VINODAN v. VISHWANATHAN

Citation: [2009] 2 S.C.R. 100

Court: Supreme Court of India

Bench: DALVEER BHANDARI, H.S. BEDI

Case summary

VINODAN v. VISHWANATHAN.pdf

Judgment text

[2009] 2 S. C. R. 100 VINODAN ... v. VISHWANATHAN Civil Appeal No. 881 of 2001 FEBRUARY 12, 2009 [DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ. ] Suit - For partition of building - Constructed on the. part ~ of plot jointly owned by parties - Trial court directing equal partition - High Court holding that plaintiff not entitled to partition and could claim only the amount spent on construction - On appeal, defendant agreeing to pay Rs. 5,50,0001- in lieu of plaintiff's share - Held: Direction for payment of the amount as agreed by defendant to the plaintiff for balancing equities and keeping happiness andpeace between the litigating brothers. The present appeal relates to a dispute between two brothers regarding partition of a building constructed on a part of plot of which they were joint owners. Claim of respondent was that he had spent the entire cost of construction, while the appellant contended that he had equally contributed for the construction.

Disposing of the appeal, the Court HELD: 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. The respondent gave an offer that he is willing to ' . , pay Rs. 5,50,0001- in lieu of the share of the appellant. In the facts and circumstances of the case, while balancing the equities and for keeping peace and happiness in the VINODAN V. VISHWANATHAN 101 family, it would be just and proper to direct the respondent to pay Rs. 5,50,000/- to the appellant. On receiving the said amount, the appellant may construct a suitable house in his portion of the land and for that purpose one year's time from the date of payment of Rs.

5,50,000/- is granted to the appellant to vacate the portion of the building which is presently in his possession and give yacant and peaceful possession of his portion of building to the respondent in lieu of payment of Rs. 5,50,000/-. [Paras 11 and 12] [104-D, E, F, G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 881 of 2001 c.. From the Judgement and Order dated 21. 05. 1998 of the High Court of Ke. rala at Ernakulam in A. S. No. 254of1990 . _. Subramonium Prasad for the Appellant. ... :,. ~'', A. R~ghunath for the Respondent. The Judgement of the Court was delivered by ·. -. DALVEER BHANDAR1, J. 1. This appeal is directedagainst the judgment dated 21st May, 1. 998 passed by the High Court of Kerala at Ernakulam in A. S. No. 254 of 1990. 2. This is an unfortunate litigation regarding partition of building constructed on a small piece of land between the brothers. It is not disputed that the land is jointly owned by both the brothers.

The dispute is restricted over the building which has been constructed on the part of the land. The matter has traveiled from the Subordinate Court, Trichur to this Court. 3. A 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. · plot The case of the respondent is .. that h-e 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,- of: we adjourn this matter for four weeks. " The dispu. te could not be re. solved despite efforts of this court and now we have been called upon to give our judgment in the matter. 4.

Vinodan and Vishwanathan in the suit were the plaintiff and defendant before the trial court. The suit was filed before r- ·the trial court with the prayer that the property described in the plaint schedule was purchased jointly by the parties as per the r -document no. 806/77 and the appellant before this court Vinodan ;is. entitled to the half share of the property. The trial court framed ~ t,he following issues: "(1) Whether the plaint schedule property was acquired , · by the plaintiff and defendant jointly or whether it was ;. acquired by the defendant exclusively? f (2) Whether the house was constructed by both the •• parties or by· any of them exclusively? ~ (3) Whether plaintiff is entitled to claim partition? t (4) What is the quantum of mesne profits, if to be paid? ,,; . , ~ I (5) Equities and reservations? t (6) Reliefs and Costs? " ~ I. ' - ' spondent to pay Rs. 5,50,000/- to the appellant within a period of four months.

On receiving the said amount, the appellant may construct a suitable house in his portion of the land and for that purpose we grant one year's time from the date of payment of Rs. 5,50,000/- to the appellant 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 respony dent in lieu of payment of Rs. 5,50,000/-. We are granting long time to the appellant to vacate the portion of the building in his possession to avoid any inconvenience to the appellant. In case the appellant after one year of receiving the entire amount of Rs. 5,50,000/- does not vacate A 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 appellant and handed over to the respondent. Perhaps this solution may lead to ultimate peace between the families of two brothers. B 13.

With these observations, this appeal is accordingly disposed of leaving the parties to bear their own costs. K. K. T. Appeal disposed of.