Dismissed

N.Vasumathi v. v.P.Valsan

Kerala HC18 Aug 2017Mat.Appeal/143/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed matrimonial appeals arising from divorce and property suits. The court affirmed the divorce decree based on proved adultery and cruelty. Regarding property, the court rejected the claim that the wife contributed to construction and upheld the validity of the assignment to the brother.

What did the court decide?

The appeals in Mat.Appeal Nos. 143/2012, 303 and 406/2014 were dismissed with no interference in the orders of the Family Court.

N.Vasumathi Vs v.P.Valsan — Matrimonial and Divorce | Kerala HC (2017)

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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 A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939

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Mat.Appeal.No. 143 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN OP 51/2011 of FAMILY COURT, THALASSERY DATED 30-11-2011

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APPELLANT(S)/R1:

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N.VASUMATHI D/O.RAIRU, AGED 40 YEARS, RESIDING AT ARADHAN, VADAKKUMBAD P.O., THALASSERY TALUK, KANNUR DISTRICT.

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BY ADVS.SRI.R.JAYAPRAKASHAN SRI.ANIL.D.KAITHAKKAL SRI.K.RAJESH SUKUMARAN

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RESPONDENT(S)/PETITIONER AND R2.:

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V.P.VALSAN

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S/O.KANNAN, AGED 45 YEARS, RESIDING AT VAZHAPPARAMBIL HOUSE, KARA PERAVOOR, P.O.MATTANNUR, THALASSERY TALUK, KANNUR DISTRICT.

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KALATHIL BABU

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S/O.KUMARAN, AGED 39 YEARS, RESIDING AT KALATHIL HOUSE, KALIYIL, VADAKKUMBAD P.O., TELLICHERRY TALUK, KANNUR DISTRICT.

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R1 BY ADV. SRI.M.RAMESH CHANDER R1 BY ADV. SRI.ANEESH JOSEPH

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2306-2017, ALONG WITH MA. 303/2014, MA. 406/2014, THE COURT ON 18/8/2017 DAY DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.

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=========================== Mat.Appeal Nos. 143/2012, 303 & 406/2014

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==========================

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Dated this, the 18^th day of August, 2017

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J U D G M E N T

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Shaffique, J.

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Mat.Appeal No.143/12 is filed by the 1^st respondent in OP No. 51/2011 of the Family Court Thalasserry. The OP is filed by the 1^st respondent herein seeking for a divorce under Sections 13(1)(f) and 13(1)(ia) of the Hindu Marriage Act, 1955. Between the same parties, two other cases came to be filed. OP No.874/2011 is filed by the brother of the petitioner in OP No.51/2011 seeking for an injunction to restrain respondents, viz., his brother, wife and children from trespassing into the plaint schedule property and interfering with the peaceful possession of the property by the petitioner. He also sought for a mandatory injunction against respondents 2 to 4, the wife and children of his brother Valsan V.P. OP No.869/2011 has been filed by the wife and daughter of petitioner in OP No.51/2011 against Sri.Valsan V.P and his brother,

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Mat.Appeal No.143/12 & conn.cases

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wherein the relief sought was for a declaration that the first petitioner Smt.Vasumathi is the co-owner of the petition schedule property and an assignment deed executed as per document No.1197/2006 of SRO, Kadirur by the 1^st respondent/husband in favour of his brother, 2^nd respondent is a sham document and void. They also sought for an injunction to restrain the respondent from trespassing into the petition schedule house and from forcefully evicting them. OP Nos.874/2011 and 869/2011 were jointly heard and decided by a common judgment dated 31/1/2014. OP No.874/2011 was allowed by the Family Court against which respondents 2 and 3 have preferred Mat.Appeal No.303/2014. OP No.869/11 was dismissed against which the petitioners had filed Mat.Appeal No. 406/2014. Since the issues arising between the parties are common and interrelated in nature, and have arisen out of a matrimonial tie between Valsan V.P. and Vasumathy N, the appeals are heard and decided together.

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First we shall consider Mat.Appeal No.143/2012 arising from OP No. 51/2011. The parties are referred to as shown in the Original Petition unless otherwise stated. The petitioner married

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Mat.Appeal No.143/12 & conn.cases

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the 1^st respondent on 22/9/1984 by virtue of an agreement. According to him, there was no customary marriage. They lived together for nearly 19 years and two children were born in their wedlock. The 2^nd respondent is a friend of one Sajeevan, his neighbour. The 1^st respondent became friendly with the 2^nd respondent which resulted in an illicit relationship. In 1997, the family shifted to a rented house at Kali. The 2^nd respondent was residing near to the house of the said rented building. At the relevant time, petitioner was unaware of the 1^st respondent's relationship. Petitioner is a Theyyam performer and will not be usually available at his residence for several days continuously, especially at the time of festivals. Misusing his absence, the respondents continued their illicit relationship.

