Allowed

Lovely Elizabeth Simon v. Anil Koshy

Kerala HC18 Feb 2020OP (FC)/718/2019

Case brief

AI extract

What is this about?

The High Court of Kerala allowed interlocutory applications challenging the Family Court's dismissal of amended petitions seeking property reconveyance and impleadment, setting aside the lower court order and directing disposal within three months.

What did the court decide?

Setting aside the Family Court's Ext.P11 order; interlocutory applications allowed; parties to adduce evidence; Family Court to dispose within three months.

Lovely Elizabeth Simon Vs Anil Koshy — Property and Title | Kerala HC (2020)

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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.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941

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OP (FC).No.718 OF 2019

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AGAINST THE ORDER/JUDGMENT IN OP 1845/2014 OF FAMILY COURT,ERNAKULAM

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PETITIONERS/PETITIONERS :

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1 LOVELY ELIZABETH SIMON, AGED 41 YEARS, W/O. ANIL KOSHY, RESIDING AT KALAYILLOVELY VILLA, U C COLLEGE P.O, ALUVA - 683 102.

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2 MRS SOSAMMA SIMON, AGED 79 YEARS, W/O. LATE SIMON, RESIDING AT KALAYILLOVELY VILLA, U.C COLLEGE P.O, ALUVA – 683 102.

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BY ADV. SMT.MARY BENJEMIN.

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RESPONDENTS/RESPONDENTS :

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1 ANIL KOSHY, AGED 45 YEARS, S/O. KORUTH KOCHUKOSHY, HAVING PERMANENT ADDRESS AT XXVIII/3594 KULANGARA CHILAVANNOOR ROAD, KADAVANTHARA P.O,ELAMKULAM, KOCHI - 682 020, NOW RESIDING AT NO. 124, CLOUD 9, OPP. NBM, KONDHWA, PUNE, MAHARASHTRA - 411 048.

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O.P (F.C) No.718 of 2019 2

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2 K.K KOSHY, AGED 76 YEARS, RESIDING AT XXVIII/3594, KULANGARA, CHILAVANNOOR ROAD, KADAVANTHARA P.O, ELAMKULAM, KOCHI - 682 020.

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3 AMMINI KOSHY , AGED 70 YEARS, W/O. K.K KOSHY, RESIDING AT XXVIII/3594 KULANGARA, CHILAVANNOOR ROAD, KADAVANTHARA P.O, ELAMKULAM, KOCHI - 682 020.

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R1TO R3 BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR.

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P (F.C) No.718 of 2019 3

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A.HARIPRASAD & N.ANIL KUMAR, J J.

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O.P (F.C) No.718 of 2019

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Dated this the 18th day of February, 2020

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J U D G M E N T

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A.HARIPRASAD, J

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Heard learned counsel for the petitioners and respondents.

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Aggrieved by Ext.P11 order passed by the Family Court,

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Ernakulam on three interlocutory applications filed in O.P No.1845 of

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2014, the petitioners have preferred this original petition.

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First petitioner is the wife of first respondent. Second petitioner

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is her mother. Second and third respondents are the father and mother of

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the first respondent respectively. Marriage between the first petitioner and

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first respondent was solemnized as per Christian religious rites and

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O.P (F.C) No.718 of 2019 4

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customs on 04-01-1999. Two daughters, aged 15 and 13, were born in the

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wedlock. It is the case of the first petitioner that she is the only child of her

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parents. Her parents were working abroad as teachers. Further case of the petitioners is that at the time of the first petitioner's marriage, her parents gave an amount of Rs.5 Lakhs and 75 sovereigns of gold ornaments. Petitioners would contend that using savings of the first petitioner's

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parents, an extent of 10 Acres of land was purchased in the name of the

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second petitioner as per Ext.P1 sale deed. The sale consideration was paid

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out of their funds. Thereafter, the second petitioner and her husband,

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believing that the first respondent will look after the first petitioner and her

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children, executed Ext.P2 gift deed in favour of the first respondent in

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respect of the property covered by Ext.P1. It is the case of the petitioners

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that soon after the execution of Ext.P2 gift, the first respondent started

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neglecting the first petitioner and her children. He filed O.P No.1459 of

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2013 before the Family Court, Ernakulam seeking divorce. It was also understood that before filing the petition for divorce, the first respondent had transferred Ext.P2 property in favour of his father, the second

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respondent as per Ext.P3.

