High Court exercised Article 227 jurisdiction to review a Family Court order modifying an interim injunction in a title suit. It upheld the refusal to restrain dispossession due to lack of evidence of possession but left the aliasation restraint intact,
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940
OP (FC).No. 223 of 2018
AGAINST THE ORDER/JUDGMENT IN OP 793/2017 of FAMILY COURT,ERNAKULAM DATED 01-02-2018
PETITIONER/:
WOLTER ANTONY HARRISON
AGED 64 YEARS, S/O.MAICHEL, CORAL REEF (HOUSE NO.27/2890) NEW NUMBER, 56/1714, B.V.M ROAD, KADAVANTHRA PO, ERNAKULAM 682 020.
BY ADV. SRI.SUNIL NAIR PALAKKAT
RESPONDENTS:
1 AGNUS HARRISON AGED 60 YEARS, W/O. WOLTER ANTONY HARRISON, CORAL REEF, B.V.M ROAD, KADAVANTHRA PO, ERNAKULAM 682 020, NOW WORKING AT BN NURSE, BUPA CARE SERVICES, 5-7,KINGDOM STREET, NEW MARKET, AUCKLAND 1023, NEWZEALAND.
2 ROSANNA CHRISTY
AGED 31 YEARS, D/O. WOLTER ANTONY HARRISON, CORAL REEF, B.V.M ROAD, KADAVANTHRA PO, ERNAKULAM 682 020, NOW RESIDING AT KOPPARAYIL JOY VILLA, KOMALLOR PO, CHARUMMUDU, ALAPPUZHA -690 505.
3 RAICHEL CALLIT D/O.WOLTER HARRISON ,AGED 29 YEARS,CORAL REEF, B.V.M .ROAD ,KADAVANTHRA PO, ERNAKULAM682020,PRESENTLY RESIDING AT NEWZEALAND, C/O.AGNUS HARRISON,5-7,KINGDOM STREET,NEW MARKET, AUCKLAND 1023,NEWZEALAND.
O.P.(FC) No.223/2018
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BY ADVS.
SRI.C.ANILKUMAR (KALLESSERIL) SRI.C.Y.VINOD KUMAR
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 8.11.2018, THE COURT ON 23.11.2018 PASSED THE FOLLOWING:
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C.K.ABDUL REHIM
&
T.V.ANILKUMAR, JJ.
O.P.(FC)No.223 of 2018
Dated this the 23rd day of November 2018
J U D G M E N T
T.V.ANILKUMAR,J.
The petitioner herein, who challenges Ext.P6 order dated 1.2.2018 dismissing petition for temporary injunction, is the husband who filed O.P.No.793/2017 before the Family Court, Ernakulam seeking declaration of title and consequential reliefs in respect of the petition schedule property and the buildings therein. The first respondent is his wife and respondents 2 and 3 are his major daughters.
2. On the date of institution of O.P. before Family Court, the petitioner obtained an order of ad-interim injunction in I.A. No.1317/2017, restraining all the respondents from alienating the petition schedule property measuring 10.081
cents and the building comprised in Survey
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Nos.713/1 and 713/2 of Elamkulam village. The order further restrained the respondents from leasing out the property to anybody or from dispossessing the petitioner from the building and property and also from interfering with his possession and enjoyment, till the disposal of the O.P. The second respondent on her behalf and as the Power of Attorney holder of the other two respondents filed counter affidavit opposing the petition for injunction and the lower court after perusing the materials on record and hearing the parties modified the ex-parte order of injunction limiting it only with respect to acts of alienation of the property. It was also clarified that the order would not in any way prevent the respondent No.2 from inducting the tenant under Ext.B9 lease agreement dated 22.3.2017 into the building. The impugned Ext.P6 order did not restrain the respondents from dispossessing the petitioner from the property and the lower court has vacated the ad-interim order granted earlier, to that extent. Being
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aggrieved by this order, the petitioner invokes the jurisdiction of this Court under Article 227 of the Constitution of India and seeks to set aside the same and claims an order restraining him from being dispossessed from the property. The respondents do not appear to be aggrieved by the impugned order and there is no challenge of the same in this proceedings.
3. The petition schedule property is presently held in the exclusive name of second respondent under Ext.A4 settlement deed executed by her mother and sister who are respondents 1 and 3 respectively. Third respondent acquired right over the property under a prior settlement deed, Ext.A3 executed by mother on 31.5.2006. The life interest which was reserved with the mother as per Ext.A3 was relinquished by her in
Ext.A4. Prior to these deeds, the petition schedule property was held by the mother, the first respondent, in her sole name as borne out from Exts.A1 and A2 sale deeds, dated 21.5.1990 and 22.5.1990 respectively. The petitioner's case
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is that though the two sale deeds stand in wife's name, she is only a benamidar intended to hold the property for his benefit and in trust for him without having any right of ownership.
