Kunjuraman Vasudevan @ K.R.Vasu v. Vijayalakshmi Raghavan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 29TH DAY OF JULY 2013/7TH SRAVANA, 1935** **Mat.Appeal.No. 71 of 2010 (C ) ------------------------------** **AGAINST THE ORDER IN OP 85/2008 of FAMILY COURT, KOTTARAKKARA DATED 1311-2009** ## **APPELLANT/RESPONDENT:** **----------------------------------------** **KUNJURAMAN VASUDEVAN @ K.R.VASU AGED 56 YEARS, ARATTUKALLIL PUTHEN VEEDU PLAKKODU MURI, KAREEPRA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT(S)/PETITIONER:** **--------------------------------------------------** **VIJAYALAKSHMI RAGHAVAN AGED 47 YEARS, D/O.LATE N.RAGHAVAN, T.C.20/779 KARAMANA, THIRUVANANTHAPURAM.** **R1 BY ADV. ADV.K.NANDINI B/O** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== Mat. Appeal No. 71 OF 2010 =======================** ## **Dated this the 29[th ] day of July, 2013** ## **J U D G M E N T** ## Antony Dominic, J. This appeal is filed by the respondent in OP No.85/08 on the file of the Family Court, Kottarakkara. The prayer in the OP was for a declaration that ownership of 29.250 cents of land covered by sale deed No.2623/1982 of SRO, Ezhukone is exclusively owned by the respondent wife. 2. The marriage between the appellant and the respondent was solemnized on 20/3/1983. The parties separated in 1990 and in 1992, the wife filed OP No.333/92 before the Family Court, Thiruvananthapuram for restitution of conjugal rights. She also filed OS No.178/1995 before the Family Court, Kollam for maintenance and return of money, which was transferred to the Family Court, Thiruvananthapuram. During the pendency of this OP and the suit, the appellant husband filed OP No.755/99 before the Family Court, Kollam for divorce, which was also transferred to Family Court, Thiruvananthapuram. OP No.333/92 was dismissed and in OS No.178/95, maintenance was **Mat.Appeal No.71/10** ## **: 2 :** allowed but the prayer for return of money was declined by the Family Court. OP No.755/99 filed by the husband was allowed. We are also informed that the wife had filed MFA No.837/02 before this Court challenging the judgment of the Family Court in OP No.333/92 and she also filed MFA No.585/02 challenging the judgment in OP 755/1999. Both the MFAs are dismissed as not pressed by judgment dated 16/11/2009 and RP No.472/2012 seeking review of the judgment in MFA No.585/02 is pending. 3. In the meanwhile, respondent filed OP No.85/08 before the Family Court, Kottarakkara seeking a declaration that she is the sole owner in possession of 29.250 cents of land covered by sale deed No.2623/82 of SRO, Ezhukone. That OP was filed on 29/1/2008. The respondent did not adduce any oral evidence and on behalf of the appellant, CPWs 1 to 4 were examined. Exhibits A1 and A2 and Exts.B1 to B14 were marked on behalf of the respective parties. Finally, the Family Court by its order dated 13[th] of November, 2009 allowed the OP and declared that the respondent is the sole owner in possession of the scheduled property and that the appellant has no right on it. It is this order and decree which are under challenge in this appeal. **Mat.Appeal No.71/10** **: 3 :** 4. We heard the learned counsel for the parties. 5. Learned counsel mainly raised two contentions. The first contention raised by the learned counsel for the appellant was that the evidence adduced before the Family Court did not prove that the property was acquired with the funds of the wife. The second contention raised was that the cause of action which led to the filing of the OP was barred by limitation. 6. In so far as the first contention is concerned, counsel referred to us the oral evidence of CPWs 1 to 4 and contended that the evidence adduced on behalf of the appellant before the Family Court proved that though the parents of the respondent had agreed to advance an amount of `25,000/- to the appellant to acquire the property in question, they failed to make available the funds and that as a result, he had to raise the sale consideration. According to him, that money was paid by him to the vendor of the property by a cheque which was deposed by himself, the vendor of the property, son of the broker and the Secretary of the Co-operative Bank. It is stated that in the light of said evidence, the Family Court has completely erred in concluding the issue against him. **Mat.Appeal No.71/10** **: 4 :** 7. However, having considered the evidence available before the Family Court, we are unable to accept the case of the appellant. First of all, the sale deed which was marked before the Family Court is Ext.A1 and it contained a clear recital that the sale consideration of `10,000/- was paid by the respondent's mother. This recital in the document could have been disproved by the appellant by adducing clear evidence of the payment allegedly made by him. His case that he had paid the sale consideration was not spoken to by any one of the witness examined by him. On the other hand, CPW2, the vendor of the property has deposed to the effect that the payment was made by the respondent's mother. CPW3, the broker's son also has not testified anything in support of the appellant's contention. Added to this is the fact that though the appellant has produced his bank passbook, the same was not marked in evidence. In spite of it, we went through the passbook and we were unable to find out any transaction on any day prior to 17/11/1982 when the document was executed or that the sale consideration was transferred from the appellant's account to any one. No other bank document evidencing such payment was also produced. Suffice it to say that the appellant **Mat.Appeal No.71/10** ## **: 5 :** miserably failed in proving that he had paid the sale consideration contrary to what is stated in Ext.A1. 