Anice v. John @ Onachan; John @ Joy; Kurian S/o Devasia; Francis S/o Ulahannan; Mary W/o Francis

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH** **MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942** ## **Mat.Appeal.No.66 OF 2015** **AGAINST THE ORDER IN OP 604/2011 DATED 29-11-2014 OF FAMILY COURT, THODUPUZHA** ## **APPELLANT/PETITIONER:** **ANICE AGED 49 YEARS D/O.ALEYKUTTY, PARAKKAL HOUSE, EAST KALOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK.** **BY ADV. SRI.DILIP J. AKKARA** ## **RESPONDENTS/RESPONDENTS:** **1 JOHN @ONACHAN, S/O.LUCKA, NOW RESIDING C/O. JOSEPH S/O.LUCKA, VATTAKKUZHIYIL HOUSE, EAST KALOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK - 685 608. 2 JOHN @JOY S/O.JOHN, EDAPPATTU HOUSE, EAST KALOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK - 685 608.** Mat.Appeal No.66/2015 -:2:- - **3 KURIAN S/O.DEVASIA, NADUPPARAMBIL HOUSE, EAST KALOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK - 685 608.** **4 FRANCIS S/O.ULAHANNAN, KANJIRANTHINKAL HOUSE, EAST KALOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK - 685 608.** - **5 MARY** **W/O.FRANCIS, KANJIRANTHINKAL HOUSE, EAST KALOOR KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK - 685 608.** **R2 BY ADV. SRI.O.SAJEEVAN (CAVEATER) BY ADV. SMT.R.ANJANA BY ADV. SRI.M.A.AHAMMAD SAHEER BY ADV. SRI.ABHILASH JOSE R1 BY ADV. SRI.A.V.JOJO R3 TO 5 BY ADV. SMT.R.PRIYA R3 TO 5 BY ADV. SRI.M.B.SANDEEP R3 TO 5 BY ADV. SRI.B.SURJITH R1 BY ADV. SRI.A.X.VARGHESE R3 TO 5 BY ADV. SRI.V.VISAL AJAYAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.66/2015 -:3:- J U D G M E N T Dated this the 15[th] day of March, 2021 ## A.Muhamed Mustaque,J. The issue involved in this case is as to the validity of the gift deed executed by Aleykutty in favour of her son-in-law in connection with the marriage. Aleykutty executed the gift deed in favour of John on 13.2.1985. It is stated in the deed that it was executed in favour of John, being a bridegroom, and given the property as a gift in connection with the marriage proposed to be solemnized between John and daughter of Aleykutty, namely, Anice on 17.02.1985. The total extent of the land is 80 cents. Anice married John on 17.02.1985 in accordance with the Christian religious rites. They lived as husband and wife for long. The dispute between them arose in the year 2011 onwards. A divorce petition filed by Anice was allowed in the year 2012. In between the marriage and divorce, John sold some portion of land to many persons including in favour of respondents 2 Mat.Appeal No.66/2015 -:4:- to 5. Aleykutty also purchased 3 cents. However, there is no dispute to the fact that after the sale as above, there exists balance property in the name of John. 2. Anice approached the Family Court, Thodupuzha. Her prayer is to cancel all deeds in favour of John and the purchasers. Her petition has been dismissed. It is challenging this, Anice has come up with this appeal. 3. What is the nature of transaction by way of a gift deed is the simple issue involved in this appeal. According to the appellant, John is only a trustee and entitled to hold the property in trust during the subsistence of marriage and therefore, on extinguishment of trust, the entire documents created in favour of John and others will have to be cancelled. Perhaps, the prayer as such sought in the petition, paved way for dismissal of the petition. A deed cannot be cancelled except in accordance with Section 31 of the Specific Relief Act. Further, Anice is not an executant of the document and therefore, she cannot seek cancellation. Mat.Appeal No.66/2015 -:5:- 4. We perused the gift deed executed by Aleykutty. The said document was executed in connection with the marriage. It is obvious that such a property is held by John in a fiduciary capacity for the benefit of Anice as well. Such a transaction is exempted as a benami transaction under Section 2(9) of the Prohibition of Benami Property Transactions Act, 1988. Anice's mother Aleykutty could not have executed such gift deed in favour of John, but for the benefit of Anice. In every fiduciary relationship, there involves a trust. The parties involved in such a fiduciary relationship are free to enjoy the property during subsistence of the marriage. A Division Bench of this Court in Belcita Vincent Gomez v. Vincent Gomez [2013(4) KLT 890] viewed that a trust is created by conduct of parties. When such a trust is extinguished, certainly, the beneficiary of such trust would be entitled to demand the property back. 5. Under Section 77 of the Indian Trusts Act, 1882, a trust gets extinguished on the following circumstances: Mat.Appeal No.66/2015 ## -:6:- “ 77.Trust how extinguished .-- A trust is extinguished-- - (a) when its purpose is completely fulfilled; or - (b) when its purpose becomes unlawful; or (c) when the fulfilment of its purpose becomes impossible by destruction of the trust-property or otherwise; or - (d) when the trust, being revocable, is expressly revoked." ## 6. The Full Bench of this Court by the order in Sheela v.Suresh [2020 (5) KLT 730 (F.B)] held in paragraph 6 as follows: “6. It is settled law and as laid down in the judgments aforesaid, when the wife entrusts with the husband any property belonging to her, a trust is created and the husband is bound to return the same to his wife. If the same is not returned, the wife has a right to demand the same by filing a suit or as in the present case, file an application before the Family Court or take other necessary steps under the relevant statutes in force. When S.10 of the Limitation Act indicates that there is no limitation for initiating any such action, in the absence of any other statute providing for a limitation, the trustee cannot take a contention that he shall not return the trust property on account of any period of limitation. The question posed is, when the relationship between the parties gets deranged and results in divorce, whether the trust gets extinguished and the divorced wife would be entitled to invoke S.10 of the Limitation Act and file a suit at her will and pleasure at any point in time. In such an event, the questions to be considered are (i) whether a trust had been created at any point of time, (ii) if a trust has been created and the husband remains in the position of a trustee, whether it gets extinguished on the dissolution of marriage or under Mat.Appeal No.66/2015 ## -:7:- ## any other circumstances.” 7. Therefore, there is no difficulty in holding that the property held by John was as a trustee and he is bound to return the property on extinguishment of trust. 8. However, John cannot be directed to reconvey the entire property. Many transactions had taken place during the subsistence of marriage. Anice cannot question such transactions as it was conveyed without any objection. Further, Anice failed to question the same within the limitation period. Anice would be entitled only to demand back such property which now stands in the name of John. As already noted, all confusions in this matter has been created by the nature of the prayers made in the petition to cancel all deeds including the gift deed in favour of John. We find no reason to decline a lesser relief for return of properties that now stand in the name of John in favour of Anice. Accordingly, we set aside the impugned judgment and grant the reliefs as follows: (i) The property covered by Ext.A2 gift deed to the extent it stands now in the name of John, Mat.Appeal No.66/2015 -:8:- shall be reconveyed to Anice within a period of two months from the date of this judgment. On failure, Anice can seek for enforcement of the execution of the decree in accordance with law. (ii) Before executing the decree by the court, the court shall ensure that necessary public documents are produced by Anice evidencing the extent of land held in the name of John after the transaction had already been effected by him. (iii) The prayer for cancelling the documents executed by John in favour of others is declined. Parties are directed to suffer their respective costs. Appeal is disposed of as above. **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** ## **DR. KAUSER EDAPPAGATH** Rp True Copy PS to Judge **JUDGE**