- High Court of Kerala (2012)

High Court of KeralaSingle Judge2012-11-02Review Petition dismissed.

Case / Petition Number:RP.No.172/2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M. Sasidharan Nambiar
Judgment Date: 2012-11-02
Court Decision / Holding: Review Petition is dismissed. The court noted no error or sufficient reason to review the judgment and ordered delivery of decree-scheduled property after three months, conditioned on the petitioners filing an unconditional affidavit. If not filed within seven days, the executing court would proceed with delivery.
Final Disposition: Review Petition dismissed.

Parties to the Case

Appellants / Petitioners

Jayamma w/o GOPIDAS
Gopidas
Seema GOPIDAS
Sini GOPIDAS

Respondents

Laila d/o Raghavan
Baiju s/o Raghavan
Laiju s/o Raghavan
Siji d/o GOPIDAS

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.S. Krishna Pillai
• Smt. S. Anjusha

Counsels for Respondents

• Sri. P.S. Krishna Pillai
• Smt. S. Anjusha

Case Synopsis & Summary

This is a Review Petition (RP No.172/2012) arising from RSA 975/2004, decided by the Kerala High Court. The petitioners, who are the respondents in RSA 975/2004 and defendants in original O.S.448/1993, challenge the judgment in RSA 975/2004 dated 28 September 2011 via Order 47 Rule 1 CPC. The oral submissions focus on Ext.A1, a settlement deed executed by the first defendant (mother of the first petitioner), in favor of Sumathi, her daughter from a previous marriage. It is contended that the property, though registered in the name of the first defendant, was acquired by Kunjan (the father of the first petitioner in her second marriage) and that the assignment by the estate owners was made to the first defendant pursuant to an agreement with Kunjan; thus, the petitioners argue that the benefit of the assignment should enure to them. They rely on the propositions from Soni Lalji Jetha v. Soni Kalidas Devchand (AIR 1967 SC 978) and Bai Dosabai v. Mathurdas Govinddas (AIR 1980 SC 1334) to assert that the first defendant may be only a trustee for the petitioners. The court reviewed the pleadings and evidence and found no ground to exercise its review jurisdiction. It dismissed the Review Petition. It granted, however, three months for surrender of decree-scheduled property subject to an unconditional affidavit, failing which delivery would proceed. The proceedings concern issues of family settlement, trust, and property succession under Indian law.

Provisions of Law Cited

Order 47 Rule 1, CPCSection 40, Transfer of Property ActSection 54, Transfer of Property ActSection 94, Indian Trusts Act

Legal Doctrines & Maxims

First defendant is a trustee for the petitioners; the property or its benefits can enure to beneficiaries where a trust/agency is established; assignment by estate owners to a trustee can bind beneficiaries in absence of contrary pleadings.
Beneficiary rights under a trust and the fiduciary duties of a trustee in property succession cases.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that Ext.A1, though executed by the first defendant (mother of the first petitioner), was part of a broader arrangement where Kunjan, the petitioner's father-in-law in her second marriage, had acquired the property. The estate owners’ assignment to the first defendant, under an agreement with Kunjan, should enure to the benefit of petitioners 1 and 2. They argued that the first defendant was, at most, a trustee for the petitioners and that the beneficial ownership and rights flowed to them, consistent with Sections 40, 54 of the Transfer of Property Act and other trust principles. They relied on Supreme Court rulings to support the trustee-relationship and entitlement to the estate’s benefits.

