R. Venkatesa Konar vs Ryhena Bi and others

Bellie, J.—This Letters Patent Appeal arises out of a partition suit. Though the suit has been filed in respect of several items of properties,

we are now concerned only with hem III of plaint ''A'' schedule property. The suit property originally belonged to one Ab-dul Mohamed Rowther.

The plaintiff is one of his two daughters. First defendant is his wife, second defendant is the other daughter and defendants 3 and 4 are his sons.

Seventh defendant is his brother and defendants 4 and 5 are respectively the brother and sister of the mother of the first defendant. Sixth defendant

is an alienee-purchaser of the suit item III of the ''A'' schedule from the first defendant. Item III of ''A'' schedule is a storeyed house. The site on

which the building stands belongs to the first defendant by virtue of a settlement deed executed by her mother in her favour in respect of 49/56

shares of the land she owned there. It appears there was a tiled house in that site, but the plaintiff''s father i.e., the husband of the first defendant

demolished that house and in its place constructed the present storeyed house. It is the further case of the plaintiff that her mother orally gifted the

site to his father. It is the plaintiff''s case that after the death of her father she is entitled to 35/224 shares in the property. It is the further case of the

plaintiff that the first defendant her mother had executed a sale deed Ex.B.1 in favour of the tenth defendant purporting to convey the suit property

and that sale deed is sham and nominal and not binding on the plaintiff.

As against this the defendants 1 and 10 contended that there was no oral gift of the site by the first defendant to her husband and the

construction was made by the first defendant herself with her own money. Thus the entire property belonged to the first defendant and by virtue of

Ex.B. 1 sale deed by her in favour of the tenth defendant the latter is entitled to the property and thus the plaintiff has no right therein.

The trial Court rejected the plaintiff''s case that the site was orally gifted by her mother in favour of her father. It also rejected the case of the first

defendant that the house was constructed with her own funds but held that it was put up by her husband. The trial Court further held that the

construction was put up by the husband for the wife''s convenient abode and therefore she will be the full owner of the entire property and the sale

deed Ex.B.1 is not sham and nominal as pleaded and therefore the tenth defendant is the present owner of the property and the plaintiff has no

share.

Against this finding the plaintiff preferred an appeal and in that appeal A.S. No. 511 of 1977 Venugopal, J. concurred with the findings of the

trial Court that the oral gift pleaded by the plaintiff is not true and that the construction has been put up by the first defendant''s husband and not by

herself. But differing from the trial Court''s finding the learned Judge held that Ex.B.1 is a sham and nominal document. The learned Judge then held

the view that since the plaintiff''s father had put up the construction in the site belonging to his wife the entire property becomes the property of the

father and not his wife as held by the trial Court. Then the learned Judge discussing as to what share the plaintiff would be entitled to held that she

would be entitled to 112/672 shares in the property and accordingly he passed a preliminary decree for partition. Aggrieved, the tenth defendant

has filed this Letters patent Appeal.

Mr. G. Subramaniam, learned Counsel for the appallant tenth defendant argues that the learned single Judge erred in holding that the suit

property belongs to the plaintiff''s father. When admittedly the site belongs to the mother first defendant, the learned counsel submits, the trial Court

has correctly held that the father should have put up the construction for the benefit of the mother''s convenient abode and therefore by

presumption the property i.e., the site as well as the construction belongs to the mother. We are not impressed with this contention of the learned

counsel. As pointed out by the single Judge it has never been pleaded that the father put up the construction for the benefit of the mother. For is

there any evidence even in this behalf. That being the case we wonder how a presumption can be drawn that the father put up the construction for

the benefit of the mother. It can be quite possible that the site continues to belong to the mother while the construction belongs to the father. Unless

there is some evidence to show that either the mother has given up her right in the site to the father or the father has given up his right in the

construction to the mother by way of any conveyance or otherwise it cannot be said that construction also belongs to the mother or the site also

belongs to the father. From the fact that admittedly the site belongs to the mother, and from the findings of both the Courts below which have not

been assailed before us that the first defendant has not executed any gift deed in favour of the father and that the buildings has been put up by the

father and not the mother, the logical conclusion that could be arrived at is the site belongs to the mother whereas the construction belongs to the

father. Mr. G. Subramaniam, the learned counsel, would in support of his contention rely on a Division Bench ruling of the Calcutta High Court in

K.K. Das, Receiver and Others Vs. Sm. Amina Khatun Bibi and Another, , wherein it has been held to the effect that when a husband constructs

a building on a land belonging to his wife knowing the land to be his wife''s he never intends to reserve any right in the structures; he intends to

make the habitation both of himself and of his wife more comfortable. With great respect we find it difficult to accept this view as correct one.

When a husband puts up a construction on the site belonging to his wife, if it can be said that he never intends to reserve any right in the structures,

it can be equally said that when a wife makes no objection to her husband putting up a construction on her land, she reserves no right in the land. In

our view it is wrong to have such inferences. Considering the close relationship between the husband and the wife, when a husband puts up a

construction on a site belonging to his wife, in the natural course he does so with the intention that the site that belongs to his wife is his as well and

the wife also would think that the construction that her husband puts up is for her also. Difficulty would arise only when irreconcilable dispute arises

between them. In that event we have to see the law, and in law a she admittedly being the wife''s it must be held to be her''s and the construction

having been put up by the husband the construction must be held to be his. Therefore the plaintiff will be entitled to her share in the construction

alone and not in the site. Mr. G. Subramaniam would urge that it is in evidence that there was already a tiled house and that has been replaced by

the present construction and this would also show that the present construction is for the benefit of the wife. We do not see force in this contention

either. It is not in evidence as to who had put up that tiled house and there is no evidence as to what would be the value of that tiled house. If the

value of the tiled house was neligible one compared to the value of the present construction, the fact that there was a tiled house existing will be of

no significance.

The question whether Ex.B.1 is a sham and nominal document in our view will not arise because admittedly the site belonged to the first defendant

and she had a share in the construction and therefore even if she had executed a sale deed in respect of the entire property whatever right she had

in the property will pass on to the vendee. Therefore there is no point in the plaintiff saying that Ex.B.1 is a sham and nominal document.

With regard to the share of the plaintiff it has been held by the learned single Judge that she will be entitled to 112/672 shares i.e., 1/6 share. There

is no dispute regarding this and therefore we confirm the same. As regards the shares of other heirs of the father the trial Court''s finding which has

been challenged will stand.

Then difficulty is inevitable as to how to effect partition of the construction when the site belongs to the tenth defendant having been purchased

by him from the plaintiffs mother. When the site absolutely belongs to one person and with regard to the construction upon it he is entitled to a

share thereof, other shares being owned by others, the only convenient, just and equitable mode of partitioning is to allot the construction as a

whole to the person who owns the site also ordering payment of ovelty to other sharers of the construction. In this view of the matter the

construction has to be valued. Accordingly we order allotment of the whole construction to the tenth defendant after payment of overty to each of

the other sharers according to the value of their shares after the construction is evaluated by a Commissioner to be appointed by the trial Court. In

these terms the appeal is allowed.

There will be no order as to costs.

Order accordingly.