Partly allowed

Belcita Vincent Gomez v. Vincent Gomez

Kerala HC18 Nov 2013Mat.Appeal/28/2008

Case brief

AI extract

What is this about?

Appeal against Family Court decree declaring joint title over properties purchased by wife using husband's trusted funds. Court held wife held property as trustee. Declared husband as absolute owner of both properties and directed wife to surrender possession.

What did the court decide?

Respondent declared absolute owner of both properties; Appellant directed to surrender vacant possession of ground floor within 30 days and restrained from alienation.

Belcita Vincent Gomez Vs Vincent Gomez — Matrimonial and Divorce | Kerala HC (2013)

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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 ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935

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Mat.Appeal.No. 28 of 2008 (A)

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[AGAINST THE JUDGMENT IN O.S.NO.203/2001 DATED 31-10-2007 OF THE FAMILY COURT,KOLLAM]

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APPELLANT/DEFENDANT:

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BELCITA VINCENT GOMEZ, KALLUVILA VEEDU, KAKKOTTUMMOOLA, MAYYANAD .P.O, KOLLAM-691 303, NOW RESIDING AT F.V.G. BHAVAN, PONNATHALA NORTH.P.O., THIRUMULLAVARAM, KOLLAM.

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BY ADV. SRI.ROY CHACKO.

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RESPONDENT/PLAINTIFF:

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*1. VINCENT GOMEZ, F.V.G.BHAVAN, PUNNATHALA NORTH, THIRUMULLAVARAM P.O,

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*KOLLAM - 691 303 (WORKING AT AL-AKLAS GEORGE COMPANY, RAZALKHAMA, U.A.E). (DIED).

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*IMPLEADING OF LEGAL REPRESENTATIVES 2 TO 4 OF DECEASED RESPONDENT AS ADDITIONAL RESPONDENTS:

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2. JACQUILINE MOHAMMED NIYAS, MEKKULLURUVIL VEEDU, PUNNATHALA NORTH, THIRUMULLAVARAM.P.O., KOLLAM - 12.

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3. DIMPLE ROMSOM THOMAS, T.C. NO.11/829, MANJADIVILA VEEDU, KOWDIAR.P.O., NANTHANCODE.P.O., THIRUVANANTHAPURAM - 695 003.

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M.A. NO.28/2008-A:

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4. GLORIA DEEPAN VARGHESE, T.C. NO.11/829, MANJADIVILA VEEDU, KOWDIAR.P.O., NANTHANCODE.P.O., THIRUVANANTHAPURAM - 695 003.

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*LEGAL REPRESENTATIVES OF DECEASED RESPONDENT, ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 4 AS PER ORDER DTD. 26/07/12 IN IA. 138/12 IN MAT. A. NO.28/08.

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R1 BY ADVS. SMT.T.S.MAYA (THIYADIL), SMT.REKHA NAIR, SMT.K.REENA, SRI.P.R.PREMACHANDREN, ADDL.R2 TO R4 BY ADVS. SRI.P.A.AHAMMED, SRI.THOUFEEK AHAMED.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2013, ALONG WITH CROSS OBJECTION NO.86/2008 THE COURT ON 18-11-2013, DELIVERED THE FOLLOWING:

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Prv.

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ANTONY DOMINIC & P.D.RAJAN, JJ

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......................................... Mat.Appeal.No.28 of 2008 & Cross Objection No.86 of 2008 ......................................... Dated 18^th November, 2013

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JUDGMENT

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P.D.Rajan,J

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This appeal arises out of the judgment in O.S.No.203 of 2001 of Family Court, Kollam, which was filed by the respondent husband for declaration of title and recovery of possession and injunction restraining the appellant wife from interfering with his possession of the property.

