Skip to content


Jethruse D'Souza and Ors. Vs. Catherine D'Souza (10.03.1982 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 517 of 1975
Judge
Reported inAIR1983Kant14; ILR1982KAR1221; 1982(2)KarLJ110
ActsIndian Contract Act, 1872 - Sections 70
AppellantJethruse D'Souza and Ors.
RespondentCatherine D'Souza
Appellant AdvocateH.G. Hande, Adv.
Respondent AdvocateB.V. Acharya, Adv.
Excerpt:
- income tax act,1961[c.a.no.43/1961] -- section 254(2) : [k.l. manjunath & arali nagaraj, jj] power of tribunal to review its order -whether the tribunal can exercise its powers under section 254(2) of the act to review its earlier on merits? held, the tribunal can review its own order if there is a mistake apparent from the record. but in the present case, the power exercised by the tribunal under section 254(2) of the act results in reviewing the entire earlier order by reconsidering its earlier findings which is not the scope of 254(2) of the act. hence, impugned order was set aside......the share of the plaintiff should be delivered to him. the trial court further directed that the cost of improvements should be got ascertained by a commissioner and that the plaintiff shall pay as compensation towards the value of improvements that fell for his share as determined at the time of final decree proceedings. the trial court further directed an enquiry under order xx, rule 17 of the code of civil procedure for income of the property from the date three years prior to the suit. accordingly, the trial court directed a preliminary decree to be drawn. aggrieved by the said judgment and decree, the legal representatives of the original plaintiff went up in appeal before the principal civil judge, mangalore, in regular appeal no.136 of 1971, on his file. the learned civil judge,.....
Judgment:

1. This appeal by the legal representatives of the original plaintiff is directed against the judgment and decree dated 21-9-1974 passed by the Principal Civil Judge, Mangalore, in Regular Appeal No.136 of 1971, on his file, partly allowing the appeal and modifying the judgment and decree dated 30-6-1971 passed by the First Additional Munsiff, Mangalore, in Original Suit No.342 of 1964, on his file.

2. The original plaintiff filed a suit for partition of his 1/3rd share, for separate possession of the same and for taking accounts and claiming future mesne profits and costs. The plaintiff, his mother Nathalia, his brother Inas D'Souza were, according to him, the co-owners of the immoveable properties described in the suit schedule. They were in joint possession of the same. The defendant in the suit purchased the undivided shares of the mother and the brother of the plaintiff under a registered sale deed dated 3-1-1957. The plaintiff was in joint possession of the same. He demanded partition and possession of his 1/3rd share by a lawyer's notice dated 29-4-1964. But the defendant gave a reply dated 20-5-9164 making out a false case. There are two residential buildings in the suit property bearing Door Nos. 17-390 and 17-391 and 19-319A. There are three tenements in the two buildings. The plaintiff averred that the defendant never effected any improvement and he claimed his 1/3rd share along with accounts and mesne profits.

3. The defendant resisted the suit by filing her written statement. According to her, she had brought about vast improvements which amounted to Rupees 60,000/- in worth. She had also discharged the mortgage debt and other debts. Unless the plaintiff paid 1/3rd of the cost of improvement as also the liabilities paid, he was not entitled to his share, since the cost of improvement, according to the defendant, was much more than the value of the plaintiff's 1/3rd share. She put forward a case that the plaintiff, if at all, should sell his 1/3rd share to her.

4. The trial Court raised the following issue as arising from the pleadings :

(1) Does the plaintiff prove that the defendant is liable to account for the income from the properties from 3-1-1957 up to the date of delivery?

(2) Does the defendant prove that the plaintiff is liable to pay 1/3rd of Rupees 6,956.25 P. to the defendant before taking his share from the suit property?

(3) Does the defendant prove that the plaintiff is liable to pay 1/3rd of Rupees 599.27 P., towards the decree passed in Original Suit No.523 of 1955?

(4) Does the defendant prove that she has effected improvements of the value of Rs.60,000/-?

(5) Does the defendant prove that the plaintiff can claim 1/3rd share in the value of the property as it stood prior to the improvements?

(6) Does the defendant prove that the plaintiff's claim for account from 3-1-1957 is barred by limitation?

(7) What the valuation for the purpose of jurisdiction?

(8) Is the Court-fee paid correct?

(9) To what reliefs are the parties entitled to?

