A person who has contributed to the purchase of the property can sue either for recovery of money or partition - Though the sale deed stood in the name of the husband, the wife is not precluded from leading evidence to show that she is entitled to a share in the property by virtue of the contributions made by her - The wife produced extracts of the diaries maintained by the husband to show the contributions made by her - Party not found to be in joint possession - Court fee ought to have been valued on the plaintiff's share of the suit property instead of paying notional court fee under Section 37(2).

Citation 

(2024) 2 MLJ 20

2024(3) CTC 88

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Hon'ble Dr. Justice Anita Sumanth Hon'ble Mr. Justice R. Vijayakumar

A.S.(MD)No. 134 of 2013 and M.P.(MD)No. 1 of 2013 & C.M.P.(MD)No. 10501 of 2022

Ist February, 2024

Sasikala.          ... Appellant

Versus 

M. Selvaraj C.          ...Respondent

(A) Property Laws - Joint transfer for consideration - Ownership of property acquired through common funds - Transfer of Property Act, 1882, Section 45 d Section 45 is based on the rule of "good conscience" For the provision to apply four conditions must be satisfied (i) there should be a common fund; (ii) there must be contributions to the common fund whose contributions are admitted; (iii) such contributions might either be specifically ascertainable or otherwise, but the factum of contribution must be admitted; (iv) the quantum of e contribution must not be lopsided, though there may be absence of specific details of the contributions made by the parties - If the source for purchase or investment in a joint enterprise emanates from a common fund, the share of each of the co-owners would be equal to their interest in the common fund, whereas, in a situation where there is no evidence available as to the specific individual interest to which the parties entitled, then it shall be presumed that such persons are equally interested in the property - On facts, appellant has discharged her burden of proving her contribution - Decree of the trial court dismissing the suit, set aside [Paras 35, 37, 64, 65 & 69] Appeal allowed. f

(B) Civil Laws - Joint contribution - A person who has contributed to the purchase of the property can sue either for recovery of money or partition - View of the Calcutta High Court in of Aliva Banerjee v. Somtirtha Banerjee and Others, 2018 SCC Online Calcutta 2547 holding that the contributory is entitled only to recovery of money and not for partition dissented from [Paras 77 & 78].

(C) Evidence - Rule against parol evidence - Oral evidence can be led to show that the sale deed does not represent the true state of facts - Indian Evidence Act, 1872, Section 92- Though the sale deed stood in the name of the husband, the wife is not precluded from leading evidence to show that she is entitled to a share in the property by virtue of the contributions made by her [Paras 75 & 761.

(D) Evidence - Diary entries - Relevance of diary extracts and entries - Indian Evidence Act, 1872, Section 34 - The wife produced extracts of the diaries maintained by the husband to show the contributions made by her The husband disputed neither the pages nor the entries therein - The entries show that it is the combined effort and contribution of the couple that has resulted in the acquisition of the asset - The diaries (extracts) and the entries therein would show that the wife had made contributions towards purchase/construction of suit property [Paras 26, 27, 30 & 68].

(E) Civil Procedure - Court Fee - Partition Party not found to be in joint possession - Tamil Nadu Court Fee and Suit Valuation Act, 1955, Section 37(1) Court fee ought to have been valued on the plaintiff's share of the suit property instead of paying notional court fee under Section 37(2) - Appellant directed to pay deficit court fee in terms of Section 12(4)(b) of the T.N Court Fee and Suit Valuation Act, 1955 within 6 weeks from the date of receipt of the decree [Paras 93-95].