KOCHUMMINI KASSINKUNJU Vs. SANKARA PILLAI VELAYUDHAN PILLAI

JUDGEMENT

(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. P1 dated 26-8-1946 for a consideration of Rs. 4,000/- which is said to have been paid cojointly 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 that from the date of Ext. P1 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 cosharer 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 cosharers. 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 absolutely no valid grounds justifying interference by this court under S.100, CPC. with the concurrent finding of fact recorded by the courts below that the consideration for the sale evidenced by Ext. P1 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.