Horwill, J. -
(1.) THE property now in dispute originally belonged to one Venkatachalam, who conveyed it by gift to his daughter Adhilakshmi. As it was the stridhanam property of Adhilakshmi, it descended to her daughters Ramalakshmi, Venkatachalavadivoo and Mahalakshmi. As Mahalakshmi had become a widow and Venkatachalavadivoo had died leaving a daughter Chellathammal, Ramalakshmi entered into an agreement Ex. B, with Chellathammal, whereby they divided the property roughly in the proportion of two to one, Ramalakshmi undertaking to support her widowed sister Mahalakshmi. The suit property is the property that fell to the share of Ramalakshmi. Ramalakshmi had two sons, Subramania and defendant 10, and two daughters, the plaintiff and defendant 9. After Ramalakshmi's death her elder son Subramania seems to have got possession of the property, and since his death, his sons, defendants 1 and 2 have been enjoying it. The plaintiff brought the present suit, claiming that the suit property belongs to her and defendant 9. Both the lower Courts have held that the property belonged jointly to the plaintiff, defendant 9, and Chellathammal, and that as Chellathammal was not made a party, the suit was not maintainable. Incidentally, the trial Court found that defendant 9 was not entitled to any share for the further reason that by the time she had filed her written statement laying claim to a share, her claim would have been barred by limitation. She did not appeal in the lower appellate Court; and so the lower appellate Court also found that defendant 9 would not have been entitled to recover her share in the property even if the plaintiff had been successful. The plaintiff has filed this appeal.
(2.) MR . V. Ramaswami Aiyer contends that although Ex. B, the transaction entered into between Ramalakshmi and Chellathammal, is not a legally binding contract, because Chellathammal at that time possessed nothing more than a spes successionis, she would be precluded from questioning that contract by the principle of estoppel set out in Section 43, T. P. Act. Section 43, however, applies only when a party in possession of special knowledge makes an incorrect representation to the other party to the contract, whereby the other party is induced to enter into the contract and the person making the representation gets the benefit of it. It cannot reasonably be argued in this appeal that Chellathammal made any representation to Ramalakshmi which estops Chellathammal from questioning the right of the heirs of Ramalakshmi. Chellathammal was a young woman who had only just attained majority, whereas Ramalakshmi must have been a woman of fifty five years of age at that time. To say the least, Ramalakshmi's knowledge was equal to that of Chellathammal; and they entered into the contract with their eyes open, though they may not have known that the contract they were entering into was void. As Section 43 does not apply to the facts of this case, we have to consider the rights of the parties on the footing that the contract is void and that Chellathammal has a right to one -third of the suit property. It may incidentally be mentioned here that Chellathammal, in pursuance of the agreement, Ex B, entered into possession of the property which fell to her share under Ex. B and has apparently been in possession of it ever since. The learned Subordinate Judge held that the plaintiff's suit must be dismissed because she denied the rights of Chellathammal; and he quoted as authorities Koola Naicken v. : (1911)21MLJ997 and Ponnayya Thirumalai Vendya Thevar v. Kandasami Vendaya Thevar, 17 Ind. Cas. 136. In both these cases, however, the plaintiff was granted a share of the property although he prayed for the whole of it; and in, 17 Ind.Cas. 1362 it moreover appears that the owner of the other share of the property was not on record. It is true that in, 17 Ind.Cas. 1362 it is said : "If he (plaintiff) asserted an exclusive title in himself, the suit would be liable to be dismissed;" but I have not seen any case in which it was held that a plaintiff who claims the whole property must have his suit dismissed. In this case, the plaintiff has set out facts which have been assumed to be true for the purposes of the point now under appeal; and it is the Court that has to decide what legal inference has to be drawn from the facts. It would seem from the cases referred to by the learned Subordinate Judge, as well as from Ahmad Sahib v. The Magnesite Syndicate Ltd, A.I.R. 1915 Mad. 1214, that the plaintiff would be entitled to at least one -third of the property. The plaintiff also claims that defendant 9 should be given one -third of the property. The claim of the plaintiff to have a share in the suit property is here opposed on two grounds. One is that the plaintiff is basing her claim on a cause of