Partly allowed¶155

Mini Vinod Kumar v. K.Vijayalakshmi

Kerala HC1 Apr 2025RFA/521/2019

Case brief

AI extract

What is this about?

Kerala HC RFA 521/2019 partition appeal; trust money traced into substituted property; Sections 63 and 66 Indian Trust Act; blended/mixed trust fund — beneficiary gets charge, not title; Re Hallett's Estate; illustrations to statutory sections (Mahesh Chand Sharma; Mahomed Syedol Ariffin; Jumma Masjid Mercara); Exts.A1, A2, B1–B4; charge of Rs.41,250 with 9% interest from 28.01.1992 on plaint schedule II item No.1; legal heir's liability for predecessor's debts; preliminary decree partly modified, otherwise affirmed.

What did the court decide?

Appeal allowed in part: defendant declared entitled to realise ₹41,250/- with interest at 9% per annum from 28.01.1992, charged on plaint schedule II item No.1; the direction forms part of the decree; in all other respects the decree and judgment of the trial court stand affirmed. ¶155

Mini Vinod Kumar Vs K.Vijayalakshmi — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

¶155

Issue for consideration

Whether the evidence on record probabilises the defendant's contention that the acquisition of property under Exts.A1 and A2 Sale Deeds was made utilising the consideration obtained by sale under Exts.B2 to B4. +2 more

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Court's answer

Given the six-month agreement preceding the Exts.B2–B4 sales, the conveyances executed within a month thereafter, PW1's admission that she held the ₹82,500/- consideration at the time of the Exts.A1/A2 purchases, and the absence of any evidence that the father had money, reserves, avocation or income, the only probability is that the purchases under Exts.A1 and A2 were made utilising the sale consideration obtained under Exts.B2 to B4.

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Ratio / Principle

The plaintiffs' contention that the defendant's share of the Exts.B2–B4 consideration was spent on her education (including management-quota admission) is repelled for want of evidence; Ext.A35 is only a schedule of examinations and nothing shows capitation fee was paid.

¶79

Key takeaways

The claim that amounts were provided to the defendant and her husband for purchase and furnishing of her Bangalore apartment cannot be accepted; given the parents' financial position (gold sold in 2005 even for interest and expenses), it is improbable that amounts would have been provided to the defendant for furnishing her apartment.ratio¶93
At the execution of Exts.B2 to B4 the defendant was only 18 and unmarried, under the care and protection of her parents; attainment of majority does not mean she took her share; the parents were holding the consideration as trustees of the defendant, and the property purchase was made utilising such funds.ratio¶99

Detailed headnote1 paragraphs

Partition appeal (RFA No.521 of 2019, High Court of Kerala, decided 01.04.2025) against preliminary decree in O.S.No.36 of 2016, III Additional Sub Court, Kozhikode. Held: (i) on PW1's admissions — the ₹82,500/- consideration under Exts.B2–B4 was in her hands when the ₹60,000/- purchases under Exts.A1–A2 were made, and the father had no avocation, income or reserves — plaint schedule II item No.1 was bought with the proceeds of the family property (obtained by the defendant with her mother under Ext.B1 partition deed) sold under Exts.B2–B4; (ii) the parents held that money as trustees of the defendant, then aged 18; (iii) since the trust money was blended with the parents' own funds, per illustration (b) to S.63 and S.66, Indian Trust Act (relying on Re Hallett's Estate, Dr. Mahesh Chand Sharma, Mahomed Syedol Ariffin, and Jumma Masjid, Mercara on the value of illustrations), the defendant has no proprietary right to one-half of the property but only a charge for ₹41,250/- with 9% interest from 28.01.1992; (iv) the plaintiffs' theories of educational expenditure and payments for the defendant's Bangalore flat are repelled for want of evidence; (v) the defendant, as legal heir, is bound to contribute proportionately to the father's liabilities settled by the plaintiffs. Appeal allowed in part; in all other respects the trial court's decree and judgment affirmed.

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2025:KER:27402

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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C. R.

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PRESENT

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THE HONOURABLE MR. JUSTICE SATHISH NINAN

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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TUESDAY, THE 1^ST DAY OF APRIL 2025 / 11TH CHAITHRA, 1947

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RFA NO. 521 OF 2019

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AGAINST THE JUDGMENT DATED 29.07.2019 IN OS NO.36 OF 2016 OF

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III ADDITIONAL SUB COURT, KOZHIKODE

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APPELLANT:

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MINI VINOD KUMAR, AGED 43 YEARS, W/O.VINOD KUMAR.V.M., FLAT NO.203, 'A' BLOCK, N.D.OLIVA LAYOUT, SOMASUNDARAPAALAYA, BANGALURU, HSR LAYOUT POST OFFICE, KARNATAKA-560102.

