(1.) THE defendants are the appellants. This appeal is from the partly reversing decision of the learned lower appellate Court in a suit for partition. THE sole grievance in this appeal is directed against that portion of the judgement of the lower appellate Court in which the entire house, standing on plot No. 4028, has been directed to be allotted to the share of the plaintiffs, compensating the defendants Nos. 1 and 2 for the loss in their shares in the house site by such allotment.
(2.) THE plaintiffs and defendants are members of the same family. THE following genealogy will show their relationship : (See page 146 for genealogy)
The suit property which is the subject-matter of the partition suit is the homestead land with an area of A0.167 and comprises of four plots, 4026, 4027, 4028 and 4029. Out of them, A0.02 of plot No. 4029 is a tank. A0.031 of plot No. 4026 is a ban and there are houses, standing on the other two plots. 4027 and 4028. There is no dispute that each branch of the family has 1/3rd interest in the suit property and that though there had been no partition by metes and bounds of the suit property, the branches had disrupted in status long before.
The trial Court passed a preliminary decree for partition, holding that each of the branches is entitled to 1/3rd share, but directed that, while effecting the partition, the parties or the Commissioner, as the case may be will respect the present possession of the parties so far as practicable and equitable.
It has been concurrently found by both the Courts below that about 25 years ago. the plaintiff built two parasthas of houses on C. S. Plot No. 4028 with his own money. About three years ago. defendants Nos. 1 and 2 occupied the northern parastha with the permission of the plaintiff. It is also undisputed that the plaintiff constructed the two rows of houses (parastha) over the land in excess of his share in the site.
The learned lower appellate Court, taking, all these facts into consideration, directed as follows :
"I think the entire house should be allotted to the plaintiff and defendants 1 and 2 should be adequately compensated both as to the value of the building land, on which the superstructure stands, which is due to the share of defendants 1 and 2 within plot No. 4028 and also taking into consideration the other valuable building land available after valuing the same at a fair price to be essential to the defendants 1 and 2. I find no merit in the appeal. It is accordingly dismissed but subject to the directions contained in the last part of the JUDGMENTas to allotment of the houses on plot No. 4028 in favour of the plaintiff and commensurate compensation both in value and in homestead land to defendants 1 and 2."
This part of the direction is strongly objected to by defendants Nos. 1 and 2 (appellants). Defendants 3 to 7, who have similarly constructed their new houses over another portion of the homestead land, are not much affected by the aforesaid direction regarding allotments given by the lower appellate Court.
The question, therefore, is whether there is any sanction for such allotment and whether such allotment is to be maintained, modified or reversed. In dealing with this question, the findings of fact rendered by the lower appellate Court are accepted. In a partition of joint property amongst co-owners, one of the usual principles of equity which is enforced by the Courts is to respect present possession of the parties, and where a co-owner has built upon land in excess of his legitimate share at considerable cost, such excess share, containing the construction is allotted to him, compensating the other co-owners in other allotment. I will extract this principle of equity which is almost universally recommended by Courts, as enunciated in the case of Upendranath Banerjee v. Umesh Chunder Banerjee reported in (1910) 12 Cal LJ 25 which is stated as follows :
"In fact, it is well settled that if one joint owner has in good faith effected valuable improvements upon the common property at his own expense, equity will take this fact into consideration upon a partition, and in some way, will make an allowance to him therefore, in addition to his rateable share of the property ....... although a co-tenant who has spent money in the improvement of the joint property, may not be entitled to call upon his co-sharers to compensate him for the expenditure, yet he has a defensive equity which is enforcible in the event of a partition; it is in recognition of such equitable right that to the co-owner who has made the improvements, is assigned that portion of the property on which the improvements have been made, the division being made on the basis of the unimproved value. This method is adopted, whenever the nature of the property and the improvements, and situation of the latter are such as to render such distribution practicable, and it can be done without injury to the other co-tenants ............... The equity of a co-tenant to have the part of the common property which he has improved, allotted to him on a partition, is not founded upon theory that he made the improvements with the consent, express or implied of his co-tenants; the principle rather is, that if the right of one joint owner, to effect an improvement for which he will ultimately be entitled to claim allowance, were denied, beneficial user of the joint property might in many instances become impracticable".
