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Kochummini Kassinkunju Vs. Sankara Pillai, Velayudhan Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberS.A. No. 397 of 1968
Judge
Reported inAIR1973Ker190
ActsTransfer of Property Act, 1882 - Sections 51
AppellantKochummini Kassinkunju
RespondentSankara Pillai, Velayudhan Pillai and anr.
DispositionAppeal dismissed
Cases ReferredMammathu v. Kathijumma Umma
Excerpt:
- - this direction is clearly illegal......has a right to get the value of all the improvements that are found to exist in the portion of the garden land which has to be allotted to the share of the plaintiff. the preliminary decree passed by the trial court was modified by the subordinate judge to the aforesaid extent. the 1st defendant has brought this second appeal challenging the concurrent findings entered by the courts below that the plaintiff is entitled to a half share in the plaint schedule properties. the plaintiff has filed a memorandum of cross-objections challenging the correctness of the view taken by the subordinate judge upholding the claim of the 1st defendant for payment of the value of improvements existing in the property allotted to the plaintiff's share.3. though the learned advocate appearing on behalf of.....
Judgment:

V. Balakrishna Eradi, J.

1. This second appeal arises out of a suit for partition filed by the 1st respondent herein seeking the recovery of a half share in the plaint schedule properties on the ground that the suit items were purchased jointly by the plaintiff and the 1st defendant under the sale deed Ext. P-1 dated 26-8-1946 for a consideration of Rs. 4,000/- which is said to have been paid conjointly by both of them, each contributing one-half of the amount. The 1st defendant contended that the entire consideration for the purchase of the suit properties had been paid solely by him and that though the plaintiff's name had also been shown in the document as a joint purchaser, it was the common understanding of the parties that the title was to vest only in the 1st defendant and the plaintiff was to have no right or interest in the properties. It is the 1st defendant's case thatfrom the date of Ext. P-1 the entire properties were in his exclusive possession until an otti was executed by him in respect of plaint item No. 1 whereafter the said item alone was in the possession of the mortgagee and items 1 and 2 continued in the possession of the 1st defendant himself. On this basis it was pleaded that valuable improvements had been effected by the 1st defendant on the plaint items by expending as much as Rs. 53,000/-; and that in any event he is entitled to be paid the value of all those improvements even if a partition is to be ultimately ordered.

2. The courts below have concurrently negatived the case of the 1st defendant that he alone had expended the entire consideration for the purchase of the suit properties and that the plaintiff was a mere name lender. The lower courts have held that the plaintiff is entitled to a half right in the plaint schedule properties and that the suit for partition is therefore maintainable. The claim for payment of value of improvements was rejected by the trial Court by holding that as between tenants-in-common there cannot be any claim for value of improvements unless it is shown that the co-sharer putting forward the claim for compensation had effected the improvements on the basis of any specific agreement or at least with consent of the other co-sharers. When the matter was taken up in appeal before the lower appellate Court the learned Subordinate Judge has differed from the Munsiff on the said question and held that the 1st defendant has a right to get the value of all the improvements that are found to exist in the portion of the garden land which has to be allotted to the share of the plaintiff. The preliminary decree passed by the trial Court was modified by the Subordinate Judge to the aforesaid extent. The 1st defendant has brought this second appeal challenging the concurrent findings entered by the courts below that the plaintiff is entitled to a half share in the plaint schedule properties. The plaintiff has filed a memorandum of cross-objections challenging the correctness of the view taken by the Subordinate Judge upholding the claim of the 1st defendant for payment of the value of improvements existing in the property allotted to the plaintiff's share.

3. Though the learned advocate appearing on behalf of the appellant endeavoured hard to make out that the lower courts have committed a serious error in holding that the plaintiff is entitled to a half share in the plaint schedule properties there are absolutelyno valid grounds justifying interference by this court under Section 100. C. P. C. with the concurrent finding of fact recorded by the courts below that the consideration for the sale evidenced by Ext. P-l was actually paid by the plaintiff and the 1st defendant in equal shares. The second appeal has therefore no merits and has only to be dismissed. I do so.

4. The contention taken in the memorandum of cross-objections is that the reasoning given by the learned Subordinate Judge in support of his conclusion that the 1st defendant has a right to get compensation from the plaintiff in respect of all the improvements that are found to exist in the share of the garden land allotted to the plaintiff is erroneous and unsustainable. What the learned Subordinate Judge has stated is that because the plaintiff has admitted that he was not in possession of any portion of the garden land and that the 1st defendant alone was in possession, the income derived by the 1st defendant from the usufructs of the property could have been utilised by him in making improvements on the property and since at least one-half of the said income belonged to the 1st defendant the plaintiff has to compensate the 1st defendant for the improvements that are found to exist on the portion of the garden land that may be ultimately set apart to his share. In my opinion, this reasoning is wholly fallacious. The plaintiff and the 1st defendant were co-owners in respect of the garden land. As pointed out by this Court in Mammathu v. Kathijumma Umma, 1965 Ker LT 655 = (AIR 1965 Ker 207) the law declines to compel a co-sharer to pay for improvements made on the common property by another co-sharer without the former's authorisation. However as a matter of equity the court will make every effort to effect the division in such a way by allotting to the co-sharer who made the improvements the portion of the property where the improvements stand so long as this can be done consistently, with the proportion of the property to which he is entitled and without causing prejudice to the other co-sharers. But any such equity will become incapable of being worked out in cases where the entire property to be partitioned has been either built upon or otherwise improved. In such cases where one joint tenant or tenant-in-common covers the whole of the estate with valuable improvements so that it is impossible for his co-tenant to obtain his share of the estate without including a part of the improvements so made, the tenant making the improvements would not be entitled to compensation therefor, notwithstanding the fact that they may have added greatly to the value of the land.

5. Tested in the light of the principles stated above, the view taken by the learned Subordinate Judge cannot be accepted as correct. What has been done by the learned Judge is to direct that besides alloting to the 1st defendant his half share of the garden land along with all the improvements existing thereon he should also be given compensation representing the value of the improvements that are found to exist on the remaining portion of the garden land which is to be allotted to the share of the plaintiff. This direction is clearly illegal. The modification effected by the lower appellate Court in the trial Court decree, will therefore stand cancelled; and the decision rendered by the trial Court on issue No. 7 negativing the 1st defendants claim for value of improvements will stand restored. The memorandum of cross-objections is accordingly allowed. The appellant will pay the costs of the 1st respondent in the second appeal. The parties will bear their respective costs in the memorandum of cross-abjections. No leave.


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