The challenge in this appeal is to the judgment and decree dated 22.3.95 in O.S.No.5/91 on the file of the learned first Additional Subordinate Judge, Erode partitioning the suit property into three equal shares and allotment of one such share to the appellant.
2. The suit in O.S.No.5/91 was preferred by the first respondent against the appellant and respondents 2 to 10 praying for a judgment and decree to partition the suit properties into three equal shares and to allot one such share to him with separate possession and enjoyment.
3. The parties to this appeal are referred to as plaintiff and defendants.
4. In the plaint in O.S.No.5/91 the plaintiff inter-alia contended thus:
(a) The plaintiff, first defendant and one Samiappan are brothers. The said Samiappan died on 31.8.1982 leaving the second defendant as his widow and defendants 3 to 5 as children.
(b) The plaintiff, first defendant and the deceased Samiappan along with their parents entered into a deed of partition on 13.12.1969 and accordingly all the properties which belonged to the family were partitioned. In the said partition 'A' schedule property was allotted to the share of father Sengoda Gounder and mother Periammal with absolute right and enjoyment. The parents were also given life estate in respect of the property which was shown as 'B', 'C' and 'D' in the said partition. It was also stipulated that after the lifetime of the parents all the three sons would partition their 1/3rd share in Item No.1 of schedule B, C and D. The said property is described as item No.1 in the schedule. The property described as item No.2 is the house property wherein Sengoda Gounder and Periammal lived. The said house was not included in the partition effected in the year 1969. However, the house property was mentioned in the partition deed and the parents were allowed to reside there till their life time.
(c)The father Sengoda Gounder died about 16 years ago followed by the death of mother in the year 1990. As such, the plaintiff and first defendant are entitled to 1/3rd share each in the suit property and defendants 2 to 5 are jointly entitled to 1/3rd share as the legal heirs of deceased Samiappan. The defendants 6 to 9 are occupying some portion of the property in item No.1 as tenants.
(d) The father Sengoda Gounder was collecting the rent personally till his death. After his death, the mother allowed the first defendant to collect the rent from the tenants.
(e) After the death of the mother, the plaintiff called upon the defendants 1 to 5 for partitioning the suit properties. However, there was no follow up action on the part of those defendants which made the plaintiff to file the suit for partition.
5. The suit was contested by the first defendant by filing written statement wherein it was contended inter-alia thus:
(a) The first defendant was in possession and enjoyment of the property in Item No.1 even before the partition of the family properties on 13.12.1969. He was conducting a bleaching and dyeing unit in the said property spending considerable amount. The business was shown as his sole proprietory concern. His father was sufferring from Lucodarma and being afraid of the said disease the plaintiff and the other son were not maintaining him and the first defendant was alone maintaining the father and as such the father agreed to allot the property exclusively to him. The first defendant repaired the suit second item in the year 1970 spending a sum of Rs.20,000/- out of his own money. The father and mother were not in a position for spending anything for the purpose of putting up construction or for repair of the building. The first defendant has also put up a residential building in the year 1974 at the cost of Rs.60,000/-. He also dug a well by spending Rs.21,000/- and additional sum of Rs.13,000/- has been spent for putting up Thotti.
(b) In the partition deed dated 13.12.69 he was allotted 33 cents of land, but it was only 28 cents of land on ground and as such, the parties to the partition deed in, Ex.A1 agreed to give him 5 cents during the time of partition of the property exclusively allotted to the parents. He has also claimed reservation on account of amount spent by him at Rs.78,000/-. In short, the first defendant prayed for allotment of item No.1 to him without valuation.
6. Though the other defendants have also filed written statement there was no contest with regard to the plea made by the plaintiff for partition.
7. The learned trial Judge framed the following issues for consideration.
"(1)Whether the plaintiff is entitled to get 1/3 share in the suit property ?
(2)Whether the maintainance work in the 1st and 2nd items of the suit properties was done by the 1st defendant spending his own money ?
The issue No.3 is altered.
(3)Whether the 1st defendant is entitled for the relief of 5 cents of land in excess, in the 1st item of the suit property, on the basis of deservingness, as claimed ?
(4)Whether the defendants 1 to 9 in this suit are the tenants of the 1st item of the suit property?
(5) To what other relief ?"
8. Before the trial Court, the plaintiff was examined as P.W.1 and Exs.A1 and A2 were marked on his side. The first defendant was examined as D.W.1. D.Ws.2 and 3 were also examined on his side. The first defendant marked as many as 15 exhibits on his side. During his evidence as D.W.1 the first defendant contended that the father was not having necessary financial resources for putting up a building in the suit property and as such, the construction made in item No.1 of the suit property was made only by him. There was no contribution from his father for the purpose of such construction and as such he was entitled to the allotment of the suit property item No.1 exclusively to his share.
