MISHRA AND S. ABDUL NAZEER, JJ.] versus SARAH C. URS & ORS. on 24 October 2019

[2019] 13 S.C.R. 1069

SIRDAR K.B. RAMACHANDRA RAJ URS. (DEAD)THROUGH LRS.

v.

SARAH C. URS & ORS.

(Civil Appeal No.6049 of 2007)

OCTOBER 24, 2019

[ARUN MISHRA AND S. ABDUL NAZEER, JJ.]

Estoppel – When not attracted – Suit property let out to plaintiffno.2 by the late father of defendant no.1 and defendant no.1 –Father of defendant no.1, represented by defendant no.1 as powerof attorney, entered into an agreement to sell with the plaintiffs forRs.1,50,000/- out of which Rs.1,00,000/- was received on the sameday – Plaintiffs continued to have the possession of suit property inpart performance of the agreement and stopped paying rent –Defendant no.1 received the balance sale consideration fromplaintiff no.2 and undertook to execute the deed of conveyance –Defendant no.1 was postponing to execute the registered sale deed– Suit filed seeking specific performance – Trial court decreed thesuit – Affirmed by the High Court – Plea of defendants-appellantsthat the agreement was with the father of defendant no.1 and notwith defendant no.1 who did not execute agreement of his shareand thus, the suit could not have been decree in toto – Held: Barereading of the agreement makes it clear that the “Vendors” was latefather of the defendant no.1 and not defendant no.1 – Defendantno.1 acted as power of attorney – Said position may indicate thatplaintiffs were misled that only father of defendant no.1 was theexclusive owner of the property – However, the statement of plaintiffno.2 clearly indicates that he was well aware of the fact that theproperty devolved upon, in equal shares and that it was a jointfamily property – Ownership of the defendant no.1 was known tothe plaintiffs and in spite of that they did not set up the case to bindhis share – They did not plead in the plaint that defendant no.1owned the property – In the plaint, the plaintiffs did not take theplea of estoppel and now the case was set up that property hadbeen sold by defendant no.1 in his capacity – In view of theagreement and the admission made by the plaintiffs, decree passed

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Aby the courts below modified to the extent of 50 per cent of theshares of the late father of defendant no.1 and is set aside withrespect to the remaining ½ share of the defendant no.1 – Trial courtto divide the property in two equal proportions and it be given tothe parties – Hindu Succession Act, 1956 – s.15 – Income Tax Act,1961 – s.230-A.B

Disposing of the appeals, the Court

HELD: 1.1 The concurrent findings are recorded as toreceipt of consideration and execution of the agreement to sell.There is no doubt about it that Plaintiff No.2 was earlier a counselCand legal advisor to father of defendant no.1, but when theagreement had been executed, he was not a lawyer and became aJudge of the High Court. There are concurrent findings recordedconcerning the execution of the agreement, and it has been rightlyfound established that signatures were not obtained on blankpapers. There is concurrent finding recorded by the courts belowDthat consideration has been paid. Thus, no case for interferenceis made out in the aforesaid findings. The courts below have foundthat correspondence was made by defendants No.1 to obtainIncome Tax clearance. The suit has been held not to be barredby limitation. Given the facts and material placed on record, noEinterference is called for with those findings also. [Paras 16,17][1076-A-C]