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The brief facts of the case, according to the plaintiff, are as follows. Plaintiff married the defendant on 15.12.1974 at Fathima Shrine, Kollam, as per christian customary rites and she was given two sovereigns of gold and Rs.1000/- by her parents since her family, consisting of five daughters and one son, was very poor. At that time, plaintiff was conducting a workshop at Kollam and in the year 1980, he went to Gulf entrusting his workshop to his younger brother. But since he could not secure an attractive employment, he returned to his native place

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within one year and again conducted the workshop. While so, he again left to U.A.E on 16.10.1983 and obtained a job in Razalkhaima as a Vehicle Mechanic. Before leaving to Razalkhaima, he sold his car and had received the prize money of a chitty he had subscribed. Out of this, Rs.30,000/- was entrusted with the defendant and the balance amount was utilized for his travel expenses to Razalkhaima. According to him, utilizing a portion of the amount entrusted to her, defendant purchased plaint schedule item No.1 property and the sale deed was executed in her name. She enjoyed the property as a trustee of the plaintiff and was a loving and trustworthy wife during that period.

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In the year 1986, the plaintiff started a garage and workshop in Razalkhaima, which was conducted very profitably and in the same year, defendant came there and resided with the plaintiff, without any employment or income. They decided to construct a building in the property and with this aim she came to Kerala several times, brought money and gold given by the plaintiff and

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utilizing that money, the ground floor of the building was completed in the year 1995. Plaintiff had accounts in the branches of Bank of Baroda and State Bank of India, Kollam and through these accounts, he sent money from Gulf. He also entrusted Rupees Twenty Lakhs and 700 sovereigns of gold with the defendant believing that she will utilize it as a trustee. In the year 1997, construction of the first floor was started and was completed in the year 1998. He had also purchased furniture and three airconditioners for the building in item No.1 of the plaint schedule property by spending Rupees Seven lakhs.

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The plaint schedule item No.2 property was purchased by the defendant on 2.3.2000 in her name, by utilizing the amount sent by the plaintiff and he is the absolute owner of that property. Subsequently, in the year 2000, defendant deserted the plaintiff and two daughters and started to live at Kottiyam with her elder sister. The plaintiff is the absolute owner of plaint schedule item Nos.1 & 2 properties since the entire consideration was paid from out of the funds of the

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plaintiff and the defendant had no source of income or financial capacity to purchase the properties. Plaintiff got reliable information that the defendant was preparing to alienate the plaint schedule item No.1 property without his consent. Hence he filed the suit with the prayers, mentioned in paragraph one above.

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The defendant resisted the suit by filing a written statement stating that at the time of marriage, her parents had given her 10 sovereigns of gold ornaments, Rs.10,000/- and 15 cents of property as her share. She contended that using the sale consideration of that property, plaintiff purchased an Ambassador Car. The expenses for going to gulf was met by her brother and that the plaintiff did not have the financial capacity to entrust Rs.30,000/- to the defendant. According to her, since the plaintiff did not have the financial capacity to start the garage in Gulf, her brother helped him financially and that when the plaintiff took her to Gulf, they resided there together for 16 years. While she was residing there with the plaintiff, she worked in a Super

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market for two years from 1984-1986 and was earning 1500 dirhams per month. It was stated that Plaint schedule item No.1 property was purchased by the defendant paying the entire consideration from out of her own savings.

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According to her, when plaintiff was abroad, several properties were purchased by him in his name utilizing his own funds. The building in item No.1 property was constructed by the defendant utilizing her own funds. No amount or gold ornaments were entrusted to the defendant when the plaintiff was working abroad. Moreover, all furnitures kept in the building in the plaint schedule property were also purchased by her with her funds and no amount was contributed by the plaintiff. She was actually managing the plaintiff's workshop and garage while she was in Gulf. Plaintiff did not know to read and write English and he used to sign the papers shown by the defendant. The amounts sent by the plaintiff were utilized for the education of their children and for other family expenses. At the time of marriage of

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the second daughter, she was given the amount sent by the plaintiff from Gulf. Her daughter and plaintiff forged

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her signature and withdrew huge amounts from Bank of Baroda and for that a Vigilance Enquiry by the Anti Corruption Bureau was pending. She contended that the suit is barred by limitation and the provisions of Benami Transactions(Prohibition) Act, 1988. Now, plaintiff wants to evict the defendant from the plaint schedule item No.1 property by hook or crook. The plaintiff has no cause of action against the defendant and she prayed for the dismissal of the suit.

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The trial court framed the following issues.

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“1. Is the suit maintainable ?

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Has the plaintiff got absolute title over plaint schedule property ?