action which was not put forward within the period of limitation, and the second is the ground that I have already mentioned, that she cannot be given even a partial share if she denies the rights of the other party. For the first proposition, Vaithilingam Pillai v. Kandasami Pillai, A.I.R. 1931 Mad. 1 has been cited. That was a case in which the plaintiff originally claimed as reversioner to the estate of one Dharmalingam Pillai. The Courts found that it had not been proved that the property belonged to Dharmalingam Pillai; but that it was the absolute property of Rajamanikathammal. The plaintiff therefore sought to amend his plaint and to claim the property as the heir of that lady. When he sought to make the amendment, the suit would have been barred; and so the amendment was disallowed. That case seems to me to stand on a very different footing from the present case. Here the plaintiff placed before the Court all the facts on which she based her claim. It is true that she did not deduce her legal position properly from those facts and therefore based her suit on a wrong cause of action; but it seems to me that when a party puts the facts before the Court, it is for the Court to apply the correct legal principles and give the plaintiff that which is due to her. The plaintiff cannot be non -suited merely because she has not properly appreciated the law bearing on the facts which she has set out in the plaint. In Vaithilingam Pillai v. Kandasami Pillai, A.I.R. 1931 Mad. 1 the plaintiff sought to put forward an entirely fresh set of facts. In considering the other point, the same facts must be borne in mind, viz., that the plaintiff put before the Court all the facts; but wrongly interpreted them as to lead her to assert that Chellathammal had no right at all; but the plaintiff at no time said that if Ex. B were held to be not binding on Chellathammal, Chellathammal would not be entitled jointly with the plaintiff and defendant 9 to the whole of the property which had descended from Adhilakshmi. Mr. Subba Rao points out the practical difficulty in passing a decree in a suit in which all the sharers are not on record; for a partition cannot be ordered in the absence of one of the sharers. That difficulty does not, however, arise in the present case; for since Chellathammal lost all right to the land three days after the suit was filed, the persons who are now entitled to the property would be the plaintiff, defendant 9 and defendants 1 and 2. Plaintiff would be entitled to one -third, defendant 9 to one -third, and as Chellathammal had not put forward her claim within the period of limitation, defendants 1 and 2 would be entitled to the other third.
(3.) FINALLY , there is the question whether defendant 9 has lost her rights by not appealing from the decree passed against her in the trial Court. Her answer to that contention is that as the plaintiff brought the suit against trespassers and had not denied her title, she is entitled to recover the whole property from the trespassers, though she would be bound to let defendant 9 into joint possession of the property with her after it was recovered. She points out that it was unnecessary for her to have been impleaded at all, and that if she had not been impleaded, the plaintiff would have been entitled to receive possession of the whole property. That may be so; but the position seems to me different when defendant 9 is in fact made a party. The plaintiff was certainly not appearing for her. She had an opportunity in the suit and in the appeal to put forward her own case. As she supported the plaintiff in the trial Court she did not there lose her right to receive her share of the property; but the plaintiff did not represent her interest either in the lower appellate Court or in this. I do not see how one sharer can claim to recover property on behalf of another sharer if that sharer is a party to the litigation and does not take the necessary steps to support her claim. In Koola Naicken v. : (1911)21MLJ997 , a cosharer compounded her claim with defendant 1, the trespasser, and the plaintiff was given one half of the property. It is true that the plaintiff there claimed the whole property on the ground that defendant 2 had lost her right to a share in her husband's estate through unchastity; but I have no doubt that even if she had not made that allegation, she would not have been entitled to recover the whole property, when the other cosharer had com -pounded her claim by entering into an agreement with, and receiving consideration from, the trespasser. I therefore agree with the lower appellate Court that defendant 9 has now lost her right to share with the plaintiff in the suit property. Subject to the result of the other issues in the case, the plaintiff is entitled to a one -third of the suit property.;