Panniyanikkal Bridgit Devassia v. Panniyanikkal Devassia

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939** **Mat.Appeal.No. 704 of 2016** **---------------------------OP 508/2013 IN OP 633/2015 OF FAMILY COURT, KANNUR** **-------------** ## **APPELLANT/PETITIONER:** **--------------------** **PANNIYANIKKAL BRIDGIT DEVASSIA, AGED 73 YEARS, D/O. VARKEY, RETIRED NURSE, VAYAKKARA AMSOM, NARAMBA DESOM, P.O.CHERUPUZHA, KANNUR DISTRICT, PIN-670511.** **BY ADVS.SRI.O.V.MANIPRASAD SRI.JOSE ANTONY** ## **RESPONDENT/RESPONDENT:** **---------------------** ## **PANNIYANIKKAL DEVASSIA,** **AGED 64 YEARS, S/O. MATHEW, VELLAMBIL HOUSE, KURICHITHANAM P.O., UZHAVOOR, KOTTAYAM DISTRICT, PIN-686634.** **BY ADV. SRI.P.J.JOSEPH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2017, ALONG WITH MA. 705/2016, THE COURT ON 01-06-2017 DELIVERED THE FOLLOWING:** **K.V.** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== Mat.Appeal Nos. 704 & 705 of 2016 ====================== Dated this, the 1[st] day of June, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ Since both these appeals arise out of a common judgment dated 23/4/2016 in OP Nos.508/2013 and 633/2015, the same are heard and decided together. 2. Both these appeals are filed by the wife of the respondent herein who was the petitioner in OP No.633/2015 and respondent in OP No.508/13 of the Family Court, Kannur. 3. The short facts involved are as under:- Parties are referred to as shown in OP No.508/13 unless otherwise stated. Petitioner and respondent got married on 21/4/1980. It is stated that while the marital relationship was cordial, the properties scheduled to the petition were purchased by the petitioner in the name of the petitioner and the respondent jointly. It is contended that there was an arrangement between the Mat.Appeal Nos.704 & 705/16 -:2:- parties by which the respondent proposed to exchange her rights over the petition schedule property with 1 acre 4 cents owned by the petitioner. Therefore, he executed documents in respect of 1 acre 4 cents in favour of the respondent, whereas the respondent did not execute any document in his favour. She started quarrelling with the petitioner and ultimately he was compelled to vacate the building in plaint schedule item No.3. He sought for partition claiming that they are co-owners in respect of the property and accordingly sought for a preliminary decree of partition of the petition schedule property. 4. Respondent filed counter statement denying the allegations. According to her, though the properties were purchased in the name of both the persons, the entire consideration for the property was paid by her. She also denied the proposal to exchange her right over the properties against 1 acre 4 cents belonging to the petitioner. According to her, she had entrusted funds with the petitioner to purchase properties and instead of purchasing the properties in her name, petitioner clandestinely put his name in the deeds. It is contended that the life with the petitioner became intolerable and accordingly a Mat.Appeal Nos.704 & 705/16 -:3:- settlement was arrived at and properties including a property in Cherupuzha town was partitioned and half right over the same was alloted to the petitioner as per partition deed No.825/2003 of SRO Peringome. She alleges that petitioner had agreed to transfer 1.04 acres of property and another 40 cents in her name. Further, it is contended that within a month after partition, he has sold his share for a total amount of `35 lakhs and proceeded to Maharashtra with his concubine. It is stated that he is not entitled to get a partition since the entire properties were acquired in his name. 5. In OP No.633/2015, the wife claimed right in respect of the entire petition schedule property on the basis that the same was purchased with her funds. It is alleged that the husband did not have any income and though his name finds a place in the deed and revenue records, the entire property belongs to her. Hence, she sought for a declaration that the entire plaint schedule property belongs to her. 6. Respondent/husband filed counter statement denying the aforesaid facts. According to him, he was working as a nurse in Germany from 1981 till end of 1992 and the property was Mat.Appeal Nos.704 & 705/16 -:4:- purchased with his funds and also his retirement benefits from BSF. He had also sent funds to his mother who purchased the property in his name and his wife's name. 7. Common evidence was taken in the case. The husband did not adduce any oral evidence. He relied upon Exts.A1 to A6. The wife was examined as RW1 and their son was examined as RW2. Reliance have been placed on Exts.B1 to B33. The Family Court after considering the matter dismissed OP No.633/15 and allowed OP No.508/13 directing a preliminary decree to be passed for partition of the petition schedule properties declaring that the petitioner is entitled to get one share of the property. 8. Learned counsel for the appellant/wife submitted that the Family Court erred in granting a decree in favour of the husband and dismissing her suit. It is contended that sufficient evidence was adduced in the case to prove the fact that the entire amount for purchasing the properties were spent by the appellant. The respondent did not have a proper job and he did not have any earnings and therefore the judgment of the Court below is liable to be set aside and she is entitled for a declaration as sought for. Mat.Appeal Nos.704 & 705/16 -:5:- 9. On the other hand, learned counsel appearing for the respondent/husband supported the stand taken by the Family Court and contended that there is no reason warranting interference to the judgment of the Family Court. 10. In OP No.508/13, item No.1 property is 48 ares in Re.Sy.No.51/1 and item No.2 of the petition schedule property, 21.2 ares in the very same Sy.No. was purchased in the name of the petitioner and respondent jointly as per sale deed NO.1549/1985 of the SRO, Peringome and item No.3 property 20 Ares in Re.Sy.No.100/1 of Thimiry Desom, Nadikadava Amsom, Kannur Dt is purchased in the name of petitioner and respondent jointly as per sale deed No. 3961/1985 of SRO, Alakode. Both the properties were purchased as per the sale deeds referred above on 14/10/1985 and 20/12/1985 respectively. He further contends that he has executed a sale deed in favour of the respondent by which 1 acre 4 cents of land belonging to him was transferred in her name. According to him, there was an arrangement for exchange by which the respondent had agreed to assign her rights in respect of the petition schedule properties on his transferring 1 acre 4 cents in her name. It is in the said Mat.Appeal Nos.704 & 705/16 -:6:- background that