8. Before the Family Court and this Court, what was contended by the appellant was that on the failure of the respondent's mother to make available the funds, with the hope that she would later pay the amount, appellant paid the sale consideration to her and that it was therefore that it was stated in Ext.A1 that the amount was paid by the respondent's mother. However, CPW2, the vendor of the property stated that the appellant had told him that the sale consideration was paid by respondent's mother. This therefore means that the appellant's case was inconsistent and therefore also, was unacceptable. For all these reasons, we are unable to accept the case of the appellant that the Family Court erred in concluding that the appellant failed to prove that the sale consideration was paid by him. 9. The second contention is one of limitation. According to the learned counsel for the appellant, in OP No.755/99, respondent filed IA No.659/01 invoking the power of the Family Court under Section 27 of the Hindu Marriage Act and praying for **Mat.Appeal No.71/10** ## **: 6 :** a decree declaring her exclusive ownership over the property in question. That IA was rejected by the Family Court on 25/3/2002 when the OP itself was dismissed, giving liberty to her to initiate appropriate action in accordance with law. His contention is that though such liberty was given by the Family Court on 25/3/2002, she filed OP No.85/08 before the Family Court, Kottarakkara only on 29/1/2008. According to the learned counsel, the period of limitation for declaratory relief is as provided in Article 58 in the Schedule to the Limitation Act and the period is three years. 10. Relying on the judgments of this Court in Daya Singh v. Gurdev Singh {(2010) 2 SCC 194} and Muhammed Basheer v. Jameela (2013(1) KLT 1), learned counsel contended that cause of action for the purposes of Article 58 accrues only when the right asserted in the suit is infringed or where there is atleast a clear and unequivocal threat to infringe that right. It is stated that according to the respondent, the cause of action arose atleast at the time when IA No.659/01 was filed and that even if it is assumed that the cause of action accrued on 25/3/2002 when the IA was dismissed with liberty, according to the learned counsel for the appellant, the cause of action became time barred on expiry **Mat.Appeal No.71/10** ## **: 7 :** of three years from that date. Therefore, counsel contends that as on 29/1/2008, when OP No.85/08 was filed, the cause of action was time barred. 11. However, from the pleadings before the Family Court and from the order impugned, what we notice is that the plea of limitation is not a contention that was urged by the appellant at any point of time when the matter was pending before the Family Court. To this, the answer of the counsel was that it being a legal contention, the appellant is entitled to raise it at any stage of the proceedings. Although there is force in what the learned counsel contends, there also, there is a hurdle for the appellant because what we notice from the appeal memorandum is that in the memorandum of appeal also such a contention has not been urged. This Court cannot permit a counsel to raise such a contention at this stage as otherwise the respondent will be guilty of permitting the appellant to raise a contention on which the respondent has no notice. Although we do accept that the plea of limitation is a legal contention, in the absence of the appellant having raised it atleast in the appeal memorandum, we are not persuaded to permit the appellant to urge such a contention in **Mat.Appeal No.71/10** ## **: 8 :** this case, because the respondent had no notice of the same. Therefore, we reject that plea of the learned counsel for the appellant. 12. In the result, we do not find any substance in the appeal. Appeal fails and is dismissed. At this stage, learned counsel for the appellant contended that the Execution Court before which EP No.30/10 was filed, has issued orders beyond the scope of the decree itself. It is the settled position of law that the Execution Court cannot go beyond the terms of the decree and if any such directions are issued, that are clearly illegal. However, for dearth of materials, we do not wish to say anything more on this issue, and we leave it open to the appellant to raise his objections before the Execution Court itself, and we direct that if such contentions are raised, Execution Court will deal with the same in accordance with law. ## Sd/- **ANTONY DOMINIC, Judge** Sd/- **P.D.RAJAN, Judge** Rp **//True Copy//** **PA TO JUDGE**