Mat Appeal Nos.316, 317 and 524 of 2011 (The High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 MAT.APPEAL NO. 316 OF 2011** **AGAINST THE JUDGMENT DATED 30.10.2010 IN O.P.NO.45 OF 2005 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM APPELLANTS:** - **1 M.G.MATHEW @ G.BABU S/O.GEEVARGHESE, MOLUVILAYIL HOUSE,, KAITHAKODU (PO), PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.(DIED)** - **2* GEEVARGHESE THANKACHAN, AGED 71 YEARS, S/O.SRI.GEEVARGHESE, NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.** - **3* GEEVARGHESE JOHN, AGED 65 YEARS, S/O.SRI.GEEVARGHESE, NOW RESIDING AT MUKALUVILA VEEDU, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.** - **4* ANN MARY MATHEW, AGED 17 YEARS(MINOR), D/O.LATE M.G.MATHEW,NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.(REPRESENTED BY GUARDIAN, 1ST PETITIONER GEEVARGHESE THANKACHAN)** 2 Mat Appeal Nos.316, 317 and 524 of 2011 - **5* JAIN MARY MATHEW,** **AGED 15 YEARS(MINOR), D/O.LATE M.G.MATHEW, NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.(REPRESENTED BY GUARDIAN, 1ST PETITIONER GEEVARGHESE THANKACHAN)** ***LEGAL HEIRS OF 1ST PETITIONER ARE IMPLEADED AS ADDL.PETITIONERS 2,3,4 & 5 AS PER ORDER DATED 17/3/22 IN IA 1/22 IN MJC.** **BY ADV SRI.T.G.SUNIL (PERUMBAVOOR)** ## **RESPONDENT:** ## **THRESIAMMA MATHEW** **W/O.M.G.MATHEW G.BABU, T.C.6/210 (UPVI/1100 1), FUTURE LIFE, PRASANTH NAGAR, MEDICAL COLLEGE) PO,, THIRUVANANTHAPURAM DISTRICT-695 001.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.03.2023, ALONG WITH Mat.Appeal.524/2011 AND CONNECTED CASES, THE COURT ON 31.03.2023 DELIVERED THE FOLLOWING:** 3 Mat Appeal Nos.316, 317 and 524 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 MAT.APPEAL NO. 317 OF 2011** **AGAINST THE JUDGMENT DATED 30.10.2010 IN O.P.NO.748 OF 2001 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM APPELLANTS:** - **1 M.G.MATHEW @ G.BABU S/O.GEEVARGHESE, MOLUVILAYIL HOUSE,, KAITHAKODU (PO), PAVITHRESWARAM VILLAGE,, KOTTARAKKARA TALUK, KOLLAM DISTRICT. (DIED)** - **2* GEEVARGHESE THANKACHAN, AGED 71 YEARS, S/O.SRI.GEEVARGHESE, NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.** - **3* GEEVARGHESE JOHN,** - **AGED 65 YEARS, S/O.SRI.GEEVARGHESE, NOW RESIDING AT MUKALUVILA VEEDU, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.** - **4* ANN MARY MATHEW,** - **AGED 17 YEARS(MINOR), D/O.LATE M.G.MATHEW, NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT. (REPRESENTED BY GUARDIAN ADDL.P2 GEEVARGHESE THANKACHAN)** 4 Mat Appeal Nos.316, 317 and 524 of 2011 **5* JAIN MARY MATHEW, AGED 15 YEARS (MINOR), D/O.LATE M.G.MATHEW, NOW RESIDING AT ROSE BHAVAN ,KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.(REPRESENTED BY GUARDIAN ADDL.P2 GEEVARGHESE THANKACHAN)** **LEGAL HEIRS OF DECEASED PETITIONER ARE IMPLEADED AS ADDITIONAL PETITIONERS 2,3,4 & 5 AS PER ORDER DATED 17/03/2022 IN IA 1/2022 IN MJC 304/2019** **BY ADVS. ANTONY SHYJU T.G.SUNIL** ## **RESPONDENT:** ## **THRESIAMMA MATHEW** **M.G.MATHEW @ G.BABU, T.C.6/210 (UPVI/1100 1),, `FUTURE LIFE', PRASANTH NAGAR,, MEDICAL COLLEGE P.O), THIRUVANANTHAPURAM, DISTRICT-695 001.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW SRI.G.P.SHINOD** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.03.2023, ALONG WITH Mat.Appeal.524/2011 AND CONNECTED CASES, THE COURT ON 31.03.2023 DELIVERED THE FOLLOWING:** 5 Mat Appeal Nos.316, 317 and 524 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 MAT.APPEAL NO. 524 OF 2011** **AGAINST THE JUDGMENT DATED 30.10.2010 IN O.P.NO.522 OF 2002 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM APPELLANTS:** - **1 M.G.MATHEW @ G. BABU S/O.GEEVARGHESE, MOLUVILAYIL HOUSE,, KAITHAKODU (P.O), PAVITHRESWARAM VILLAGE,, KOTTARAKKARA TALUK, KOLLAM DISTRICT.(DIED)** - **2* GEEVARGHESE THANKACHAN, AGED 71 YEARS, S/O.SRI.GEEVARGHESE, NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.** - **3* GEEVARGHESE JOHN,** - **AGED 65 YEARS, S/O.SRI.GEEVARGHESE, NOW RESIDING AT MUKALUVILA VEEDU, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.** - **4* ANN MARY MATHEW,** - **AGED 17 YEARS(MINOR), D/O.LATE M.G.MATHEW, NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT.(REPRESENTED BY GUARDIAN, 1ST PETITIONER GEEVARGHESE THANKACHAN)** 6 Mat Appeal Nos.316, 317 and 524 of 2011 **5* JAIN MARY MATHEW, AGED 15 YEARS (MINOR), D/O.LATE M.G.MATHEW, NOW RESIDING AT ROSE BHAVAN, KAITHAKKADU.P.O., PAVITHRESWARAM VILLAGE, KOTARAKKARA TALUK, KOLLAM DISTRICT. (REPRESENTED BY GUARDIAN, 1ST PETITIONER GEEVARGHESE THANKACHAN) ADDITIONAL PETITIONERS 2,3,4,& 5** ## **BY ADVS.