1.2 A bare reading of the agreement makes it clear thatagreement is between late father of defendant no.1 through powerof attorney, Defendant No.1. The “Vendors” is mentioned as lateFfather of defendant no.1 and not defendant no.1. Thus, it cannotbe said that defendant no.1 had executed the agreement on hisbehalf, concerning his share in the property. There is no whisperabout the same in the agreement. The position mentioned abovemay indicate that plaintiffs were misled by the Power of Attorneyholder that only late father of defendant no.1 was the exclusiveGowner of the property. When the statement of Plaintiff No.2 isconsidered it clearly indicates that he was well aware of the factthat Princess Leelavathi owned the property and upon her deaththe property devolved upon, in equal shares and he was aware ofthe other sale deeds executed (Exhs. P 43, P-44, P-45, P-46). ItHis clear that plaintiff No.2 was aware as to the extant title of defendant no.1 in the property and also the fact that it was a jointfamily property. In the plaint, the plaintiffs have not taken theplea of estoppel, and now the case was set up that property hadbeen sold by defendant no.1 in his capacity without any such pleain the plaint. Thus, plaintiff No.2 was well aware of the fact as tothe title of defendant no.1 in the property and that late father ofdefendant no.1 did not exclusively own the property. [Paras20][1079-A-D]

1.3 There was no possibility of erroneous beliefs in the mindof the plaintiffs as to title position in the property. No doubt aboutit that defendant No.1 acted as a power of attorney, but at thesame time, did not act in his capacity as the owner of the property.The ownership of defendant no.1 was known to the plaintiffs. Inspite of that the plaintiffs have not set up the case to bind hisshare. They have not pleaded in the plaint that defendant no.1owned the property. There is no whisper as to his title in theplaint. They needed to plead the facts to attract the plea ofestoppel. That has not been done. Thus, the agreement whichhad been executed was not concerning share of defendant No.1,but of his late father as his power of attorney. [Paras 22][1081-F-G]

1.4 In view of the agreement and the admission made bythe plaintiffs, it is appropriate to modify the decree passed by thecourts below to the extent of 50 per cent of the shares of thedeceased late father of defendant no.1 and to set it aside withrespect to the remaining ½ share of defendant No.1 in theproperty, since the property devolved under section 15 of theHindu Succession Act, 1956. The plaintiffs to be entitled only tothe extent of ½ share in the suit property. The decree to theremaining extent is set aside. The plaintiffs would not be entitledto refund of any consideration as by now the worth of propertyhas increased manifold. The trial court to divide the property intwo equal proportions and it be given to the parties. The divisionbe carried out within four months by the Trial Court.[Paras 23-25][1081-H; 1082-A-C]

R.S. Madanappa (deceased) v. Chandramma & Anr.AIR 1965 SC 1812 : [1965] SCR 283 – relied on.

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ACase Law Reference

[1965] SCR 283

relied onPara 18

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6049of 2007.

BFrom the Judgment and Order dated 13.08.2007 of the High Courtof Karnataka at Bangalore in R.F.A. No. 143 of 2000.

With

Civil Appeal No. 6050 of 2007.

A. K. Ganguli, V. Krishnamurthy, Sr. Advs., T. Harish Kumar,CYuthister Singh, Navneet Dugar, Parijat Sinha, Advs. for the Appellants.

Jaideep Gupta, Sr. Adv., Ms. Anushree Menon, Vikas Mehta,Abhishek, Advs. for the Respondents.

The Judgment of the Court was delivered byDARUN MISHRA, J.

1. The appeals are preferred against the judgment and order dated13.8.2007 passed by the High Court, affirming the judgment and orderof the trial court decreeing the suit filed by the plaintiff for specificperformance of an agreement of sale.

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2. The plaintiffs filed the suit concerning suit scheduled propertyinherited by Princess Leelavathi, wife of late K. Basavaraja Urs. Shehad adopted the defendant No.1 and died during the year 1958-59. Thesuit scheduled property along with adjoining properties devolved on lateK. Basavaraja Urs, father of K.B. Ramachandra Raj Urs, defendantFNo.1, in terms of section 15 of the Hindu Succession Act, 1956. ThePlaintiff Nos.1 and 2 were the close relatives and friend of the family oflate K. Basavaraja Urs and the 2[nd] plaintiff apart from being a closerelative and friend of Defendant No.1, was also a Legal Advisor andAdvocate of late K. Basavaraja Urs.

