Dismissed

Sudharma v. Raju

Kerala HC16 Mar 2018Mat.Appeal/258/2007

Case brief

AI extract

What is this about?

This matrimonial appeal challenged the Family Court's preliminary decree regarding property partition between the parties. The Court analyzed the sale and settlement deeds, holding that the sale was absolute and the mother's reservation was invalid. Consequently, the Court affirmed the Family Court's decision granting 3/4 share to the plaintiff and 1/4 share to the defendant.

What did the court decide?

The appeal was dismissed. The pending Interlocutory Applications were closed. The impugned judgment and decree of the Family Court are upheld.

Sudharma Vs Raju — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY, THE 16TH DAY OF MARCH 2018 / 25TH PHALGUNA, 1939

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AGAINST THE JUDGMENT AND DECREE DATED 29-10-2005 IN O.S. NO. 335/2000 of FAMILY COURT,TRIVANDRUM

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APPELLANT/PLAINTIFF:

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SUDHARMA, D/O. BHASURA, NARAYANAPURAM, MUTHUKULAM NORTH P.O., ALAPPUZHA DISTRICT.

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BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.NISHITHA B.BHAT

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RESPONDENT/DEFENDANT:

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--------------------RAJU, AYATHY KIZHAKKUMKARA PUTHEN VEEDU, PARANTODE P.O., ARYANAD, THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.LIJI.J.VADAKEDOM

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL & ANNIE JOHN,JJ.

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= = = = = = = = = = = = = = = = = Mat. Appeal No.258 of 2007(A)

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- - - - - - -- - - - - - - - - - - - - - Dated this the 16^th day of March, 2018

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J U D G M E N T

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K. Harilal, J.

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The appellant was the plaintiff in Original

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Suit No.335 of 2000, on the files of the Family Court, Thiruvananthapuram and the aforesaid suit was filed by the appellant herein for declaration of title and recovery of possession. The parties are referred to as in the Original Suit.

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Brief facts of the case can be summarised as follows:

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The plaintiff is the divorced wife of the defendant. The marriage between the plaintiff and the defendant was solemnized on 01.05.1991 and a child was born in the said wedlock. In connection with the said marriage, in order to provide separate residence to the plaintiff

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Mat. Appeal No.258 of 2007(A)

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-: 2 :-

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and defendant, the mother of the plaintiff purchased 05 cents of land with a house therein in the name of the plaintiff and a life interest was reserved in favour of the mother of the plaintiff. Subsequently, the defendant refused to reside there and demanded to release the right reserved in favour of the mother to him and the plaintiff. Hence, the mother of the plaintiff executed a deed assigning her life interest in the name of the plaintiff and the defendant as deed No.1958 of 1992. Thereafter, the relationship between the plaintiff and the defendant became more strained and they fell apart. The plaintiff and the defendant have been living separately since 27.10.1994. After the execution of the deed assigning life interest by the mother of the plaintiff, the plaintiff had become exclusive title holder of the scheduled property. But, the defendant has somehow managed to get the mutation effected in the joint names of him and the plaintiff and thus there is a cloud over the title of the

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Mat. Appeal No.258 of 2007(A)

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-: 3 :-

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plaintiff. Now, the defendant is planning to induct strangers in the building. Hence, the plaintiff has filed a suit and prayed for a decree, declaring that the plaintiff is the exclusive title holder of the plaint schedule property and allowing recovery possession of the scheduled property and the building from the defendant and restraining the defendant from inducting the strangers into the property and building.

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The defendant filed written-statement

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opposing the relief claimed against him. But, admitted that the plaintiff is the estranged wife of the defendant. According to him, he had provided half of the sale consideration for purchasing the plaint schedule property. But, the plaintiff and her mother cleverly avoided to include his name in the sale deed. The defendant has been residing in the building in the scheduled property, immediately after its purchase and no release deed has been

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Mat. Appeal No.258 of 2007(A)

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-: 4 :-

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executed by the mother of the plaintiff. Deed

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No.1958 of 1992 is a settlement deed, in which no life interest was reserved by the donor. It is not a concession for sacrifice from the mother of the plaintiff. But, she accepted the money from the defendant and he had agreed to execute a settlement deed in favour of himself and the plaintiff. Thus,

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the settlement deed had been executed and it had come into the effect. The scheduled property is now in the joint possession and enjoyment of the plaintiff and the defendant. The defendant has one half right over the scheduled property. The plaintiff has also the same status, possession, title and other right over the plaint schedule property, as that of the defendant only. With the aforesaid contentions, he prayed for dismissing the Original Suit.

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On the aforesaid rival pleadings, both

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Mat. Appeal No.258 of 2007(A)

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-: 5 :-

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parties went to trial and adduced evidence, which consists of the oral testimony of DW.1 to DW.3 and documentary evidence, Exts.A1 to A3 and B1 to B8.

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No oral evidence was given by the plaintiff. After considering the aforesaid evidence on record, the Family Court rejected the prayer for declaration of absolute title and possession of the plaintiff and passed a preliminary decree for partition, declaring that the plaintiff is entitled to get ¾ share and the defendant is entitled to get ¼ share of the plaint schedule property. The legality and correctness of the findings, whereby the Family Court passed the impugned judgment and decree, are assailed in this appeal.

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Heard the learned counsel for the appellant and learned counsel for the respondent.

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The sum and substance of the arguments advanced by the learned counsel for the appellant is

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Mat. Appeal No.258 of 2007(A)

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-: 6 :-

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that as per Ext.A1, the mother of the plaintiff had

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a life estate only in the building and absolute title and possession of the property were conveyed

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to the plaintiff alone. As per Ext.A1, the mother had a right of enjoyment over the property and right of residence on the building only. Further, it is contended that by Ext.B2, the mother of the plaintiff has settled the said life estate in favour of the plaintiff and defendant. Thus, the plaintiff has got absolute title and possession over the

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entire property and building thereon and the defendant has right to reside in the building only.

