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Case Number

A.F.O.D No. 55 or 1959

Attorney(S)

S. Sarwar Ali
R.S. Sinh

Judges

Raj Kishore Prasad, J.

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Smart Summary

Structured Summary of the Court Opinion — Partition Suit Appeal

Factual and Procedural Background

This appeal was filed by the plaintiff (appellant) from a suit for partition between two brothers. The lower court decree was made in part only with respect to immovable properties. The appellant pursued two points on appeal: (1) that he should have been awarded half the cost of repairs and electric installations to a house in Mahalla Kashmiri Kothi, and (2) that the trial Court acted illegally in refusing to award costs of the suit to the appellant. Other findings of the court below were not challenged, and the appellant gave up the appeal in respect of movable properties.

Legal Issues Presented

Whether the appellant, having incurred expenditure on repairs and electric installations to a house in which he resided but which was common property, was entitled to half of that expenditure from the co-owner (the respondent).
Whether the trial Court erred in directing that the parties should bear their own costs of the suit (i.e., whether the appellant should have been awarded costs given the respondent's alleged unfounded defence).

Arguments of the Parties

Appellant's Arguments

The house in Mahalla Kashmiri Kothi belonged to both brothers and the appellant had effected improvements/repairs and electric installations at his own expense; therefore he should be given half the cost of those repairs and improvements.
Relied on Calcutta High Court authorities (Jagannath Marwari v. Mt. Chandni Bibi and Narayan Lal Gupta v. Chulhan Lal Gupta) which applied the rule in Leigh v. Dickeson and Brickwood v. Young, to support entitlement for contribution or adjustment on partition.
As to costs, the appellant argued that the respondent raised a false defence attacking the appellant's title (alleging he was a step-brother), and because that defence was negatived by the court below the appellant should have been awarded costs. He relied on decisions such as Satya Kumar Banarjee v. Satya Kripal Banerjee and Shanmugam Pillai v. Mirakani Rowther.

Respondent's Arguments

No reliable evidence established that any improvement or repairs (or the claimed sums) were actually made or spent; records and witness evidence did not satisfactorily prove the expenditures.
Even if expenditure was made, it was incurred by the appellant while occupying the house (on the occasion of his marriage) without the consent of the respondent; therefore the respondent could not be required to contribute.
Relied on Solaiman Moosaji v. Jatindra Nath (and referenced Upendra Nath v. Umesh Chandra) to support the position that a co-owner who improves the property without the other's consent cannot necessarily recover contribution.
As to costs, the respondent pointed out the parties had succeeded on different issues (partial success for both) and contended the trial court was justified in directing parties to bear their own costs; relied on Jugesher Misra v. Kirti Singh to support deference to trial court's discretion on costs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagannath Marwari v. Mt. Chandni Bibi, 26 Cal WN 65 : (AIR 1921 Cal 647)	Applied the rule (also recognized in Leigh v. Dickeson and Brickwood v. Young) about when a co-owner who expends money on joint property may be afforded an allotment to recoup the benefit of improvements but is not automatically entitled to full recompense.	Relied upon by appellant; the Court extracted from it the equitable principle that an improver may, prima facie, be given an allotment enabling him to reap advantage of improvements but not necessarily full reimbursement, especially where improvements extend over the whole joint property or were made without co-owner's consent.
Leigh v. Dickeson, (1884) 15 QBD 60	English authority underpinning the equitable approach to improvements by a co-owner and limits on recovery.	Identified in the opinion as part of the rule applied in Jagannath Marwari; used to state the general principle on treatment of improvements in partition cases.
Brickwood v. Young, (1905) 2 CLR 387	Another authority on co-owners' rights regarding improvements and equitable allocation on partition.	Noted as part of the body of authority supporting the equitable rule applied in the earlier Calcutta decision relied on by appellant.
Narayan Lal Gupta v. Chulhan Lal Gupta, 14 Ind Cas 677 (Cal)	Calcutta High Court authority cited in support of the proposition that an improver may be treated equitably on partition.	Relied on by appellant; cited by the Court when summarising the principles that emerge from the authorities about improvements by a co-owner.
Solaiman Moosaji v. Jatindra Nath, ILR 57 Cal 538 : (AIR 1929 Cal 553)	Considered earlier judgments (including Jagannath and Upendra Nath) and expressed caution regarding wide expressions; supports the proposition that improvements made without the co-owner's consent do not automatically give rise to a recoverable charge.	Relied upon by the respondent; the Court expressed respectful agreement with Chief Justice Sir George Rankin's articulation in this case and applied the principle that improvements without consent may leave the improver a volunteer who cannot compel contribution.
Upendra Nath v. Umesh Chandra, 15 Cal WN 375	Earlier Calcutta decision considered in Solaiman Moosaji concerning improvements and rights of co-owners.	Cited within the discussion in Solaiman Moosaji and noted in the opinion as part of the chain of authorities examined by the Court in formulating the equitable rule.
Satya Kumar Banarjee v. Satya Kripal Banerjee, 10 Cal LJ 503	Authority cited for the proposition that where a defendant contests the plaintiff's right with an unfounded opposition, the plaintiff may be awarded costs incurred by reason of that defence.	Relied on by the appellant in support of an argument for costs; the Court considered this principle when evaluating whether the trial court erred in ordering parties to bear their own costs.
Shanmugam Pillai v. Mirakani Rowther, 21 Ind Cas 746	Letters Patent Bench decision cited similarly for awarding costs where a defendant raises unfounded contentions.	Relied upon by the appellant in support of entitlement to costs; considered by the Court in the context of whether the trial court's exercise of discretion on costs was judicially sound.
Jugesher Misra v. Kirti Singh, AIR 1942 Pat 76	Authority supporting deference to the trial court's discretion in awarding costs.	Relied upon by the respondent; the Court treated this as supporting the conclusion that the trial court's direction that parties bear their own costs was an exercise of judicial discretion that need not be disturbed on appeal.

