LAWS(ALL)-1982-7-12

PATRAM SINGH Vs. BAHADUR SINGH

Decided On July 20, 1982
PATRAM SINGH Appellant
V/S
BAHADUR SINGH Respondents

JUDGEMENT

(1.) THIS is a plaintiff's Second appeal in a suit for partition. The parties are brothers. The dispute relates to a house, the site of which was purchased on 21st August. 1941 for of consideration of Rs. 1,000/- in the joint name of both the brothers. The construction of the house began in 1947 and was completed by 1948. The defendant's case was that the house belonged to him exclusively. He had purchased the land from his own separate funds, but the mother of the two brothers. the father being dead, desired that the name of the plaintiff should also be entered in the sale deed and the defendant acquiesced in the wishes of the mother, on the assurance that the plaintiff would pay his share but that was never paid.

(2.) IT is undisputed that there was no partition between the brothers at any time after their father's death and they had continued to remain joint in estate. IT is a different matter that both the brothers were employed and besides the ancestral property they had taken up employment to eke out their livelihood. The family to which they belonged possessed some 34 bighas, 14 biswas of agricultural land. The case comes from district Meerut. IT does, however, appear that the whole area of the land did not belong to the two brothers, and, according to the lower appellate Court, the share of Naubat Ram the father of the two brothers, came to about four bighas of land in that holding.

(3.) ACCORDING to the judgment of the lower Appellate Court the three grounds on which the plaintiff claimed a half share in the house at item No. 1 of the plaint also, hereinafter referred to as the house in dispute, were : (1) There is ancestral property in village Udaipur, Tahsil Hapur, giving an annual income of Rs. 500/ -. which was solely realised by the defendant and used by him for the construction of this house. (2) The house was constructed in parts and was let out to various tenants. This rental income, according to the plaintiff, was also realised by the defendant and was used for the construction of the home. (3) The plaintiff had also contributed the amount for the construction of this house from the savings of his earnings. The points raised by the lower Appellate Court for its determination were : "1. Was there any joint family nucleus, if so was it available to the defendant and was it sufficient for the purchase of the land and construction of the house thereon ? 2. Had the plaintiff contributed towards the costs of the land and the construction of the house ?" On the first point the lower Appellate Court recorded the following findings : (i) There was no joint family nucleus, from which the land could be purchased. (ii) The plaintiff did not pay any part of the sale consideration. (iii) The joint family was not in possession of the agricultural land, which was not leaving any surplus alter meeting the needs of the family and therefore, no money was available from the joint family property to the defendant, which could be used for the purchase of the land or for the construction of the house thereon. On the second point the lower Appellate Court recorded the finding that with a meagre salary of Rs. 18/- Per month, it could not have been possible for the defendant (plaintiff ?) to save anything and he could not have contributed anything for the construction of the house or for the purchase of the land. It then proceeded to consider the third point, though not formulated by it in so many words on the argument raised on behalf of the plaintiff-appellant, that the defendant had failed to establish his means and as the house was constructed on the joint land, it must be held that it is joint property and was constructed jointly by the two brothers. ACCORDING to the lower Appellate court the argument was not convincing. In the own words of the lower Appellate Court. "firstly it is admitted by the plaintiff that the defendant had purchased the house in the name of his wife. This house was purchased for Rs. 8000/ -. The plaintiff has not filed suit regarding this house. It follows therefore, that the defendant had purchased this house out of his own savings. This alone shows that the defendant has sufficient means, Secondly the defendant had been in service from 1929. He had paid the entire sale consideration about the purchase of the land. This also shows that the defendant has been saving money from his earnings, and by 1947, when he started constructing the house he must have saved sufficient amount. Thirdly it is true that the land was purchased in the plaintiff's name also, but the evidence discloses : (i) that the plaintiff had not contributed towards the sale consideration. (ii) that the defendant was in services at that time. (iii) that the ancestral property was yielding no income, and under these circumstances, the statement of the defendant that the plaintiffs' name was mentioned as desired by his mother, must be believed. The house was constructed by the defendant, even it was let out to different tenants and the defendant has been realising rent, this fact cannot help the plaintiff and the house will remain the private property of the defendant. "