9. The learned trial Judge found that there were no documents to substantiate the contentions raised by the first defendant both with respect to the amounts spent by him for putting up building in the suit schedule property in item No.1 as well as for adjusting the 5 cents of land which was found short in the property allotted to him originally. The learned trial Judge was of the view that the plea regarding reservation as well as improvement as raised by the first defendant cannot be granted on the basis of his self-serving evidence as D.W.1. Accordingly, the plea made by the first defendant was rejected. The issues were answered against the first defendant and in favour of the plaintiff. The said judgment and decree is impugned in the First Appeal.
10. The learned counsel appearing on behalf of the first defendant contended that there was no evidence produced on the side of the plaintiff to show that the father was having the financial resources for the purpose of spending money either for construction of the building in item No.1 or for maintaining the said building. According to the learned counsel, the amount was spent by the first defendant alone and it is also evident from his evidence. There was no attempt made by the plaintiff to adduce contra evidence. Therefore, according to the learned counsel the trial Judge erred in rejecting the contention putforth by the first defendant with respect to the improvement as well as reservation.
11. The learned counsel appearing on behalf of the plaintiff contended that there was nothing on record to show that in the partition effected as per Ex.A1 the defendant was given 5 cents less though larger extent was shown as allotted to him. Similarly there was nothing on record to show that the construction was put up by the first defendant. In these circumstances, the learned counsel supported the judgment of the learned trial Judge.
12. Points for consideration.
"1.Whether the suit property is liable for partition.
2.Whether the first defendant is entitled to the suit property exclusively.
3.Whether the first defendant has proved the construction made in the suit property as made by him."
ON THESE POINTS
13. The property was originally partitioned between the plaintiff, first defendant and their deceased brother Samiyappan as well as their parents as per registered partition deed dated 13.12.69 which was marked as Ex.A1. As per the said partition deed the property in schedules B, C and D were allotted to the parties to the suit. The father and mother were allotted the property in schedule A which is the plaint schedule property. Admittedly, there was a recital in the said partition deed that after the life time of the parents the property would devolve on the children and as such they are entitled to partition the said property.
14. The suit filed by the plaintiff was resisted by the first defendant on the ground that the property in item No.1 has been in his possession exclusively and it was his contention that the father has given the same to him in consideration of his service to the parents. The first defendant also contended that he has spent substantial amount for the purpose of putting up building which also included the residential house besides spending amount for the purpose of digging well.
15. However, except the oral evidence adduced on the side of the first defendant, there was nothing on record to show that he has spent particular amount with details of such expenditure. There was also nothing on record to show that the first defendant was entitled to get 5 more cents from the plaintiff and their deceased brother, as property allotted to him as per Ex.A1 was 33 cents, but he was given only 28 cents. In fact in the evidence of D.W.1 it was also brought out that the assistance of the surveyor was also taken for the purpose of measuring the property at the time of partition. In any case there is no document to show that what was allotted to the first defendant was only 28 cents. Therefore, it cannot be said that the plaintiff and the predecessor-in-interest of Defendants 2 to 5 are liable to return 5 cents to the first defendant.
16. Similarly there is nothing on record to show the actual expenditure spent by the first defendant including the break up. The property absolutely belongs to the parents as per Ex.A.1 The plan of the proposed construction was also issued in the name of father. Therefore, burden is on the first defendant to show that the entire expenditure was met only by him for the purpose of putting up superstructure in the property. However other than his interested testimony there was nothing on record to show that such expenditure was met only by him. Therefore, the learned trial Judge was perfectly correct in his finding about the plea made by the first defendant to the said effect.
17. As per the recital in Ex.A.1 the property would devolve on the legal heirs after the death of Sengoda Gounder and Periammal. Therefore the plaintiff, first defendant and the defendants 2 to 5 are equally entitled to 1/3 share. The burden is always on the person who claims that it was he who spent the amount for construction though the property belongs to father and mother. However, the first defendant failed to prove the expenditure incurred by him as well as his plea that he is entitled to 33 cents in item No.1. Therefore, the point has to be answered against the first defendant by holding that the suit property is liable for partition disregarding the claim made by the first defendant.
18. The learned trial Judge has negatived the contention with regard to equity on the ground that the first defendant has been residing in the building item No.1 in the plaint schedule and without accounting or paying the rent to the other co-owners. However, it is evident from the documents exhibited on the side of the defendant that he has been in occupation of the building continuously for several years. Though the first defendant is not entitled to claim cost of improvement made by him from the plaintiff as well as D2 to D5, he is entitled to take up a plea for equitable allotment of that portion to his share during final decree proceedings. Therefore, I am of the view that the learned trial Judge pre-judged the division by metes and bounds in the preliminary stage itself and as such the said issue has to be left to be decided in the final decree proceedings.
19. In the result, the judgment and decree in O.S.No.5 of 1991 dated 22.3.1995 on the file of the I Additional Sub-Judge, Erode is confirmed. The question of equitable allotment is reserved to be taken up during the time of final decree proceedings. The appeal is dismissed with the above observation. No costs.
sal To I Additional Sub-Court, Erode