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Is the plaintiff entitled to recovery of possession of suit property ? 4. Is the injunction prayed for allowable ? 5. Reliefs and costs?”

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The evidence in the case consist of the oral

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testimony of PW1 and DW1 and the documentary evidence are Ext.A1 to A24 and B1 to B26. After

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analysing the oral and documentary evidence, the Family Court decreed the suit in part, declaring the joint title and possession of plaintiff and defendant over the plaint schedule item No.1 property, the building and the items therein and declared the plaintiff's exclusive title over plaint schedule item No.2. Plaintiff was granted a decree of injunction restraining the defendant from alienating the scheduled properties with the building and movables in plaint schedule item No.1 to the detriment of plaintiff's right and committing any waste therein and obstructing the plaintiff from residing in the plaint schedule item No.1 with his children. It is aggrieved by this judgment, the wife has preferred this appeal.

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After filing this appeal, respondent/husband died and his legal representatives were impleaded as additional respondents 2 to 4.

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Learned counsel appearing for the appellant contended that the plaint schedule item No.1 is owned by the appellant exclusively and that deceased respondent had no right in that property. The allegation that the

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property was purchased with the funds provided by the respondent husband was not proved and that the respondent had no income during 1983-84. Moreover, the suit is barred by limitation under Article 58 of the Limitation Act. The effect of Section 3 and 4 of the Benami Transactions (Prohibition) Act was not considered by the trial court. According to him, the pleadings would show it to be a private trust and that the provisions of the Trust Act are applicable to this case and that prayer for a declaration alone was advanced by the respondent and that recovery of possession was not claimed. He argued that such a relief cannot be granted under Section 34 of the Specific Relief Act. In support of his contentions, learned counsel relied on the decisions in Khatri Hotels (P) Ltd V. Union of India (2011(9) SCC 126), Saroja V.Chinnusamy and another (2007(8) SCC 329)(para 14 to 18), Moosa V. Moideen (2001(1) KLT 183), Thakur Bhim Singh V. Thakur Kan Singh (1980(3) SCC 72), Sangeeta GP V. State of Kerala (2010(1) KHC 447 ), Rajan K.M V.Rathikumari (2012(2) KHC 231),

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Meharchand Das V. Lal Babu Siddique (2007(14) SCC 253) & Vinay Krishna V. Keshav Chandra and another (1993(3) Supple SCC 129).

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Learned counsel for the respondent argued that the property was purchased by utilizing the funds of the 1^st respondent and that the contention of the appellant is unsustainable in law and that no evidence was adduced by the appellant to show that any amount was obtained by selling her property. According to him, the property was purchased in her name as a Trustee of the husband. He argued that Section 10 of the Limitation Act is applicable to the facts of this case and that provisions of Benami Transactions (Prohibition) Act are not be attracted. Finally, he prayed for the dismissal of the appeal.

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The respondent has also filed Cross Appeal No.86/2008 seeking to set aside the finding against husband and contending that the appellant is not entitled to get any portion of plaint item No.1 property. The learned counsel for the respondent relied on the decisions

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in Muhammed Basheer v. Jameela [2013(1) KLT 1], P.V. Snakarakurup v. Leelavathy Nambiar [1994(6) SCC 68],

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Daya Singh and another v. Gurudev Singh (through Lrs) and Marcel Martias v. M. Printer and others [AIR 2010 SC 3240] and [2012 (5) SCC 342]

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The suit was filed by the respondent alleging that the appellant wife had purchased the property utilising the money entrusted by him for his benefit and as a trustee. On the other hand, the appellant, contended that Plaint schedule item No.1 property was purchased on 10.11.1983 by virtue of sale deed Ext.B7, and plaint schedule item No.2 was purchased on 2.3.2000 utilizing her money. She also deposed that the consideration paid includes the sale consideration received for her property also. She contended that though the husband had knowledge about this at least from the year 1996, the suit was filed in 2001 only. Therefore, according to her, the suit was barred under Article 58 of the Limitation Act. But the evidence of PW1 shows that before going abroad, on 16.10.83, he had entrusted Rs.30,000/- to the appellant

