A co-owner's claim to property rights is upheld despite one sibling's mortgage redemption, requiring compensation for shared expenses incurred.

JUDGMENT :

N. SATHISH KUMAR, J.

Challenging the decree and judgment of the learned District Judge, District Court No.II, Kancheepuram, dated 05.10.2018, passed in O.S.No.73 of 2015, granting a preliminary decree in favour of the plaintiff in respect of half share in the suit schedule properties, the 1^st defendant in the suit has filed the above Appeal.

2.For the sake of convenience, the parties shall be referred to as per their ranking before the trial Court.

3.The 1^st defendant is the elder brother of the plaintiff. The defendants2 to 4 are the wife and children of the 1^st defendant.

4.Brief facts of the plaintiff’s case is as follows :

The suit ‘A’ Schedule property and ‘B’ Schedule property were purchased by the plaintiff’s father M.N.Doraisamy and mother Saraswathi on 09.06.1982. The suit ‘C’ Schedule property was purchased by both of them on 06.08.1983. The plaintiff and the 1^st defendant are the only legal heirs of the their parents Doraisamy and Saraswathi. The plaintiff’s father died intestate on 16.09.2005 and his mother pre-deceased father on 16.04.1993. Therefore, the plaintiff is entitled to equal share in all the suit schedule properties. Though the 1^st defendant was his elder brother, the title deeds were handed over by the parents to the plaintiff. As the plaintiff was away from the family due to his job, the 1^st defendant obtained a Legal Heirship Certificate, as if he is the only legal heir of his parents, and sold the suit ‘A’ Schedule property and ‘B’ Schedule property in favour of defendants 5 and 6 under registered sale deeds dated 18.09.2008 and the 5^th defendant, in turn, sold A-Schedule property to the 7^th defendant. Hence, it is his contention that the sale is not binding on the share of the plaintiff. It is his contention that the plaintiff, being the co-sharer, is entitled to equal share. Similarly, it is the case of the plaintiff that C-Schedule property, which is situated at Andhra Pradesh, was also purchased by their parents. Though the said property was jointly mortgaged by the plaintiff, his father, and the 1^st defendant for family necessities, the plaintiff has also paid Rs.2,00,000/- for discharging the said mortgage loan. Therefore, it is his contention that the plaintiff is entitled to equal share in C-Schedule property also. Hence, he filed the present suit for partition.

5.The 1^st defendant filed a written statement, in which, admitting the relationship, it is contended that, as far as C-Schedule property is concerned, the same has been mortgaged by the plaintiff, the 1^st defendant, and his father on 02.05.2003 in favour of one Srinivasulu for educational needs of the plaintiff. The plaintiff, after completion of education, joined in the services and is getting more than Rs.1,00,000/- by way of salary. The said mortgagee filed a suit in O.S.No.9 of 2005 on the file of the Principal Senior Civil Judge, Chittoor, and obtained a decree against the plaintiff, 1^st defendant and their father. In execution proceedings in O.E.P.No.64 of 2009, the C-Schedule property was brought for sale and the same was sold in Court auction and the mortgagee himself purchased the property on 16.08.2009. It is his further contention that the 1^st defendant filed a Civil Revision Petition in C.R.P.No.871 of 2015 against the Execution Petition filed by the mortgagee, seeking permission to deposit the entire EP amount and the Court also granted permission by order dated 13.03.2015, permitting the 1^st defendant to deposit the entire EP amount on or before 20.03.2015. Pursuant to the same, the 1^st defendant borrowed money from his friends and relativ