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First petitioner would contend that her survival with two girl

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children became very difficult. Therefore, she filed M.C No.321 of 2014

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before the Family Court claiming maintenance for herself and daughters.

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She also filed O.P No.1845 of 2014 for return of gold and money and also

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for re-conveyance of Ext.P2 property. Ext.P4 is the copy of Original Petition

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No.1845 of 2014.

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O.P No.1845 of 2014 was decreed ex parte and later the

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ex parte decree was set aside. About three years after, the first respondent

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raised a contention that O.P No.1845 of 2014 is not maintainable before

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the Family Court, Ernakulam since the property scheduled to the petition

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O.P (F.C) No.718 of 2019 6

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was lying within the jurisdiction of Family court, Muvattupuzha. The Family Court, after accepting the contention raised by the first respondent, ordered return of the original petition filed by the first petitioner to be presented before the appropriate court. That order was challenged by the first petitioner before this Court in Mat.Appeal No.1089 of 2018. As per Ext.P6 judgment dated 05-12-2018, this Court disposed of the case with

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following directions :

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“ 9. Hence the above appeal is allowed to the extent of setting aside the order passed by the Family Court, Ernakulam in I.A. No.2846 (a)/2017 and the judgment in O.P. No.1845/2014, both dated 21-06-2018. The said court is directed to restore I.A. No.2846 (a)/2017 and O.P. No.1845/2014 on its files and shall dispose of the interim application after affording opportunity to both sides. It will be left open to the appellant to seek amendment of the original petition if so advised, and the court below shall

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consider and pass appropriate orders in such application, if any filed.

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It is pointed out that O.P. No.1845/2014 was in fact tried along with O.P. No.1459/2013 and with yet another case, M.C. No.321/2014. Learned counsel appearing for the respondent submitted that, recording of the evidence in the other two cases have started and therefore the proceedings in those cases may not be stalled on the basis of the remand of O.P. No.1845/2014 and I.A. No.2846(a)/2017. The above contention is resisted on behalf of the appellant stating that, the subject matter involved in the original petition is intrinsically connected with other two cases. It is contended that if ultimately it is found that O.P. No.1845/2014 is maintainable before the court at Ernakulam, separate trial of the cases may end in prejudice because of conflicting decisions.

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We are of the opinion that it is only just and proper to proceed with the trial of other two cases

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O.P (F.C) No.718 of 2019 8

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only after the Family Court, Ernakulam taking a decision on the question of maintainability of O.P. No.1845/2014 before that court. Accordingly, we direct the Family Court, Ernakulam to consider and pass appropriate orders in I.A. No.2846(a)/2017 afresh, at the earliest, at any rate within a period of 3 weeks from the date of production of a copy of this judgment. Till then, further proceedings in O.P. No.1459/2013 and M.C. No.321/2014 shall be kept in abeyance.”

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Thereafter the first petitioner preferred I.A No.230 of 2019 in

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O.P No.1845 of 2014 before the Family Court, Ernakulam to amend the

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original petition as below :

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“For the reasons stated in the accompanying affidavit, it is humbly prayed that this Hon'ble Court be pleased to pass an order adding as additional pleading in the original Petition after Prayer “D” and before Prayer “E” “ or in the alternative directing the respondents to pay

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to the petitioner or her mother an amount equal to the market value of the said property as on the date of filing of this amendment petition with interest till realization”.”

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Thereafter, the first respondent filed Ext.P8 application

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requesting the Family court to consider maintainability of O.P No.1845 of

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2014, which was not filed by owner of the immovable property. In

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paragraph 4, specific contentions have been raised regarding the absence

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of owner of Ext.P2 property in the party array. Thereafter, Ext.P9 petition

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was filed by the first petitioner seeking impleadment of the second petitioner in the party array. Second petitioner appeared before the Family

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Court through a counsel and she filed an affidavit narrating her interest in

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the property. In Ext.P10 application, following prayers are made :

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“ For the reasons stated in the accompanying affidavit,

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it is humbly prayed that this Hon'ble Court be pleased

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to pass orders directing respondents 2 & 3 to reconvey

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O.P (F.C) No.718 of 2019 10

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an extent of 10 acres land registered in the name of the petitioner as per sale deed no.2217 of 2014 of sub registry office Koothattukulam lying in Sy.Nos. Survey numbers 624 1/3, 634/1, 624/1, 633/4/634/2, 634/3/2 of Koothattukulam Village which was gifted to the 2nd respondent as per gift deed no.633/D/2005 dated 17.03.2005 of Koothattukulam Sub Registry and which was further transferred in the name of the 3rd respondent as per sale deed Number 1551/11 dated 4.8.2011 of Koothattukulam Sub Registry.”