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and according to him, utilizing that amount, the appellant purchased plaint schedule item No.1 property. Ext.B7 was executed on 10.11.1983 in the name of the appellant and the sale consideration shown in Ext.B7 is Rs.8750/-. Both parties did not produce any documentary evidence to prove the source of funds for the purchase of the property. It was on that basis that the trial court observed that “the plaintiffs absolute title over the plaint schedule item No.1 cannot be declared”. But it is an admitted fact that appellant had no job at the time of marriage and she was a total dependant of Pw1, who was then conducting a motor car workshop at Kollam. At that time, respondent had subscribed a chitty and had a car of his own. He had received the prize money of the chitty and he sold the car before going abroad and after retaining amount towards travelling expenses, the balance amount was entrusted to the appellant. It was utilizing a portion of the amount so entrusted, she purchased plaint schedule item No.1 property in her name as a trustee and respondent had trusted her since she was an affectionate

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and lovable wife. The evidence to this effect adduced by the respondent disclosed that his case is a probable one

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and we do not find any reason to disbelieve it.

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Now we shall consider whether Section 10 of the Limitation Act or Article 58 of the Limitation Act is applicable in this case.

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Section 10 of the Limitation Act reads as under:-

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10. Suits against turstees and their representatives. - Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the

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purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

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Explanation.- For the purpose of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”

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Here the case of the respondent was that the appellant

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purchased the property with the money entrusted by him and that she held the property in her name in trust for him. The conduct of the respondent indicate that he had full confidence in his wife and she acted as a trustee of his

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property. In T.C.Chacko V. Annamma and others (AIR

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1994 Kerala 107), paragraph 14 reads thus:-

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“ The words used in Section, viz, property has become vested in trust for any specific purpose, should not be given undue importance, so as to form a category of trust which has got certain additional attributes than the attributes of an actual or direct trust, viz, express trust. If from the conduct of the parties, it is possible to hold that an actual direct trust is created, it has to be presumed that it satisfies the requirement of vesting of the property for a specific purpose, which only imports creation of an express trust”.

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Learned counsel appearing for the appellant contended that the provisions of Indian Trust Act are applicable in this case. Section 3 of the Indian Trust Act defines “trust” as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner, the person who reposes or declares the confidence is called the “author of the trust”, the person who accepts the confidence is called the “trustee”, the person for whose benefit the confidence is accepted is called the “beneficiary”, and the subject-matter of the trust is called

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“trust-property” or “trust-money”. The “beneficial interest” of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the “instrument of trust”. From a plain reading of the above Section, it is clear that a trust can be created under the Indian Law only after complying with the above statutory formalities. The position is different when, by the conduct of the parties, a trust is created due to fiduciary relationship and when it is acted upon, it is presumed that an actual direct trust is formed. Where the wife with the consent of the husband acts as a trustee of his property in a fiduciary capacity, she has the duty to convey the property to the husband as and when he demands. Since it is an express trust created, we are of the opinion that u/s 10 of the Limitation Act alone has application to the facts of this case.

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Article 58 of the Limitation Act 1963 has no application to the facts of the case. Art.58 of the Limitation Act reads as follows;

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“THE SCHEDULE

PERIOD OF LIMITATION

[See Sections 2(j) and 3]

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First Division-Suits

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---------------------------------------------------------------------------------Description of suit Period of Time from which period begins tolimitation run

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Part III- Suits Relating to Declarations

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To obtain any other declaration Three years When the right to sue

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first accrues”

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Art.58 of the Limitation Act specifies a period of limitation of three years for instituting a suit for a declaratory relief and this period shall be counted from the date of denial of such right. According to the appellant, item No.1 property was purchased on 10.11.1983 and though the respondent had knowledge about it from 1996, suit was filed only in the year 2001. In this context we may also say that Article 58 applies only to cases where declaration simpliciter is sought without any further relief. In this case, we found that the wife purchased plaint schedule item No.1 and item No.2 properties utilizing the funds entrusted to her by the husband. In such a case, Article

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58 of Limitation Act is not applicable and on the other

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hand, as already held by us, Section 10 of the Limitation Act is applicable and no time limit is provided thereunder.

