Judgment

AYYANGAR, J.:

This is an appeal by a certificate granted by the High Court of Allahabad under Art.133 (1)(b) of the Constitution and represents, and that is our hope, the last stage of a litigation which has lasted over forty years between the deceased respondent -- Shyam Sundari - and Mata Din, the father of the appellants.

2. The following facts are necessary to be stated in order to appreciate the very short point that arises for consideration in this appeal. The father of Shyam Sundari - the deceased respondent was one Babu Har Charan Lal. He was the owner along with his two brothers - Kanhaiya Lal and Sheo Narain, for plots 599 and 600 situated in Sisamau in Kanpur on which there existed certain petty constructions. The three brothers were separated in interest and were each entitled to a third share. Babu Har Charan Lal died in December, 1915 leaving behind him surviving his widow -- Tulsa Kunwar and an only daughter ---- Shyam Sundari. Tulsa Kunwar died on June 6, 1919 but even before her death Kanhaiya lal and Sheo Narain the two brothers of her husband, claiming a full interest in those plots, sold them to Lal Mata Din, the father of the appellants by two registered deeds of sale for Rs. 7,000/- on the footing that each was entitled to a half share, ignoring the rights of Tulsa Kunwar who was admittedly no party to that transaction of sale. After the death of Tulsa Kunwar, Shyam Sundari made a claim against the purchaser for her third share in the property as the heir of her father, but as this was denied to her, she filed in March, 1922 a suit numbered as 20 of 1922 in the Court of the Second Subordinate Judge, Kanpur for the recovery of possession of her third share in these two plots.

3. But before this suit was filed certain matters transpired between Mata Din and the Kanpur Improvement Trust which have to be referred to because the agreement entered on December 15, 1921 into between the Improvement Trust and Mata Din as a result of these negotiations and the steps taken by Mata Din in consequence thereof are relied on by learned Counsel for the appellant in support of the contentions raised by him in the appeal. It appears that there was a proposal for the acquisition of these plots by the Kanpur Improvement Trust, that the proposed acquisition was objected to by Mata Din and that the proposal was abandoned by the Improvement Trust as a result of the agreement entered into by Mata Din whereby he agreed to convey to the Trust 895.35 sq, yd. of land free of cost, in lieu of the betterment contribution, and also agreed to construct on the remaining part of the premises, shops and houses in accordance with plans approved by the Improvement Trust. The relevance of this agreement and of the constructions effected by Mata Din in pursuance of the agreement we shall reserve for consideration later.

4. The principal defence of Mata Din to the suit 20 of 1922 was based on the allegation that Har Charan Lal was joint in status and in interest with his two brothers and that on the former s death without male issue the family property survived to the other two brothers. The trial Court found against the plaintiff-Shyam Sundari on this issue and dismissed her suit. She filed an appeal to the High Court and the learned Judge allowed her appeal. At the stage of the hearing of the appeal a claim was made by Mata Din that he was entitled to compensation for the buildings erected by him on the ground that he had effected improvements to the property (these being the shops and houses which he undertook to construct under the agreement with the Improvement Trust) bona fide and he rested his case in this regard on the terms of S. 51 of the Transfer of Property Act. The learned Judges, however, disallowed this claim for compensation. The claim to compensation for improvements effected had not been raised in the pleadings, nor urged in the trial Court and the learned Judges observed :

"No definite allegation of improvement of the pro