Court's Reasoning and Analysis

The Court proceeded by first identifying the applicable equitable principles distilled from the authorities (paras 5–6): where co-owners have plainly contracted or dealt with joint property, that fact bears on equity; an improver may be given an allotment enabling him to enjoy the benefit of improvements but is not prima facie entitled to be fully recouped by co-owners, especially if the improvements cover the whole property or were made without co-owner consent. Such an improver may, in many cases, be treated as a volunteer and not entitled to charge the co-owner unless a special or strong case is made.

Applying those principles, the Court examined the evidence bearing on whether the appellant had in fact incurred the amounts claimed and whether the expenditure entitled him to contribution:

The trial judge had not recorded a specific finding accepting the plaintiff's claimed expenditure, but held that even if the plaintiff had spent money it was at his own risk because he occupied the house and had acted without the defendant's consent; accordingly the claim was disallowed.
On appeal the appellant produced evidence (P.Ws 6 and 7 and Exts. 2 series, 8 and 9). The Court analysed these materials and found inconsistencies: the plaint gave one figure (Rs. 609/14/9p), the plaintiff's evidence another (Rs. 600 for repairs and Rs. 200 for electrification), and the account entries (Exts. 2 series) displayed chronological inconsistencies that undermined their reliability.
P.W.6, a mason who worked in the house, stated he did not see accounts being kept and took no receipt; he was an unsummoned witness called by the plaintiff. The Court found on this evidence it could not accept that the accounts were kept in the ordinary course or that the plaintiff had proved the expenditure claimed.
Although electric bills (Exts. 8 and 9 series) were produced, the Court held that even if that expenditure had been incurred, it was for the appellant's own convenience and luxury related to his marriage and was done without consulting or obtaining the consent of the co-owner; under the authorities an improver acting unilaterally in occupation cannot compel contribution.
Consequently the Court agreed with the trial judge's conclusion that the plaintiff was not entitled to any contribution for repairs or electric installations.

On the question of costs, the Court considered Section 35 of the Civil Procedure Code (costs to be in the discretion of the Court) and reiterated that such discretion must be judicial and exercised on legal principles. The appellant argued for costs because the respondent had raised a false defence (denying fraternal status). The Court observed that though that defence was negatived, the defendant succeeded on other points (including refusal of contribution and success on some claims), producing a situation of divided or partial success. Applying the relevant authorities, the Court found that in the particular facts and partial successes of both parties, the trial Court's direction that parties bear their own costs up to the preliminary decree stage (and in the trial Court) was a judicial exercise of discretion and should not be disturbed. The appellate Court therefore affirmed the trial Court's order on costs and directed that the parties bear their own costs of this Court as well.