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BY ADVS. NIRMAL. S SMT.VEENA HARI

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RESPONDENTS/PLAINTIFFS:

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1 K.VIJAYALAKSHMI, AGED 69 YEARS W/O.EZHUVATH RAJAN @ RAJAN MENON, 'SREE VALSAM', RAJABHAVAN COMPLEX, M.S.BABURAJA ROAD, KALLAI.P.O., KOZHIKODE-673003.

¶17

2 K.SAI RAMESH, AGED 33 YEARS, S/O.EZHUVATH RAJAN @ RAJAN MENON, FLAT NO.'FOFI', 4TH FLOOR, AJANTHA MEDOWS APARTMENT, 3RD CROSS, AKSHAYA NAGAR, YELANAHALLI, BEGUR POST OFFICE, BANGALURU-560068.

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RFA NO. 521 OF 2019 -2-

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BY ADVS. P.CHANDRASEKHAR K.K.MOHAMED RAVUF RANI MADHU MANJARI G.B. SATHEESH V.T.

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.

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C. R.

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= = = = = = = = = = = = = = = = = = R. F. A. No.521 of 2019

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= = = = = = = = = = = = = = = = = = Dated this the 1^st day of April, 2025

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J U D G M E N T

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Sathish Ninan, J.

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The preliminary decree in a suit for partition is under challenge by the defendants.

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The first plaintiff is the mother. The second

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plaintiff and the defendant are the son and the daughter born to the first plaintiff and her husband, late Rajan Menon. The issue involved in this appeal is confined to plaint schedule II item No.1 (“the property”, and hence the discussions hereunder are confined to that.

¶32

According to the plaintiffs the property sought

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to be partitioned belonged to the father and the mother (Rajan Menon and first plaintiff), under Exts.A1 and A2 Sale Deeds dated 17.12.1991 and 18.12.1991. On the death of the father, his one-half right over the property devolved on the plaintiffs and the defendant. The

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plaintiff seeks for partition and separate possession of their shares. The first plaintiff claims one-half share of the property in addition to the share inherited by her from her husband(4/6 shares).

¶38

The defendant disputed the claim that the property belonged to the father and the mother under Exts.A1 and A2 Sale Deeds. According to her, she and her mother – first plaintiff, had obtained property under Ext.B1 Partition Deed dated 22.05.1987, executed in the family of the mother. At that time, since the defendant was a minor, she was represented in the partition through her father as guardian. Subsequently, on 14.01.1992, the said property obtained under Ext.B1 partition, was sold away under Exts.B2, B3 and B4 Sale Deeds for a total consideration of ₹ 82,500/-. At that time though the defendant had just attained 18 years of age, she was under the care and protection of the parents. Utilising the consideration under Exts.B2 to B4 Sale Deeds the property in question was purchased under

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Exts.A1 and A2 Sale Deeds. The purchase is in trust for the defendant. At the relevant time, the father did not have other sources to purchase the property. Hence the defendant has one-half right over the property, is the claim.

¶43

The trial court held that the defendant was a

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major at the time of execution of Exts.B2 and B3 Sale Deeds and the burden of proof vested on her to prove

¶45

that the purchase was utilising the said funds and in trust for the defendant. It was also held that the case of the plaintiff that the sale consideration obtained under Exts.B2 to B4 sale were utilised for the educational purposes of the defendant, is probable. Accordingly the claim of the defendant was negatived. It was held that the first plaintiff and her husband Rajan Menon has one-half share each over the property.

¶46

We have heard Sri.Nirmal.S, the learned counsel

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for the appellant-defendant and Sri.P.Chandrasekhar, the learned counsel for the respondents-plaintiffs.

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The points that arise for determination are:-

¶52

(i) Does the evidence on record probabilise the defendant's contention that the acquisition of Exts.A1 and A2 Sale Deeds were utilising the consideration obtained by sale under Exts.B2 to B4?

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(ii) Is the claim of the defendant that the acquisition of property under Exts.A1 and A2 is on her behalf under a trust by the parents, liable to be upheld?

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(iii) Is the defendant entitled to in specie partition of the property purchased under Exts.A1 and A2 even if the acquisition thereunder was utilising the consideration obtained by sale under Exts.B2 to B4?