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G3. The property was let out to plaintiff No.2 in the year 1969 bylate K. Basavaraja Urs and defendant No.1. Late K. Basavaraja Ursand defendant No.1 sold the adjoining property to various persons videregistered sale deeds. Late K. Basavaraja Urs offered to sell the suitscheduled property to the plaintiffs. On 24.4.1979, late K. BasavarajaUrs, represented by his son, i.e., defendant No.1 as power of attorney,H

entered into an agreement to sell with the plaintiffs for a considerationof Rs.1,50,000/- out of which a sum of Rs.1,00,000/- was received onthe same day. The defendant No.1 agreed to obtain a clearance certificateunder section 230-A of the Income Tax Act as also under the provisionsof the Urban Land Ceiling Act. The plaintiffs continued to have thepossession of suit property in part performance of the agreement dated24.04.1979 and stopped paying rent.

4. The defendant No.1 always ensured the plaintiffs to executethe registered sale deed in terms of suit agreement after obtaining aclearance certificate from the Income Tax Department and under theUrban Land Ceiling Act. On 1.6.1993, defendant No.1 received thebalance sale consideration of Rs.50,000/- from 2[nd] plaintiff and executeda stamped receipt in favour of the plaintiffs with an undertaking to executethe deed of conveyance.

5. The defendant No.1, made the correspondence with the IncomeTax Department to obtain the Income Tax clearance. However, the needto seek permission under the Urban Land Ceiling Authority vanished asper the decision of this Court concerning section 27 of the said Act asdefendant No.1 was postponing to execute the registered sale deed onone pretext or the other. A legal notice dated 5.6.1990 was served, andafter that, the suit had been filed on 19.9.1990 seeking specificperformance.

6. Defendant Nos.1, 2, and 4 in their written statements contendedthat the 2[nd] plaintiff claimed to be a close relative of late K. BasavarajaUrs. He was his lawyer and self-assumed trustee. He obtained thesignatures of defendant no.1 on blank papers, which has been misusedby the 2[nd] plaintiff to create the agreement in question dated 24.4.1979.It was assured that agreement was obtained as a collateral document tosecure professional charges, which, according to the plaintiff, remainedunpaid.

7. The defendants denied the receipt of the sale consideration on24.4.1979 and 1.6.1993 and also the subsequent correspondence betweenplaintiff No.2 and defendant No.1 and his Tax Consultant. The 2[nd] plaintiffwas never permitted to put up construction on the property by thedefendant No.1. After the demise of Princess Leelavathi, the suit propertydevolved on late K. Basavaraja Urs and defendant No.1. The 1[st] defendanthas not conveyed his interest in the suit property in favour of plaintiffs.

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ADefendants contended that no agreement was entered into with theplaintiffs. The suit is barred by time.

8. Defendant No.5, in his written statement, took the plea that theproperty being ancestral could not have been sold by defendant No.1 tothe detriment of the 5[th] defendant. There was no legal necessity to sellBthe property.

9. The trial court decreed the suit and recorded a finding that theagreement has been executed on 24.4.1979. The defendant No.1 hasadmitted his signatures on the suit agreement dated 24.4.1979 and receiptdated 1.6.1983. Defendant No.1 for himself and as a power of attorneyCholder of late K. Basavaraja Urs, executed the suit agreement and,therefore, he cannot be permitted to contend that he is not a party to thesuit agreement in his individual capacity. They were required to obtainan income tax clearance certificate and after that to execute the registeredsale deed, in which they have failed. Late K. Basavaraja Urs ownedvast landed and house properties at Bangalore and Mysore. They wereDstatutorily bound to obtain a clearance certificate from the Income TaxDepartment, and as they failed to obtain it, they cannot be permitted tocontend that suit is barred by limitation. The High Court has affirmedthe findings of the trial court.