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On the other hand, the learned counsel for

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the respondent contended that Ext.A1 is an absolute sale deed, whereby the title and possession over the building were assigned in favour of the plaintiff and her mother equally. According to the learned counsel for the respondent, even if any reservation

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Mat. Appeal No.258 of 2007(A)

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has been made by the vendor with respect to the mode

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of enjoyment of the property after the sale, the

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said reservation has no legal validity at all. So,

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Ext.A1 sale deed would stand in favour of the plaintiff and her mother equally with respect to the property and building. Thereafter, the mother conveyed her half right in favour of the plaintiff and the defendant by Ext.B2 settlement deed. Thus, the plaintiff and the defendant have become coowners of the property, the learned counsel contends.

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In view of the arguments at the Bar, the point to be considered in this appeal is, whether

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the Family Court is justified in finding that the mother of the plaintiff had got half right over the petition schedule property by Ext.A1 and that right was settled equally in favour of the plaintiff and defendant by Ext.B2? It is not disputed that the

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Mat. Appeal No.258 of 2007(A)

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-: 8 :-

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plaintiff is the divorced wife of the defendant. We

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have meticulously gone through Ext.A1 sale deed executed one 'Vasudevan' in favour of the plaintiff

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in her mother by name 'Bhasura'. The said sale deed was executed for a consideration of `85,000/- and the entire sale consideration is seen paid by the mother of the plaintiff Bhasura.

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According to Section 54 of the Transfer of Property Act, 1882, sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised . In the instant case, in Ext.A1, the transfer of ownership in exchange of `85,000/- paid by the mother of the plaintiff was effected in favour of the plaintiff and her mother equally and thereby the sale has become absolute in favour of the plaintiff and her mother Bhasura. Thus, they were co-owners having equal right over the plaint schedule property.

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Mat. Appeal No.258 of 2007(A)

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It is true that after the sale has become

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absolute, the vendor has made a reservation dictating the mode of enjoyment of the building situated in the plaint schedule property. He has dictated that the right to take usufruct from the property and to reside in the building must be vested with the mother of the plaintiff and after her death, the said right must be vested with the plaintiff. We are of the opinion that even if the said reservation made after the sale is taken at its face value, the same is of no consequence at all, as it is invalid and inoperative. After the sale, the transferor of the sale has no right to make any reservation with respect to the mode of enjoyment of

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the property among the vendees. Therefore, it can be safely concluded that Ext.A1 sale was effected by transferring the entire scheduled property and building thereon in favour of the plaintiff and her

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Mat. Appeal No.258 of 2007(A)

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mother equally and they were co-owners of the property, having equal right.

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Coming to Ext.B2 settlement deed, we find

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that the said settlement deed was executed by the mother of the plaintiff in favour of the plaintiff and defendant. It appears that Ext.B2 was executed in connection with the marriage between the plaintiff and the defendant. The cause title of Ext.B2 Settlement Deed itself shows that the said Settlement Deed was executed in favour of the plaintiff and the defendant. Further it is seen that the entire right of the plaintiff's mother had been settled in favour of both the plaintiff and the defendant, as per Ext.B2. It is to be borne in mind that the plaintiff's mother had half right only over the plaint schedule property and that right was given to the plaintiff and the defendant equally. Further both the plaintiff and the defendant were

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Mat. Appeal No.258 of 2007(A)

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allowed to take possession of the property from the

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date of the said Settlement Deed itself and they were allowed to effect mutation in their favour. Exts. B3 to B6 series show that mutation had been effected on the basis of Ext.B2. In Ext.B2 also, after releasing the entire title and possession over the property in favour of the plaintiff and defendant, the mother of the plaintiff has made a statement that she had life estate only in Ext.A1 and the title holder of the property is the plaintiff. We are of the opinion that the said statement is a wrong statement having no validity or consequence at all, in view of the operative portion of Ext.A1. Ext.A1 is an absolute Sale Deed in favour of the plaintiff and her mother effected after accepting the entire sale consideration from the mother of the plaintiff alone and title and possession were conveyed to both the plaintiff and

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Mat. Appeal No.258 of 2007(A)

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her mother equally. The said statement does not

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make any difference in the conveyance actually made by Ext.A1.

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By Ext.A1 Sale Deed the plaintiff and

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her mother got title and possession over the plaint scheduled property equally and thereafter the mother of the plaintiff executed Ext.B2 settlement conveying her half right in favour of the plaintiff and defendant equally. Thus, half right of the mother stands conveyed to the plaintiff and defendant equally. To sum up, the plaintiff got ¾ right and the defendant got ¼ right over the entire plaint schedule property. Being a dispute generated from the family settlement, the Family Court is justified in passing a preliminary decree for partition, partitioning and allotting³ /4th share to the plaintiff and¹ /4th share to the defendant.

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There is no illegality in the said partitioning.

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Mat. Appeal No.258 of 2007(A)

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-: 13 :-

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In the above analysis, the Family Court is

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justified in rejecting the claim for declaration of title and possession. There is no reason to

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interfere with the impugned judgment and decree.

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This appeal is dismissed accordingly. All

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pending Interlocutory Applications will stand

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closed.

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K. HARILAL, JUDGE

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Sd/- ANNIE JOHN, JUDGE

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DST/RKM

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//True copy//

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P.A. To Judge

Sudharma v. Raju

Case brief

What is this about?

What did the court decide?

Sudharma v. Raju

Case brief

What is this about?

What did the court decide?

What the court decided

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