Holding and Implications

HOLDING: The appeal is DISMISSED. The judgment and decree of the Court below are affirmed.

Implications and direct effects:

The appellant is not entitled to recover half—or any portion—of the alleged amounts spent on repairs and electric installations of the house in which he resided; the claim for contribution was dismissed on the evidentiary record and because the expenditures were made without the co-owner's consent.
As to costs, the trial Court's order that the parties should bear their own costs is affirmed; the appellate Court also directed that the parties bear their own costs in this Court.
The decision resolves the dispute between these parties on the two contested points but does not purport to lay down any new or broader precedent beyond applying existing equitable principles and the exercise of judicial discretion on costs to the facts before it.

CF/J/D.H.Z

Disposition: Appeal dismissed.

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Abdul Sattar v. Mohammad Zahoor .

1. This appeal by the plaintiff arises out of a suit for partition between two brothers which has been decreed in part only in respect of immovable properties. Only two points have been raised by Mr. Sarwar Ali, for the appellant in this court, namely, (1) that the appellant should have been allowed half of the cost incurred on repairs and electric installations of the house in Mihalla Kashmiri Kothi, and, (2) that the trial Court has acted illegally in not awarding costs of the suit to the appellant.

2. As the findings of the court below on other points have not been challenged and the appeal in respect of the moveable properties has been given up, it is not necessary to refer to any other fact.

3. On the first question, the argument put forward by Mr. Ali was that as admittedly the house in Mahalla Kashmiri Kothi belonged to both the brothers and the appellant effected improvement on his common property at his own expense, he should be given half the cost of the repairs and improvements effected on this house, which is also sought to be partitioned. He relied, in support of his contention, on two Bench decisions of the Calcutta High Court in Jagannath Marwari v. Mt. Chandni Bibi, 26 Cal WN 65 : (AIR 1921 Cal 647), in which also the rule recognised in Leigh v. Dickeson, (1884) 15 QBD 60, and Brickwood v. Young, (1905) 2 CLR 387, was applied, and in Narayan Lal Gupta v. Chulhan Lal Gupta, 14 Ind Cas 677 (Cal).

4. The above argument, however, was met by Mr. R.S Sinha, appearing for the defendant respondent, in reply, by contending, in the first place, that no improvement has been made, and that there is no reliable evidence to show if any repairs or electric installations have been effected, and, if so, how much was spent over them, and, in the second place, that as, admittedly, the plaintiff made the alleged repairs and electric installations in the house, which was in his occupation, on the occasion of his own marriage, without the consent of the respondent, the latter could not be made to pay any portion of the cost, even if incurred by the appellant for the above purposes. Reliance was placed, in support of this contention, on another Bench decision of the Calcutta High Court in Solaiman Moosaji v. Jatindra Nath, ILR 57 Cal 538 : (AIR 1929 Cal 553) in which the judgments delivered by Mr. Justice Asutosh Mookerjee in 26 Cal WN 65 : (AIR 1921 Cal 647) (supra), and earlier in Upendra Nath v. Umesh Chandra, 15 Cal WN 375 were considered and Sir George Rankin, C.J, who delivered the judgment of the Court in this case, said that “though the language is undoubtedly wide in certain of the expressions”, there is no reason for saying that Mr. Justice Mookerjee intended to lay down a proposition beyond which he (Rankin, C.J) had endeavoured to state. I express my respectful agreement with the principles laid down by the learned and distinguished Chief Justice Sir George Rankin in the just mentioned case.

5. The principles, which can be extracted from the above authorities, and, the covering rule, which emerges therefrom may be summarised thus:

6. Where the parties to a partition smit had long ago made their bargain with their eyes open, that is an important circumstance when the Court comes to consider the equity of the case. Where a person has expanded money upon a joint property and a time comes to partition it, it is reasonable and right to endeavour to give him such an allotment as may enable him to reap the advantage of what he has expended upon improvements. It is not the prima facie right of such a co-owner expending money to improve the whole or a greater portion of the joint land to have in one way or another recouped to him by his co-owners the value of the improvements which they get in the shares which are allotted to them. In a case where the improvements have been made by a co-owner at his own will—though not improperly—the court will not endeavour to make sure that the owner, who has improved the property, will get every penny to himself of the advantage which his money has created. If one joint owner covers the whole of the common property with valuable improvements so that it is impossible for his co-owner to obtain his share of the property without including a part of the improvements so made, the joint owner making the improvements would not be entitled to ??? therefor, notwithstanding trey may have added greatly to the value of the land; because it would be the improver's own folly to extend his own improvements over the whole joint property and because it would be unjust to permit a co-owner at his pleasure to charge another co-owner with improvements he may not have desired. In such a case, the improver stands as a mere volunteer and cannot, without the consent of his co-owner, lay the foundation for charging him with improvements. Prima facie, such an owner will be given an allotment, so far as is possible, that may enable him to keep the advantage of his improvements. But it requires a special case and a very strong case for a Court to go any further than that.

7. In the light of the above principles, lets now examine the arguments of the parties. The Court below has not specifically recorded any specific finding either accepting or rejecting the case of the plaintiff that he has spent Rs. 607/14/9p for the repairs and electric instalments over the disputed house in occupation of the plaintiff. The trial judge has, however, taken the view that even if it be found that the plaintiff has made expenditure over these things, it will be taken that he has done it at his own risk, and, therefore, he is not entitled, as a matter of right, to claim any contribution from the defendant. Accordingly, the plaintiff's claim was disallowed.

8. In this Court, Mr. Ali placed before me the evidence of P.Ws 6 and 7 and also Exts. 2 series 8 and 9 in order to show that the plaintiff's case was true. On the evidence of the plaintiff (P.W 7), it is admitted that he was living in the Kashmiri Kothi house, and that his brother, the defendant was living in another house in Mahalla Gorthatta. He further admitted that he did not take permission from the municipality for doing the repair, as only repair was to be done, and he needed the repair as he was to marry himself and that he did not show the amount of his expenditure to his brother, the respondent. On this admission, therefore, it is clear that there it is not a case of improvement, which was under consideration in the two cases relied upon by him. Here, it was a case of repair and electric installation. Even then, in my opinion, the principles laid down in the above cases would apply to such a, case also, if otherwise the plaintiff can be held to be entitled to the same.

9. In the infant case, however, in paragraph 9 of the plaint, it was mentioned by the plaintiff that he had to spend Rs. 609/14/9p towards the electric installation, the details of which were given in Schedule C of the plaint. Schedule C shows that Rs. 410/- was spent over the repair of the house and the balance was spent over electric installation, etc. In his evidence, however, the plaintiff (P.W 7) said that he Spent Rs. 600 over its repair, and another Rs. 200/- was spent for getting it electrified. The plaintiff therefore, obviously is not consistent in his case. Exts. 2 series, which are entries in the account books and which were Sled in Court do not impress me at all.

10. The first reason for saying so is that P.W 6, who was examined by the plaintiff, and who had worked in the house for about 8 or 9 months, staged that he did not see account being kept by the plaintiff for the work done in the house, and that the plaintiff did not take any receipt from him. P.W 6 was an unsummoned witness and he was brought by the plaintiff to depose for him, admitted by the same witness, but on his evidence, the plaintiff's case was not established beyond all reasonable doubt. From Exts. 2 series, it appears that these accounts were not kept in the ordinary course of business, because the different items are shown as having been purchased or spent not date by date, one following the other; for instance, at page 44 of the brief, the first two dates are 26-2-53 and 21-3-53 but thereafter are two dates 10-1-53 and 11-1-53, which, in ordinary course, should have come first.

11. In any view, on the evidence of P.W 6, I am not satisfied that these account books were kept in the ordinary course of business or as a matter of fact, any account was kept at all, because if any such account was kept, how is it that P.W 6, who worked in the house as a mason for about 8 or 9 months, never saw such an account being written? On the evidence, as it stands I am not prepared to accept the plaintiff's case that he spent the amount claimed on the repair of the house.

12. As regards the electric installations, it is true that he has filed Exts. 8 and 9 series, which are electric bills of different dates, but in my opinion even if the alleged amount was spent over electric installations, it was done by the plaintiff for his own luxury, because of his own marriage in that house, without consulting the defendant, and without his consent. In these circumstances, I do not think that the plaintiff is at all entitled to ask defendant to pay even a portion of it.

13. For these considerations, I hold, in agreement with the trial Judge, that the plaintiff was not entitled to claim half or even any portion of the alleged amounts spent over the repairs and electric installations of the house in which he was admittedly himself living.

14. As regards the costs of the suit, the trial Judge has ordered that, in view of the particular circumstances of the case, the parties shall bear their own costs. Section 35 of the CPC, which deals with costs of and incident to all suits, provides that such costs shall be in the discretion of the Court. There is no doubt that such discretion must be a judicial discretion to be exercised on legal principles, and it should not be arbitrary. The question is: Has the Court below exercised its discretion judicially, in the instant case, on the facts here? It was argued by Mr. Ali that, in the instant case, in view of the fact that the defendant challenged the title of the plaintiff, alleging that he was his step-brother being not the son of Mariam, his own mother, but of another lady, and that he (defendant) was the only son of Mariam and that therefore the plaintiff was not entitled to any share, but this defence had been negatived by the Court below, the plaintiff should have been awarded costs, because of the false defence set up by the defendant to injure the title of the plaintiff. In support of his contention, Mr. Ali relied on a Bench decision of the Calcutta High Court in Satya Kumar Banarjee v. Satya Kripal Banerjee, 10 Cal LJ 503 and on a decision of a Letters Patent Bench of the Madras High Court in Shanmugam Pillai v. Mirakani Rowther, 21 Ind Cas 746.

15. In reply, however, it was contended by Mr. Sinha that as the suit was partly decreed and the success was divided, in that, the defendant also succeeded on some points, the court below was justified, in view of the partial success of the plaintiff and the defendant both, to direct the parties to bear their own costs, and, further, that as the awarding of costs of the trial Court was within the discretion of the Court below, this Court should not silt in appeal over that discretion and substitute its own discretion therefor, when that discretion has been exercised judicially according to legal principles. In support of his contention, Mr. Sinha relied upon a Bench decision of this Court in Jugesher Misra v. Kirti Singh, AIR 1942 Pat 76.

16. The principles laid down in the cases, referred to above, cited at the Bar, are these:

17. Ordinarily, in a suit for partition, pure and simple, the parties are to bear their own costs of the suit up to the stage of preliminary decree; but, where the defendant contests the right of the plaintiff, the latter should be given the costs incurred by him by reason of the defendant's unfounded opposition. In a suit for partition, therefore, the Court has a discretion to award costs to one party when the other party vexatiously raises a contention and fails in it and, as such, it is incorrect to say that in a partition suit, parties should bear their own costs up to the preliminary decree. But the question depends upon the nature of the dispute raised in the partition suit, and the plaintiff can in appropriate cases, be awarded costs up to the preliminary decree. The question of awarding costs in a partition suit up to the preliminary decree stage, therefore, depends on the particular facts and circumstances of each case.

18. Tested by this crucial test, let us now examine the position in the present case. It is true that the defendant raised a false defence when he alleged that the plaintiff was not his brother, being the sons of Mariam, but was his step-brother. This defence has been negatived, but in view of the fact that the defence was accepted with regard to the cost of repairs and electric installations claimed by the plaintiff and also with respect to his claim for moiety share in the ornaments, there is no doubt that on some points the defendant has won and on some points the plaintiff has won. In view of this partial success of the plaintiff and the defendant both, and also in view of the fact that on the finding of the Court below, which has not been challenged, the plaintiff and the defendant were own brothers, in my opinion, justice of the case repuired that the parties should bear their own costs up to the preliminary stage. In the instant case, therefore, the Court below has exercised its discretion judicially in accordance with legal principles in directing the parties to bear their own costs. The result, therefore, is that the appeal fails, the judgment and decree of the Court below are affirmed and the appeal is dismissed; but, in the circumstances of the case, I would direct the parties to bear their own costs of this Court also.

CF/J/D.H.Z

19. Appeal dismissed.

Abdul Sattar v. Mohammad Zahoor .

Structured Summary of the Court Opinion — Partition Suit Appeal

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Abdul Sattar v. Mohammad Zahoor .

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