¶55

Exts.A1 and A2 Sale Deeds were on 17.12.1991 and

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18.12.1991. The sale under Exts.B2 to B4 were a month

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later, in January, 1992. Therefore, the claim of the defendant that the purchase under Exts.A1 and A2 was utilising the sale consideration under Exts.B2 to B4 is evidently unsustainable, is the contention.

¶58

It is to be noticed that, the total sale consideration for Exts.B2 to B4 was ₹ 82,500/- and the purchase price under Exts.A1 and A2 was only ₹ 60,000/-.

¶59

The first plaintiff mother has deposed that the sale under Exts.B2 to B4 was preceded by an agreement for

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sale and that the sale was after six months from the

¶64

agreement. She has also admitted that at the time of purchase under Exts.A1 and A2 she had with her the sale consideration of ₹ 82,500/- which is the consideration under Exts.B2 to B4. She also admitted that there is no material to show that her husband had any money or reserves with him. The relevant deposition reads thus :-

¶65

“Ext.B1 പ്രകകാരരം എനനികക്ക് കനിടനിയ വസ്തു ഞകാൻ തതീറക്ക് വനിറ. അതക്ക് 82,500/- രൂപയകാണക്ക് വനിറ്റതക്ക്.”

¶66

“ടനി വനിൽപ്പന നടതനിയതനിനക്ക് എഗനിമമെനക്ക് ഉണകായനിരുന. ആ എഗനിമമെനക്ക് കഴനിഞക്ക് 6 മെകാസരം കഴനിഞകാണക്ക് തതീറക്ക് നടന്നതക്ക്. അതനിമന അഡഡകാൻസക്ക് തുക എത്രയകായനിരുന എന്നക്ക് ഓർതക്ക് പറയകാൻ പറ്റനില. അനനകായപടനിക 1--കാരം നമ്പർ വസ്തു 60,000/- രൂപ തതീറക്ക് പ്രതനിഫലരം മകകാടുതകാണക്ക് വകാങനിയതക്ക്. ടനി സമെയതക്ക് രകാജൻ മമെമനകാമന കകയനിൽ എമന്തെങനിലരം പണമമെകാ നതീകനിയനിരനിമപ്പകാ ഉണകായനിരുന എന്നക്ക് കകാണനികകാൻ മരഖയനില. എമന കകയനിൽ വസ്തുവനിറ്റ 82,500/- രൂപ ഉണകായനിരുന.”

¶67

There is a clear admission from the part of the first plaintiff that, at the time of purchase under Exts.A1

¶68

and A2 she was in possession of the sale consideration for Exts.B2 to B4. It is only probable since the sale

¶69

under Exts.B2 to B4 was preceded by an agreement for

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sale for a period of six months and the conveyances were executed within a period of one month thereafter. In the light of the clear admission on the part of the first plaintiff, and in the absence of any evidence to prove that the father Rajan Menon had any money with him or any source from which he had raised the money, the only probability is that the purchase under Exts.A1 and A2 was utilising the sale consideration obtained under Exts.B2 to B4. This is all the more so since PW1 has admitted that Sri.Rajan Menon did not have any avocation and that there are no documents to prove his income. She has also admitted that they eked their livelihood by dealing with their properties. Therefore, it is probable that the purchase of property under Exts.A1 and A2 was utilising the funds raised by sale under Exts.B2 to B4 Sale Deeds.

¶74

It is the contention of the plaintiffs that,

¶75

the share of the defendant out of the sale consideration under Exts.B2 to B4 sales were utilised for her

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educational purposes. The defendant refutes the contention and claimed that she had secured admission for her BDS course on merit. PW1 admitted that the defendant had secured 90% marks for pre-degree course. But for the bald claim that amounts were spent to secure admission in the management quota and for the studies of the defendant there is no evidence to substantiate the same. All that the plaintiffs have produced is Ext.A35, which is only the schedule of studies of examinations of the institution. There is nothing to show that admission was secured by paying capitation fee or otherwise. Therefore, the said contention is only to be repelled.

¶80

It is next contended by the learned counsel for the plaintiffs that amounts much in excess of the sale consideration under Exts.B2 to B4 was given to the defendant and her husband for purchasing and furnishing an apartment of the defendant at Bangalore. It is claimed that the gold ornaments belonging to the father

¶81

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and mother was sold and amounts were sent to the defendant and her husband for the above purpose. Straight away it is to be noted that, the plaintiffs do

¶84

not have a case that the sale consideration under Exts.B2 to B4 was paid off accordingly.

