Allowed

Valiyakath Subaida v. Karimbumkandathil Hassan

Kerala HC1 Mar 2017Mat.Appeal/317/2005

Case brief

AI extract

What is this about?

The High Court, while hearing an appeal against a Family Court decree granting money recovery, held that the lower court erred in relying on disputed sale documents. The apex court set aside the lower court's judgment, dismissing the original petition due to lack of proof regarding document execution and payment of consideration.

What did the court decide?

The judgment of the Family Court in OP.No.393/2003 is set aside and the original petition is dismissed. Costs to be borne by parties.

Valiyakath Subaida Vs Karimbumkandathil Hassan — Partition | 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 MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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Mat.Appeal.No. 317 of 2005 ( )

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AGAINST THE ORDER IN OP 393/2003 of FAMILY COURT, MANJERI DATED 22-04-2005

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APPELLANT/RESPONDENT NO.1:

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VALIYAKATH SUBAIDA, ALAVIKUTTY HAJI, AGED 45, VALIYAKATH HOUSE, ATHAVANAD AMSOM, KARIPPOL DESOM, KANHIPURA POST, KARIPPOL, TIRUR TALUK.

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BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN

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RESPONDENTS/PETITIONER AND RESPONDENT NO.2:

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1. KARIMBUMKANDATHIL HASSAN, S/O.MUHAMMED, AGED 62, ATHAVANAD AMSOM, KARIPPOL DESSOM, KANHIPURA POST, KARIPPOL, TIRUR TALUK.

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2. ANANA BEEGAM, 24 YEARS, D/O.KARIMBUMKANDATHIL HASSAN, ATHAVANAD AMSOM, KARIPPOL DESOM, KANHIPURA POST, KARIPPOL, TIRUR TALUK.

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R1 BY ADV. SRI.JAMSHEED HAFIZ R1 BY ADV. SRI.T.KRISHNAN UNNI (SR.) R1 BY ADV. SRI.K.C.KIRAN R2 BY ADV. SRI.M.P.PRABHANANDAN R2 BY ADV. SRI.I.V.PRAMOD

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.

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Mat.A.No.317 of 2005

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........................................ Dated this the 1^st day of March, 2017.

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JUDGMENT

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A.M. Shaffique, J:

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The appeal is filed by the first respondent in OP.No.393/2003. The original petition was filed by the first respondent herein seeking for a decree for partition of the schedule property and in the alternative for recovery of money.

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The parties are referred to as shown in OP.No.393/2003.

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The short facts involved in the original petition would disclose that the petitioner married the first respondent on 2.8.1973 and they have three children. The second respondent is one of the daughters. The petitioner along with the first respondent purchased an extent of 31 cents of land in the year 1983. According to him, the consideration was paid from the funds acquired by him by working abroad.

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The first respondent later entered into an agreement with one Moosa on 19.2.2000 to sell the said property. The total sale consideration agreed was Rs.7,50,000/-. On execution of the agreement on 19.2.2000, the first respondent received Rs. 4 lakhs from Moosa. On 30.9.2003 the balance of Rs.3,20,000/was paid to the first respondent by Rukhiya, the wife of Moosa towards balance sale consideration. The sale deed was executed in favour of Moosa on 27.3.2002. It is contended by the petitioner that subsequently the intention of the parties was to purchase

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Mat.A.No.317 of 2005 2

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another item of property in the name of the petitioner and the first respondent, but they purchased a property in the name of the first and second respondents. It is also contended that a house was constructed in the said property with his own funds and in the said circumstances, the petitioner also sought for partition of the said property alleging that the property was purchased with his funds and at least part of it, and in the alternative seeking for a decree for recovery of Rs.7,60,500/-.

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The respondents filed joint written statement disputing the aforesaid facts. According to the respondents, the first respondent had enough property in her name and she had sold several items of property and the said amounts were invested for purchasing the property in the year 1983. In fact, the property was purchased in the name of the petitioner as well, though he had not invested any money for the said purpose. The 1^st respondent further denied the fact that an agreement was executed with Moosa. She also denied the fact of having received the advance amount of Rs.4 lakhs or the subsequent payment of Rs.3,25,000/-. According to her, the sale consideration was as shown in the document itself and the said amount has been utilized for the purpose of buying another item of property in the name of the first respondent, that is the plaint schedule property. Therefore, the respondents denied the claim raised by the petitioner.

