Dismissed

Chathothu Malini v. Chathothu Subha

Kerala HC28 Jun 2012RSA/693/2012

Case brief

AI extract

What is this about?

Appeal against decree confirming dismissal of suit for declaration of title filed by a daughter claiming property purchased by her father. Court held presumption under Benami Act stands unshaken due to insufficient contrary proof and dismissed appeal.

What did the court decide?

Second Appeal dismissed; interlocutory applications also dismissed.

Chathothu Malini Vs Chathothu Subha — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934

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RSA.NO. 693 OF 2012 ()

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---------------------------------AS.131/2004 OF ADDITIONAL DISTRICT COURT, THALASSERY OS.636/1998 OF MUNSIF COURT, KUTHUPARAMBA

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APPELLANT(S)/SUPPL.APPELLANT/2ND DEFENDANT:

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CHATHOTHU MALINI WIFE OF T.PURUSHOTHAMAN, RESIDING AT THULASI BHAVAN KANNUR AMSOM, THALAP DESOM, P.O.THALAP KANNUR.

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BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR

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SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI

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RESPONDENT(S)/RESPONDENTS 1 & 3/1^ST DEFENDANT & 2^ND PLAINTIFF:

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1. CHATHOTHU SUBHA WIFE OF DR.P.V.NARAYANAN, RESIDING AT 'DEEPAM' NEAR TOWN HALL,

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PO.CHIRAKKARA, THALASSERY-670101.

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2. CHATHOTH PRATAPAN, RESIDING AT KUTHUPARPAMBA AMSOM, NARAVOOR DESOM P.O.KUTHUPARAMBA, KANNUR DISTRICT-670643.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.693 of 2012

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Dated this the 28^th day of June, 2012.

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JUDGMENT

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2^nd defendant in O.S.No.636 of 1998 of the Munsiff's Court, Koothuparamba is the appellant before me, challenging the judgment and decree in that case as confirmed by the learned Additional District Judge, Thalassery in A.S.No.131 of 2004.

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The 2^nd respondent is the 2^nd plaintiff in the suit. Appellant/2^nd defendant and the 1^st respondent/1^st defendant are daughters of the deceased 1^st plaintiff. He claimed that the suit property belonged to him though, Ext.A1, assignment deed dated 15.10.1977 concerning the said property was taken in the name of the 1^st respondent/1^st defendant. According to the deceased 1^st plaintiff, as he then was a teacher of the Basel Mission U.P.School, he required permission from the school authorities to purchase the property and hence the property was acquired in the name of the 1^st respondent, the daughter who then was aged 17 years. The deceased 1^st plaintiff continued to be in possession and enjoyment of the suit property. He was running a tuition centre in the building in the suit property. In the year, 1978, 1^st respondent was sent in marriage. Appellant/2^nd defendant was sent in marriage even prior to 1978. The deceased 1^st plaintiff, claiming that he is the absolute owner in possession of the suit property executed a gift deed in favour of the 2^nd respondent/2^nd plaintiff on

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RSA No.693/2012

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03.11.1995 concerning the suit property. The said gift deed was cancelled on 09.12.1996. Since the 1^st respondent made a claim over the property, the deceased 1^st plaintiff filed the suit for a declaration of his title and possession of the suit property and for consequential reliefs.

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1^st respondent/1^st defendant contended that the gift deed and its cancellation deed are invalid and that Ext.A1, sale deed dated 15.10.1977 is taken in her name and as she was a minor aged 17 years, she was represented by her guardian. That is not an acquisition made by the deceased 1^st plaintiff for his benefit. Title and possession of the suit property vested with the 1^st respondent as per Ext.A1, sale deed. Possession of the deceased 1^st plaintiff in the suit property and building is permissive as he was allowed to conduct tuition class in the building therein.

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Appellant/2^nd defendant supported the case of the deceased 1^st

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plaintiff.

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The trial court did not accept the case of the deceased 1^st plaintiff and dismissed the suit. He preferred an appeal as A.S.No.131 of 2004. He produced certain documents in the first appeal with a request to receive the same as additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure (for short, “the Code”). But that request was not allowed by the learned Additional District Judge. In the meantime 1^st plaintiff died and the appellant/2^nd defendant was transposed as additional appellant. Learned Additional District Judge after hearing the counsel on both sides confirmed

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RSA No.693/2012

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judgment and decree of the trial court. The appellant/2^nd defendant is aggrieved and has preferred this Second Appeal urging the substantial questions of law stated in the Memorandum of Appeal.

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The learned counsel for the appellant contends that evidence adduced is only one way, in favour of the deceased 1^st plaintiff to show that he is the owner in possession of the suit property. It is contended that documentary evidence revealed that the deceased 1^st plaintiff was paying revenue for the suit property and tax for the building from 1977 to 1998 and that the documents produced by the 1^st respondent/1^st defendant relates only for the period thereafter. In the circumstances the courts below were not correct in granting relief to the deceased 1^st plaintiff. Learned counsel also contends that the first appellate court ought to have received the documents produced in the appeal as additional evidence.

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The additional documents which the deceased 1^st plaintiff produced in the first appellate court are certain letters allegedly written by the 1^st respondent to the deceased 1^st plaintiff. As the learned counsel in fairness conceded it neither bear a date nor signature of the sender. Now, reliance is placed on the handwriting of the said letters allegedly as that of the 1^st respondent/1^st defendant. There was a request before the first appellate court to send the documents to the expert as well. As per the letters which the learned counsel has read before me, what the 1^st respondent (allegedly) has told the deceased 1^st plaintiff is that the latter had initially agreed to give the suit property to her. Learned counsel reads from the letters to point out that there is a threat

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RSA No.693/2012

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made by the 1^st respondent to the deceased 1^st plaintiff if the property was not given to her – which indicated that the property vested with the deceased 1^st plaintiff.

