, from the purchaser/first respondent. Still further, it is again common ground that the appellants have not filed any objections to the statements published under S.9A and the scheme published under S.12 of the Act within the prescribed period. Still further, it is again common ground that the appellants have not filed any objections to the statements published under S.9A and the scheme published under S.12 of the Act within the prescribed period. All these facts, as already noted, were taken due note of by the High Court, while passing the judgment under appeal". A perusal of the above decision shows that the question whether an alienation in violation of S.8 (2) is void or voidable did not come for consideration before the Supreme Court. The Supreme Court did not consider the question whether a prayer should be made for setting aside the sale. The facts further shows that the minors after attaining majority had accepted the action of their father and they did not file any objection to the Statement published under S.9A and Scheme under S.12 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act On the other hand, it can be seen that in the decision of the Supreme Court in Sreedharan v. Prasanna - 1996 (2) KLT 784 the Supreme Court has held as follows:- "It would be obvious that since the mandatory requirement of sanction from the Court for alienating the property of the minor, as required under S.8 of the Hindu Minority and Guardianship Act, had not been obtained, the contract of sale to the extent of the half share of the minor is void and it does not bind the minor. The Courts have rightly declined to exercise discretion on sound principle of law to protect the estate of the minor". The Division Bench of our High Court mentioned supra has referred to various decisions and came to the conclusion that the alienation in violation of S.8(2) is void and it is not necessary to pray for setting aside the documents. Thus, on the basis of the above Division Bench decision, I hold that it is not necessary to set aside Exts.A2 and A3 documents and the plaintiffs can ignore the same. 11. Point No. (iii) : So far as the first defendant is concerned, she has not instituted the suit for a declaration that the documents are not binding on her. The contention of the appellants is that without filing a suit, the first defendant cannot get the relief against defendants 2 to 4. 11. Point No. (iii) : So far as the first defendant is concerned, she has not instituted the suit for a declaration that the documents are not binding on her. The contention of the appellants is that without filing a suit, the first defendant cannot get the relief against defendants 2 to 4. I am not able to accept this argument Normally it may be correct to state that a person who has lost possession should have instituted the suit to get possession within the prescribed period of time. In the present case, the plaintiffs have filed a suit for partition of their 2/5 share in the plaint items 1 and 2. In that suit, the first defendant also claimed the partition of her share in the properties. I have already held that it is not necessary to set aside a document executed in violation of S.8(2) of the Hindu Minority and Guardianship Act. It is a well known proposition that a written statement of a sharer in a partition suit is deemed as a plaint. If that be so, the first defendant can very well take up the contention in the written statement with regard to Exts.A2 and A3. But, the first defendant has to show that she is entitled to get the rights on the date on which her written statement was filed. The first defendant filed her written statement on 20.10.1992. With regard to item No.1, Ext.A2 was executed on 19.4.1978. The first defendant became a major in 1982. Admittedly more than three years have passed when she filed a written statement. Further, more than 12 years have passed from the date of executing the document. But, so far as item No.2 is concerned, Ext.A3 is dated 1.7.1981. Going by the documents produced in this case, she was only 17 years at the time when Ext.A3 was executed. Even otherwise she has come within 12 years of the date of Ext.A3. But the contention of the defendants is that in Ext.A3 her age was shown as 20 years. Hence, she cannot now contend that she was a minor. The question raised by the contesting defendants is that the claim made by the first defendant is barred by estoppal. Even otherwise she has come within 12 years of the date of Ext.A3. But the contention of the defendants is that in Ext.A3 her age was shown as 20 years. Hence, she cannot now contend that she was a minor. The question raised by the contesting defendants is that the claim made by the first defendant is barred by estoppal. But, I do not think it is necessary for me to go into this aspect because defendants 3 and 4 have not adduced any evidence to show that they were made to believe that the first defendant was a major and because of that they executed a document without permission of the Court. In the absence of evidence from defendants 3 and 4 and in the light of the evidence adduced in the Court below regarding the age of the first defendant, I do not accept the plea put forward by the appellants. Hence, according to me, the appellants cannot succeed against the claim of the first defendant to ignore Ext.A3. 12. Point No.