Partition of the property how to be affected.

BELLIE

This Letters Patent Appeal arises out of a partition suit. Though the suit has been filed in respect of several items of properties, we are now concerned only with item III of plaint 'A' schedule property. The suit property originally belonged to one Abdul Mohamed Rowther. The plaintiff is one of his two daughters. First defendant is his wife, second defendant is the other daughter and defendants 3 and 4 are his sons. Seventh defendant is his brother and defendants 4 and 5 are respectively the brother and sister of the mother of the first defendant. Sixth defendant is an alienee-purchaser of the suit item III of the 'A' schedule from the first defendant. Item III of 'A' schedule is a storeyed house. The site on which the building stands belongs to the first defendant by virtue of a settlement deed executed by her mother in her favour in respect of 49/56 shares of the land she owned there. It appears there was a tiled house in that site, but the plaintiff's father i.e., the husband of the first defendant demolished that house and in its place constructed the present storeyed house. It is the further case of the plaintiff that her mother orally gifted the site to his father. It is the plaintiff's case that after the death of her father she is entitled to 35/224 shares in the property. It is the further case of the plaintiff that the first defendant her mother had executed a sale deed Ex. B.1 in favour of the tenth defendant purporting to convey the suit property and that sale deed is sham and nominal and not binding on the plaintiff.

2. As against this the defendants 1 and 10 contended that there was no oral gift of the site by the first defendant to her husband and the construction was made by the first defendant herself with her own money. Thus the entire property belonged to the first defendant and by virtue of Ex.B.1 sale deed by her in favour of the tenth defendant the latter is entitled to the property and thus the plaintiff has no right therein.

3. The trial Court rejected the plaintiff's case that the site was orally gifted by her mother in favour of her father. It also rejected the case of the first defendant that the house was constructed with her own funds but held that it was put up by her husband. The trial Court further held that the construction was put up by the husband for the wife's convenient abode and therefore she will be the full owner of the entire property and the sale deed Ex.B.1 is not sham and nominal as pleaded and therefore the tenth defendant is the present owner of the property and the plaintiff has no share.

4. Against this finding the plaintiff preferred an appeal and in that appeal A.S. No.511 of 1977 Venugopal, J. concurred with the findings of the trial Court that the oral gift pleaded by the plaintiff is not true and that the construction has been put up by the first defendant's husband and not by herself. But differing from the trial Court's finding the learned Judge held that Ex.B.1 is a sham and nominal document. The learned Judge then held the view that since the plaintiff's father had put up the construction in the site belonging to his wife the entire property becomes the property of the father and not his wife as held by the Trial Court. Then the learned Judge discussing as to what share the plaintiff would be entitled to held that she would be entitled to 112/672 shares in the property and accordingly he passed a preliminary decree for partition. Aggrieved, the tenth defendant has filed this Letters patent Appeal.

5. Mr. G. Subramaniam, learned Counsel for the appallant tenth defendant argues that the learned single Judge erred in holding that the suit property belongs to the plaintiff's father. When admittedly the site belongs to the mother first defendant, the learned counsel submits, the trial Court has correctly held that the father should have put up the construction for the benefit of the mother's convenient abode and therefore by presumption the property i.e., the