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Learned Additional District Judge was not inclined to receive additional evidence in appeal invoking the power under Order XLI, Rule 27 of the Code. The circumstances under which additional evidence could be received in appeal is prescribed under Order XLI, Rule 27 of the Code which according to the learned Additional District Judge are not complied.

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So far as the evidence on record is concerned, it is not disputed that Ext.A1, assignment deed is taken in the name of 1^st respondent, the daughter and as she then was aged 17 years, she was represented by a guardian. Initially an objection was raised from the side of the 1^st respondent that the suit itself is not maintainable in view of Sec.4 of the Benami Transactions (Prohibition) Act (for short, “the Act”). But, the courts below did not accept that contention since the allegation is that the father had purchased the property in the name of an unmarried daughter and that is excluded from the purview of Sec.4 of the Act. But, it is relevant to note Sec.3(2) of the said Act which exempts purchase of property in the name of unmarried daughters from the purview of the Act. The said provision says that such purchase shall be treated as for the benefit of the unmarried daughter unless the contrary is proved. As per that provision there is a presumption in favour of the 1^st respondent that the purchase even if made by the deceased 1^st plaintiff on behalf of the 1^st respondent, is for her benefit unless the deceased 1^st plaintiff

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RSA No.693/2012

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was able to prove the contrary. Therefore, I must start with an initial presumption in favour of the 1^st respondent that the purchase as per Ext.A1 was for her benefit as she was the unmarried daughter. It being the obligation of the deceased 1^st plaintiff to prove the contra.

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Ext.A2 is the settlement deed dated 03.11.1995 executed by the original plaintiff and Ext.A3 is its cancellation deed dated 09.12.1996. Ext.A4 is a receipt for payment of revenue on 11.02.1982. Exts.A5 and A6 series are meter records issued by the Kerala State Electricity Board concerning the building in the suit property. The meter records are produced to show that it is issued in the name of the deceased 1^st plaintiff. Ext.A7 and A8 are the electoral identity cards issued to prove that the deceased 1^st plaintiff was staying in the building in the suit property. Ext.A9 is a notice issued from the Local Authority for building tax and Ext.10, ration card also produced to show the occupation or stay of the deceased 1^st plaintiff in the building in the suit property. Ext.A11 is the building tax passbook to show that the building tax was being paid by the deceased 1^st plaintiff.

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On the otherhand, 1^st respondent has produced Exts.B1 to B7, true, all for the period from 27.10.1996 onwards.

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So far as the documents produced by the deceased 1^st plaintiff in the trial court, and relied upon by the learned counsel are concerned, I must notice that those documents come at a time when admittedly there was no dispute between the deceased 1^st plaintiff and the 1^st respondent, they being the father and daughter. It is not disputed by the 1^st respondent also that the

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RSA No.693/2012

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deceased 1^st plaintiff was in occupation of the suit property and the building thereon, according to her as permitted by her to facilitate the deceased 1^st plaintiff conduct tuition class. That plea, considering the close relationship between the parties cannot be said to be improbable. In that view of the matter, if the deceased 1^st plaintiff was paying revenue for the suit property or tax for the building, staying there, I do not find anything strange in it so as to affect the title of the 1^st respondent over the suit property. So far as payment of revenue/building tax, etc. by the 1^st respondent after 1998 is concerned, a contingency arose for the 1^st respondent to pay the building tax, etc. on her own when dispute arose between herself and the father in the year, 1998 following the execution of gift deed and cancellation deed in the year 1995-96.

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In the above circumstances, the documents produced by the deceased 1^st plaintiff are not sufficient to displace the presumption in favour of the 1^st respondent under Sec.3(2) of the Act.

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Nor am I inclined to think that the letters (allegedly) sent by the 1^st respondent to the deceased 1^st plaintiff and produced in the first appellate court would tilt the decision in favour of the deceased 1^st plaintiff. Those letters expressed the desire of the 1^st respondent that the deceased 1^st plaintiff had agreed to give the property to her. In the nature of the situation in which the parties were placed I am not inclined to think that those letters would cut down the title 1^st respondent has acquired over the suit property as per Ext.A1.

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It is relevant to note in what circumstances according to the deceased 1^st plaintiff, he happened to take the property in the name of 1^st

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RSA No.693/2012

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respondent who then was a minor. He states that since he was a teacher of the Basel Mission U.P.School it was required of him to take permission of the school authorities to take the sale deed and as that would take long time, he thought of purchasing the property in the name of the 1^st respondent. But the deceased 1^st plaintiff when examined as PW1 admitted that there is no rule which requires him to get permission of the school authorities before the assignment deed is taken in his name. Even according to him, there is no such insistence from the school authorities and it is only appropriate that after the acquisition is made the said fact is intimated to the school authorities. Therefore, the very substratum on which the plea of purchase in the name of 1^st respondent is made by deceased 1^st plaintiff is shaken. Courts below in the above circumstances rightly found that title and possession of the suit property is with the 1^st respondent.

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On hearing learned counsel and going through the judgments under challenge, I do not find any substantial question of law involved in this appeal requiring its admission.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Chathothu Malini v. Chathothu Subha

Case brief

What is this about?

What did the court decide?

Chathothu Malini v. Chathothu Subha

Case brief

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