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At this juncture, contention of the appellant

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relying on Section 3 of the Benami Transaction Act merits consideration. Section 3 of Benami Transactions

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(Prohibition) Act reads thus:-

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“3. Prohibition of benami transactions. -(1) No person shall enter into any benami transaction. [(2) Nothing in sub-section (1) shall apply to-

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(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;

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(b) the securities held by a-

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(i) depository as registered owner under subsection (1) of section 10 of the Depositories Act, 1996

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(ii) participant as an agent of a depository. Explanation.- The expressions “depository” and “Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub-section (1) of section 2 of the Depositories Act,1996].

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Section 2(a) defines “benami transaction” as any

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transaction in which property is transferred to one person

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for a consideration paid or provided by another person.

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Section 3 deals with prohibition of benami transaction.

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Sub Section (1) candidly prohibits that no person shall

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enter into benami transaction. However, sub section (2) of Section 3 clearly says that nothing in sub section (1) shall apply to purchase of property of any person in the name of his wife, unmarried daughter and unless the contrary is proved, it shall be presumed that the suit property had been purchased for the benefit of the wife or the unmarried daughter as the case may be. Therefore Section 3(2) makes it clear that if the property is purchased in the name of wife or unmarried daughter, there would be a presumption that it is for their benefit. But that presumption can be rebutted by the person who is claiming to be the real owner of the property by adducing evidence or other materials before the Court. In this case the trial court has found that plaint schedule item No.1 was purchased by the appellant utilising the amount of both parties in the name of the appellant. Respondent contended that the appellant purchased the property as his trustee.

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18. Section 4 of the Act Prohibits the right to recover

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property held benami. It reads as follows:

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4. Prohibition of the right to recover property held benami. - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

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(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

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(3)Nothing in this section shall apply,-

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(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

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(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.”

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A three-Judge Bench of the Apex Court which dealt with the prohibition imposed by Section 4 of the Act

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in R. Rajagopal Reddy v. Padmini Chandrasekharan

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[(1995) 2 SCC 630] has expressed its view that, the prohibition imposed by sub-sections (1) and (2) of Section 4 applies only to suits to be filed or defences to be taken, in respect of property held benami, i.e., benami transactions, after the coming into force of the Act and

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not to those suits filed and defences taken in respect of such benami transactions and pending final decision at the time of coming into force of the Act. This principle has been laid down earlier by a Division Bench of the Apex Court in Mithilesh Kumari v. Prem Behari Khare [(1989) 2 SCC 95]. Therefore in view of Section 4 of the Act, a suit could be filed or a defence could be taken in respect of properties held benami, provided the properties are held by persons covered by clauses (a) and (b) of sub section (3) of Section 4 since that sub-section makes the provisions by sub sections (1) and (2) thereof inapplicable to such cases.

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From the evidence of PW1, it is clear that he entrusted the money to the appellant in trust and utilizing that amount, she purchased the plaint schedule item No.1. In her written statement, she admitted that she was looking after the garage and workshop of her husband while she was at Razalkhaima. Eventhough she claimed that she was employed in a supermarket at Razalkhaima, no documentary evidence has been

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produced by her to prove her employment or earning of 1500 dirham per month or its utilization for purchasing plaint item No.1 property and the movables in the building. In the absence of any documentary evidence, her claim of exclusive ownership was rejected by the Family Court. A christian husband is liable to maintain his wife and children and to fulfill that obligation, the respondent entrusted his entire earnings to his wife as a trustee. The utilisation of the earnings of the husband by the wife is for the benefit of the family and is in a fiduciary capacity. When both parties separated, they were raising allegations against each other, which does not mean that the husband had not earned any amount while he was working abroad. The payment made by the husband to the wife is a simple trust which is a “trust for a specific purpose”. Therefore, it is an express trust as mentioned under Section 10 of the Limitation Act.

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A Division Bench of this court in T.C.Chacko V.

