JETHRUSE DSOUZA Vs. CATHERINE DSOUZA

JUDGEMENT

(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 Prl. Civil Judge, Mangalore, in RA No. 136 of 1971, on his file, partly allowing the appeal and modifying the judgment and decree dated 30-6 1971 passed by the I Addl. Munsif, Mangalore, in OS No. 342 of 1964, on his file.

(2.) Tke 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 Nathalie and 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 5-1964 making out a false case. There are two residential buildings in the suit property bearing Door Nos. 17-390 and 17-391 and 17 391 A. 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 Rs. 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.