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Allegation is that, on 18/3/2004, at about 12.30 a.m., eldest daughter Vivitha had seen the respondents in a compromising position. When the petitioner came back, daughter revealed all these facts and the first respondent was taken to her house by her mother. It is stated that the respondents continued their relationship. It became difficult for the petitioner and his daughter to live with the first respondent. Thereafter, the first

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Mat.Appeal No.143/12 & conn.cases

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respondent forcefully took away the 2^nd daughter Vivinya and filed MC No.150/06 before the learned Magistrate. Petitioner sold his property to his brother Shibu to pay off his debts. When she attempted to commit trespass, Shibu filed OP No.173/2006 before the Munsiff's Court, Thalassery and obtained an interim injunction against the 1^st respondent from committing trespass. Thereafter she filed OP No.322/2006 before the Family Court, Kannur claiming half right over the property. Petitioner further contended that all his theyyam decorative items, jewels and other articles were taken away by the first respondent for which a complaint had been filed. The said acts of the first respondent hurt his religious sentiments. He had suffered much cruelty and humiliation on account of the acts of the first respondent and hence he sought for divorce on the ground of adultery and cruelty.

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The respondent denied all the allegations and contended that she was treated with cruelty.

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In OP No.51/2011, separate evidence was taken. PWs 1 to 3 were examined on behalf of the petitioner and he relied upon Ext.A1. 1^st respondent examined herself as RW1 and she relied

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Mat.Appeal No.143/12 & conn.cases

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upon Exts.B1 and B2. The Family Court, taking into consideration the evidence of PWs 1 to 3, observed that the 1^st respondent was having illicit connection with the 2^nd respondent. On that basis, it was found that the marriage requires to be dissolved by a decree of divorce and accordingly allowed the same.

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In OP No. 874/2011, the facts involved in the case would further indicate that the petitioner Shibu, who is the brother of the 1^st respondent Valsan, purchased the property from Valsan as per assignment deed No.1197/2006 of SRO, Kadirur registered on 5/6/2006 covered by Ext.A1. He purchased the property after paying valid consideration. According to him, after purchasing the property, he and his family were residing there. On 21/6/2006, respondents 2 to 4 with certain goondas trespassed into the property and destroyed the plantains, demolished the chair and threatened him to vacate the house. Hence, he sought for an injunction. In the written statement, respondents 2 to 4 denied the aforesaid facts. It is contended that the elder daughter is residing with her father. 1^st respondent was harassing her for the last more than 3 years doubting about her chastity. He was also behaving in a cruel manner and she was being beaten up. She

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Mat.Appeal No.143/12 & conn.cases

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contended that her father had given 1 lakh to the 1<sup>st</sup> respondent in the year 1997 and he constructed the house in the petition schedule property using the said amount. 1<sup>st</sup> respondent demanded a further sum of 1 lakh and her father had given her `60,000/- which was handed over to the 1^st respondent. She further contended that, on 9/4/2006, 1^st respondent along with certain persons trespassed into the house and they were asked to vacate. Complaint was filed before the Police Station. On 28/4/2006, she also filed a petition seeking maintenance. It is stated that she had sought for a charge over the petition schedule property. The said property had been assigned to defeat her claim over the property. She filed a suit as OS No.173/2006 which was renumbered as OP No.874/2011 and temporary injunction has been granted restraining the respondents from committing waste in the plaint schedule property. According to her, the sale deed, which was executed in favour of Shibu on 5/6/2006, is a sham document executed with the ulterior motive to avoid payment of any amount due to her and her children. She also contended that the document is executed without any consideration and it is void under law. Similar contentions had

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Mat.Appeal No.143/12 & conn.cases

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been taken by her in OP No.869/11, wherein, she sought for a declaration that the document is sham and void. Parties have raised similar contentions in the said case as well.

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Before the Family Court, OP No.874/11 was taken as the leading case and the petitioner Shibu was examined as PW1. He relied upon Exts.A1 to A3. Ext.A1 is the assignment deed dated 5/6/2006. Ext.A2 is the land tax receipt and Ext.A3 is the building tax receipt, both dated 17/6/2006. The 2^nd respondent was examined as RW1 and she relied upon Exts.B1 to B15. Exts.C1 and C1(a) were the commission report and plan prepared by Advocate Commissioner. As already indicated, the court below had dismissed OP No.869/11 and allowed OP No.874/11. The wife and the minor child are in appeal in all these cases.