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Respondents in their counter affidavit raised a contention that

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Ext.P1 property happened to be purchased in the name of the second petitioner because at the time of purchasing the property, the first respondent was an American citizen and he had some difficulty on account of the provision in Foreign Exchange Management Act, 1999 to purchase agricultural property in his name. It is also contended that was why the

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second petitioner had executed a gift deed in the name of first petitioner,

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O.P (F.C) No.718 of 2019 11

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shortly after Ext.P1 transaction. Other contentions raised by the petitioners

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were also denied in the counter affidavit filed by the respondents.

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Learned counsel for the petitioners seriously challenged the

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observation passed by the Family Court in paragraph 10 of the impugned

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order. It reads as follows :

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“10. Point No.1 and 2 : The OP is filed for return of gold, money and maintenance. The 4th prayer is for re-conveying a property extending 10 acres in the name of the mother of petitioner as per sale deed No.2217/2014. Paragraph 7 of the pleadings will go to show that her parents are aged and her father is blind and partly deaf. The first respondent convinced them that he will look after them and the petitioner and her children. Th petitioner is their only child. The first respondent was working in US and was earning Rs.2 ½ lakhs per month. He bought 10 acres of land in the name of mother of petitioner using the share given

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O.P (F.C) No.718 of 2019 12

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to her and her parents' earning. The source of purchasing the property is not revealed. So the first respondent also shared the consideration. It is only pleaded that “it was hard for the Ist respondent to pay off the amount of this sale and therefore he sold the car which petitioner was driving”. In the light of the admitted pleadings, the present claim sought to be incorporated in the OP by way of amendment is not maintainable. The petitioner has failed to explain how much money was utilized from her side and how much money, the first respondent has spent. Even according to her, he was working in US for a considerable long time, with a decent earning. Even as

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per the pleadings, it appears that it is only a coownership property. The claim of the petitioner that her mother is having exclusive right over the 10 acres of plantation is against pleadings and baseless. Parties cannot be permitted to raise inconsistent pleadings.”

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According to the petitioners, the Family court has prejudged

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O.P (F.C) No.718 of 2019 13

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the issues and above findings were rendered without any material before it.

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It is true that the Family court should have restrained itself from making

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such observations which may tend to impart the legal rights of the parties at the final hearing. However, the contention raised by the first respondent

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that the amendment sought for is not in conformity with Ext.P6 judgment cannot be said to be correct because what is added more is a money claim.

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It is pointed out by the learned counsel for the first petitioner that the

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prayer in I.A No.6079 of 2019 is contrary to the amendment sought for as

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per I.A No.230 of 2019. In answer to this contention, learned counsel for

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the petitioners would argue that what was sought to be added as per the amendment application is only an alternative prayer without forfeiting the right to proceed against the property. It is also submitted that there are

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binding precedents by this Court that situation of the property is not a matter to be considered in deciding the jurisdiction of Family court. That

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O.P (F.C) No.718 of 2019 14

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was why challenge against the maintainability was dismissed. Anyway, we

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do not make any observation regarding these contentions as it is for the

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Family court to decide the matter. We find no reason to disallow the

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amendment. We make it clear that the first respondent's right to raise a question on limitation or any other legally recognizable ground to attack the petitioners' right will not be affected by any of our observations in this

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matter. Parties are at liberty to rake up all the legally permissible contentions at the time of final hearing. However, we are not impressed

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with the reasoning of the court below in denying the amendment sought

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for by the petitioners. We make it clear that Section 21 of the Limitation

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Act, 1963 will come into play in this case and impleadment of the second petitioner will be effective from the actual date of her impleadment. The

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reasons stated by the court below for dismissing I.A No.6079 of 2019 is also legally unacceptable. Therefore, Ext.P11 order is set aside. The

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interlocutory applications stand allowed. The parties shall adduce evidence

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in respect of the pleadings and the Family court shall dispose of the matter

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within a period of three months from the date of receipt of a copy of this

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judgment.

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All pending interlocutory applications will stand closed.

A. HARIPRASAD,

JUDGE.

