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2017 DIGILAW 710 (MAD)

P. Samadhanam @ Manvalam v. Jaya @ Jayammal

2017-03-21

N.SATHISH KUMAR

body2017
JUDGMENT : Aggrieved over the preliminary decree passed by the VII Additional Judge, City Civil Court, Chennai declaring that the appellant and the respondents are entitled to 1/4th share each in the suit property, the present appeal is filed by the appellant/1st defendant. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. The plaintiffs filed a suit in O.S.No.745 of 2009, before the learned VII Additional City Civil Judge, Chennai, for partition of their 1/4th share in the suit property. 4. After contest, the suit was decreed and preliminary decree was passed as prayed for by the plaintiffs declaring their each 1/4th share in the suit property along with the defendant. 5. The brief facts of the case of the plaintiffs are as follows: 1st plaintiff is the mother of the 2nd and 3rd plaintiffs and defendant. The suit property was originally allotted to the husband of 1st plaintiff by the Slum Clearance Board in the year 1987. After such allotment, the construction was made by the husband of 1st plaintiff. The husband of 1st plaintiff died intestate on 17.07.1990. The defendant, being elder son of the family, after the death of his father, assured about the plaintiffs' share and provide shelter to his mother, 1st plaintiff. However, he failed to look after the 1st plaintiff but enjoyed the properties by leasing out the same to the third parties. Hence, the suit for partition. 6. The brief averments of the written statement filed by the defendant are as follows: While admitting the relationship and also allotment of the property by Slum Clearance Board, it is the contention of the defendant that his father was a Coolie in SRVS Company and he earned only meagre amount, with which, according to him, he could not lead the family. Only out of the salary of the defendant, the entire family was brought up. The defendant, out of his own income, has put up superstructure in the vacant site allotted to his father. The 2nd and 3rd plaintiffs were also given in marriage by the defendant. The defendant has spent huge amount more than their share in the land. The 2nd and 3rd plaintiffs also promised that they will not claim any share in the land. The 1st plaintiff was under the care of defendant till January 2008. The 2nd and 3rd plaintiffs were also given in marriage by the defendant. The defendant has spent huge amount more than their share in the land. The 2nd and 3rd plaintiffs also promised that they will not claim any share in the land. The 1st plaintiff was under the care of defendant till January 2008. Thereafter, due to ill-advise of the 2nd and 3rd plaintiffs, 1st plaintiff got separated from the defendant and claimed maintenance case as against defendant. The defendant also accepted to pay monthly maintenance of Rs.1,250/-. Now the suit has been filed to grab the property. Hence, he prayed for dismissal of the suit. 7. Based on the above pleadings, the trial Court formulated as many as four issues for consideration. They are: "1. Whether the suit property is the self-acquired property of Peter? 2. Whether the defendant has constructed the superstructure in the suit property? 3. Whether the plaintiffs are entitled for the partition? 4. To what other reliefs the plaintiffs are entitled?" 8. On the side of the plaintiffs, the 1st plaintiff was examined as PW1 and Exs. A1 to A5 were marked. On the side of the defendant, the defendant himself was examined as DW1 and Exs. B1 to B3 were marked. 9. During the pendency of the appeal, the 1st plaintiff died and the appeal was also suitably amended as the legal heirs were already on record. 10. It is the main contention of the learned counsel for the appellant/defendant that vacant site of the suit property was originally allotted in the name of the defendant's father, by name, Peter, by the Slum Clearance Board. As the defendant’s father was not having any income at the relevant point time, the defendant, who was working in the Electricity Department, out of his own income, had put up construction in the suit property. It is also the contention of the learned counsel for the appellant/defendant that as the defendant has spent huge amount for putting up construction, he is entitled for costs of the construction. It is the contention of the learned counsel that the plaintiffs have not established their case by letting in any evidence to show that the construction was put up by father of the 2nd and 3rd plaintiffs, i.e. original owner/allottee. Whereas Exs. It is the contention of the learned counsel that the plaintiffs have not established their case by letting in any evidence to show that the construction was put up by father of the 2nd and 3rd plaintiffs, i.e. original owner/allottee. Whereas Exs. B1 to B3 recitals filed on the side of the defendant would clearly show that only defendant was maintaining the suit property and also paying necessary taxes. Hence, it is the contention of the leaned counsel for the appellant/defendant that the cost of construction made by the defendant has to be reimbursed. Thus, the learned counsel for the appellant/defendant prayed for allowing the appeal. 11. Countering the arguments advanced by the learned counsel for the appellant/defendant, the learned counsel appearing for the respondents/plaintiffs submitted that the building itself was constructed by father of the parties, after allotment. The learned trial Judge, after assessing the entire evidence, had come to the conclusion that the defendant could not have constructed the building, as he joined the service only in the year 1984, whereas the building was completed in the year 1985, i.e. within a period of one year, and that, he could not have earned huge amount for construction of the building within the short period. Therefore, it is the submission of the learned counsel for the respondents/plaintiffs that the trial court had assessed the evidence in its entirety and rightly decreed the suit for partition. Hence, the learned counsel for the respondents/plaintiffs prayed for dismissal of the suit. 12. In the light of the above submission, the following points arise for consideration in this appeal. "(1) Whether the appellant/defendant has put up construction by investing self earning money in the suit property? (2) To what other relief?" 