(iv) : This point consists of two parts; one is with respect to the plaintiffs and the other is with respect to the first defendant. As already stated, Ext.A2 is dated 19.4.1978 and Ext.A3 is dated 1.7.1981. Ext.A2 is with regard to item No.1 and Ext.A3 is with regard to item No.2. The suit was instituted on 14.2.1992. With regard to the plaintiffs, it has to be found whether the defendants have effected title by adverse possession and limitation. So far as item No.1 concerned, Ext.A1 is dated 19.4.1978. The 12 years period would expire on 19.4.1990. The second plaintiff was a minor even in the date of suit. No question of the bar of limitation arises when the person against whom it is claimed is a minor at the time of the institution of the suit - Keshav Lal v. Amar Chand, AIR 1933 Bombay 398. The first plaintiff became a majoron31.3.1989. Going by S.8 of the Limitation Act, she is entitled three years from the date of attaining majority. Hence, on any ground, it cannot be said that the second defendant had perfected title by adverse possession with regard to item No.1 in respect of the shares of plaintiffs 1 and 2. So far as item No.2 is concerned, Ext.A3 was executed on 1.7.1981. The 12 years period will be expiring only in 1993. Hence, on any ground, it cannot be said that the second defendant had perfected title by adverse possession with regard to item No.1 in respect of the shares of plaintiffs 1 and 2. So far as item No.2 is concerned, Ext.A3 was executed on 1.7.1981. The 12 years period will be expiring only in 1993. Hence, here also there is no question of any adverse possession. Hence I hold that defendants 2 to 4 have not perfected title by adverse possession with regard to plaint item Nos.1 and 2 in respect of the shares of the plaintiffs. 13. The next question is whether defendants 2 to 4 have perfected title by adverse possession against the share of first defendant. I have already stated that so far as the first defendant is concerned, the date of limitation is to be ascertained as on 28.10.1992 when the first defendant filed her written statement. The date of birth of the first defendant is 25.5.1964. Ext.A2 is dated 19.4.1978 and Ext.A3 is dated 1.7.1981. Going by the above dates, 12 years period had expired with regard to item No. 1 on 19.4.1990, that is before the written statement was filed. The first defendant became a major on 25.5.1982 and even the three years period had also expired. Hence, according to me, with regard to item No.1 the case of the first defendant in respect of adverse possession has to be accepted. So far as item No.2 is concerned, Ext.A3 is dated 1.7.1981. So the 12 years period had expired only in 1993. Before that the written statement was filed. Hence with regard to item No.2, it cannot be said that defendants 3 and 4 have perfected title by adverse possession. 14. Learned counsel for the first defendant/third respondent submitted that since the parties were coowners, unless there is strict proof of ouster, it cannot be inferred that the second defendant had perfected title by adverse possession. The case of the first defendant is that it is to be assumed that possession of the second defendant was as a coowner. But this cannot be accepted. As soon as the second defendant got Ext.A2 document, he was enjoying the property as though it belongs to him absolutely. The entire rights of the plaintiff and the first defendant were sold. The question whether the sale was valid or not is a different question. But this cannot be accepted. As soon as the second defendant got Ext.A2 document, he was enjoying the property as though it belongs to him absolutely. The entire rights of the plaintiff and the first defendant were sold. The question whether the sale was valid or not is a different question. It cannot be denied that from the date of Ext.A2 the second defendant was enjoying item No.1 as though it belongs to him absolutely. It was held by the Madras High Court in Seetharamaraju v. Subharaju, AIR 1922 Madras 12-that S.8 of the Limitation Act controls S.6 and that nothing in S.6 and 7 shall be deemed to extend for more than three years from the cessation of disability, the period of any suit or application. The effect of S.6 is that a person under disability may sue after cessation of disability in the same period as prescribed under the schedule and S.8 adds a proviso that in no case can the period be extended to anything beyond three years from the date of cessation of disability. Similar views have been taken by the Nagpur and the Bombay High Courts. In Darshan Singh v. Gurdev Singh, (1994) 6 SCC 585 the Supreme Court considered a similar question and it was held thus: "The suit of the respondent is barred by limitation. S.8 is a proviso to S.6 or 7. A combined effect of S.6and 8 read with third column of the appropriate article would be that a person under disability may sue after cessation of disability within the same period as would otherwise be allowed from the time specified therefore in the third column of the schedule. But special limitation as an exception has been provided in S.8 laying down that extended period after cessation of the disability would not be beyond three years from the date of cessation of the disability or death of the disabled person. Thus S.8 is a special exception to S.6 or 7 and the period of limitation though barred under S.3, remained available to persons under disability specified in S.6 or 7 and the right to lay the suit or application after disability ceased under S.6 or 7 is regulated by the limitation prescribed by S.8. Thus S.8 is a special exception to S.6 or 7 and the period of limitation though barred under S.3, remained available to persons under disability specified in S.6 or 7 and the right to lay the suit or application after disability ceased under S.6 or 7 is regulated by the limitation prescribed by S.8. In each case