Kunjukunju Ravendran Puthiyaveettil v. Mahavan Omana and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.SOMARAJAN** **MONDAY, THE 3RD DAY OF DECEMBER 2018/12TH AGRAHAYANA, 1940** ## **RSA.No.903 of 2006 G** **AGAINST THE JUDGMENT AND DECREE DATED 27.12.2005 IN AS NO.108/1999 OF THE COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (AD HOC)FAST TRACK COURT-II, PATHANAMTHITTA** **AGAINST THE JUDGMENT AND DECREE DATED 30.9.1999 IN OS NO.274/1991 OF THE SUB COURT, PATHANAMTHITTA** ## **APPELLANT/APPELLANT/DEFENDANT NO.1:** **KUNJUKUNJU RAVEENDRAN PUTHIYAVEETTIL, ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK.** ## **BY ADV. SRI.SEBASTIAN DAVIS** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANT NOS.2 TO 6:** - **1 MAHAVAN OMANA, VADAKKEVAYANAKUNNIL ALSO KNOWN AS MADHAVA MANDIRAM,** **ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, MADHAVAN RAMACHANDRAN, BROTHER OF MADHAVAN OMANA, MADHAVA MANDIRAM, ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK.** - **2 SUNDARESAN, S/O. KUNJUKUNJU PUTHIYAVEETTIL, ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK. (DELETED)** - **3 SASIMONY, W/O. SOMAN PUTHIYAVEETTIL, ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK. (DELETED)** - **4 SOMAN, S/O. NANU KAVUMPATTU VEETTIL, ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK. (DELETED)** - **5 SONI, S/O. SOMAN LEKSHMI BHAVAN, ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK. (DELETED)** R.S.A.No.903 of 2006 :: 2 :: **6 SOUMYA, D/O. SOMAN LEKSHMI BHAVAN, ANGADICAL THEKKEKARA MURI, ANGADICKAL VILLAGE, ADOOR TALUK. (DELETED)** **THE NAMES OF RESPONDENTS 2 TO 6 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 20.10.2006 IN I.A.NO.2204 OF 2006.** **R1 BY ADV. SRI.G.UNNIKRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.903 of 2006 :: 3 :: ## **JUDGMENT** Aggrieved by the concurrent findings in both the decree and judgment of the trial court and the first appellate court in O.S.No.274 of 1991 and A.S.No.108 of 1999, the first defendant came up with this appeal. 2. The suit is one for declaration of plaintiff's title over item No.1 property and for partition of item No.2 property which constitutes three items of properties, A,B and C, and also for fixation of boundary in between these two. Both the trial court and the first appellate court decreed the suit. Aggrieved by the said judgment and decree the first defendant came up with this appeal. ## 3. The contention raised by the first defendant is that both the properties covered by Exts.A1 and A2 were purchased by utilizing his own funds and no contribution was made by his wife, R.S.A.No.903 of 2006 :: 4 :: the plaintiff. Their relationship was subsequently divorced. The suit was instituted much earlier when the relationship got strained but before getting divorce of the marriage. 4. There is a concurrent finding by both the trial court as well as the first appellate court that the property covered by Ext.A1 was purchased by utilizing the funds of the plaintiff. There is also a finding by both the courts below that for purchase of the property covered by Ext.A2 there is no evidence to show the respective contribution made by each of the parties, but based on the admission made by the plaintiff that the first defendant had also contributed certain amounts and by applying the principle under Section 45 of the Transfer of Property Act found that since the document stands in the joint name of plaintiff and first defendant, they are entitled for equal share and as such a preliminary decree for partition of item No.2 property was passed and it was confirmed in first appeal by the first appellate court. R.S.A.No.903 of 2006 :: 5 :: 5. In Ext.A1 document which relates to the year 1986, more specifically, 14.11.1986, name of the plaintiff alone was entered as the purchaser of the property. Though a suit was instituted against the first defendant husband for a declaration of her title over the property, no counter claim was raised by the first defendant in the suit. No separate suit was filed by the first defendant husband either to declare that the said property was purchased by utilizing his own funds or that he had got some right over the property in question even after the institution of the present suit in the year 1991. Till today, no such suit was filed by the first defendant. On the other hand, Ext.A1 is a registered sale deed and as per Ext.A1 registered sale deed the property covered by that document now stands transferred in the name of plaintiff and that has not been so far sought to be set aside or modified, either by a declaration or otherwise, by the first defendant and the time available for raising such a relief now stood as hopelessly barred by limitation. A mere defence raised in the written statement that R.S.A.No.903 of 2006 :: 6 :: he had also contributed for purchasing the property covered by Ext.A1 document alone is not sufficient unless there is prayer for declaration of his alleged right, title or interest over the said property so long as the property stands in the name of wife alone. So, the defence set up is of no use unless there is a relief sought by the first defendant in that behalf, especially when the title stands in the name of plaintiff alone by virtue of a registered sale deed. 6. The learned counsel appearing for the appellant vehemently submitted that the suit was instituted through a power holder and he mounted on the box for and on behalf of the plaintiff and took support from the decision rendered by the Apex Court in _**Janki Vashdeo v. Indusind Bank (2006 KHC 3728)**_ so as to advance an argument that the oral evidence tendered by the power holder cannot be substituted in the place of direct evidence from the party concerned, namely the plaintiff. But in the instant case, there is no much importance attached with the parole evidence ## R.S.A.No.903 of 2006 :: 7 :: adduced. The title of the property now stands in the name of plaintiff as per the registered sale deed which is not under challenge by the first defendant either by a suit or by a counter claim. So, there cannot be any scope for parole evidence in the matter regarding the title covered under Ext.A1 document. Further, there is concurrent finding by both the trial court and the first appellate court with respect to the title vested with the plaintiff over the property covered by Ext.A1 sale deed. Hence, the appeal in so far as the decree for declaration is concerned will not stand. 7. On coming into the property covered by Ext.A2, the document stands in the joint name of plaintiff and the first defendant. When there is no cogent or acceptable evidence to show the respective contribution made by the parties to the document, the beneficiaries/purchasers under the document would get equal right over the property. In the absence of such cogent or acceptable evidence showing the extent of consideration R.S.A.No.903 of 2006 :: 8 :: contributed, the parties would be entitled to the property equally and that is what is actually done by the trial court and confirmed by the first appellate court by passing a preliminary decree. Hence, the judgment and decree of the trial court as well as the first appellate court deserves no interference by this Court. The appeal lacks in merits, deserves only dismissal and I do so, but without costs. ## **Sd/** **P.SOMARAJAN** **JUDGE** ahz/