5. The trial Court, appreciating the evidence on record, held that the plaintiff was entitled to partition of his 1/3rd share and, on partition through a Commissioner, the share of the plaintiff should be delivered to him. The trial Court further directed that the cost of improvements should be got ascertained by a Commissioner and that the plaintiff shall pay as compensation towards the value of improvements that fell for his share as determined at the time of final decree proceedings. The trial Court further directed an enquiry under Order XX, Rule 17 of the Code of Civil Procedure for income of the property from the date three years prior to the suit. Accordingly, the trial Court directed a preliminary decree to be drawn. Aggrieved by the said judgment and decree, the legal representatives of the original plaintiff went up in appeal before the Principal Civil Judge, Mangalore, in Regular Appeal No.136 of 1971, on his file. The learned Civil Judge, raised the following points as arising for his consideration in the appeal :

(1) Whether the defendant has made constructions and effected any improvements in the suit property, and, if so, to what extent?

(2) Whether the defendant is entitled to get the value of her improvements which may fall in 1/3rd share of the properly that would be divided and given to the share of the plaintiff?

(3) Whether the appeal deserves to be allowed?

6. The learned Civil Judge, reassessing the evidence on record, answered Point No.1 in the affirmative. He held that the improvements were made; but the cost on improvements was to the tune of Rs.37,693/-. Under Point No.2, the learned Civil Judge held that the defendant was entitled for the cost of improvements except for items 5 and 9 of the Commissioner's Report Exhibit D-163 and, in that view, the learned Civil Judge modified the judgment decree of the trial Court. He directed thus ;

'The defendant shall not get compensation if the 1/3rd share of the plaintiff cannot be carved out without including the improvements of Items Nos.5 and 9 of Exhibit D-163 shall form part of the decree. If 1/3rd share of the plaintiff cannot be given to him without including the other improvements effected by the defendant, as shown on the said page 11, the plaintiff shall pay to the defendant so much compensation that the improvements have added to the value of the premises that would be allotted to the plaintiff.'

The learned Civil Judge further directed the parties to bear their own costs. Aggrieved by the same, the legal representatives of the original plaintiff have come up with the above second appeal before this Court.

7. The learned counsel appearing for the appellants strenuously urged before me that the Courts below were not justified in directing the plaintiff to pay the cost of improvements, if any of the improvements were to be included in the share of the plaintiff. He submitted that the improvements were not effected by the defendant with the consent of the plaintiff and, as such, the plaintiff would not be liable for the compensation.

8. As against that the learned counsel appearing for the respondents/defendant argued supporting the judgment and decree of the learned Civil Judge.

9. The sole point, therefore, that arises for my consideration in this appeal is : 'Whether the Courts below were justified in directing the plaintiff to pay the cost of improvements, if any improvements were to be included in the 1/3rd portion to be allotted to the original plaintiff?'

10. Ordinarily, a co-owner who effects improvements on the joint properties with his money, cannot expect to get back the money from the other co-owners. The reason is not far to seek. If one co-owner were to be permitted to improve by spending money, he would saddle the others with liability and in some cases, he may even defeat the claim of the co-owner, as it attempted on the facts of the present case.

11. As pointed out above, even in the written statement, the defendant has averred that the cost of improvements would be much more than the value of the 1/3rd share of the plaintiff. Law does not favour a co-owner who effects improvements on his own accord without the consent of the other co-owners to get any compensation from the other co-owners when they claim their share by partition.

12. A co-owner, however, can compel the other co-owners to contribute to the expenses of improvements in the following cases viz. (a) if there is an express contract for such contribution; or (b) if the money was spent on the express or implied request of other co-owners; or (c) if he comes under Section 70 of the Indian Contract Act and the same is made out. (Vide ; Narendranath v. Jnanendranath, (1953) 8 DLR Cal 27; See AIR 1940 Pat 324 (FB) and : AIR1957Mad86 ).

13. In the instant case, the evidences on record disclose that the defendant by purchase had become the owner of 2/3rd share. She was fully aware that the original plaintiff was the owner of the undivided 1/3rd share. Even so, she never took the consent of the plaintiff for making any improvements and it is further on record that these improvements were not necessary to preserve the property as most of it is decorative. That being so, it is obvious that the plaintiff is not liable to contribute for the cost of the improvements made voluntarily by the defendant.

14. It is no doubt true that equity requires that as far as possible the improvements made by the defendant should be up to her 2/3rd share. But, if any portion of the improvements made falls to the share of the plaintiff, he is not bound legally to compensate for the same, for reasons discussed above. In that view, the Courts below were not justified in directing the plaintiff to contribute for the improvements made by the plaintiff. To that extent, the appeal is entitled to succeed.

15. With regard to the common liability, the defendant has already obtained a decree and the original plaintiff is bound to satisfy the same.

16. In the result, therefore, the appeal is partly allowed. While confirming the judgment and decree for partition and possession of 1/3rd share in the suit property in favour of the plaintiff as also the decree for accounts for the limited period and direction for calculating the mesne profits, I set aside that part of the decree which directs the plaintiff to pay compensation with regard to his share for the enhanced value of the premises due to improvements.

17. No costs in this appeal.

18. Appeal partly allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //