Annamma Varghese alias Sally Varghese v. Varghese (A.S. No. 144 of 1999)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934** ## **AS.NO. 144 OF 1999 (A)** **----------------------AGAINST THE ORDER/JUDGMENT IN OS.124/1991 OF SUB COURT, MAVELIKKARA DATED 27-03-1998** **APPELLANT(S)1ST DEFENDANT: ------------------------------------------** **VARGHESE, KALLELIVILAYIL VEEDU, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE.** ## **BY ADV. SRI.N.RATHEESH** **RESPONDENT(S)/PLAINTIFFS & DEFENDANTS 2 TO 8:** **------------------------------------------------------------------------------** **1. ANNAMMA VARGHESE ALIAS SALY VARGHESE, CHANGAVILAYIL VEEDU, VADEKKEKKARA, KIZHAKKUM MURI, PALLIPPAD VILLAGE.** **2. SMITHA V. THOMAS OF DO. DO. (MINOR)** - **(1ST RESPONDENT IS THE MOTHER AND GUARDIAN OF MINOR 2ND RESPONDENT)** **3. CHERIYAN KALLELIVILAYIL VEEDU, THAMALLACKAL MURI, KUMARAPURAM. *(DIED)** **4. THANKAMMA OF DO. DO. (DIED)** **5. LELAMMA THOMAS, KUMPAN PUZHETHU VEEDU, KUTTAMPEROOR MURI, MANNAR VILLAGE.** **6. MARY JAMES, KALLELI VILAYIL, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE.** **7. K.C. JOSEPH, KALLELI VILAYIL, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE.** ## **A.S. NO.144 OF 1999** **8. LALU JOHNY, KALLELI VILAYIL, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE.** ## **9. K.C. JOSE, KALLELI VILAYIL, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE.** *** IT IS RECORDED THAT THE 3RD RESPONDENT DIED AND HIS LEGAL HEIRS ARE ALREADY IN THE PARTY ARRAY AS PER ORDER DATED 17.6.2000 IN STATEMENT C.F.5456/99 DATED 7.4.99.** **R,R5-9 BY ADV. SRI.P.K.GEORGE R,R1,2 BY ADV. DR.VINCENT PANIKULANGARA** **THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 21-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOTTATHIL B. RADHAKRISHNAN & B. KEMAL PASHA, JJ.** **-----------------------------------------------** A.S. No.144 of 1999 **-----------------------------------------------** Dated this the 21[st] day of March, 2013 ## **J U D G M E N T** ## **Thottathil B. Radhakrishnan, J.** This appeal is by the first defendant. He married the first plaintiff on 23.6.1984. The second plaintiff was born to them. The first plaintiff was in Uttar Pradesh and the first defendant in Bangalore, for more than two years, virtually separated, before Ext.B1 order of judicial separation was issued by the Family Court, Bangalore on 12.1.1989, at the instance of the first defendant in proceedings which the first plaintiff did not contest. On 12.7.1989, the first defendant executed Ext.A3 sale deed purporting to transfer his share in the immovable property covered by Ext.A2 to his mother, the third defendant. Thereupon, the plaintiffs sued first defendant and his parents A.S.144/99 ## -:2:- on different counts. They claimed maintenance and also that plaint schedule item No.1 belongs exclusively to the first plaintiff, whose funds were utilized for that purchase in the name of the first plaintiff and the first defendant. 2. The court below decreed the suit in part granting maintenance and setting aside Ext.A3 and granting recovery of plaint schedule item No.1 covered by that document. 3. At the hearing of this appeal, the plea and arguments on behalf of the appellant were confined to the question as to the correctness of the impugned decree and judgment in so far as it related to the setting aside of Ext.A3. No other points argued. 4. The learned counsel for the appellant argued that the evidence in the case categorically show that the claim of the plaintiffs that money was entrusted to the first defendant is unfounded. Similarly, the transfer made by the mother of the first defendant to him and the first plaintiff was not supported by any consideration from the hands of the first plaintiff, it was A.S.144/99 -:3:- argued. The learned counsel further argued that the court below has acted illegally in the matter of appreciating the evidence on record. 5. It was argued on behalf of the respondents that the court below had before it materials that unequivocally showed that funds belonging to the first defendant were utilised for the purpose of the purchase of the property from the second defendant, who is none other than the mother of the first defendant. He also argued that it is totally improbable that the second defendant, the first plaintiff's mother-in-law, would have transferred property, also in the name of the daughter-in-law of the first plaintiff; yet to continue to reside in the building covered by the sale deed; unless the intention was only to assure the first plaintiff that the money that came from her or from her parents was being utilized and retained for her benefit. He argued that there is no merit in the appeal. 6. The fact of the matter remains that after the marriage on 23.6.1984, the third defendant, the mother of the first A.S.144/99 -:4:- defendant executed Ext.A2 sale deed on 11.10.1985, whereby she conveyed eight cents and a building stated to be with a couple of rooms, jointly in the names of first plaintiff and the first defendant. The consideration shown in that document is Rs.2,000/-. The first plaintiff's father Thomas is one of the witnesses to that document. While the plaintiffs sued only after the Ext.A3 sale by first defendant to his mother, the third defendant, obviously, it has to be stated that the first defendant has to be treated to have held and meddled with the property covered by Ext.A2, including the rights of the first plaintiff and of the first defendant, if any, in trust, on behalf of that couple linked in marriage. Now, while the court below has found that first plaintiff has proved having parted with an amount of Rs.10,000/- in connection with Ext.A2 sale deed, the document reflects only Rs.2,000/- as consideration and the first defendant stands to admit even in his pleadings that he has taken Rs.5,000/- towards marriage expenses from the parents of the first plaintiff even prior to the marriage. If that were so, the A.S.144/99 -:5:- provisions of the Dowry Prohibition Act, 1961 stare at the appellant. Not only that, on and after the coming into force of Part B State Laws Act, 1951, the provisions in the Travancore Christian Succession Act, 1092 do not continue to operate as noticed by the Hon'be Supreme Court in **Mary Roy v. State of Kerala(1986 KLT 508)** . Therefore, there is no provision enabling the bride or the groom taking to their matrimonial home, what could be called as “Sreedhana” in terms of the Travancore Christian Succession Act. With this, we also see that while making Ext.A2 transfer, the third defendant had categorically stated that what she holds is title, possession and residence and upon transfer, those rights are being delivered to the first plaintiff and the first defendant exclusively. But, the fact of the matter remains that the first defendant and the third defendant; going by their pleadings, and the materials on record, including the addresses on which they were served with summons of the suit; continue to reside at Kallelivilayil Veedu which is the building involved in Ext.A2. A.S.144/99 ## -:6:- Under such circumstances, due regard being had to the pleadings and evidence, we see that the preponderance of probabilities emanating out of the totality of the aforesaid facts and circumstances of the case, points only to the legitimate and reasonable inference that the execution of Ext.A2 was evidently to evidence the receipt of funds from the first plaintiff's home and that is why her father was also made a witness to that document. We do not see any other way to assimilate the true nature of Ext.A2. If that were so, it has to be held that the first defendant held that property only as a trustee on behalf of the first plaintiff. Hence, we do not see any ground to interfere with the impugned judgment and decree. In the result, this appeal is dismissed. However, the parties are directed to suffer their respective costs. ## Sd/- **THOTTATHIL B. RADHAKRISHNAN, JUDGE** ## **Sd/- B. KEMAL PASHA, JUDGE** ul/- A.S.144/99 -:7:- THOTTATHIL B. RADHAKRISHNAN & B. KEMAL PASHA, JJ ******************* A.S.No.144 of 1999 ******************* J U D G M E N T 21[st] day of March, 2013