Contentions of Respondents

The respondents resisted on grounds of pleadings and evidence, asserting that the property stood in the name of the first defendant, with the implied understanding that it was not for the personal use of the first petitioner. They argued that the legal grounds raised by the petitioners were not pleaded or proved, and hence could not form a basis for review. The respondents also argued that the petition for review is not maintainable on newly raised aspects and that the court properly dismissed the review after considering the material on record.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Soni Lalji Jetha v. Soni Kalidas Devchand	AIR 1967 SC 978	Mentioned Only	Cited by counsel to support the trustee/beneficiary argument, but the court did not rely on this decision to alter the outcome; it was referenced rather than expressly applied.
Bai Dosabai v. Mathurdas Govinddas	AIR 1980 SC 1334	Mentioned Only	Cited by counsel; the judgment does not adopt or distinguish from this authority, but mentions it in the context of the argument.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934 RP.No. 172 of 2012 () IN RSA/975/2004 -------------------------------------AGAINST THE ORDER/JUDGMENT IN RSA.975/2004 DATED 28.9.2011 REVIEW PETITIONER(S)/APPELLANTS & RESPONDENTS 4 AND 5 ------------------------------------------------------1. JAYAMMA W/O. GOPIDAS, THYCHIRAYIL HOUSE KUMARAKAM KARA AND VILLAGE, KOTTAYAM TALUK KOTTAYAM DISTRICT 2. GOPIDAS, DO. HOUSE, -DO- -DO-. 3. SEEMA GOPIDAS, D/O. GOPIDAS, HOUSE, -DO- -DO4. SINI GOPIDAS, D/O. GOPIDAS, DO HOUSE, DO- -DOBY ADVS.SRI.P.S.KRISHNA PILLAI SMT.S.ANJUSHA RESPONDENT(S)/RESPONDENTS 1 TO 3 AND 6. --------------------------1. LAILA D/O. RAGHAVAN, MALIKAYIL CHIRA, VIRIPPUKALA KARA AYMANAM VILLGE, KOTTAYAM TALUK KOTTAYAM DSITRICT 686001 2. BAIJU, S/O. RAGHAVAN, MALIKAYIL CHIRA, KAVANATHINKARA KARA KUMARAKAM VILLAGE, KOTTAYAM TALUK KOTTAYAM DISTRICT 686001 3. LAIJU S/O. RAGHAVAN, -DO- -DO4. SIJI D/O. GOPIDAS THYCHIRAYIL HOUSE, KUMARAKAM KARA, KUMARAKAM VILALGE KOTTAYAM TALUK, KOTTAYAM DISTRICT 686001. (R4 DELETED FROM PARTY ARRAY AT THE RISK OF PETITIONER AS PER ORDER DATED 19/7/12 IN I.A.1057/12. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 02-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR,J.** ================================ ## R.P.No.172/2012 in RSA 975/2004 ================================ Dated this the 2[nd] day of November,2012 ## ORDER Petitioners are the respondents in R.S.A.975/2004 who are the defendants in O.S.448/1993 before Additional Munsiff Court, Kottayam. Petition is filed under Order 47 Rule 1 of Code of Civil Procedure to review the judgment in S.A.975/2004 dated 28.9.2011. 2. Learned counsel appearing for the petitioners and the learned counsel appearing for the respondents were heard. **==> picture [366 x 13] intentionally omitted <==** appearing for the petitioners is that though Ext.A1 settlement deed was executed by the first defendant, who is the mother of the first petitioner/second defendant in favour of R.P.172/2012 in RSA 975/2004 2 Sumathi her daughter in her first marriage, the property was obtained by Kunjan, the father of the first petitioner her second husband and though the assignment of the property by the estate was in the name of the first defendant, she did not derive any absolute or special right over the same and much earlier to the execution of Ext.A1 settlement deed by the first defendant Ext.B8 will was executed by Kunjan and hence on his death the property devolved on the petitioners and therefore the benefit of the assignment by the Estate owners in favour of the first defendant should enure to the benefit of petitioners 1 and 2 as that assignment was pursuant to an agreement between Kunjan and the estate owners. It is argued that unfortunately this aspect was not brought to the notice of the courts below or before this court when the Second Appeal was heard and in such circumstances petitioners are to be permitted to plead and adduce evidence on that aspect and in such circumstances the judgment in the Second Appeal is to be reviewed. Learned counsel relied R.P.172/2012 in RSA 975/2004 3 on the decision of the Supreme Court in **Soni Lalji Jetha v. Soni Kalidas Devchand (AIR 1967 SC 978) and Bai Dosabai v. Mathurdas Govinddas (AIR 1980 SC** **1334** and submitted that first defendant is only the trustee for the petitioners. Learned counsel also made available the copy of the written statement filed in the suit. 4. On going through the written statement it is seen that though in paragraph 3 it was contended that father Kunjan had executed a will, after referring the agreement between Kunjan and the estate owners it was pleaded that while Kunjan was laid up due to illness the property happened to be purchased in the name of his wife the first defendant. In paragraph 6 it was pleaded that petitioners have been in possession of the property from 1973 onwards. But there is no pleading in the written statement that the property was assigned by the estate owner in favour of the first defendant, for and on behalf of Kunjan. It is also not pleaded in the written statement that Kunjan never intended that first defendant would derive absolute R.P.172/2012 in RSA 975/2004 4 right in the property. In such circumstances on the pleading and the evidence, I find no apparent error or sufficient reason to review the judgment. 5. Learned counsel argued that in view of Section 40 and 54 of the Transfer of Property Act and Section 94 of the Trust Act, eventhough the properties stand in the name of the first defendant, when it was acquired by her husband but in the name of the first defendant and it was intended for his daughter and her husband, it should enure to their benefit alone and not to the daughter of the first defendant in her first husband and the first defendant could only be a trustee and in the light of the decision of the Supreme Court, petitioners are to be permitted to plead and adduce evidence, when there is no foundation of pleading and this is only a petition for review of the judgment and not even the second appeal, when such a case has not been so far agitated either before the trial court or the first appellate court, petitioners cannot be permitted to agitate it at this stage. R.P.172/2012 in RSA 975/2004 5 6. Learned counsel appearing for the petitioners then submitted that as delivery is ordered by the executing court three months' time be granted to surrender possession of the property. 7. If the petitioners file an affidavit before the executing court unconditionally, undertaking to surrender the decree schedule property on the expiry of three months from today, delivery shall not be effected till then. The affidavit shall be filed within seven days from today. If it is not filed as directed, the executing court is to deliver the decree schedule property. Review Petition is dismissed. ## M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT tpl/- M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006