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As was noticed earlier, the father and mother did not have any particular source of income. They were living on the funds raised by sale of properties and gold. As PW1 the first plaintiff has deposed “എനനികരം ഭർതകാവനിനരം മജകാലനി ഒനരം ഉണകായനിരുന് ന ല. ...... സഡത്തുകൾ മനകാകനി

¶86

നടതനിയകാണക്ക് ഞങൾ ജതീവനിചനിരുന്നതക്ക് ”. She has also deposed that

¶87

“ബകാകനിയുള്ള 50 പവമന സഡർണരം 2005 മുതൽ പല ആവശനങൾകകായനി വനിറ്റതകാണക്ക്. അതക്ക് പലനിശ അടകകാനരം ചനിലവനിനരം മെറ്റക്ക് ആവശനങൾകകായനിട്ടുമെകാണക്ക്

¶88

വനിറ്റതക്ക്”. PW1 admitted that the defendant's husband had provided financial support to them. In her crossexamination she deposed “വനിമനകാദക്ക് ഗൾഫനിൽ നനിനരം ചനിലവനിനകായനി

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സരംഖന അയചക്ക് തന് ന ട്ടുണക്ക് ”. To a pointed question that the

¶93

defendant's husband supported Rajan Menon to purchase item no.3 property in schedule II to the plaint, was not denied. Under such circumstances when such was the financial capacity of the first plaintiff and her husband, it cannot be believed that they provided funds to the defendant for purchase of flat and for its furnishing. The defence that her gold ornaments which were entrusted with the parents were sold and amounts were sent to the plaintiff and her husband for the purpose of purchase and furnishing the apartment, is probable. When PW1 admitted that in 2005 her gold ornaments were sold for the purpose of payment of

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interest and expenses etc., it is quite improbable that during the said period amounts would have been provided to the defendant for furnishing her apartment. Under such circumstances, the claim of the plaintiffs that the sale consideration under Exts.B2 to B4 were paid to the

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defendant in the manner as claimed, cannot be accepted.

¶99

At the time of execution of Exts.B2 to B4 Sale Deeds, the defendant was only 18 years of age and unmarried. She was under the care and protection of the father and the mother. The mere fact that she had attained majority cannot lead to the conclusion that she had taken her share of the money and utilised for her purpose. The consideration obtained by sale of the property under Exts.B2 to B4 was with the father and the mother. It needs no elaboration to find that they were holding the money as trustees of the defendant who was aged only 18 years. The purchase of the property was utilising such funds.

¶100

Now the question is whether the defendant is entitled to half rights over the property purchased under Exts.A1 and A2 utilising such money.

¶101

According to the learned counsel for the appellant-defendant, the acquisition of property being utilising trust fund, the beneficiary is entitled to

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trace the fund and claim right over the converted

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property. The argument is founded on Section 63 of the Indian Trust Act (“the Act”).

¶107

Sections 63 of the Trust Act reads thus:-

¶108

“ [s 63] Following trust property into the hands of the third persons .— Where trust property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.

¶109

Into that into which it has been converted.— Where the trustee has disposed of trust property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust property.”

¶110

What is relevant for us is the second paragraph of the

¶111

Section. It indicates that, when the trustee has acquired another property utilising his funds along with the trust property, then, the right of the beneficiary is nearly the same as that he had over the trust property. The illustration to Section 63 make the scope very clear. It reads thus:-

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Illustrations

(a) A, a trustee for B of Rs. 10,000, wrongfully invests the Rs. 10,000 in the purchase of certain land, B is entitled to the land.

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(b) A, a trustee, wrongfully purchases land in his own name, partly with his own money, partly with money subject to a trust for B. B is entitled to a charge on the land for the amount of the trust money so misemployed.”

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In illustration (a), the trust money is utilised by 'A' for purchase of a land and 'B' is entitled for the said land. In illustration (b) the trustee utilising his own money and also the trust money purchases the property. In such case the beneficiary is only entitled for a charge on the property for the trust money. Under Section 66 of the Act when the trustee mixes the trust property with his own, the beneficiary is entitled to charge on the whole property for the trust money.

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“ [s66] Right in case of blended property .— Where the trustee wrongfully mingles the trust property with his own, the beneficiary is entitled to a charge on the whole fund for the amount due to him.”