** **P.GOPAKUMARAN NAIR T.G.SUNIL (PERUMBAVOOR) M.J.THOMAS** ## **RESPONDENTS:** - **1 THRESIAMMA MATHEW & ANOTHER W/O.M.G.MATHEW @ G.BABU, T.C.6/210(UPVI/1100 I),, 'FUTURE LIFE', PRASANTH NAGAR, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM DISTRICT. 695 001.** - **2 MICKY MATHEW D/O.M.G.MATHEW @ G.BABU, T.C.6/210(UPVI/1100 I), 'FUTURE LIFE', PRASANTH NAGAR, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM DISTRICT - 695 001.** **BY ADVS.** **SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2023, ALONG WITH Mat.Appeal.316/2011, 317/2011, THE COURT ON 31.03.2023 DELIVERED THE FOLLOWING:** 7 Mat Appeal Nos.316, 317 and 524 of 2011 ## **JUDGMENT** ## P.G. Ajithkumar, J. Mat.Appeal Nos.316 and 317 of 2011:- The appellant and the respondent were husband and wife. Their marriage was judicially separated. The appellant filed O.P.No.45 of 2005 and the respondent filed O.P.No.748 of 2001, both on the files of the Family Court, Thiruvananthapuram. In O.P.No.45 of 2005 the appellant sought a decree of declaration of his title and recovery of possession of petition A and B Schedule properties. Petition A-Schedule is 1.17 Acres of land comprised in re-survey No.201/10 of Block No.2 of Pavithreswaram Village, Kottarakkara covered by Ext.B4 sale deed dated 16.09.1998. B-Schedule is a residential flat bearing door No.TC.6/2010 at Thiruvananthapuram. 1.1 B-Schedule flat is the subject matter of O.P.No.748 of 2001. The respondent filed O.P.No.748 of 2001 seeking a decree of permanent injunction restraining the appellant from interfering with her peaceful possession and enjoyment of the said flat. In that, the appellant filed a counter-claim seeking to declare that 8 Mat Appeal Nos.316, 317 and 524 of 2011 he is the owner of the said flat and to allow him to recover its possession. The respondent eventually withdrew O.P.No.748 of 2001. Therefore, the Family Court tried O.P.No.45 of 2005 and the counter claim in O.P.No.748 of 2001 along with the connected case, O.P.No.522 of 2002. The Family Court as per the common judgement dated 30.10.2010 decreed O.P.No.45 of 2005 in part declaring that the appellant has half right in petition A-Schedule property. His claim with respect to B-Schedule flat was declined. The appellant filed Mat.Appeal No.316 of 2011 challenging the decree in O.P.No.45 of 2005 to the extent it is against him and Mat.Appeal No.317 of 2011 assailing the decree in the counter-claim O.P.No.748 of 2001; both under Section 19(1) of the Family Courts Act, 1984. 2. Mat.Apppeal No.524 of 2011:- The 1[st] respondent was the wife and the 2[nd] respondent is the daughter of the appellant. The 1[st] respondent filed O.P.No.522 of 2002 claiming monthly maintenance for the 2[nd] respondent, who was then a minor at the rate of Rs.5,000/- per month. The respondents also claimed Rs.1,80,000/- towards past 9 Mat Appeal Nos.316, 317 and 524 of 2011 maintenance. It was contended that the 2[nd] respondent has epileptic disorder and kidney related ailments. In order to meet the treatment expenses, and also relating to her studies the respondents require Rs.5,000/- per month, which the appellant is liable to pay. They contended that the appellant has a monthly income of Rs.1 lakh from his business, property and interest being accrued from bank deposits. 2.2 The appellant filed an objection refuting the contentions of the respondent. He maintained that he did not have any income since he lost employment and all his properties are in occupation of the 1[st] respondent. He also contended that the 1[st] respondent has been getting a handsome salary every month from her employment as a Nurse. She also has income from the landed property and the flat in her possession. Accordingly, he contended that the respondents are not entitled to claim any maintenance from him. He raised a counter-claim for a direction to the 1[st] respondent to pay the amount required for the maintenance of the 2[nd] respondent from the income being derived from the 10 Mat Appeal Nos.316, 317 and 524 of 2011 property belonging to the appellant. A direction to the 1[st] respondent to hand over custody of the 2[nd] respondent minor to the appellant is also sought. 