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Annamma and others (AIR 1994 Kerala 107) considered this point in paragraphs 24, 30 and 31 and it was held

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thus:-

“ Further, it has to be noted that at the time when that decision was rendered the marginal note of S.10 of the Limitation Act contained the word “express” which was omitted, perhaps for the reason that the use of the words, “for a specific purpose”, is only to distinguish the trust as an “express trust”. We are of opinion that particularly in a christian marriage when the father of a girl makes a payment which has to be considered as stridhanam to her father-in-law though not directly by specific words, but by the very act certainly indirectly an express trust is created and the girl is made its censui que trustee and in that context is nothing wrong in adopting a purposive interpretation of the content of S.10 of the Limitation Act by holding that when such a payment takes place, the money paid would constitute in the hands of the husband of the father-in-law the subject matter of an express trust and the amount is a trust property or trust money. The context and circumstances behove and bessem the creation of an express trust. We are of opinion that it may not be very correct to say that the payment of money by the father of the girl to the father-in-law of the husband would not constitute an express trust, though an open and direct declaration did not precede the payment”.

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In (1990) 2 Ker. LT 604 (Swapna V. Thankavelu), Justice Krishnamoorthy, following the decisions reported in AIR 1985 SC 628 (Pratibha Rani V. Surajkumar and (1989) 1 Ker Lt 636 (Maniyamma V. Abdul Rasaak), held that the husband is in the position of a trustee so far as the ornaments and utensils entrusted to him by the wife are concerned and under S.10 of the Indian Limitation Act there shall not be any limitation for such a suit by the wife against husband. Of course, His Lordship Justice Krishnamoorthy did not discuss the question whether an express trust is necessary to attract S.10 of the Limtiation Act. But the learned Judge has followed AIR 1985 SC 628 and (1989) Ker. LT 636. In AIR 1985 SC 628, the learned Judges were considering a question u/s. 405 and 406 of the IPC in regard to stridhanam property of wife. The court found that all the ingredients of the offences u/s.405 of the IPC have been proved in the case. In the majority judgment, Fazal Ali, J, speaking for himself and Sabyasachi Mukherji, J observed that it cannot be said that upon a woman entering the matrimonial home the ownership of stridhanam property becomes joint with her husband or his relations. Even if the stridhanam property of a married woman is placed in the custody of her

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husband or in-laws they would be deemed to be trustees and bound to return the same if and when demanded by her. The Supreme Court overruled the decision reported in AIR 1982 Punj & Hary 372 (FB) (Vinod Kumar V.State of Punjab & Haryana). The above decision, of course, has laid down very clearly that the stridhanam property in the hands of the husband or in laws should be deemed to be trust property in the hands of the husband or in-laws. Whether it is an express trust or not was not a question which came up for consideration before the Supreme Court in this case.

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The above case has been followed in (1989) Ker.LT 636 by Justice Thomas. His Lordship Justice Thomas said that the husband is liable to be visited with penal consequence for breach of trust, if he fails to return the cash or gold ornaments belonging to his wife and that mere entrusting of the property of the wife to the husband does not attract any of the essential ingredients of the partnership or constitute any co-ownership. It is also stated that this principle applies with equal force to all husbands and wives whether they are Hindus, Muslims or Christians. Obviously His Lordship Justice Thomas has no occasion to consider the import, content and width of S.10 of the Limitation Act.

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In the above decision, Division Bench referred to

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the decisions in Varadarajalu V. Papanasam Labour Union (AIR 1969 Madras 401), V.Balakrishnamurthi V. G.Sambayya (AIR 1959 Andhra Pradesh 186) and upheld the decision of Single Judge rendered in Swapna V. Thankavelu (1990(2) KLT 604), which followed the decision of Supreme Court in Pratibha Rani V. Suraj Kumar (AIR 1985 SC 628) and Maniyamma V, Abdul Rasaak (1989(1) KLT 636). The evidence of PW1 would show that plaint schedule item No.1 and 2 properties were purchased by DW1 with the funds of the husband.

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The husband entrusted the amount to the wife as a trustee for the welfare of the family in a fiduciary capacity. Therefore, the provisions of Benami Transactions (Prohibition) Act and Article 58 of the Limitation Act 1963 are not applicable, on the other hand, Section 10 of Limitation Act alone is applicable to this case.