10. The High Court has disbelieved the case set up by defendantENo.1 that he had put his signatures on blank paper. Plaintiff No.2 wasappointed as Judge of the High Court during September 1978; therefore,on 24.4.1979, there was no fiduciary relationship between them. Plaintiffshave also produced the original stamped receipt dated 1.6.1983 (ExhibitP-19) admitting the receipt of remaining Rs.50,000 by defendants No.1in which a sum of Rs.42,000 was paid in cash and Rs.8,000 was paid byFcheque. Defendant No.1 had admitted his signatures on Exh. P-19.Defendant No.1 also admitted that he had encashed the cheque. Theplea of the 1[st] defendant is false and thus cannot be accepted. The HighCourt has also referred to the order passed by the Income Tax AppellateTribunal wherein the claim of 2[nd] plaintiff for exemption of Rs.50,000under the Income Tax Act, paid to 1[st] defendant towards the remainingGsale consideration was allowed in terms of section 54(F) of Income TaxAct.

11. The High Court has further found that the defendant has takenan inconsistent and contrary stand. The defendant was visiting 2[nd] plaintiffall along insisting on obtaining Income Tax Clearance Certificate, whichH

was postponed by the defendant No.1 on one pretext or the other. Theconsideration has been paid under the agreement dated 24.4.1979.

12. The High Court has found that defendant No.1 has executedthe agreement not only as power of attorney for his father but also as ason of late K. Basavaraja Urs. The stand of defendant No.1 is inconsistent.Defendant No.1, allowed the plaintiffs to put up the construction in thesuit property. Thus, he was precluded from contending that he was not aparty to the agreement. The High Court has also held that defendantNo.1 has entered into the agreement and the entire consideration hasbeen received, it is not considered appropriate to grant the liquidateddamage or penalty for the breach of contract. The High Court has alsoheld that the property was held by Princess Leelavathi, wife of lateK. Basavaraja Urs, and after her death, the suit property devolved onlate K. Basavaraj Urs and defendant No.1 under section 15 of HinduSuccession Act, 1956.

13. It was submitted by the learned counsel appearing on behalfof the appellants that plaintiff No.2, M.P. Chandrakanta Raj Urs, waselevated as Judge of the High Court. Earlier, he was the Legal Advisorof the late K. Basavaraja Urs. Thus, he could not have purchased theproperty. The agreement was not duly executed, and the suit was barredby limitation. The findings have been recorded that property was inheritedby K.B. Ram Chandra Raj Urs, i.e., defendant No. 1 from PrincessLeelavathi. The agreement was with late K. Basavaraja Urs and notwith defendant No.1. Defendant No.1 did not execute agreement of hisshare. The Courts below erred in decreeing the suit in toto. The suitcould have been decreed to the extent of the shares of the lateK. Basavaraja Urs.

14. Learned senior counsel appearing on behalf of the respondentshas supported the judgment and decree passed by the courts below. It isfurther submitted that no case for interference is made out in the appealsgiven the concurrent findings of facts recorded by the courts below. Theappeals deserve to be dismissed.

15. We deem it appropriate to place on record that learned counselfor the parties had taken time to file the compromise, if reached. Wehave been informed that no compromise could be arrived at betweenthe parties. Be that as it may. We proceed to decide the appeals onmerits.

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A16. The concurrent findings are recorded as to receipt ofconsideration and execution of the agreement to sell. There is no doubtabout it that M.P. Chandrakanta Raj Urs (Plaintiff No.2) was earlier acounsel and legal advisor to K. Basavaraja Urs, but when the agreementhad been executed, he was not a lawyer and became a Judge of theHigh Court. There are concurrent findings recorded concerning theBexecution of the agreement, and it has been rightly found establishedthat signatures were not obtained on blank papers. There is concurrentfinding recorded by the courts below that consideration has been paid.Thus, no case for interference is made out in the aforesaid findings.

17. The courts below have found that correspondence was madeCby defendants No.1 to obtain Income Tax clearance. The suit has beenheld not to be barred by limitation. Given the facts and material placedon record, no interference is called for with those findings also.