2.3 The respondents filed a counter statement in answer to the reliefs claimed in the counter-claim. The Family Court after considering the pleadings and evidence, as per the common judgement dated 30.10.2010, decreed the original petition in part directing the appellant to pay monthly maintenance to the 2[nd] respondent from the date of filing of the petition i.e., 29.04.2002 till she obtains employment or gets married, whichever happens earlier. The appellant assails the said judgement and decree in this appeal filed under Section 19(1) of the Family Courts Act. 3. There was a delay in filing the appeals. The delay was condoned in all the cases as per the order dated 22.12.2012. Appeals were admitted. 4. On 04.07.2019 these appeals were dismissed for non-prosecution. However, as per the order dated 17.03.2022 the appeals were readmitted. 11 Mat Appeal Nos.316, 317 and 524 of 2011 5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 6. Mat.Appeal No.316 and 317 of 2011:The marriage of the appellant and the respondent was solemnised on 14.06.1987. They have a daughter. Their marriage was judicially separated. As per Ext.B4 sale deed petition A- Schedule property was purchased in the joint name of the appellant and the respondent. Plaint B-Schedule flat was purchased in the name of the respondent. The appellant would claim that an agreement for the purchase of B- Schedule flat with M/s Future Foundations Pvt.Ltd. was entered into by him as evidenced by Ext.B5 agreement dated 17.04.2000 for a sale price of Rs.8,10,000/- and an amount of Rs.5,60,000/- was paid by him in advance towards sale consideration in instalments, receipts for which are Exts.B6 to B11. He would further claim that he had entrusted Rs.2,50,000/-, which was the balance sale consideration, with the respondent with a specific instruction to get the sale deed 12 Mat Appeal Nos.316, 317 and 524 of 2011 in respect of the flat executed in his name. His allegation is that disregarding the said specific instruction, the respondent got the sale deed executed in her name, thereby breached the terms of trust. The appellant thereby claims that he is the owner of B-Schedule flat and as the respondent continues to be in possession of it illegally, he is entitled for a declaration that he is the owner of the said flat and to get its possession. 6.1 The respondent, on the other hand, contended that she was a nurse working initially at Delhi and later abroad. While in Delhi, a flat was purchased there utilising her own fund, which was later sold for an amount of Rs.7,50,000/-. The said amount and also the salary income she derived were sent to the appellant and he in turn paid the said amount to M/s Future Foundations Pvt.Ltd. for purchasing B-Schedule flat. The respondent claimed that deducting the advance amount so paid, she had paid the balance sale consideration and obtained the sale deed in her favour. Thus, she contended that the appellant does not have any right, interest, whatsoever, in B-Schedule flat. 13 Mat Appeal Nos.316, 317 and 524 of 2011 6.2 The respondent raised a contention regarding maintainability of the counter claim in O.P.No.748 of 2001. It was contended that the counter claim was filed belatedly and it was barred by the law of limitation. The Family Court considered that question with reference to the law laid down by this Court in **Sabari Syndicate v. Catholic Syrian Bank Ltd. [2001 (1) KLT 646]** and the Apex Court in **Bullepanda P.Poonacha v. Madappa [(2008) 13 SCC 179 : 2008 (2) KLT 9 (SC)]** . The law is that a counter claim can be filed even after filing of the written statement, but the cause of action for the same should have arisen before delivering the defence by the counter claimant. It was accordingly held that the counter claim would not fall within the prohibition of the law of limitation. 