## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH**
**MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931**
**RSA.NO. 220 OF 2005()**
**--------------------------------**
**AS.66/1996 OF DISTRICT COURT, PATHANAMTHITTA OS.221/1993 OF M.C.,PATHANAMTHITTA**
**....................**
## **APPELLANT – APPELLANT - PLAINTIFF**
**----------------------------------------------------**
**KURIAN GEORGE, SON OF K.K.GEORGE, KANHIKUZHY MAMPAZHASSERI HOUSE, THOTTAMAN MURI, THEKKEPURAM VILLAGE, P.O.RANNI, PATHANAMTHITTA DISTRICT.**
**BY ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN**
**SMT.MEENA.A.**
**SMT.M.R.MINI**
**SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN**
## **RESPONDENT - RESPONDENT - DEFENDANT:**
**------------------------------------------------------------**
**CHINNAMMA K.GEORGE, WIFE OF KURIAN GEORGE, MAMBAZHASSERIL, THUMPAMAN NORTH P.O., ELAVUMTHITTA, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT.**
**ADV. SRI.BABU CHERUKARA FOR R1 SRI.ISAAC GEORGE FOR R1**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
= = = = = = = = = = = = = = = = = = = = = = = =
**R.S.A. NO.220 of 2005**
= = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1[st] day of March, 2010
## **J U D G M E N T**
---------------------
This appeal is admitted framing the following substantial
questions of law:
(i) Whether the civil court has jurisdiction to entertain a suit
for declaration after the commencement of the Benami Transactions
(Prohibition) Act, 1988 (for short, “ Act”) by one of the vendees to
sale deed to the effect that he is the absolute owner in spite of the
fact that the sale deed stands in the joint names of the plaintiff and
defendant?
(ii) When the documents in question stand in the name of
the husband and wife, namely plaintiff and the defendant, would
## **R.S.A. No.220 of 2005**
-: 2 :-
Sec.4(3)(b) of the Act apply to such a case?
(iii) Whether the decree obtained against the provisions of
the Act will operate as res judicata?
2. Fight between an estranged husband and wife (I am told
that they got divorce during the pendency of litigation). Appellant/husband filed O.S.No.221 of 1993 in the court of learned
Munsiff, Pathanamthitta for partition of item Nos.1 to 6, last item
being a residential house in itmem No.1. He claimed one half share
in the suit property. Respondent contended that item Nos.1, 4 and
5 are not partible since those items exclusively belonged to her
having been purchased with the funds of her father and name of
## **R.S.A. No.220 of 2005**
## -: 3 :-
appellant was included in the respective documents of title only as a
trustee. So far as item No.6 is concerned that also is not partible.
According to the respondent since building is situated in plaint schedule item No.6 which is not partible for the reason stated above.
She filed O.S. No.336 of 1993 against the appellant for declaration of her absolute right over items 1, 4 and 5. In O.S. No.336 of 1993 an
ex parte decree was passed in favour of the respondent as evidenced by Exts.B1 and B2, certified copy of judgment and decree
as per which absolute right claimed by the respondent over item Nos.1 and 5 declared. In the light of Exts.B1 and B2 trial court after
evidence fond that other items (2, 3, 4) are partible among appellant
## **R.S.A. No.220 of 2005**
-: 4 :-
and respondent. Appellant took up the matter in appeal not being satisfied with the decree. First appellate court however confirmed
the judgment and decree and hence this Second Appeal. It is contended by learned counsel for the appellant that Exts.B1 and B2 cannot stand since the suit (O.S.No.336 of 1993) itself is barred by Sec.4 of the Act and hence question of Exts.B1 and B2 operating as
res judicata did not arise. According to learned counsel courts below were not correct in holding that item Nos.1 and 5 are not
partible. Learned counsel contends that the said items are also partible among the appellant and respondent equally. Learned
counsel for respondent would contend that Exts.B1 and B2 have
## **R.S.A. No.220 of 2005**
-: 5 :-
become final, appellant had preferred an application to set aside
Exts.B1 and B2 and that application was dismissed long back. As such in a separate proceeding correctness of Exts.B1 and B2 cannot be gone into. According to learned counsel a reading of Exts.A3 and
A4, documents of title in respect of item Nos.1 and 5 would also show that appellant has no right over the said items since funds for purchase of the said items came from respondent's father. Learned counsel has placed reliance on Section 45 of the Transfer of Property
Act and the decision in **Vasanathakumary v. Omanakutan Nair** (2009 [3] KLT 43).