18. Learned senior counsel submitted that agreement to sell dated24.4.1979 was between “late K. Basavaraja Urs and “Smt. SarahDC. Urs’, wife of M.P. Chandrakantaraj Urs and P. Chandrakantaraj Urs,son of Late R. Putturaj Urs”. There was no dispute concerning ½ shareof K.B. Ram Chandra Raj Urs, which he had inherited from PrincessLeelavathi. Thus, the suit could not have been decreed in toto; it couldhave been decreed only to the extent of the share of late K. BasavarajaEUrs in the property. In support of his contention, he has relied upon thedecision of this Court in R.S. Madanappa (deceased) v. Chandramma& Anr., AIR 1965 SC 1812.

19. The statement of plaintiff No. 2 has been pointed out, indicatingthat he was aware that there were equal shares of K. Basavaraja UrsFand K. B. Ramchandra Raj Urs (defendant No.1) in the property. Thus,plaintiff No.2 cannot plead that they were induced by erroneous beliefwhile entering into agreement, by the conduct of defendant No.1. Theplea of estoppel is, thus, not attracted. There is no proper foundation inthe pleading regarding the plea of estoppel. The submission raised bylearned counsel on behalf of respondent is that defendant No.1 acted asGpower of attorney holder of his father and received the sale considerationalso. As such he is bound by the plea of estoppel to contend to thecontrary.

20. It is necessary to consider the agreement. The agreement isextracted hereunder:H

“THIS AGREEMENT TO SELL is made on 24[th] day of April1979 BETWEEN SRI K. BASAVARAJ URS, son of LateSri Muddaraj Urs, aged about 84 years, residing at 1-A (old No.5),Palace Road, Bangalore – 560 001 (hereinafter referred to as the“VENDOR” which expression shall unless the context otherwiserequired include the heirs, assigns, administrators, successors andlegal representatives of the VENDOR) of the one part ANDSMT. SARAH C. URS, the wife of Sri M.P. ChandrakantarajUrs and SRI P CHANDRAKANTARAJ URS, son of late Sri RPutturaj Urs, residing at 1B Palace Road, Bangalore – 560001,(hereinafter called the “PURCHASERS” which expression shallunless the context otherwise requires to include their heirs, assigns,administrators, successors and legal representatives of the otherpart.

WHEREAS the VENDOR is the absolute owner of theproperty at 1B, Palace Road, Bangalore – 560001, an whereasthe VENDOR is desirous of disposing of the said house togetherwith the plot of land, fixtures, fittings, etc. of Rs.1,50,000/- (RupeesOne Lakh Fifty Thousand only) and the PURCHASERS areagreeable to buy the same at the said price.

NOW THEREFORE, THIS DEED/ WITNESSETH ASFOLLOWS:

(1) That the VENDOR shall free from encumbrances the saidproperty situated at q-B Palace Road, Bangalore – 560 001,and the PURCHASER shall buy the same at the said pricesand on the conditions hereinafter mentioned;

(2) That the said property consists of a single-storeyed housewith the following boundaries:- On the EAST: No.1-C

On the WEST: Vacant land of VENDOR

On the NORTH: Storm Drain

On the SOUTH: By Common Road

(3) That the consideration of the house shall be payable asfollows:- AB

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1078SUPREME COURT REPORTS

AA sum of Rs.1,00,000/- (Rupees One Lakh Only) paid on thedate of this agreement and the balance of Rs.5,40,000/-(Rupees Fifty Thousand only payable on or before 23.4.1984.

(4) The VENDOR has delivered possession of the house, whichis the subject matter of this agreement to the PURCHASERSBon this day.