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Mat.A.No.317 of 2005

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The petitioner relied upon the evidence of PWs 1 to 3 and the respondents relied upon the evidence on Rws 1 and 2. The petitioner relied upon Exts.A1 and A2 and the respondents relied upon Exts.B1 to B9. The Family Court on a consideration of the entire factual aspects involved in the matter, denied the claim for partition. However, the Family Court observed that there is evidence to show that the total sale consideration of the property was Rs.7,50,000/-, out of which since the first respondent has received Rs.7,25,000/-, she is liable to refund 50% of the said amount and accordingly granted a decree in favour of the petitioner to recover Rs.3,62,500/- from the first respondent along with interest at the rate of 6% per annum on the said amount from the date of petition till realization. It is impugning the aforesaid judgment that the first respondent has filed this appeal.

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The main contention urged by the learned counsel for the petitioner is that there is no evidence to show that the appellant had received an amount of Rs.7,25,000/-either from Moosa or from Moosa's wife Rukhiya. He placed reliance upon the evidence of Rukhiya, who had denied the said fact. Further it was contended that Ext.A1 agreement which is the basic document which has been relied upon by the Court below, is not proved in accordance with the procedure prescribed. The document is alleged to have

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Mat.A.No.317 of 2005 4

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been executed by Subaida, the first respondent. The witness who had been examined to prove the said fact is PW2. He does not say anywhere in the deposition that he had seen the first respondent having put her signature in the said document. His evidence only would show that he had signed as a witness in the said document. He had not seen any other person signing the document. He even submits that he did not see the other witness signing the document or he did not see the document being prepared by the document writer. Further it is contended that the evidence of PW1 by itself will not prove the transaction and therefore, the Court below was not justified in granting a decree as sought for.

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On the other hand, the learned counsel appearing for the petitioner/respondent herein supports the view taken by the Family Court and contends that Exts.A1 and A2 by itself would show that there was a transaction by which the property had been sold for an amount of Rs.7,50,000/- and that by itself is enough to prove the case set up by the petitioner. He also relied upon the evidence of PW2 to prove Ext.A1.

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In fact, the whole case rests upon the evidence in regard to payment of Rs.7,25,000/- to the first respondent. The question is whether the first respondent had received the said amount on the basis of Exts.A1 and A2. Ext. A1 is purportedly

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Mat.A.No.317 of 2005 5

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executed after having received Rs.4 lakhs and Ext.A2 has been executed after receiving Rs.7,25,000/-. The main contention of the first respondent is that the signed blank papers were obtained from her at the time of sale of her half right over the property and Exts.A1 and A2 had been subsequently fabricated by using the said signed blank papers.

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When such a contention had been raised by the first respondent, it is all the more necessary that the petitioner will have to prove Exts.A1 and A2. The only proof available is that of the evidence of PW2, Hamsa, who is the witness to Exts.A1 and A2. The other witness Mammali is no more. Apparently, the first respondent, Subaida, had denied having entered into such an agreement. The other executant to Ext.A1 is Moosa, who is not examined. Ext.A2 is purportedly signed by Subaida and Rukhiya. Rukhiya denied the fact of signing the document. The only witness who had admitted his signature in the document is PW2 Hamsa. But PW2 does not say that he had seen Subaida signing either Exts.A1 or A2. No such questions were put to him as well. When the whole issue is relating to the proof regarding execution of Exts.A1 and A2, in the absence of any person giving evidence in support of execution of the document, it may not be possible for the Court to rely upon such documents and grant a decree. The Court below however did not consider this crucial aspect in the

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Mat.A.No.317 of 2005 6

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evidence and had proceeded on the basis that Exts.A1 and A2 are valid documents, which could be relied upon especially when the signature of Subaida is admitted. We do not think that such a view was permissible. All along, the contention urged by Subaida was that the signatures in the blank document were utilized for the purpose of preparing Exts.A1 and A2. The only witness Hamsa has not seen Subaida signing the document. Rukhiya, the other executant also denies the case of execution. According to her, she was forced to sign Ext.A2. In the said circumstances, we are of the view that the Court below was not justified in granting the decree proceeding on an assumption, which is not permissible. There is also no evidence to show that the sale consideration shown in Ext.B5 was paid to Subaida. Hence the judgment of the Family Court is liable to be set aside.

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In the result, the appeal is allowed. We set aside the judgment in OP.No.393/2003 of the Family Court, Manjeri and the original petition stands dismissed. Parties shall bear their own costs.

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Sd/-

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A.M. SHAFFIQUE, JUDGE.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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Valiyakath Subaida v. Karimbumkandathil Hassan

Case brief

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Valiyakath Subaida v. Karimbumkandathil Hassan

Case brief

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