An appellant must prove joint ownership and contributions to establish co-ownership; lack of evidence leads to dismissal of claims.

JUDGMENT

Appeal is filed by the unsuccessful plaintiff who has instituted suit against his father and purchaser of the property from his father contending that the property purchased with the joint contribution of himself and his father being unilaterally sold by the father and therefore his half share in the suit property to be declared.

2. The case of the plaintiff is that he along with his father purchased Item No.1 of suit property on 30.08.2001 and Item Nos.2 to 4 on 16.12.2009. Though it was purchased in the name of his father, he has contributed money for the said purchase and it had been enjoyed as a joint family property. When his father tried to alienate the property to meet out the medical expenses, he did not consent for that since the property had the prospect of fetching higher value in future. However, without his concern, his father has sold away the property in favour of defendants No.2 to 4 under three different sale deeds for much lesser value with the help of relative by name Kumaravel. The suit for partition candidly conceded by the father who was arrayed as the first defendant, whereas the purchasers of the property contested the suit.

3. Based on the pleadings, the trial Court had framed the following issues:-

(i) Whether half of the portion of the suit property is the exclusive property of the 1^st defendant or not ?

(ii) Whether the plaintiff is entitled to get the relief of portion in the suit property as prayed for or not ?

4. Plaintiff was examined as P.W.1, one Babuji was examined as P.W.2, eleven documents were marked as Exs.A1 to A11, Father of plaintiff, Arumuga Kondiyar was examined as D.W.1 with the aid of Advocate Commissioner, the second defendant was examined as D.W.2 Kumaravel who alleged to have mediated the sale transaction examined as P.W.3, ten documents were marked on the side of defendants as Exs.D.1 to D.10.

5. The Court below after appreciating the evidence dismissed the suit holding that the plaintiff had failed to prove contribution, joint accession and joint possession of the property. The suit property stands in the name of first defendant and eventhough the first defendant had pleaded that he had only half share of the property, the recital of the title does not indicate so. As well he has not disclosed in the covenant of the sale deeds that he has only half share in the property while conveying the property to defendants 2 to 4. Therefore the suit is liable to be dismissed.

6. Challenging the judgment and decree, the present appeal is filed on the ground that the Trial Court ought to have given due credence to the documents relied by the plaintiff as well as the evidence of D.W.1 along with his written statement.

7 D.W.1 in his pleadings as well as in his evidence had categorically deposed that the property was purchased with the contribution of his son i.e., the plaintiff and his wife and the property was enjoyed jointly along with the plaintiff. He had further deposed he intend to sell only half of his share to the defendants 2 to 4, but for under value the entire property has been conveyd under the sale deed. Exs.A1 to A3 and such sale is hit by the principles of 'non est factum'. The trial Court omitted to appreciate that the content of the document is substantially contradicted by oral evidence. The ambiguity in the written document explained through oral evidence hence same is admissible under proviso to Section 92 of the Evidence Act,1872.

8. The learned counsel appearing for the appellant relying upon judgments of Hon'ble Supreme Court wherein the principles of 'non est factum' being explained contended that the sale deeds marked as Exs.A1 to A3 was obtained by mis-representation and also for