(5) This agreement shall subject to permission, express or implied,being granted under the Urban Land (Ceiling and Regulation)Act. In the event such permission is not granted, the advanceof Rs.1,00,000/- (Rupees One Lakh only) paid shall beCrefunded to the PURCHASERS by the VENDOR:

(6) That in the event of the sale not materializing through thedefault of the VENDOR, the amount of Rs.1,00,000/- (RupeesOne Lakh Only) shall be refunded to the PURCHASERSwith interest at 10 percent per annum from the date hereof tothe date of refund; D

(7) That in the event of the sale not materializing through thedefault of the PURCHASERS, 10 percent of theconsideration money shall be forfeited as earnest money andthe balance refunded by the VENDOR to thePURCHASERS out of the advance of Rs.1,00,000/-E(Rupees One lakh only) received by the former;

(8) VENDOR or his Power of Attorney shall cause all licencesetc., to be sanctioned for any additions or alterations to bemade to the premise before the actual transfer of title in termsof this agreement.

FIN WITNESS where of the parties have set their hands theday and the year first above mentioned.

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WITNESSES:

1. Sd/-2. Sd/- PURCHASERS”

Sd/-SELLER

A bare reading of the agreement described above makes it clearthat agreement is between late K. Basavaraja Urs through power ofattorney, K.B. Ramchandra Raj Urs. The “Vendors” is mentioned asK. Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannotbe said that K.B. Ramchandra Raj Urs had executed the agreement onhis behalf, concerning his share in the property. There is no whisperabout the same in the agreement. The position mentioned above mayindicate that plaintiffs were misled by the Power of Attorney holder thatonly late K. Basavaraja Urs was the exclusive owner of the property.When we consider the statement of M.P Chandrakanta Raj Urs (PlaintiffNo.2), it clearly indicates that he was well aware of the fact that PrincessLeelavathi owned the property and upon her death the property devolvedupon, in equal shares and he was aware of the other sale deeds executed(Exhs. P 43, P-44, P-45, P-46). It is clear that plaintiff No.2 was awareas to the extant title of K.B. Ram Chandra Raj Urs in the property andalso the fact that it was a joint family property. In the plaint, the plaintiffshave not taken the plea of estoppel, and now the case was set up thatproperty had been sold by defendant No.1 in his capacity without anysuch plea in the plaint. Thus, plaintiff No.2 was well aware of the fact asto the title of K.B. Ramchandra Raj Urs in the property and that lateK. Basavaraja Urs did not exclusively own the property.

21. The plea of estoppel in view the decision of this court in R.S.Madanappa (deceased) v. Chandramma & Anr., (supra) is notattracted, in which the Court has held that estoppel by conduct could notarise when a person concerned knew the right position relating to thetitle in property in his possession, he could not plead that he was inducedto hold an erroneous belief because of the conduct of real owner of thatproperty. This court has observed thus:

“6. We will consider the question of estoppel first. The conduct ofthe first defendant from which the learned counsel wants us todraw the inference of estoppel consists of her attitude when shewas served with a notice by the plaintiff, her general attituderespecting Bangalore properties as expressed in the letter dated17th January 1941, written by her to her stepmother and theattestation by her and her husband on 3rd October 1944, of thewill executed on 25th January 1941 by Maddanappa. In the noticedated 26th January 1948, by the plaintiff’s lawyer to the firstdefendant it was stated that the plaintiff and the first defendant AB

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were joint owners of the suit properties which were in possessionof their father and requested for the cooperation of the firstdefendant in order to effect the division of the properties. A copyof this notice was sent to Maddanappa, and he sent a reply to it tothe plaintiff’s lawyers. The first defendant, however, sent no replyat all. We find it difficult to construe the conduct of the firstdefendant in not replying to the notice and is not cooperating withthe plaintiff in instituting a suit for obtaining possession of theproperties as justifying the inference of estoppel. It does not meanthat she impliedly admitted that she had no interest in the properties.It is true that in Ex. 15, which is a letter sent by her on 17thJanuary 1941, to her stepmother she has observed thus:

“I have no desire whatsoever in respect of the propertieswhich are at Bangalore. Everything belongs to my father.He has the sole authority to do anything…. We give ourconsent to anything done by our father. We will not doanything.”

