VEDAMANI PALAYYA Vs. UMMINI NADAR KOCHUKRISHNAN

JUDGEMENT

(1.) PLAINTIFF is the appellant. The suit is for declaration of his title and possession over item 1 and for partition of items 2 to 4. Defendants 1 and 2, husband and wife, had a daughter by name Thankammal who was the wife of Plaintiff. She died on 2 -12 -1963. Plaintiff had married her in the year 1952. At that time item No. 1 was settled on plaintiff and deceased Thankammal by defendant 1 as per Ext. P -1 Streedhanom deed. A building was put up on this item later and this Thankammal was residing there and the plaintiff who was in military service used to come occasionally here to live and then go back to his place of service. Items 2 to 4 are acquisitions in the name of Thankammal. When Thankammal died the plaintiff was away. On hearing the news of her death he came on 12 -12 -1963. He staved in the house and after 12 or 13 days returned to his place of service. Subsequently dispute seems to have arisen between the parties as regards the rights over item No. 1. So, the plaintiff filed a suit for declaration of his title and possession over item No. 1' and for partition of items 2 to 4 and allotment of a one -half share to him. He claimed that the building in item No. 1 was put up with his funds and it exclusively, belonged to him, and so far as item 1 was concerned his case was that as per Ext. P -1 the property belonged to him and his wife and on her death her share also devolved on him. Defendants 1 and 2 contended that item No. 1 and the building and other items scheduled to the plaint exclusively belonged to Thankammal, item No. 1 was given to Thankammal as Streedhanom by the 1st defendant, the plaintiff's name was included in the Streedhanom deed only to facilitate the management of the property and by that no right is obtained by him. The deceased Thankammal was a teacher and the building in item No. 1 was constructed by her with her own funds and the plaintiff did not get any right over the building in item No. 1. They admitted the plaintiff's right over items 2 to 4.

(2.) THE trial Court found that item No. 1 was given by way of Streedhanom on the occasion of the marriage of the plaintiff with Thankammal and even though in the Streedhanom deed plaintiff's name was also mentioned as one of the executees being a Streedhanom gift deceased Thankammal alone was entitled to it as per law. The building was found to be one Put up by the plaintiff with his funds, and therefore the trial Court decreed partition of items 1 to 4 and allotment of one -half share to the plaintiff, and in effecting the division the building was directed to be included in the share to be allotted to the plaintiff. Defendants 1 and 2 appealed to the District Court, and the plaintiff filed a cross -appeal. The plaintiff's cross -appeal related to the refusal of the trial court to recognise plaintiff's one -half right as a grantee under Ext. P1. According to the plaintiff, by the terms of Ext. P1 he is entitled to one -half and the other half belonged to his wife and on her death one -half of that one -half viz. one -fourth is inherited by him and therefore he is entitled to three -fourth over item No. 1. The appeal by Defendants 1 and 2 was only against the decree of the trial court to the affect that the building over item No. 1 belonged to the plaintiff. According to them, the building belonged to the deceased Thankammal and on her death plaintiff is entitled to only one -half and the other half is inherited by Defendants 1 and 2. The lower appellate court considered these two claims, disagreed with the trial court on the Question of ownership of the building but confirmed the finding of the trial Court as regards the ownership of item No. 1. The lower appellate court came to the conclusion that there was no sufficient evidence to come to the conclusion that the building was put up with the plaintiff's funds. The plaintiff might have sent some amounts to his deceased wife. But there is absolutely no evidence to connect those amounts with the construction of the building. On the other hand, it has come out in evidence that these amounts were sent for maintenance of his wife and also to give some amounts to his parents. So in the absence of sufficient evidence to come to the conclusion that the building was Put up with the funds of the plaintiff, the lower appellate court took the view that the building must be held to belong to the person to whom the property belonged, The property having been found to belong to the deceased Thankammal the building must also be deemed to belong to her and on her death the plaintiff will be entitled to get only one -half. The other half must go to Defendants 1 and 2. On this finding the appeal was allowed and the cross -appeal was dismissed. It is against these that the plaintiff has filed the present appeal.

(3.) THE second point urged on behalf of the Plaintiff is that the building in item No. 1 was constructed by the plaintiff. The defence case is that it was constructed with the funds of Thankammal. The plaintiff produced money order coupons. Exts. P 16 to P 50, to show that in the period during which the building was put up he had sent large amounts to his wife. He also deposed as PW. 1 that while he was at Trivandrum on leave he used to supervise the construction of the building. The building was commenced in 1954 and was completed in 1959. These amounts were sent not for her maintenance, because she had a job and she was getting a monthly salary, PW. 2 a mason also deposed that it was he who constructed the building and the plaintiff while he was here used to look after the construction work and also pay him amounts by way of wages and for purchase of materials. But, this evidence is not sufficient to come to the conclusion that all the amounts required for the building proceeded from the plaintiff. The amounts covered by these money order coupons Exts. P 16 to P 50 come to Rs. 1,205/ - Of course, the plaintiff has sworn that over and above what he sent by money orders, whenever he came on leave he used to bring some amount which was spent on the building. Even then it is not possible to come to the conclusion that the building which was stated to be worth Rs. 3,500/ - was completely constructed with his funds alone. Deceased Thankammal was a teacher and she was earning a substantial income monthly by way of salary and she could also invest amounts for the construction of the building. In such circumstances, the reasonable conclusion will be that the building has been put up with the funds of both the plaintiff and deceased Thankammal. The name 'P. T. Mandiram' (P stands for Paul (plaintiff) and 'T' for Thankammal) also justifies this conclusion.