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In Mat.Appeal No. 143/12, which arises from OP No.51/11, the question to be considered is whether the Family Court was justified in granting a decree for divorce on the ground of adultery and cruelty. Of course, if any of these grounds are proved, a decree of divorce can be sustained. PW1 has spoken in accordance with the averments in the petition. PW2 is the elder daughter of the couple. She had given evidence stating that she

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Mat.Appeal No.143/12 & conn.cases

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had seen the 1^st respondent having sexual relationship with the 2^nd respondent, which caused great mental shock to her. According to her, mother is a person of immoral character. She gave evidence stating that she reported the matter to her father, who questioned her. Despite the advice of the father, 1^st respondent was not ready and willing to obey him and the 1^st respondent continued her relationship with 2^nd respondent. PW2 had clearly spoken to the fact that, on several occassions, when her father was not in their house, the 2^nd respondent used to come and remained with her mother inside the room. PW3, who was laid up due to paralysis, has stated that 1^st respondent used to come to his house to draw water from the well. The 2^nd respondent was his friend and he used to come to help PW3. According to him, 2^nd respondent and 1^st respondent came to know each other and they had an illicit relationship. PW3 had noticed some gestures of love between respondents 1 and 2. He had warned the 2^nd respondent not to have any such relationship. But, respondents continued with their illicit arrangements. Though RW1 in her evidence had denied these facts, on a totality of the circumstances involved in the matter, evidence of PWs 1 to 3

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Mat.Appeal No.143/12 & conn.cases

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categorically goes to prove the fact of adultery being committed by 1^st respondent. The very fact of knowledge of adulterous relationship a wife is having with another person, itself amounts to cruelty. Hence, we do not think that the Family Court had committed any error in granting divorce on both the grounds. There is no merit in Mat.Appeal No.143/12 and the same is liable to be dismissed.

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In Mat.Appeal Nos.303 and 406/2014, the question is regarding right in respect of the petition schedule property. There is no dispute about the fact that the property was assigned by the husband in favour of his brother. A bare reading of the assignment deed itself would show that consideration had passed between the transferor and the transferee. Consideration was the amount borrowed by Valsan from his brother and the remaining portion is paid in cash. According to the appellants, sale deed was executed with an intention to prevent her from claiming any maintenance. From the evidence adduced in the case, the Family Court observed that Valsan was indebted to the petitioner due to construction of the house. He had borrowed more than `7 lakhs from Shibu.

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Mat.Appeal No.143/12 & conn.cases

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The main contention urged by the appellant was that though the property belonged to her husband, she had expended an amount of `1,60,000/- for construction of the house and therefore, she is entitled for a right in the property. She had also raised a counter claim against her husband. The appellant while examined as RW1 admitted that she does not claim any right over the property. Her only claim is in with respect to the building.

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When a claim is raised on the basis that she had expended `1,60,000/- for the construction of the house, it is for her to prove the same. Other than the oral testimony of RW1, there is no evidence to indicate how she had obtained such amount and entrusted to her husband at the time of construction of the building. In the absence of any such evidence, the Family Court was justified in observing that no liability could be created on the immovable property and therefore, sale by the husband in favour of his brother cannot be treated as invalid on account of the said contention.

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The Family Court has also given sufficient reasons for arriving at a conclusion that the sale is not hit by Section 52 of the Transfer of Property Act. Section 52 reads as under:-

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Mat.Appeal No.143/12 & conn.cases

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“52. Transfer of property pending suit relating thereto

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During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

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Explanation : For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.”

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13. The document itself would show that the sale was

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effected for valid consideration. Pursuant to the sale, the property

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Mat.Appeal No.143/12 & conn.cases

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had been mutated in the name of the buyer, brother of her husband and he is paying tax. Further, at the time when the sale was effected, there was no attachment over the property and there was no claim whatsoever warranting a situation in which the wife was entitled for a claim in respect of the property or she was entitled for a decree for recovery of money. The husband Valsan had a case that on account of the adulterous nature of his wife, which was known to the people in the locality, he was forced to sell the house and move away from the locality. The facts involved in the case would therefore clearly indicate that the sale effected by Valsan in favour of his brother was not for the purpose of defrauding his wife in any manner, but, under various circumstances including the loss of reputation he had suffered on account of her behaviour and also the fact that he was indebted to his brother. Further, she could not establish any right over the property. Therefore, the Family Court was justified in coming to the conclusion that the sale is not hit by Section 52 of the Transfer of Property Act.

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Once it is found that the wife was not entitled for any claim in respect of the property, necessarily, she cannot seek for

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Mat.Appeal No.143/12 & conn.cases

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any declaration or injunction and the owner of the property is entitled to recover possession of the property from the appellants.

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In the result, we do not find any error in the judgment warranting interference as no grounds are made out to exercise the appellate jurisdiction.

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Appeals are, therefore, dismissed.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Sd/-

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ANU SIVARAMAN, JUDGE

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//TRUE COPY//

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PS TO JUDGE

N.Vasumathi v. v.P.Valsan

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N.Vasumathi v. v.P.Valsan

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