IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13.9.2011 CORAM The Hon'ble Mr.Justice R.S.Ramanathan S.A.No.1145 of 2010 and M.P.No.1 of 2010 Mr.K.Muniyan ... Appellant/Respondent/Plaintiff Vs. 1.Mrs.K.Munimmal 2.Mr.K.Dhanpal 3.Mr.K.Chittibabu 4.Mr.Bhoologam 5.Mrs.Anjalidevi ...Respondents/Appellants/Defendants Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30.4.2010, passed in A.S.No.192 of 2009, on the file of the I Additional Judge, City Civil Court, Chennai, in reversing the judgment and decree dated 28.7.2008, passed in O.S.No.2320 of 2005, on the file of the VI Assistant Judge, City Civil Court, Chennai, For Appellant : Mr.C.Umashankar For Respondents: Mr.V.Bhiman JUDGMENT The plaintiff is the appellant herein. The appellant/plaintiff filed the suit for partition. 2. The case of the appellant/plaintiff was that the landed property was purchased by him and his father under a registered sale deed dated 30.1.1976 and both of them contributed equally for the said purchase. The appellant/plaintiff was employed as a Mechanic in the Government Department at the time when the suit property purchased and out of his earnings, he also contributed for the said purchase. The father died on 13.5.1981, and later on, the appellant/plaintiff applied for a planning permission for putting up a construction and the planning permission was given in his name. Thereafter, the appellant/plaintiff had put up a construction and permitted the respondents/defendants, who are his https://hcservices.ecourts.gov.in/hcservices/ mother, brothers and sisters to reside in the suit property. After some time, the appellant/plaintiff demanded rent from the respondents/defendants and that was questioned by them and therefore, the appellant/plaintiff filed the suit for partition, claiming 7/12 share in the property. 3. The first respondent/first defendant filed a written statement stating that the property was purchased out of the income of her husband and by selling some of her jewels and her other sons viz., defendants 2 and 3, also contributed amount for the said purchase, whereas, the appellant/plaintiff did not contribute any amount and he was not earning much, to contribute any amount for the purchase of the property. Therefore, the property was the property of the father and mother and other children and at any rate, all of them are entitled to equal share in the property and the appellant/plaintiff cannot claim 7/12 share in the property. The defendants 2 and 3, adopted the statement filed by the mother viz., the first defendant. 4. The Trial Court decreed the suit as prayed for, holding that the suit property cannot be considered as the joint family property of the parties and it is the property of the appellant/plaintiff and his father. Therefore, the appellant/plaintiff is entitled to half share on his own and also entitled to 1/12 share in the father's half share of the property and hence, he is entitled to 7/12 share in the property. 5. The First Appellate Court, reversed the judgment and decree of the Trial Court and allowed the appeal, holding that the plaintiff has not adduced any proof to show that he has contributed any amount for the purchase of the property and the society loan was paid by other members of the family viz., the respondents herein and that is proved by Ex.B1 and the House Tax as well as Water Tax are in the joint names of the respondents and the appellant/plaintiff and considering all these aspects, the property cannot be considered as joint property of the appellant/plaintiff and his father and it is the joint family property, in which, all the family members are entitled to equal share and the appellant/plaintiff is only entitled to 1/6th share in the property and modified the decree and granted the decree of 1/6th share to the plaintiff in the suit property. Hence, the Second Appeal. 6. At the time of admission of the Second Appeal, the following substantial questions of law were framed by this Court:- i)Whether the First Appellate Court is correct in reversing the judgment and decree of the Trial Court, based upon assumption of a fact against the document Ex.A1? https://hcservices.ecourts.gov.in/hcservices/ ii)Whether the findings of the First Appellate Court are vitiated on account of failure to appreciate the documentary proof on record in a proper perspective? 7. Mr.C.Umashankar, the learned counsel appearing for the appellant submitted that having regard to Section 45 of the Transfer of Property Act, 1882 ( hereinafter referred to as 'the Act') when a property was purchased in the names of two persons, in the absence of any contract to the contrary, both the persons are presumed to have contributed equal share. In this case, admittedly, the landed property was purchased in the joint names of appellant and his father and as a matter of fact, the appellant was employed at that time when the property was purchased and there was no proof for employment or income by other members of the family viz., respondents 2 to 5. Therefore, having regard to the provisions of Section 45 of the Act, the First Appellate Court ought to have confirmed the judgment and decree of the Trial Court and held that the property was the joint property of the father and the son viz., the appellant herein and hence, the appellant is entitled to 7/12 share in the property. The learned counsel further submitted that the First Appellate Court erred in relying upon Exs.B2 to B9, to arrive at a conclusion that they are in the joint names of all the parties and therefore, all of the them are entitled to equal share in the property. 