JUDGMENT Kanhaiya Lal, J.
1. The dispute in this appeal relates to plot No. 738 khasra which is sibilated in Mauza Shakulpura outside the skirts of Benares City. The village Shukulpura was granted to Mt. Asmeda Kanwar by the father of the plaintiff on the 9th of April, 1889 by an agreement which provided that she was to hold the same in her possession and enjoy the profits thereof for her maintenance during her lifetime without any power of alienation.
2. While Mt. Asmedh Kunwar was so in possession of that village she granted a perpetual lease of the plot in dispute to Gopal, Ganga and Gopi for a premium of Rs. 100 on an agreement that the lessees would pay her a rent of Rs. 12 per annum and be entitled to use the land for planting a grove, constructing buildings or for any other purposes they liked. On the strength of that lease a grove consisting mostly of guava trees, was planted over the said land by the lessees and a ridge or mud wall was built around it for the protection of the trees.
3. The lease was granted on the 11th of May, 1905. On the 16th of March, 1918 Mb. Asmedh Kunwar died. The plaintiff as the successor-in-interest of her father, the original proprietor of the village, sues to eject the lessees from the land of the said grove and for mesne profits, contending that the lease in question became inoperative after the death of Mt. Asmedh Kunwar. Gopal and Ganga have since sold their interest in the said grove to Gopi for Rs. 100 on the 12th of August, 1916. The defence of Gopi was that the plaintiff had accepted the rent of the land in question since the death of Mt. Asmedh Kunwar, that the defendant had spent about Rs. 2,000 in making improvements over the said land, and that the plaintiff was not entitled to the relief claimed.
4. The trial Court found in favour of the plaintiff and allowed the defendant to remove all the construct ions made and trees planted by him within a month from the date of its decree. The lower Appellate Court upheld the decree for possession but dismissed the claim for mesne profits, holding that the plaintiff was not entitled to the same by reason of her having accepted the rent of the holding from the contesting defendant for three years after the death of Mt. Asmedh Kunwar.
5. It is urged on behalf of the defendant-appellant that the acceptance of rent by the plaintiff operated as ratification by her of lease granted by Mt. Asmedh Kunwar and that in any case the plaintiff is not entitled to claim possession without paying for the improvements made by the defendant during the subsistence of the lease. Section 35 of the Transfer of Property Act lays down that where a parson proposes to transfer any property which he has no right to transfer and as a part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it, but an acceptance of a benefit by the parson on whom it is conferred does not constitute an election by him to confirm the transfer, unless ha is aware of his duty to elect and of those circumstances, which would influence the judgment at a reasonable man in making art election. The receipts filed show that the rent in the present case was received by Gaya Prasad, an agent of the plaintiff, and there is nothing to show that either the plaintiff or her agent was aware of the circumstances in which the lease was granted or of the terms on which it was held by the person paying the rent. There can be no election where the person receiving the rent is not aware of his duty to elect or in other words of the fact that a perpetual lease had been granted by the intermediate holder which it was in his power to repudiate or confirm. An acceptance of rent in these circumstances even for a period of three years cannot operate as an estoppel or waiver by the plaintiff of the invalidity of the lease after the death of Mt. Asmedh Kunwar.
6. The decision in Modhu Sudhan Singh v. Rooke (1898) 25 Cal. 1 does not apply, because is that case the rent had been accepted with a full knowledge of the patni lease, sought to be repudiated In fact the tenant had filed a petition, depositing the rent in Court to the credit of the opposite party, stating that the rent was being paid on account of a patni lease granted to him by the intermediate holder. The intermediate holder in that case was a Hindu widow. On the said deposit having been made an application was filed on behalf of the reversionary heir of the said widow agreeing to accept the said payment. A Hindu widow, holding a life interest has a larger power than a lady holding an estate in lieu of maintenance for her life without any power of alienation. In Beni Prasad Koeri v. Dudhnath Roy (1900) 27 Cal. 156 where a grant of a village for maintenance was made by a zamindar to his nephew, operating only for life, and the grantee executed a permanent lease in favour of another, it was held in a suit brought by the successor-in-interest of the original grantor that the mere acceptance of rent by such successor-in-interest at the rate stipulated in the permanent lease could not have the effect of confirming the lease in its entirety nor could the duration of the lease exceed that of the original grant. In the absence of any evidence to show that the plaintiff or her agent was aware of the terms and conditions of the lease, under which the grove was planted, an acceptance of rent from the person in possession of the land could not estop the plaintiff from claiming possession and seeking to avoid the lease so far as it granted the plaintiff a perpetual right.
7. As regards the improvements alleged to have been made by the lessees and referred to in the written statement and in the grounds of appeal to the Court below, it-is not clear from the evidence when they were made and whether they were made in good faith within the meaning of Section 51 of office Transfer of Property Act. No issue was framed on that point by the Court of first instance or evidence taken. The lower Appellate Court is therefore directed to determine after taking such additional evidence as parties may adduce:
(1) Whether the improvements in question were made by the defendants or any of them in good faith, believing that they were absolutely entitled as lessees to make the same?
(2) Whether these improvements ware made is the lifetime of Mt. Asmedh Kunwar or partly in her life time and partly after her death and the acceptance of rent by the plaintiff, and if so to what extent?
(3) What was the value of the said improvements, as it would accrue to the transferee, if the ejectment is effected?
8. Three months' time will be allowed for recording the findings. On receipt of the findings ten days will be allowed to the parties for objections.