N.ANIL KUMAR, JUDGE

amk

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SALE DEED NUMBER 2217/I/04 OF KOOTHATTUKULAM SUB REGISTRY EXHIBIT P2 TRUE COPY OF THE GIFT DEED NUMBER 633/D/2005 OF KOOTHATTUKULAM SUB REGISTRY EXHIBIT P3 TRUE COPY OF THE DEED NO. 1551/1/11 OF KOOTHATTUKULAM SUB REGISTRY EXHIBIT P4 TRUE COPY OF THE ORIGINAL PETITION NO. 1845 OF 2014 EXHIBIT P5 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE 1ST PETITIONER IN O.P NO. 1845 EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 05-12-2018 IN MAT.APPEAL NO. 1089 OF 2018 EXHIBIT P7 TRUE COPY OF I.A NO. 230 OF 2019 FOR AMENDMENT EXHIBIT P8 TRUE COPY OF PETITION DATED 18-02-2019 FILED BY THE RESPONDENTS EXHIBIT P9 TRUE COPY OF I.A NO. 1749 OF 2019 FOR IMPLEADING

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O.P (F.C) No.718 of 2019 17

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EXHIBIT P10 TRUE COPY OF I.A NO. 6079 OF 2019 FOR DIRECTOR EXHIBIT P11 COPY OF THE IA 1749/19 IA 230/2019 ORDER DATED 06-11-2019 OF THE FAMILY COURT, ERNAKULAM. EXHIBIT P11(a) COPY OF ORDER DATED 6-11-2019 IN IA 6079/19 OF THE FAMILY COURT, ERNAKULAM. EXHIBIT P12 TRUE COPY OF COMMON JUDGMENT DATED 22-08-2019 IN O.P(CRIMINAL) NO. 262 OF 2019 OP(FC) NO. 433 OF 2019 AND OP (FC) NO. 431 OF 2019

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RESPONDENTS' EXHIBITS :

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EXHIBIT R1(a) : A TRUE COPY OF THE US INDIVIDUAL INCOME TAX RETURN FOR THE YEAR 2004, PERTAINING TO THE JOINT TAX FILING OF THE IST RESPONDENT AND THE IST PETITIONER. EXHIBIT R1(b) : A TRUE COPY OF THE SALARY STATEMENT OF THE YEAR 2004, PROVIDED BY THE IST PETITIONER'S EMPLOYER, EATON AEROSPACE. EXHIBIT R1(c) : A TRUE COPY OF THE BANK STATEMENT ACCOUNT MAINTAINED BY THE 2ND AND 3RD RESPONDENT IN STATE BANK OF INDIA, ERNAKULAM BRANCH BEARING ACCOUNT NO.01190017042. EXHIBIT R1(d) : A TRUE COPY OF THE CASHIER'S CHECK DATED 15-11-2004. EXHIBIT R1(e) : A TRUE COPY OF THE TAX RECEIPT FOR THE PERIOD 2005-06 ISSUED TO THE IST RESPONDENT BY HTE KOOTHATTUKULAM VILLAGE OFFICE.

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O.P (F.C) No.718 of 2019 18

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EXHIBIT R1(f) : A TRUE COPY OF THE TAX RECEIPT FOR THE PERIOD 2011-12 ISSUED TO THE 2ND RESPONDENT BY THE KOOTHATTUKULAM VILLAGE OFFICE. EXHIBIT R1(g) : A TRUE COPY OF THE TAX RECEIPT DATED 06-07-2018 ISSUED TO THE 2ND RESPONDENT BY THE KOOTHATTUKULAM VILLAGE OFFICE. EXHIBIT R1(h) : A TRUE COPY OF THE CASEH RECEIPT ISSUED BY THE KOOTHATTUKULAM MUNICIPALITY IN FAVOUR OF THE 2ND RESPONDENT. EXHIBIT R1(i) : A TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE DATED 27-07-2011 ISSUED BY THE SRO, KOOTHATTUKULAM. EXHIBIT R1(j) : A TRUE COPY OF THE ORDER DATED 28-01-2019 IN I.A NO.2846(a) IN OP NO.1845/2014 OF THE FAMILY COURT, ERNAKULAM.

Lovely Elizabeth Simon v. Anil Koshy

Case brief

What is this about?

What did the court decide?

Lovely Elizabeth Simon v. Anil Koshy

Case brief

What is this about?

What did the court decide?

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