3. Now dispute is only concerning the partibility of item
## **R.S.A. No.220 of 2005**
## -: 6 :-
Nos.1 and 5. Other disputes have already resolved by the trial court
and they are not under challenge before me. Contention raised by
the learned counsel for appellant is that going by Exts.B1 and B2 case of respondent is that appellant was only a trustee and Exts.A3 and A4 happened to be taken in the name of the appellant in that capacity attempt evidently is to bring the transactions as per Exts.A3
and A4 within the purview of sub-sec.(3) of Sec.4 of the Act. Learned counsel would contend that to apply sub-sec.(3) of Sec.4 of
the Act evidently the matter must otherwise be one coming under
sub-sec.1 of Sec.4 of the Act. Learned counsel contends that sub-
sec.(3) of Sec.4 of the Act has no application and the contention of
## **R.S.A. No.220 of 2005**
-: 7 :-
respondent as to her absolute right over item Nos.1 and 5 as per
Exts.A3 and A4 and further that appellant is only a trustee of the
said items is hit by Sec.4 of the Act. Hence O.S. No.336 of 1993
(which culminated in Ext.B1 and B2) itself is not maintainable.
Learned counsel submits that as per the Act Section 66 of the Code of Civil Procedure as it stood prior to amendment has also been
repealed and hence O.S. No.336 of 1993 was not maintainable. Therefore Exts.B1 and B2 cannot operate as res judicata as against
the appellant.
4. In Ext.A3 source of sale consideration is traced to father
of respondent (father-in-law of appellant). It is stated that sale
## **R.S.A. No.220 of 2005**
-: 8 :-
consideration was given to the vendor by the father of respondent
for the purpose of acquisition of the property for appellant and
respondent. When it came to Ext.A4 it is stated that sale consideration came from the father of respondent for the purpose of
acquiring the property on her behalf.
5. Learned counsel for the appellant does not dispute that
petition to set aside Exts.B1 and B2 preferred by the appellant was
dismissed long back. As such Exts.B1 and B2 became final. Now
question is whether in view of Sec.4 of the Act it can be said that
Exts.B1 and B2 will not operate as res judicata against the
contention now raised by the appellant in the present suit.
## **R.S.A. No.220 of 2005**
-: 9 :-
6. I have gone through Exts.B1 and B2 as well as Exs.A3 and A4. Going by Exts.B1 and B2 it is not the case of respondent
that her suit is saved by sub-sec.(3) of Sec.4 of the Act and instead, she only stated that name of appellant was included in Exts.A3 and A4 only in his capacity as a trustee of the respondent. I must also bear in mind that going by Exts.A3 and A4 sale consideration came
from the father of respondent and it is not a case of father of respondent claiming that he purchased the property in the name of
appellant as well. Whatever that be, question is whether Exts.B1 and B2 would operate as res judicata. If the earlier decision is
based on pure question of law, it may be possible to say in a
## **R.S.A. No.220 of 2005**
## -: 10 :-
subsequent proceeding that the decision would not operate as res
judicata. But question whether Exts.A3 and A4 were benami in
nature and if it is so respondent was entitled to the protection of
sub-sec.(3) of Sec.4 of the Act are matters involving question of fact
and law. In such a situation if Exts.B1 and B2 are found to be erroneous that cannot take Exts.B1 and B2 within the purview of
Sec.11 of the Code of Civil Procedure. Therefore question whether
the decision in O.S. No.336 of 1993 is correct on the facts involved
and law arising therefrom is not a matter required to be decided in
this appeal as that has been concluded by Exts.B1 and b2. That
decision would operate as res judicata so far as the appellant and
## **R.S.A. No.220 of 2005**
## -: 11 :-
his claim over item Nos.1 and 5 are concerned.
Substantial questions of law framed are answered accordingly.
Consequently, Second Appeal has to fail. It is dismissed. No
costs.
**THOMAS P.JOSEPH, JUDGE.**
vsv