But even these statements cannot assist the appellants becauseadmittedly, the father knew the true legal position. That is to say;the father knew that these properties belonged to Puttananjammaand that he had no authority to deal with these properties. Nodoubt, in his written statement, Maddanappa had set up a casethat the properties belonged to him by virtue of the declarationmade by Puttananjamma at the time of her death, but that casehas been negatived by the courts below. The father’s possessionmust, therefore, be deemed to have been, to his knowledge, onbehalf of the plaintiff and the first defendant. There was thus nopossibility of an erroneous belief about his title being created inthe mind of Maddanappa because of what the first defendant hadsaid in her letter to her stepmother.

7. Insofar as the attestation of the will is concerned, the appellants’position is no better. This “will” purports to make a disposition ofthe suit properties along with other properties by Maddanappa infavour of Defendants 3 to 8. The attestation of the will by the firstdefendant and her husband, would no doubt affix them with theknowledge of what Maddanappa was doing, but it cannot operateas estoppel against them and in favour of Defendants 3 to 8 oreven in favour of Maddanappa. The will could take effect only upon the death of Maddanappa and, therefore, no interest in theproperty had at all accrued to Defendants 3 to 8, even on the dateof the suit. So far as Maddanappa is concerned, he, as alreadystated, knew the true position and, therefore, could not say that anerroneous belief about his title to the properties was created in hismind by reason of the conduct of the first defendant and herhusband in attesting the document. Apart from that, there is nothingon the record to show that by reason of the conduct of the firstdefendant Maddanappa altered his position to his disadvantage.

8. Mr. Venkatarangaiengar, however, says that subsequent to theexecution of the will, he had effected further improvements in theproperties and for this purpose, spent his own moneys. Accordingto him, he would not have done so in the absence of assurancelike the one given by the first defendant and her husband to theeffect that they had no objection to the disposition of the suitproperties by him in any way he chose to make it. The shortanswer to this is that Maddanappa, on his own allegations, wasnot only in possession and enjoyment of these properties eversince the death of Putananjamma but had made improvements inthe properties even before the execution of the will. In thesecircumstances, it is clear that the provisions of Section 115 of theIndian Evidence Act, which contain the law of estoppel byrepresentation, do not help him.”

22. Thus, it is clear that there was no possibility of erroneousbeliefs in the mind of the plaintiffs as to title position in the property. Nodoubt about it that defendant No.1 has acted as a power of attorney, butat the same time, did not act in his capacity as the owner of the property.The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs.In spite of that the plaintiffs have not set up the case to bind the share ofK.B. Ramchandra Raj Urs. They have not pleaded in the plaint thatK.B Ramchandra Raj Urs owned the property. There is no whisper asto the title of K.B. Ramchandra Raj Urs in the plaint. They needed toplead the facts to attract the plea of estoppel. That has not been done.Thus, the agreement which had been executed was not concerning shareof defendant No.1, but of late K. Basavaraja Urs as his power of attorney.

23. In view of the agreement and the admission made by theplaintiffs, we are of the opinion that it would be appropriate to modifythe decree passed by the courts below to the extent of 50 per cent of the A

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Ashares of the deceased late K. Basavaraja Urs and to set it aside withrespect to the remaining ½ share of K.B. Ramchandra Raj Urs(defendant No.1) in the property, since the property devolved undersection 15 of the Hindu Succession Act.

24. Thus, we hold that the plaintiffs to be entitled only to the extentBof ½ share in the suit property. The decree to the remaining extent is setaside. The plaintiffs would not be entitled to refund of any considerationas by now the worth of property has increased manifold.

25. We direct the trial court to divide the property in two equalproportions and it be given to the parties. Let the division be carried outCwithin four months by the Trial Court. The appeals are allowed to theextent mentioned above. No costs.

Divya Pandey

Appeals disposed of.

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