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Trial court declared the joint title and possession of plaintiff and defendant over the plaint schedule item No.1 property and the building therein and the title over plaint schedule item No.2 property was declared in favour of the respondent. The oral evidence of PW1 shows that while he was working at Razalkhaima, he had substantial earnings and he maintained accounts at various banks at Kollam. Ext.A1 to A6 are the documents in connection with receipt of the amount, Ext.A8 to A16 series are the receipts for the jewellery purchased from Razalkhaima. Ext.A17 to A21 are the receipts for timber and furniture and other wooden and marble items. DW1 contended that while she was staying abroad with her husband, she

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worked in a super market and earned a considerable amount, but no documentary evidence has been adduced by her to prove her employment or income. At the same time, she admitted that she was working in the garage of her husband and helped him. DW1 admitted that PW1 was conducting a good garage and there was good business there. She produced Ext.B1, B2, B3, B4, B7, B8 (a),(b) and c) title deeds,Ext.B9(a),(b) and c) tax receipts and B10 to prove her possession over the property. It is admitted that since PW1 was working abroad, she alone was managing the properties. Overlooking such evidence available in the case, Family Court declared the title of plaint schedule item No.I property in favour of both parties. This, in our view, is erroneous and needs to be set right and the declaration in respect of plaint item No.2, deserves to be upheld.

¶165

Though an issue was framed on recovery of possession, that was not considered by the Family Court on the ground that there was no pleadings to that effect. When the appellant purchased plaint schedule item No.1

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property, as a trustee, a separate prayer for recovery of item No.1 was not necessary. The movables in the plaint schedule item Nos. 1 and 2 property were not identified and therefore, recovery of those articles was declined by Family Court. Further, appellant was restrained by an order of injunction from alienating plaint schedule item No.1 to the detriment of the right of the respondent and from committing any waste therein or obstructing the respondent from residing in the plaint schedule item No.1 property with his children. We do not find any illegality in the above order.

¶169

The respondent preferred Cross Objection No.86/2008 in this appeal and contended that the findings of the Family Court, to the extent it is against him, are contrary to the evidence and pleadings and that he is entitled to recover the entire plaint schedule properties. We have already considered the evidence and pleadings and concluded that the appellant had at no point of time any independent source of income to purchase any property or to give any financial assistance to the

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respondent husband. However, the Family court wrongly appreciated that part of the evidence and declared joint title over plaint schedule item No.1 property. Therefore, the finding recorded by the court below with regard to the purchase of item No.1 is liable to be set aside. Besides, it could be seen from the evidence that the husband had proved that the building in plaint schedule item I property was constructed exclusively by using his funds. The lower court has found that the plaint schedule item No.2 property was purchased by the appellant with the funds of the husband as a trustee and this finding is fully supported by the evidence in the case. When the appellant is a trustee of the respondent, by operation of law, in a fiduciary relationship, she is holding the property item 1 and 2 for the benefit of the respondent. Considering the nature of the suit, the request in the cross objection for amendment of the plaint is rejected since it is a belate one. Resultantly, the appeal is to be dismissed and cross appeal is only to be partly allowed.

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In the result, the judgment and decree passed by

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the Family court, Kollam is set aside and this appeal and cross appeal are disposed of as follows:-

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a. The respondent in the appeal (plaintiff in O.S.203 of 2001) is declared as the owner of plaint item No.I and II properties and the building therein and his title and possession over plaint schedule item No.I & II and the building therein is hereby declared.

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b. The appellant is directed to surrender vacant possession of the ground floor of the building within 30 days from today failing which she can be evicted from the building in accordance with law and realise the cost from her.

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c. The appellant is restrained by an order of injunction from alienating plaint schedule item I & II properties and committing any waste therein.

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No cost is ordered.

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ANTONY DOMINIC, JUDGE

P.D.RAJAN, JUDGE

lgk

ma 28/2008

The time for surrendering vacant possession of the ground floor of the building within 30 days from 18/11/2013 in paragraph 25(b) at page 27 of the judgment dated 18/11/2013 in Mat.App.28/2008 is extended till 31/01/2014, vide order dated 16/12/2013 in I.A.3364/2013 in Mat.App.28/2008.

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Sd/-Registrar(Judicial)

Belcita Vincent Gomez v. Vincent Gomez

Case brief

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Belcita Vincent Gomez v. Vincent Gomez

Case brief

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