Nazimudeen vs Muhammed Shafeeq

Sathish Ninan, J.

The preliminary decree in a suit for partition is under challenge by the first defendant.

The plaintiff and the first defendant are brothers. Ext.A1 is the Sale deed dated 04.09.2001 executed in favour of the plaintiff and the first defendant by defendants 2 and 3.

According to the plaintiff, while he was in Gulf countries, he had arranged for purchase of the property with the 1st defendant, and his share of the sale consideration viz. one half, was given to the first defendant for the joint purchase. It is understood that the sale deed contains a pre-emption clause. It has been incorporated without the knowledge of the plaintiff. On these allegation the suit was filed for partition, for declaration that the pre-emption clause in Ext.A1 is null and void, and for injunction against executing documents in respect of the property.

The first defendant denied the allegation of co-ownership and joint purchase. It was contended that, the first defendant and the plaintiff were abroad in the Gulf countries. The first defendant wanted to purchase the plaint schedule property. The purchase was exclusively by the first defendant and utilizing his funds. The consideration for Ext.A1 sale was paid by the first defendant directly to defendants 2 and 3. There was no contribution by the plaintiff. It was also contended that the plaintiff was only an employee of the first defendant at the Gulf country. The brother-in-law of the parties was working at the Palode Sub Registry Office. He had made all arrangements for registration of the sale deed. He and the plaintiff colluded and caused Ext.A1 to be executed in the joint names of the plaintiff and the first defendant, and also incorporated the pre-emption clause. it is contended.

The trial court held that Ext.A1 Sale Deed discloses that it was a joint purchase by the plaintiff and the first defendant and that, each are entitled for equal shares. Accordingly a decree was passed for partition. The preemption clause was held to be void.

I have heard Sri.V.Ajakumar, the learned counsel for the appellant-first defendant and Sri.Latheesh Sebastian, the learned counsel for the first respondent-plaintiff. Respondents 2 and 3 have not chosen to appear. They were ex parte in the court below also.

The point that arises for determination is :-

“Did not the trial court err in having not considered the plea of the first defendant that the entire consideration was paid by him and that Ext.A1 was not a joint purchase ?”

The trial court has granted a decree for partition on the following reasoning :-

“Ext.A1 is not in dispute. It shows the plaintiff and first defendant as co-owners. The right of the co-owners to get the property partitioned is not affected by any of the conditions in Ext.A1. There is no reason to go against the express recitals in Ext.A1.”

Section 45 of the Transfer of Property Act reads thus:-

“45. Joint transfer for consideration.—Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.

In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.”

When there is a joint purchase, the right of the sharers over the property will be proportionate to the consideration paid by each other. It is the definite case of the first defendant that, it was not a joint purchase but a purchase by the first defendant alone with his consideration and that the plaintiff had not contributed any part of the consideration. The plaintiff would on the other hand contend that it was a joint purchase and he had contributed one half of the consideration. Thus, according to the plaintiff, the plaintiff and the first defendant have half shares each, over the plaint schedule property. Therefore, essentially the question involved is with regard to the share of the consideration contributed by the plaintiff and the first defendant for Ext.A1 purchase. The trial court has not considered the said issue. The principle underlying Section 45 of the Transfer of Property Act has been overlooked.

Though the learned counsel for the first respondent-plaintiff would contend that the first defendant never chose to challenge Ext.A1 Sale Deed and hence he is not entitled to challenge the recitals in Ext.A1, it is to be noticed that, it is the definite case of the first defendant that the registration of Ext.A1 Sale Deed was the collusive affair between the plaintiff and the brother-in-law-DW3. Though the first defendant had made repeated requests to DW3 for handing over of the document, it was being postponed for one reason or the other, it is claimed. It is not in dispute that the first defendant was abroad. The suit was originally was decreed ex parte on 28.02.2006. In the final decree proceedings, the Commissioner visited the property. It is the case of the first defendant that, it is only at that stage that he got knowledge of the fact that Ext.A1 was written in the joint names of the plaintiff and the first defendant. Thereupon he got the ex parte decree set aside and has been defending the suit. The explanation offered by the first defendant is, a plausible one. Be that as it may, the first defendant not being a signatory to Ext.A1, it may not be necessary for him to challenge Ext.A1 document by filing a suit. He can, in defending the suit, adduce evidence of his exclusive title over the property. Therefore, the said argument fails.

As noticed, the trial court has not considered the relevant question for determination in the suit. It is only proper that the matter be disposed of afresh by the trial court. Since the matter is to be remanded back, the parties could be granted further opportunity to adduce evidence in support of their contentions. I make it clear that this Court has not expressed either way on the merits of the rival contentions.

In the result, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal afresh. The suit being one of the year 2005, I am sure that the trial court will make every endeavor for an expeditious disposal of the suit and preferably before 30th September, 2024. Parties to appear before the trial court on 01.03.2024.