the litigant is entitled to a fresh starting period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under S.6 or 7 shall exceed three years from the date of cessation of the disability". It was further held as follows "Take a third case, where the cause of action had arisen to a minor when he was at the age of 4 years. During his minority, the 12 years' prescriptive period expired by efflux of time at his attaining 16 years but on his becoming major, his disability ceases. Therefore, he gets a further period of three years from the date of cessation of disability to file a suit for recovery of the possession from the defendant who claims adverse possession to the plaintiff". The above decision was followed by the Supreme Court in Bailochan Koran v. Basant Kumari Naik & Anr- (1999) 2 SCC 310 . It is not in dispute that adverse possession can be effected against minor. The only additional benefit that is given to the minor is that he gets an additional period of three years after attaining majority. But so far as the first defendant is concerned, she became a major in 1982 and the 12 years period expired in 1990. There is no evidence to show that the second defendant was enjoying the property on behalf of the first respondent also. Hence, I hold that the second defendant has effected title by adverse possession with regard to the shares of first defendant in plaint item No.1. But so far as item No.2 is concerned, since the period of 12 years is not over, the claim of adverse possession by defendants 3 and 4 is rejected. 15. Point No.(v): With regard to point No.(v), learned counsel for the appellants brought to my notice certain decisions to the effect that the appellants are entitled to get back the consideration paid by them for the purchase of the share of the minors. 15. Point No.(v): With regard to point No.(v), learned counsel for the appellants brought to my notice certain decisions to the effect that the appellants are entitled to get back the consideration paid by them for the purchase of the share of the minors. But, in this case, the case of the plaintiffs and first defendant is that they did not derive any benefit and no consideration was paid to them. There is no contra evidence. Hence, this point is found against the appellant. 16. Point No.(vi): This point is with regard to value of improvements. The Court below has rejected this claim. But, this was negatived on the basis that the assignments are not valid and binding on the plaintiffs and first defendant. Learned counsel brought to my notice a Full Bench decision of this Court in Augusty Devasia v. Haridasan Nair, 1998 (2) KLJ 46 . In that case, the interpretation of S.2(d)(iii) of the Kerala Compensation for Tenants Improvements Act 29 of 1958 came into consideration. According to S.2(d)(iii) the person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements is a "tenant". The Full Bench held that : "Whatever be the reason for avoiding a sale deed whether as a document which is voidable at the instance of one of the parties or as a document which was inherently void due to any defect in the title or lack of title at all of the transferrer or due to any other vitiating factor like the one in the present case, the transferee will be a person who have come into possession of the land belonging to another pursuant to the transaction. While making improvements thereon, whether he was labouring under a bona fide belief that he is entitled to do so, is a matter to be decided on the facts of each case. While deciding that issue, the reasons for avoiding the sale deed either as a void one or as a voidable one may be relevant. While making improvements thereon, whether he was labouring under a bona fide belief that he is entitled to do so, is a matter to be decided on the facts of each case. While deciding that issue, the reasons for avoiding the sale deed either as a void one or as a voidable one may be relevant. But it cannot be held that in all cases where the transferee who finds out later that the transferor had no title whatsoever to pass on to him under the document, will not be entitled to claim compensation for value of improvements as a tenant coming under clause (iii)." In view of the decision of the Full Bench, defendant No.2 will be entitled to value of improvements made by him in item No.1 and defendants 3 and 4 in item No.2. The actual value of improvements will be adjudged in the final decree proceedings. In the above view of the facts, the judgment and decree of the Court below are modified as follows: (i) There will be a preliminary decree for partition with regard to items 1 and 2. But with regard to item No.1, the first defendant will not be entitled to any share. Plaintiffs will be entitled to 2/5th shares and the second defendant will be entitled to the balance 3/5 shares. The second defendant will be entitled to value of improvements made by him in item No.1 with regard to the share allotted to plaintiffs 1 and 2 in the final decree. (ii) With regard to item No.2, the plaintiffs, first defendant and defendants 3 and 4 are entitled to the same share as allotted by the Court below subject to the condition that defendants 3 and 4 will be entitled to the value of improvements made by them in the share to be allotted to plaintiffs and first defendant in the final decree proceedings. The decree with regard to mesne profits passed by the Court below is confirmed with regard to item No.2. But with regard to item No.1, the first defendant is not entitled to any mesne profits. The decree with regard to cost is also confirmed. There is no order as to costs in the appeal.