4. He says that, in fact he purchased the land making use of his salary earned as an Engineer-cum-Consultant being engaged in various shipping companies. Out of his love and affection, he purchased the property without intending to constitute her as the real owner of the property. While being so, he raised sufficient amount of loan from H.D.F.C Bank Ltd.,Ravipuram Branch and put up the building in the property. According to him, there was an express understanding with the first respondent that she has to hold the property only for his benefit and in trust for him, with strict instruction against her alienating the property in defiance of his legal rights. He says that,
since he is a person who used to undertake extensive voyages on high seas, he came to the property very occasionally. While so in 2017, he
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came to know from the husband of the second respondent that the building was agreed to be leased out and he had to vacate the premises forthwith. According to him, he is not liable to vacate the premises in as much as he is the absolute owner of the property and further the first respondent is only a benamidar liable to hold the property on his behalf and to re-convey the same to him whenever he so demands, under law. In the said circumstances he prayed for a decree declaring him as the absolute owner and also for re-conveyance of rights in the property. He has also sought to set aside Ext.A3 and Ext.A4 settlement deeds which purport to transfer the property to second respondent affecting petitioners' rights. It was in this background, temporary injunction was sought for by the petitioner in the I.A. No.1317/2017 which the lower court allowed only in part as per Ext.P6 order impugned herein.
5. Respondents filed objection denying
purchase of land and construction of house by
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utilising the funds of the petitioner. First respondent claims to have raised the amount for purchase of petition schedule property from the sale of her land under Ext.B5 sale deed dated 20.5.1988. She availed loans from banks for
construction of house in the land. The petitioner had no love or affection for her so as to motivate him to purchase any asset in her name. Their relationship was strained right from the beginning of their matrimonial life. She even denied his job status as Consultant-cum-Engineer. He is only a share broker in the Cochin Stock Exchange, according to her.
6. The only question that arises in this O.P. is whether, despite execution of Exts.A1 and A2 sale deeds in the name of petitioner's wife and the subsequent dispositions under Ext.A3 and A4, petitioner dealt with the property as true owner and even remained to be in possession entitling him to get an order of injunction against dispossession. The lower court did not
accept his case of ownership or possession and
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refused to grant an order restraining acts of dispossession.
7. None of the documents including the
additional documents Exts.P5 and P7 produced in this O.P., supports petitioner's case that he is in actual possession of the land and the building. In Exts.A1 and A2 sale deeds, there is no mention that property was acquired with consideration paid by the petitioner nor it was intended for his benefit. No provision was incorporated in the deeds that property should be re-conveyed whenever demand was made with first respondent. It is difficult to believe that petitioner came to know of Exts.A3 and A4 settlement deed only in 2017, after a long interval of time since 2006, when the property was first settled by first respondent in favour of one of the daughters. It seems that loan was sanctioned to petitioner from HDFC bank only after construction of the building was completed. Respondents' case that the funds for construction
did not proceed from petitioner, seems to be
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probable. Circumstances in the case do not probabalise that the petitioner ever held the property as rightful owner nor it ever came to his possession. On the other hand, Ext.B9 lease deed dated 22.3.2017 indicates that, the second respondent has been managing the property as the owner. There is nothing on record to show that the petitioner could establish a prima facie case of possession entitling him to get an order of temporary injunction against alleged dispossession. In our view, the lower court has rightly declined to issue an order restraining the petitioner from being dispossessed and the impugned order does not warrant any interference. We do not, however, disturb the order restraining alienation since none of the respondents challenged the said order before this Court or in any other proceedings. No patent or manifest error has been committed by the lower court and hence we decline to interfere with the impugned order in exercise of the supervisory jurisdiction vested under Article 227 of the Constitution of
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India.
In the result, O.P., fails and it is hereby dismissed. It is made clear that the lower court will be at full liberty to decide the issues involved in this O.P. independently in accordance with law, untrammeled by any of the observations made by us in this judgment.
Sd/-
C.K.ABDUL REHIM,
JUDGE
Sd/-
T.V.ANILKUMAR,
JUDGE
al/-
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APPENDIX PETITIONER'S/S EXHIBITS:
| EXT.P1 | TRUE COPY OF THE ORIGINAL PETITION AS OP.NO.793/2017 FILED BY THE PETITIONER AGAINST THE RESPONDENTS BEFORE THE FAMILY COURT, ERNAKULAM. |
|---|---|
| EXT.P2 | TRUE COPY OF THE I.A.NO.1317/2017 FILED BY THE PETITIONER IN OP.NO.793/2017 BEFORE THE FAMILY COURT, ERNAKULAM. |
| EXT.P3 | TRUE COPY OF THE ORDER DATED 04/04/2017 PASSED BY THE HONOURABLE FAMILY COURT, ERNAKULAM. |
| EXT.P4 | TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN IA.1317/2017 IN OP.NO.793/2017 BEFORE THE FAMILY COURT, ERNAKULAM. |
| EXT.P5 | TRUE COPY OF THE FIRST INFORMATION REPORT AND FIRST INFORMATION STATEMENT IN THE CIRME NO.1127/2017 ON THE FILE OF ERNAKULAM TOWN SOUTH POLICE STATION. |
| EXT.P6 | CERTIFIED COPY OF THE ORDER DATED 01/02/2018 PASSED BY THE FAMILY COURT, ERNAKULAM IN IA.1317/2017 IN OP.793/2017. |
| EXT.P7 | TRUE COPY OF THE ACCOUNT STATEMENT DATED 07/09/2017 OF THE PETITIONER ISSUED FROM THE HDFC BANK |
RESPONDENTS EXHIBITS : NIL
TRUE COPY
P.S TO JUDGE
Al/-
2 issues framed by the court
Whether the lower court acted without jurisdiction in refusing to restrain dispossession of the petitioner under Article 227.
Whether the petitioner has a prima facie case of ownership and possession to warrant a temporary injunction against dispossession.
WOLTER ANTONY HARRISON
AGNUS HARRISON
ROSANNA CHRISTY
RAICHEL CALLIT
C.K.ABDUL REHIM
T.V.ANILKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