6.3 The learned counsel appearing for the appellant would submit that having filed O.P.No.45 of 2005 for the relief of a declaration with respect to B-Schedule flat also, the question regarding limitation of the counter claim in O.P.No.748 of 2001 is irrelevant. In that context, there arises 14 Mat Appeal Nos.316, 317 and 524 of 2011 a question whether the relief claimed in O.P.No.45 of 2005 is barred by the law of limitation. The claim of the appellant is that both A-Schedule property and B-Schedule flat were purchased making use of his own fund. His specific pleadings is that funds were provided to the respondent with a specific instruction to purchase the property in his name, but in violation thereof, A-Schedule property was purchased in their joint name and B-Schedule flat was purchased in the name of the respondent alone. A-Schedule property was purchased on 16.09.1998 and B-Schedule flat was purchased in the year 2000. Three years provided in Article 58 of the Limitation Act, 1963 is the period of limitation for the relief of declaration. So taken, O.P.No.45 of 2005 is barred by the law of limitation. 6.4 The learned counsel appearing for the appellant would submit that the purchase was for the benefit of the appellant and the money was entrusted with the respondent in trust. Being husband and wife, there existed a fiduciary relationship, and therefore, the title taken in the name of the respondent in relation to A and B Schedule properties was in 15 Mat Appeal Nos.316, 317 and 524 of 2011 trust and therefore the transactions will come within the purview of Section 10 of the Limitation Act. Therefore, there cannot be a bar of limitation for instituting the suit for declaration. 6.5 The question whether the period of limitation as per Article 58 of the Limitation Act would be attracted to a relief claiming declaration by husband with regard to the property purchased in the name of wife was considered by this Court in **Belcita Vincent Gomez v. Vincent Gomez and** ## **others [2013 (4) KHC 748]** . It was held, "Article 58 of the Limitation Act specifies a period of limitation of three years for instituting a suit for a declaratory relief and this period shall be counted from the date of denial of such right. According to the appellant, item No.1 property was purchased on 10.11.1983 and though the respondent had knowledge about it from 1996, suit was filed only in the year 2001. In this context we may also say that Article 58 applies only to cases where declaration simpliciter is sought without any further relief. In this case, we found that the wife purchased plaint schedule item No.1 and item No.2 properties utilizing the funds entrusted to her by the husband. In such a case, Article 58 of Limitation Act 16 Mat Appeal Nos.316, 317 and 524 of 2011 is not applicable and on the other hand, as already held by us, Section 10 of the Limitation Act is applicable and no time limit is provided thereunder.” 6.6 The law laid down in the aforesaid decision lucidly says that if the case of the husband is that the property was purchased by the wife in trust, there is no bar to the suit under Section 3 of the Limitation Act, which is filed for establishing his right in the property. Such a relief is covered by Section 10 of the Limitation Act. The present case is exactly of a similar nature and therefore we are of the view that the relief claimed in O.P.No.45 of 2005 is not barred by the law of limitation. Since O.P.No.45 of 2005 is legally maintainable, the question regarding the bar of limitation to the counter claim in O.P.No.748 of 2001 pales into insignificance. Therefore, the claim of the appellant in regard to both A and B Schedule properties is liable to be considered on merits. 6.7 Ext.B4 shows that A-Schedule property was purchased in the joint name of the appellant and the respondent. The specific case of the appellant is that while 17 Mat Appeal Nos.316, 317 and 524 of 2011 both himself and the respondent were working abroad, sale price was sent to his brother Sri.John with a specific instruction to purchase the said property in the name of the appellant. He further alleges that Sri.John fraudulently and in collusion with the respondent purchased A-Schedule property in the joint name of the appellant and the respondent. The evidence let in by the appellant to prove his case is practically his oral testimony alone. He deposed that the fund he raised from his employment was utilised to purchase A-Schedule property. On the other hand, the respondent as PW1 deposed that it was her fund that was utilised to purchase A-Schedule property. PW1, however, conceded by making a candid admission that funds of the appellant and herself were pooled to purchase the said property. Ext.B4 stands in the name of both the appellant and the respondent. 