In the case of Periakaruppan Chetti v. Arunuchalam Chetti reported in AIR 1927 Mad 676 the same equitable principle has been upheld in the following words :
"When a person builds with his self-acquisition on land which is ancestral and in which a person subsequently gets an interest by birth, and when it cannot be said that the builder built with knowledge of another person's rights in the land and without his consent or against his will, the proper rule on partition is to allot the building and site to the person who built the superstructure and taking into consideration the value of the site to give the share of its value or equivalent joint property to the other coparcener. I can find no decisions which compel me to hold that the coparcener claiming a share is entitled under such circumstances to the value of the building also or to require its demolition."
In the instant case, the plaintiff constructed two rows of residential houses twenty-five years ago openly with his own money and so, obviously, to the knowledge of all his co-sharers. Despite their such knowledge, they let him spend his own money exclusively on such construction. Subsequently, as the finding is, defendants Nos. 1 and 2 were permitted by the plaintiff to reside in the northern row of his house presumably out of compassionate consideration as their original house had fallen down. In this context of circumstances. It has been argued by the appellants before me that if this principle is applied, it will not be equitable to defendants Nos. 1 and 2, since the residue of the suit homestead land are either beds of a tank or low lying bari and as such, unfit for building purposes. They further contend that in the circumstances, it is impracticable to render such distribution as suggested by the lower appellate Court without causing injury to the appellants. The injury, envisaged is that the appellants would be without a roof until the other low lying lands, allotted to them, are made fit for homestead purposes and until a house is constructed. Mr. Das Gupta, on the other hand, argues that defendants Nos. 1 and 2 will be compensated, if available homestead area falls short of their shares, by money for this injury by finding out the deficiency in the appellants' share of the homestead and then to estimate money required to render an equivalent area from the low lying lands, fit for homestead and to require the plaintiff to pay the sums to the appellants.
The equitable rule, extracted above from Calcutta and Madras decisions, is subject to certain riders. One rider is that the equitable distribution should be resorted to only when practicable. The practicability in the instant case means that if the builder co-sharer is allotted the excess area by reason of his having built his house on it, there must be sufficient homestead land available for allotment to defendants 1 and 2. Since sufficient land is not available, the equitable rule cannot be practically applied. The other rider is that unless the builder, the plaintiff in the instant case, has built upon that excess homestead area without knowledge of the rights of defendants 1 and 2 therein and or without their consent, implied or express, the equitable rule cannot be applied. In the instant case, it cannot be said that the plaintiff was not aware of the rights of the defendants 1 and 2 in every inch of the homestead and that they consented to his building on a part of the homestead in excess of his share. Absence of objection on the part of defendants 1 and 2 to the plaintiffs building upon an area of the homestead in excess of his share cannot be construed as consent with the conscious knowledge that such building enterprise was entered upon with the object of affecting their interest in absence of evidence, that such construction was of such stupendous proportions or was entailing such huge expenses as would amount to imparting notice.
Defendants 1 and 2 (had no notice) of the plaintiffs' intention to claim the site as so built upon, towards his share. In substance, this equitable rule cannot be attracted when the plaintiff's original act is a deliberate act of violation of the rights of his co-sharer and thus, is founded on a wrong. Further, in the instant case, the plaintiff allowed defendants 1 and 2 to reside in the northern row of houses and for all practical purposes, the plaintiff voluntarily gave up possession in respect thereof in favour of the defendants 1 and 2.
Thus considering everything I would direct that the northern row of houses on plot No. 4028 should be allotted to defendants 1 and 2 and the plaintiff should be given equal quantity of land from the Eastern plot with money compensation which would be necessary for constructing a similar type of row of houses of equal dimension. This money compensation shall be estimated by the Court during final decree proceeding and the defendants 1 and 2 shall be liable to pay the same to the plaintiff within a certain period to be fixed by the Court and in default, it shall be directed that the money adjudged as payable by defendants 1 and 2 to the plaintiff on this count shall bear interest at the rate of 6 per cent per annum with effect from that date of default. In making such allotments as aforesaid, the Court has to see as far as possible that each branch gets compact area with a passage kept from the road to the South upto the tank in plot No. 4029 so that there will be an approach for Plot No. 4026 also.
In the result, the appeal to allowed and the directions of the Lower Appellate Court are modified as above. In the circumstances of this case, there will be no order for costs. Appeal allowed without costs. Appeal allowed.