Dismissed

Hari Narayanan v. Indiradevi

Kerala HC11 Jun 2012RSA/723/2012

Case brief

AI extract

What is this about?

This second appeal concerns a partition suit where the appellant claimed sole ownership despite an assignment deed noting joint contribution. The court held that Section 4 of the Binami Transaction Act applies regardless of execution date and found the lower courts correctly rejected the binami plea based on written evidence. The appeal was dismissed.

What did the court decide?

The regular second appeal filed by the appellant was dismissed.

Hari Narayanan Vs Indiradevi — Partition | 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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MONDAY, THE 11TH DAY OF JUNE 2012/21ST JYAISHTA 1934

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RSA.No. 723 of 2012 () ---------------------AS.47/2006 of SUB COURT, OTTAPPALAM OS.29/2005 of MUNSIFF COURT, OTTAPPALAM

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APPELLANT/APPELLANT/DEFENDANT:

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HARI NARAYANAN S/O.KINATTINGAL KUMARAN, OTTAPALAM AMSOM ARIYUR THEKKUMURI DESOM, OTTAPALAM TALUK.

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BY ADVS.SRI.SANTHEEP ANKARATH

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SRI.SUMODH MADHAVAN NAIR

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RESPONDENT/RESPONDENT/PLAINTIFF:

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INDIRADEVI W/O.KARANIPADATH GOPALAKRISHNAN, PALAPPURAM AMSOM MEETNA DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT PIN-679103.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J. ====================== R.S.A. No.723 of 2012.

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============================ Dated this the 11^th day of June, 2012

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JUDGMENT

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This second appeal arises from the judgment and decree of the Munsiff's Court, Ottapalam in O.S. No.29 of 2005 confirming the judgment and decree in A.S. No. 47 of 2006 of the Sub Court, Ottapalam.

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Respondent/plaintiff, sister of the appellant sued for partition and separate possession of her half share in the suit property and the building thereon claiming that herself and the appellant purchased the suit property as per assignment deed No. 37/1998, a copy of which is marked as Ext.A1. With their funds, they constructed the building in the said property. Appellant was managing the property on her behalf also but off late, appellant was not giving her the share of profits. Hence the suit.

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Appellant contended that he purchased the suit property with his own funds and there was no contribution from the respondent. The document happened to be taken in the name of respondent also merely to console her since at the time of execution of the document, her husband was laid-up with 60% disability following a motor accident.

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Trial court rejected the contention of the appellant, found that the property is partible and passed a preliminary decree that was

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R.S.A. No.723 of 2012 -: 2 :-

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confirmed by the first appellate court.

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Learned counsel argues that findings of the courts below are not correct. According to the learned counsel, the Binami Transaction (Prohibition) Act, 1988, (for short the 'Act') was passed only after execution of assignment deed No. 37/1988 and hence has no application. It is contended that there is sufficient evidence to show that the funds for purchase of the property came from the appellant alone while on the other hand, respondent was not able to show that she had contributed money for the purchase. It is also pointed out by the learned counsel that first appellate court has not referred to the fact situation in the case and instead, was carried away by the contention under Section 4 of the Act.

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Notwithstanding that the Act came into force after the execution of the assignment deed, I am inclined to think in the light of Section 4 of the Act that no claim or action based on a plea of binami could be raised or made in any proceeding after the Act came into force. That the assignment deed executed before the Act came into force made no difference. Ext.A1, the copy of assignment deed No. 37/1998 shows that consideration flowed from the appellant and respondent jointly. Under Section 45 of the Transfer of Property Act,

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R.S.A. No.723 of 2012 -: 3 :-

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appellant and respondent in the circumstances are entitled to equal right in the property unless a different intention is revealed by the evidence.

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As against the recital in Ext.A1 that the consideration flowed from the appellant and respondent jointly, contention of the appellant is that he contributed amount for purchase of the property. He produced some evidence to show that he was maintaining an account with the bank during the relevant time and had withdrawn money which according to him was for purchase of the property. He also produced Ext.B1, the C.C. of the award in OP(MV) No. 121 of 1998 of MACT, Palakkad to show that during the relevant time the husband of the respondent was laid-up with disability. According to the appellant, in such a circumstances to assure the security of the respondent the document happened to be taken in her name also.

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As against that version, respondent claimed that she disposed of her ornaments and proceeds was used for purchase of the property. She also had a case that for construction of the building, she entrusted money to the appellant.

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It is argued that there is no reliable evidence in support of the above contention of the respondent except what she stated as

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R.S.A. No.723 of 2012 -: 4 :-

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PW.1 But, I must notice that Ext.A1 recites that consideration flowed from the appellant and respondent jointly. No doubt, it was open to the appellant to show, notwithstanding the recital in Ext.A1 that the entire consideration was paid by him. But, in that regard what is available is only his evidence as DW.1 and the evidence he produced to show that he had withdrawn certain amount from his account at the relevant time. That evidence was not sufficient to discard the recital in Ext.A1 as to consideration being paid by the appellant and respondent jointly. It is in the circumstances that the trial court did not approve the plea of the appellant.

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So far as the first appellate court is concerned, though there is no detailed discussion of the fact situation, it has referred to the contention of the parties and rejected the case pleaded by the appellant. When the appellate court agrees with the decision of the trial court it is sufficient that relevant points are raised and it generally discusses the evidence. A ritualistic repetition of whatever that has been stated by the trial court is not expected under law. It is seen that the question of reservation of the building was also considered by the trial court and it was held that having regard to the circumstances of the case including that the total extent of land is

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R.S.A. No.723 of 2012 -: 5 :-

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only 6 cents, the reservation claimed by the appellant for the building without valuation cannot be accepted.

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The decision of the courts below in the above circumstances

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is based on the fact and evidence and it involves no substantial question of law.

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Hence the second appeal is dismissed.

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sd/-

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THOMAS P.JOSEPH, JUDGE

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//True copy//

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P.A. to Judge

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smv

Hari Narayanan v. Indiradevi

Case brief

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Hari Narayanan v. Indiradevi

Case brief

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