6.8 Since Section 3 of the Benami Transactions (Prohibition) Act, 1988 does not make a purchase illegal in favour of the wife, the appellant can lawfully raise contention that utilising his funds the property was purchased in the 18 Mat Appeal Nos.316, 317 and 524 of 2011 name of his wife. Even in such a situation, the appellant is required to satisfactorily prove that his fund alone was utilised to purchase A-Schedule property, in order to sustain his claim. 6.9 The allegation of the appellant is that his brother John committed fraud by getting Ext.B4 executed in the joint name instead of getting it executed in the name of the appellant alone. As mentioned above, the oral evidence in that regard is evenly poised. The respondent produced Ext.A10 stating to be a diary written by the appellant. That fact is not very much in dispute. The Family Court extracted the entry dated 26.09.1998 in Ext.A10 in the judgement. The scribblings therein would indicate that money paid by the respondent and also at her instance, form part of the sale consideration paid for the purchase of A-Schedule property. In the nature of such evidence, non–examination of Sri.John became vital. The person, who is competent to depose, going by the case of the appellant, is Sri.John. Inexcusable avoidance of his examination belies the credibility of the case of the appellant. In such circumstances, we are of the view 19 Mat Appeal Nos.316, 317 and 524 of 2011 that the Family Court rightly had held that the appellant and the respondent are the joint owners of petition A-Schedule property. No interference to the said finding is warranted. 6.10 Indisputedly, petition B-Schedule flat is in the name of the respondent. Ext.B5 agreement dated 17.04.2000 would show that the appellant had entered into a contract for purchase of B-Schedule flat from M/s Future Foundations Pvt.Ltd. He had paid in instalments Rs.5,60,000/- towards the sale consideration in advance. Exts.B6 to B11 are the receipts in that regard. That fact is not disputed as well. When the appellant claims and deposed as RW1 before court that the balance sale price of Rs.2,50,000/- also was paid by him, the respondent contended that the money sent by her to the appellant was utilised for the purchase of the flat. As against the evidence born by Exts.B5 to B11 and the oral testimony of RW1, the respondent would bank upon the admission of the appellant that the flat in Delhi was sold for an amount of Rs.7,50,000/-. The respondent based on the said admission contended further that it was the said amount that was 20 Mat Appeal Nos.316, 317 and 524 of 2011 utilized for the purchase of B-Schedule flat. She also claims that besides the said amount, her salary income was also utilised. From the evidence on record, it can be seen that both the appellant and the respondent were having employment and drawing monthly income; probably the respondent being a Nurse was generating more income. 6.11 The categoric version of the appellant was that the flat in Delhi was sold by the respondent for an amount of Rs.7,50,000/-. He further alleged that the said amount was utilised by the respondent for purchasing a flat in the name of one Sri.Shibu Joseph, with whom the respondent had illicit relationship. The respondent stoutly denied that allegation and contended that she did not even know such a person. When the appellant admits that the flat in Delhi was sold by the respondent and received Rs.7,50,000/- as sale price, lack of any evidence regarding the allegation that the respondent used that amount for the purchase of a flat in the name of Sri.Shibu Joseph tells upon the case of the appellant. When B-Schedule flat was purchased soon thereafter, the probability 21 Mat Appeal Nos.316, 317 and 524 of 2011 is that money with the respondent was used to purchase B- Schedule flat. Exts.B5 to B11 are not enough to prove that his own money was used by the appellant to make such payments. In such circumstances, the view taken by the Family Court that the claim raised by the appellant on the title to petition B-Schedule flat is untenable, cannot be said to be incorrect. It follows that the challenge of the appellant to the judgement and decree in O.P.No.45 of 2005 and the counterclaim in O.P.No.748 of 2001 can only fail. 7. Mat.Appeal No.524 of 2011- Paternity of the 2[nd] respondent is not in