13. It is the admitted case of the parties that the vacant site was originally allotted to one Peter, father of the appellant/defendant and the respondents 2 and 3 herein/plaintiffs 2 and 3. Though it is the case of the plaintiffs that construction was put up by late Peter in the suit property, it is the contention of the defendant that he only made investment for construction of the building, out of his self earnings. In this regard, except Exs. Though it is the case of the plaintiffs that construction was put up by late Peter in the suit property, it is the contention of the defendant that he only made investment for construction of the building, out of his self earnings. In this regard, except Exs. B1 to B3, viz., property tax receipt, water tax receipt and electricity charges respectively, said to have been paid by the defendant, no other documents, whatsoever, were filed even to infer that the construction in the vacant site was made only by the defendant. If really, the construction was made by the defendant in the suit property, he would have filed the plan and building permission obtained by him as required under law. There is no such document, whatsoever, filed by him even to show that the building was, in fact, constructed by him at the relevant point of time. 14. Even in the written statement, no specific pleading was made by the defendant with regard to the nature of construction and the nature of investment spent by him for the alleged construction. It is also not pleaded as to when the building was constructed in the suit properties. In the absence of any specific pleading with regard to material particulars, the arguments advanced by the learned counsel for the defendant, merely on the basis of general allegation that he made investment for putting up the construction, cannot be countenanced. There is no whisper in the written statement about the nature of the amount allegedly spent by the defendant for putting up construction. There is no plea in the entire written statement as to when the construction of building was commenced and completed by the defendant. Therefore, merely on the basis of the oral evidence of the defendant, it cannot be concluded that he has only put up construction in the suit property. 15. P.W.1, mother of the parties, in her evidence has stated that the building was put up by her husband during his life time. In the cross examination also, she has admitted that her husband had constructed the building out of his retirement benefits. DW1, the defendant in the cross examination, has admitted that his father was also working as labour in SRVS parcel company and retired from service in the year 1985. In the cross examination also, she has admitted that her husband had constructed the building out of his retirement benefits. DW1, the defendant in the cross examination, has admitted that his father was also working as labour in SRVS parcel company and retired from service in the year 1985. Further, he has also admitted in the cross examination, at the time of the alleged construction of the building, his father was very much alive. Therefore, it cannot be stated that he only constructed the house in the suit property. His evidence also clearly shows that he joined as Daffadur in the Electricity Department in the year 1982, whereas, the building was constructed in the year 1984. Besides, it is the evidence of the defendant that he only spent marriage expenses of both his sisters, namely, the Plaintiffs 2 and 3, and he gave 25 sovereigns of gold to each of the sisters at the relevant time. 16. The evidence of D.W.1 to the effect that he has spent such huge amount towards the marriage of his sisters by giving 50 sovereigns gold jewels and also put up construction in the year 1984, within 2 years from the date of joining service, is highly improbable and unbelievable one. It is impossible to acquire such huge amount within two years from the date of joining service. The above fact gives rise to an inference that the entire evidence of D.W1 is unbelievable in this regard. In the absence of any evidence to prove that the building was constructed by the defendant, his oral evidence alone will not be helpful to substantiate his defence. The defendant has also not produced any document, such as, permission from the concerned authorities, sketch and plan of the building etc., to support his contention. 17. Admittedly, the appellant is an elder member of the family. Merely because he was paying some tax in his name, that itself is not a determinatory factor to hold that the entire building was constructed by him as an elder son in the family. Even assuming that any amount is spent by him, that amount shall go with the estate of the deceased. Particularly, when there is no evidence to show that he made such improvement without intention of making a present of it to the family. Even assuming that any amount is spent by him, that amount shall go with the estate of the deceased. Particularly, when there is no evidence to show that he made such improvement without intention of making a present of it to the family. It must be established by the person asserting such improvement that the same was made out of his separate property, without intention of making a present of it to the family. Without satisfying the above condition, merely on the general allegations, the defendant cannot succeed in contending that he has made improvement in the properties and put put up construction. 18. Admittedly, the properties were allotted to the father of the parties, who died intestate. The plaintiffs 2 and 3 and defendant are legal heirs of the late Peter. 1st plaintiff, the mother of the parties, also died. Therefore, this court of the view that the appellant/defendant as well as 2nd and 3rd respondents/plaintiffs each entitled to 1/3rd share of the suit property, in view of the death of the 1st respondent/1st plaintiff. Accordingly, this point is answered. Issue No: 2 19. In view of the fact that the 1st respondent/1st plaintiff, mother of the parties, died and only appellant /defendant and 2nd and 3rd respondents / 2nd and 3rd plaintiffs, are the legal heirs of the original owner, by name, Peter, 1/4th share declared by the trial court got enlarged into 1/3rd share to the appellant/defendant as well as 2nd and 3rd respondents/2nd and 3rd plaintiffs. Except the above modification, finding of the trial court in respect of other aspect is confirmed. 20. In the result, the appeal is dismissed and the preliminary decree passed by the trial court declaring 1/4th share in the property is modified as 1/3rd each to the appellant/defendant and to 2nd and 3rd respondents/2nd and 3rd plaintiffs. However, considering the relationship between the parties, there shall be no order as to costs. Connected MP is closed.