The court ruled that without evidence of oral partition, the property is to be divided equally, excluding improvements, affirming the judicial approach to thorough evidence evaluation.

Sathish Ninan, J.

The preliminary decree in a suit for partition is under challenge by the defendants.

2. One Kunjeesho and his wife Rosa had two children viz.

Aanees and Chacko. Chacko died leaving behind his wife and children. Aanees is the plaintiff and the wife and children of Chacko are the defendants. The properties sought to be partitioned belonged to kunjeesho. Both kunjeesho and Rosa are no more. The plaintiff seeks for partition and separate possession of the plaint schedule property which is, land and a residential building.

3. The defendants contended that, there was an oral partition with the plaintiff. In the partition, the northern one- half was allotted to the defendants and the southern half was allotted to the plaintiff. It was claimed that subsequent to the partition they constructed the building in the property.

Accordingly, the defendants prayed for dismissal of the suit.

4. The trial court held that the defendants failed to prove the oral partition and their exclusive right over the building. Accordingly, a preliminary decree for partition was passed declaring the one-half right of the plaintiff and one-half share of defendants 1 to 4 together.

5. We have heard Sri.C.P.Saji, the learned counsel for the appellants-defendants and Sri.D.Anil Kumar, the learned counsel for the respondent-plaintiff.

6. The points that arise for determination are:- (i) Have the defendants succeeded in proving the claim of oral partition?

(ii) Is the building situated in the plaint schedule property partible?

(iii) Does the decree and judgment of the trial court warrant any interference?

7. The derivation of title and the entitlement of the plaintiff and Chacko, the defendant's predecessor, for one-half shares each over the plaint schedule property, is not in dispute. The defendants raised two contentions-(i) An oral partition whereunder, the northern half with the building thereon was allotted to the defendants and the southern half was allotted to the plaintiff and (ii) exclusive title over the building situated in the northern half.

8. With regard to the claim of oral partition, the date of such oral partition is not pleaded or attempted to be proved. There is no witness to the alleged oral partition. The properties have not been mutated in the names of the respective sharers pursuant to the alleged oral partition. There is no document evidencing the partition. The claim of the defendants is that a building was put up in the northern half by them and it establishes oral partition. The plaintiff on the other hand contends that the building was put up by the parties jointly and that one half of the cost was met by her. But for the factum of construction of a building in the northern half of the property, there is no other circumstance which the defendants could rely upon to canvass their case of oral partition.

9. Admittedly the plaintiff was given in marriage more than

45 years ago. Her marital home is approximately 55 kilometres away from the plaint schedule property. Admittedly, Chacko, who is the predecessor of the defendant, along with the defendants, were residing in an old building situated in the property. The mere fact that a new residential house was constructed in the northern half, with the knowledge of the plaintiff, would not entail a finding that there was an oral partition of the property. It is so since, even according to the defendants the plaintiff had given a consent for such construction. So also, if there was an oral partition vesting exclusive title in the defendants, a further consent was not necessary. Suffice to notice that there are no materials to uphold the claim of oral partition.

10. With regard to the building constructed in the property, it is t