8. Per contra, Mr.V.Bhiman, the learned counsel appearing for the respondents submitted that though the appellant was employed, no proof was adduced by him to prove his employment or income earned at that relevant point of time and it was specifically pleaded by the mother-first respondent that by selling her jewels and by the contribution made by another sons, viz., defendants 2 and 3, the property was purchased and when the appellant/plaintiff claims that he is entitled to half share in the property, he ought to have proved that he contributed 50% of sale consideration and in the absence of any proof by the appellant/plaintiff, he cannot claim that he is entitled to half share in the property in his individual capacity and without appreciating the same, the Trial Court has decreed the suit and the First Appellate Court has rightly appreciated the evidence of D.Ws.1 and 2 and also Exs.B2 to B9, and rightly held that the property is a common property, belonging to all the family members and the appellant/plaintiff cannot claim any major share and he is entitled to share equally along with other family members. 9. Heard both sides. 10. Considering the arguments advanced by the learned counsel on either side and having regard to the judgments of the Hon'ble Supreme Court in the matter formation of substantial question of https://hcservices.ecourts.gov.in/hcservices/ law, in my opinion, the substantial question, as framed at the time of admission of this Second Appeal, cannot be considered as the substantial question of law and in my opinion, the following substantial question of law only arises for consideration:- Whether the First Appellate Court was right in holding that the appellant/plaintiff was not entitled to claim 7/12 share in the suit property, without any regard to Section 45 of the Transfer of Property Act? 11. Admittedly, the landed property was purchased in the name of the appellant and his father. It is also not in dispute that at the time of purchase of the property, the appellant was employed. Even assuming that no documentary evidence was produced by the appellant to prove that he has contributed equally along with his father in the purchase of the land, having regard to the provisions of Section 45 of the Act, it can be presumed that both the purchasers have contributed equally for the purchase of the property. To appreciate the same, Section 45 of the Transfer of Property has to be considered and the same is extracted hereunder:- " where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of an identical as nearly as may be, with the interests in such property respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the share of the consideration which they respectively advanced." 12. Therefore, as per Section 45 of the Act, when immovable property is transferred for consideration to two or more persons, in the absence of any contract to the contrary, both of them are entitled to interests in such property, identical as nearly as may be, with the interests they were entitled to in the fund. 13. As stated supra, admittedly, the appellant was employed and therefore, a presumption can be easily drawn that he must have also contributed money for the purchase of the property eventhough, no evidence was let in by him to prove that he has contributed money for the purchase of the property. Therefore, having regard to the fact that he was employed and the property was purchased by the father in his name also, it can be presumed that the appellant also would have contributed for the purchase of the property, and in the absence of any contra evidence, it can be presumed that the appellant has contributed equally along with https://hcservices.ecourts.gov.in/hcservices/ the father for the purchase of the property. This presumption is further confirmed by the conduct of the parties. Admittedly, the house was constructed in the suit property and the loan was applied for by the appellant after the death of his father. If the appellant was not the owner, entitled to half share, he would not have applied for a loan. Moreover, the planning permission was also obtained by the appellant in his name. These facts would further prove that the appellant is a co-owner along with his father and having a major share, he applied for a loan for putting up a construction. 14. Further, Ex.B1, series only proves the payment towards loan and through Ex.B1, it cannot be decided whether the loan was paid by the appellant or by the respondents. Similarly, Exs.B2 to B9, viz., the property tax, water tax and electricity bills, will not confer any title on all the parties, as claimed by the respondents. Admittedly, the father was entitled to half share and after the death of the father, the legal heirs are entitled to succeed to his half share along with the appellant. Therefore, there is nothing wrong in assessing the property in the name of the mother and children and from that, one cannot presume that all of them are entitled to equal share in the property. 15. Therefore, having regard to Section 45 of the Act, and the fact that the property was purchased in the name of the father and the son viz., the appellant and the fact that the appellant was employed at that time when the property was purchased, the Trial Court was right in holding that the property was jointly purchased by the father and son and therefore, the appellant is entitled to half share in the property and he is entitled to his father's half share, along with the respondents. 16. Hence, the judgment and decree of the First Appellate Court is set aside and I hold that the appellant is entitled to 7/12 share in the property, as rightly held by the Trial Court and the substantial question of law now framed by me is answered in favour of the appellant and the Second Appeal is allowed. In the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed. sd Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The I Additional Judge, City Civil Court, Chennai. 2.The VI Assistant Judge, City Civil Court, Chennai. + 1 cc to Mr. C. Umashankar, Advocate SR No.56649 VSN(CO) SR/9.11.2011 S.A.No.1145 of 2010 https://hcservices.ecourts.gov.in/hcservices/