Jointly owned property presumed to be shared equally unless explicitly stated otherwise; prior agreements lacking legal execution cannot alter ownership rights.

JUDGMENT :

P.DHANABAL, J.

This Original Side Appeal has been preferred as against the decree and judgment passed by this Court in C.S. No.781 of 2005 dated 09.01.2018, wherein the appellant herein has filed a Suit for the relief of partition and separate possession of the half share in the Suit property. The learned single Judge of this Court decreed the Suit declaring that the Plaintiff is entitled to preliminary decree for partition of his 46% share in the land alone of the Suit property and the Plaintiff has not contributed towards cost of construction of the building and that he is not entitled to share in the building and he is not entitled to any mesne profits also. Aggrieved by the said decree and judgment, the present appeal is filed by the Plaintiff.

2. The case of the appellant / plaintiff is that the respondent / defendant is his cousin brother. The father of the appellant / Plaintiff and the father of the respondent / defendant are brothers. The appellant / plaintiff and the respondent / defendant have jointly purchased the Suit property as vacant site in R.S. No.44/A1, 45/A1 and 46, T.S. No.31, Block No.34 with an extent of 6 grounds 1512 sq. ft. through a registered Sale Deed dated 25.11.1968. After purchase of the property, the appellant / plaintiff and the respondent / defendant are in joint possession of the property. At the time of purchase of the property, it was vacant land. Subsequently, they jointly developed the property by putting up construction in one portion thereof and the rest of the property is still vacant. The appellant / plaintiff and the respondent / defendant each are entitled to ½ share over the Suit property. The joint patta was issued in the name of the appellant / plaintiff and the respondent / defendant. When the appellant / plaintiff demanded for partition over his half share of the suit property along with the building, the respondent / defendant refused for amicable partition. Therefore, he filed the Suit for partition.

3. The case of the respondent / defendant is that the property was jointly purchased, but the respondent / defendant only had paid the major portion of the sale consideration, but the sale deed was registered in joint names. The father of the appellant / plaintiff and the respondent / defendant are the sons of one late Chandmalji Gong and he was the Kartha of Hindu Undivided Joint family. The Hindu Undivided Joint family possessed three items of properties and the father of the Plaintiff as ‘Kartha’ of a Hindu Undivided Joint family, after the demise of said Chandmalji Gong, purchased the above said three immovable properties in his name. While so, the father of the appellant / plaintiff died on 27.05.1979 leaving behind T.S. Prakashchand, father of the appellant / plaintiff and one Leelabhai as his legal heirs. The brother of appellant / plaintiff’s father namely Manakchand died on 08.04.1989 leaving behind his wife Meena Bai. During the life time of the father of the appellant / plaintiff, a partial partition was effected between the father of the appellant / plaintiff, his brother Manakchand and the respondent / defendant and his mother Madi Bai through a declaration deed dated 01.11.1970. As per the above said declaration, the 3 immovable properties, referred above, kept as Joint Family properties and other joint family property assets relating to the business were partitioned. After the above said declaration deed dated 01.11.1970, the parties run their businesses independently and acquired the properties in th