¶120

The role of illustrations to Sections, as being an internal aid to interpret and understand the true scope

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of a Section has been highlighted by the Apex Court in

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various judgments. In Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128 , the Apex Court held that illustrations help to elucidate the principle of the Section. The Privy Council in Mahomed Syedol Ariffin v. Yeoh Ooi Gark [1916] 2 AC 575 made the following observations regarding the importance of illustration appended to a Section :-

¶126

“It is the duty of a court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the legislature as helpful in the working and application of the statute, should not be thus impaired.”

¶127

The apex court relied on the said observations of the Privy Council in Jumma Masjid, Mercara v. Kodimaniandra Deviah and Ors. AIR 1962 SC 847 and observed that “ It is not to be readily assumed that an illustration to a section is repugnant to it and rejected. ”

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In Re Hallett's Estate, Knatchbull v. Hallett (1879) 13 Ch.D 696 the

¶132

rights of the beneficiary in case of misapplication of trust funds, was explained thus :-

¶133

“..... I will first of all, take his position when the purchase is clearly made with what I will call, for shortness the trust money, although it is not confined as I will show presently, to express trusts in that case, according to the now well-established doctrine of equity the beneficial owner a right to elect either to take the property purchased or to hold it as a security the amount of the purchase money laid out in the purchase; or, as we generally express it, he is entitled at his election either to take the property, or to have a charge on the property for the amount of the trust money. But in the second case, where a trustee mixed the money with his own, there is the distinction, that the cestui eue trust, or beneficial.”

¶134

The learned author N.Suryanarayana Iyer in his commentaries on the Indian Trust Act, relying on various

¶135

English judgments including Re Hallett's Estate (supra) has at page 585 of the 5^th edition of the book stated thus,

¶136

“ “The question of identification of a particular property as representing the trust fund would present no difficulty where the trustee has utilised the trust funds exclusively for the purchase of property. Where, however, he mixed the trust moneys into his own and out of the mixed fund property is bought, the cestui que trust cannot claim the property itself as trust property. In such a case the purchase being from out of mixed funds, the

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right of the cestui que trust is only to claim a charge or lien for the amount of the trust fund on the entire property so purchased.” .

¶141

The above is very much in tune with the distinction

¶142

drawn under the illustrations (a) and (b) to Section 63 noted above.

¶143

Therefore, taking it to be that the father and mother were holding the money of the defendant as trustees, and the same along with their money was utilised for the purchase of property under Exts.A1 and A2, the defendant cannot claim proprietary right over such property but has a charge over the property, for the trust money. The sale consideration for Exts.B2 to B4 Sale Deeds was ₹ 82,500/-. The defendant was entitled to one-half right of the same viz. ₹ 41,250/-. The defendant has charge on the property purchased under Exts.A1 and A2 for such amount. However, she cannot claim right over one-half of the property.

¶144

Since the amounts were utilised for purchase of a property, there is no reason to decline interest on

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the said amount. We are of the opinion that grant of interest at the rate of 9% per annum from the date of Exts.B2 to B4 Sale Deeds (the later of the date being 28.01.1992 will be reckoned). The amount of ₹ 41,250/with interest thereon, will be a charge on plaint schedule II item no.1, purchased under Exts.A1 and A2 Sale Deeds. The decree and judgment of the trial court is liable to be modified accordingly.

¶149

The trial court has granted a decree for partitioning the liability of the father which was settled by the plaintiffs. Necessarily both the rights and liabilities of the deceased devolves on the legal heirs. Exts.A30 and 31 and 33 evidences the liabilities

¶150

of late Rajan Menon and its settlement by the plaintiffs. The mere fact that she was not in receipt of any demand notice regarding the liabilities, cannot absolve her. The defendant being a legal heir is bound to share the proportionate liability in accordance with her share. The trial court was right in having reckoned

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the same.

Resultantly, the appeal is allowed in part. It is declared that the defendant shall be entitled to realise an amount of ₹ 41,250/- with interest at the rate of 9% per annum from 28.01.1992 charged on plaint schedule II item No.1. The above direction shall form part of the decree. In all other respects, the decree and judgment of the trial court will stand affirmed.

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Sd/- SATHISH NINAN JUDGE

¶157

Sd/- SHOBA ANNAMMA EAPEN JUDGE

¶158

kns/-

¶159

//True Copy//

¶160

P.S. To Judge

Mini Vinod Kumar v. K.Vijayalakshmi

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Mini Vinod Kumar v. K.Vijayalakshmi

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