dispute. The case of the appellant is that he is now unemployed having no income and his properties have been grabbed by the 1[st] respondent, whereas the 1[st] respondent has income from her employment as Nurse and from the properties in her possession. The 2[nd] respondent all along has been residing with the 1[st] respondent and as such it is her obligation to maintain the child. Pointing out such factual aspects, the appellant contended that it is the responsibility of the 1[st] respondent to maintain the 2[nd] 22 Mat Appeal Nos.316, 317 and 524 of 2011 respondent, and not of his. The appellant however, put forward a case that the custody of the 2[nd] respondent be handed over to him so that he can maintain her. 7.1 The obligation of the appellant being the father to maintain the 2[nd] respondent during the period of her minority and also till she becomes capable to maintain herself or she is given in marriage cannot be disputed. The learned counsel appearing for the appellant does not dispute such a legal obligation of the appellant also. The learned counsel, however, would submit that the evidence on record overwhelmingly proved that the appellant does not have sufficient income; whereas the 1[st] respondent has enough income to meet the expenses in relation to the education as well as the treatment of the 2[nd] respondent. At the time of filing of O.P.No.522 of 2002, the 2[nd] respondent was a child studying in the 5[th] Standard. She has now attained majority. The Family Court found in the light of Exts.A7 series and A12 series and the oral testimony of PW1, the 1[st] respondent mother that the 2[nd] respondent requires treatment, which necessarily incurs 23 Mat Appeal Nos.316, 317 and 524 of 2011 expenses. That along with the expenses in connection with her education was taken into account in order to conclude by the Family Court that an amount of Rs.5,000/- is the reasonable amount of maintenance entitled by the 2[nd] respondent from the appellant. 7.2 The 1[st] respondent brought in evidence in support of his claim that she had purchased both A and B Schedule properties involved in O.P.No.45 of 2005 and that she was getting more income from her employment as a Nurse, than what had been getting by the appellant. Indisputedly, both A and B schedule properties are in the possession of the 1st respondent. A-Schedule property is 1.17 Acres of land with a building (it is said its actual extent is 1.25 Acres) and B- Schedule property is a residential flat in Thiruvananthapuram city obviously fetches good rent. A reasonable income would be derived from these properties. Even if one is used for the residential purpose of the respondents, the other would enure income. 24 Mat Appeal Nos.316, 317 and 524 of 2011 7.3 PW1 deposed that the appellant had business, bank deposits and other sources of income. But no document in that regard has been produced. The appellant as RW1 deposed that he did not have sufficient income now. Taking all such aspects into account, we are of the view that the obligation to maintain the 2[nd] respondent during her minority and also during the period when she remained unemployed/unmarried, shall be shared by both the appellant and the 1[st] respondent. We find no reason to interfere with the finding of the Family Court, that Rs.5,000/- would be required for the maintenance of the 2[nd] respondent. We are, however, of the view that the appellant is not bound to pay the entire amount of maintenance. Both the appellant and the 1[st] respondent are persons having income. They have to equally share the obligation to maintain their only child, the 2[nd] respondent. 7.4 Accordingly, we modify the order of the Family Court regarding payment of maintenance. The appellant is liable to pay Rs.2,500/- per month, instead of Rs.5,000/- as 25 Mat Appeal Nos.316, 317 and 524 of 2011 ordered by the Family Court. The decree in O.P.No.522 of 2002 is modified to that extent. ## 8. Accordingly, - i) Mat.Appeal No.524 of 2011 is partly allowed. The decree in O.P.No.522 of 2002 is modified to the extent that the monthly maintenance to be paid by the appellant to the 2[nd] respondent shall be Rs.2,500/- per month instead of Rs.5,000/-. Other conditions in the decree shall be the same. ii) Mat.Appeals No. 316 and 317 of 2011 are dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr