Patna High Court
Abdul Sattar vs Mohammad Zahoor on 29 November, 1961
Equivalent citations: AIR1962PAT300, AIR 1962 PATNA 300
JUDGMENT Raj Kishore Prasad, J.
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.
2. Only two points have been raised by Mr. Sarwar AH. 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 Mahalla Kashmiri Khthi, and, (2) that the trial Court has acted illegally in not awarding costs of the suit to the appellant.
3. 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.
4. On the first question the argument put forward by Mr. AH was that as admittedly the house in Mahalla Kashmiri Kothi belonged to both the brothers and the appellant effected improvement on 'this 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 La1 Gupta v. Chulhan Lal Gupta, 14 Ind Cas 677 (Cal).
5. The above argumment, 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 repays and electric installations in the house which was in his occupation, on the occasion of his own marriage, without the consort 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 : (MR 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.
6. The principles, which can be extracted from the above authorities, and the covering rule, which emerges therefrom may be summarised thus;
Where the Parties to a partition suit 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 hag 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 laud 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 improperty--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 go made, the joint owner making the improvements would not be entitled to compensation therefor, notwithstanding they 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 am 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, let us 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 IE 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.
In this Court, Mr. All 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 dome, 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 his admission therefore, It is clear that here 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.
IN the instant 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, e.tc. 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 filed in Court do not impress me at all.
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 thee 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.
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 plaintiffs case, that he spent the amount claimed on the repair of the house.
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.
8. 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.
9. 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 Code of Civil Procedure, 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 if 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 dhallenged the title of the plaintiff, alleging that he was his step-broher 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 Banerjee 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.
10. In reply, however, if 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 pointy 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. 11. The principles laid down in the cases, referred to above, cited at the Bar, are these:
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.
12. 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 repaired 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.
13. 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.