Isidor Prasad vs Cicily, K.L. Lucy Prema and K.L. Sabeena

N.K. Balakrishnan, J.—The appellant challenges the preliminary decree passed in a suit for partition. The property originally belonged to the father of the appellant. He executed a settlement/gift deed in favour of the appellant and his mother (the first respondent). First respondent executed a gift deed in favour of her two daughters, who are respondents 2 and 3 (plaintiffs 2 and 3 in the suit). Hence, the plaintiffs (mother and two daughters) claimed half share in the property. Preliminary decree was passed. The preliminary decree directs division of the property into two equal shares and to allot one share to the plaintiffs and the other share to the defendant. It was further directed that during actual division, as far as possible, the residential building shown as Block B in Ext. C2 report and the flour mill shall be allotted to the defendant whereas the residential building shown as Block A shall be allotted to the plaintiffs. It was clarified that all those buildings shall be valued. The defendant/appellant contended that Ext. A1 gift deed will show that the buildings therein were constructed by the donees mentioned therein and so, it would make it clear that the house was constructed by the appellant herein using his own funds. No such assumption can be made. The words occurring in Ext. A1 are only loose or general expressions. It cannot be said that the building was constructed by the appellant herein. The contention that he was aged 26 years at that time and so, he alone was an earning member is also found unacceptable by the courts below. No acceptable evidence was adduced by the appellant to show that he spent the whole amount for constructing the said house. The plan or licence was not produced. The accounts relating to the amount spent for the construction of the house were also not produced. There is absolutely no evidence to show that the house was constructed by the appellant so as to exclude it from valuation. Therefore, the request for granting reservation, that is; allotment of the house excluding valuation was rightly turned down by the trial court. The appellate court had a re-appreciation of the evidence and it concurred with the view taken by the trial court.

It was already found that there is absolutely no evidence to show that the land and the house occupied by the appellant was constructed by him. If as a matter of fact the house was constructed by him. The application submitted by him for issuance of plan and licence would have been there in the Corporation. Certainly, the appellants must have been in possession of accounts or other documents pertaining to the purchase of articles, if as a matter of fact, it was the appellant who constructed the house. Except the oral vibration of the appellant, there is absolutely no evidence that the house in question was constructed by him. Similar is the case with regard to the objection raised by the respondents in the RSA. There is no evidence to show that the house occupied by them was constructed by them. Therefore, the trial court was perfectly justified in holding that the buildings are to be valued. I find no reason to interfere with the decree and judgment of the courts below. There is absolutely no merit in this RSA and Cross Objection.

Hence, both the RSA and Cross Objection are dismissed.