Vishwanathan  INSC 314 (12 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.881 OF 2001 Vinodan ..
Appellant Versus Vishwanathan ..Respondent
Dalveer Bhandari, J.
appeal is directed against the judgment dated 21st May, 1998 passed by the High
Court of Kerala at Ernakulam in A.S. No.254 of 1990.
is an unfortunate litigation regarding partition of a building constructed on a
small piece of land between the brothers. It is not disputed that the land is
jointly owned by 2 both the brothers. The dispute is restricted over the
building which has been constructed on the part of the land. The matter has
travelled from the Subordinate Court, Trichur to this Court.
serious endeavour has been made by this Court to amicably settle the matter. On
6.8.2008, the following order was passed by this Court"
"In the present
case, the dispute is between two brothers. The ownership of the land is
admittedly joint. The short controversy is regarding the cost of construction
over that plot. The case of the respondent is that he has spent the entire cost
of construction whereas the case of the appellant is that he has also
contributed equally to the cost of construction.
In our considered
view, this controversy can be easily sorted out by the parties. We have
requested the learned counsel for the parties to ensure that the matter may be
amicably settled between the parties and for that purpose, we adjourn this
matter for four weeks."
The dispute could not
be resolved despite efforts of this court and now we have been called upon to
give our judgment in the matter.
and Vishwanathan in the suit were the plaintiff and defendant before the trial
court. The suit was filed before the trial court with the prayer that the
property described in the plaint schedule was purchased jointly by the parties
as per the document no. 806/77 and the appellant before this court Vinodan is
entitled to the half share of the property. The trial court framed the
"(1) Whether the
plaint schedule property was acquired by the plaintiff and defendant jointly or
whether it was acquired by the defendant exclusively? (2) Whether the house was
constructed by both the parties or by any of them exclusively? (3) Whether
plaintiff is entitled to claim partition? (4) What is the quantum of mesne
profits, if to be paid? (5) Equities and reservations? (6) Reliefs and
The trial court after
examining the evidence and hearing the parties came to the following finding on
absolutely no hesitation to hold that the plaintiff and defendant had supplied
funds for the construction of the house and the house had been constructed with
that amount and so the house belonged to them jointly. Similarly the property
had 4 also been purchased with the funds of both and so it also belongs to
Issue no. 3, the trial court came to the finding that it had to be divided into
two equal shares and one such share was allotted to the plaintiff/appellant
herein and the other share was allotted to the defendant/respondent herein.
Issue no.4 pertaining to mesne profits, the trial court held that the
plaintiff/appellant was entitled to get mesne profits from the
defendant/respondent from the date of suit till possession. The trial court
further held that the quantum of mesne profits can be a matter which could be
decided in the final decree proceedings after the Commissioner would submit his
trial court directed that the property described in the plaint schedule has to
be divided into two equal shares and one such share was allotted to the
plaintiff/appellant and the other to the defendant/respondent.
defendant/respondent Vishwanathan aggrieved by the said order of the
Subordinate Court, Trichur filed an appeal before the High Court of Kerala at
Ernakulam. The finding of the High Court is that the plaintiff/appellant had
been regularly sending money for the construction of the building during the
period 1977-78. Exhs. B-36 and B-37 go to show that the appellant had sent
Rs.55,000/- during the period 1976-77 for the construction of the building.
a close scrutiny of all the documents available on record and the oral
evidence, the High Court came to the conclusion that on construction of the
building the appellant had spent Rs.55,000/- and the balance amount had been
spent by the respondent. The High Court allowed the appeal and set aside the
order and the preliminary decree passed by the trial court. In the impugned
judgment, the High Court directed that the plaintiff/appellant was not entitled
to divide the house and could only claim Rs.55,000/- from the respondent which
will be a charge on the property of the respondent.
appellant, aggrieved by the said judgment of the High Court, preferred this
appeal before this court.
have heard learned counsel for the parties at length.
The parties have been
litigating for more than 20 years and because of the bitter and long litigation
it may not be conducive for the parties to stay in the same building,
particularly when they have option of residing separately because of the
available land with each one of them. During the course of hearing, the learned
senior counsel appearing for the appellant gave an offer that his client is
willing to pay Rs.5,50,000/- in lieu of the share of the respondent. No offer
was given by the respondent despite opportunity granted by this court.
the facts and circumstances of the case, while balancing the equities and for
keeping peace and happiness in the family, we think it would be just and proper
to direct the appellant to pay Rs.5,50,000/- to the respondent within a period
of four months. On receiving the said amount, the respondent may construct a
suitable house in his portion of the land and for that 7 purpose we grant one
year's time from the date of payment of Rs.5,50,000/- to the respondent to
vacate the portion of the building which is presently in his possession and
give vacant and peaceful possession of his portion of building to the appellant
in lieu of payment of Rs.5,50,000/-. We are granting long time to the
respondent to vacate the portion of the building in his possession to avoid any
inconvenience to the respondent.
In case the
respondent after one year of receiving the entire amount of Rs.5,50,000/- does
not vacate the portion of the building in his possession, in that event, the
Subordinate Court is directed to ensure that the possession is taken from the
respondent and handed over to the appellant. Perhaps this solution may lead to
ultimate peace between the families of two brothers.
these observations, this appeal is accordingly disposed of leaving the parties
to bear their own costs.
(Harjit Singh Bedi)