the suit for partition has been filed inter alia claiming division of half right of the property in his name. 11. In the counter statement filed by the respondent, she admits the fact that the petitioner continued in Germany till 1992 and he was working as a Nurse. According to her, she was working as a nurse in Germany. At the time of marriage, petitioner was working as a BSF Jawan. After marriage, he neglected to resume his job. Therefore, she arranged to take the petitioner to Germany. According to her, he refused to do any job and he was living with the money earned by her. She further submitted that she entrusted money to buy properties mentioned in the petition schedule along with another extent of 1.04 acres and a commercial site at Cherupuzha town. It is alleged that instead of buying the property in her name, the respondent clandestinely entered his name in the purchase deeds which according to her was known only later. It is further contended that the life with the petitioner became intolerable and the respondent was forced to enter in a settlement by virtue of which the property including the shop building at Cherupuzha town was partitioned and half of the same was allotted to the petitioner as Mat.Appeal Nos.704 & 705/16 -:7:- per registered partition deed No.825/2003 of SRO, Peringom and as part of the settlement, 1.04 acres of landed property and 40 cents which stood in the name of the petitioner was agreed to be transferred in her name. It is contended that petitioner did not execute conveyance deed in respect of 40 cents of property at Kanthalloor and also the petition schedule properties. 12. In OP No.633/2015, the appellant has raised the very same contentions and claimed that she is entitled for the entire property as the property was purchased with her funds. The Family Court while considering the matter observed that there is discrepancy in the statement given by the respondent as RW1. Though it is contended that the money was entrusted to the husband for purchasing the property in her name, it is observed that both the husband and wife were staying at Germany at the time when the properties were purchased and it is also an admitted fact that he was working in Germany till June, 1992 as a Nurse. Later, she tried to take up a contention that the properties were purchased by the mother of the husband. The Family Court observed that the aforesaid contradictions in the statement will go to the root of the matter in appreciating the evidence. Further Mat.Appeal Nos.704 & 705/16 -:8:- there was no evidence to indicate that the husband was not earning any amount and the property was purchased exclusively with the funds of the wife. Under such circumstances, it was observed that the appellant was not entitled for entire rights in respect of the plaint schedule item. 13. The fact that the properties are in the joint names of the couple is not in dispute. Therefore, the claim for partition as far as the husband is concerned has to be allowed unless it is proved that the properties were purchased in the name of the husband also with the funds sent by the appellant wife. Learned counsel for the petitioner/wife submits that the respondent/husband did not enter the witness box and therefore an adverse inference has to be taken against him. He also relied upon judgment of the Apex Court in _**Vidhyadhar v. Mankikrao and another**_ (AIR 1999 SC 1441). 14. Whether a party to a lis has to give evidence or not is a matter to be considered depending upon the facts and circumstances arising in each and every case. This is a case in which the husband seeks partition of the petition schedule property which is admittedly in the name of both the parties. Mat.Appeal Nos.704 & 705/16 -:9:- Therefore, under normal circumstances, a preliminary decree can straight away be passed for which no oral evidence is required. However, when the appellant contends that the properties were purchased in their joint names with the funds belonging to her, it is for her to prove the said fact and until she proves the same, there is no reason why the respondent husband should adduce any further evidence in the matter. Therefore, non examination of a party to a lis will depend upon the nature of evidence to be adduced in each and every case. In the case on hand, the main allegation raised by the appellant is that she had expended funds for purchasing the property. But there is no evidence to prove the said fact. In fact, perusal of the claim in OP No.633/2015 does not show the manner in which the funds were entrusted, the dates on which the amounts were entrusted and what was the exact amount involved in the transaction. No details are forthcoming, whereas it is admitted by her that the husband was also employed in Germany until June, 1992. Therefore, it is always possible that the funds were jointly sent by both the parties. Further, there is a contention that the amount for purchasing the property was entrusted to the respondent. No details have been Mat.Appeal Nos.704 & 705/16 -:10:- mentioned and she further contends that, “later it is told that the properties are purchased and conveyance deeds are got executed in the name of the petitioner and the respondent jointly”. When she had come to know about the same are also not matters which are borne out from the pleadings. In a case where a person claims that an item of property was purchased in the name of another person, taking into account their fiduciary relationship and that the entire funds were generated by such person, necessarily the details of payment or transfer of funds has to be proved which is lacking in the present case. In the cross examination of RW1, she admits that her husband had come to Germany in 1981 and she sponsored him. She further denies the fact that from 1981 to 1992 June, her husband had worked as a Nurse in Germany. Of course, in her pleadings she had not stated that he was working since 1981 but she has specifically pleaded that he worked till June, 1992 June as a Nurse in Germany. She further admits the fact that she was with her husband at Germany when the properties were purchased and there is no document to prove that the money was entrusted to her husband. She further admits the fact that from 1981 to 1993, there is no document to prove Mat.Appeal Nos.704 & 705/16 -:11:- that she had sent any amount and during that time, she had not given any amount to her husband. In cross examination, she further deposes that the money was sent to her husband's mother. The cross examination further proceeds by indicating that the property was purchased with the funds of the husband which she denied. 15. Taking note of the aforesaid evidence, as rightly pointed out by the Family Court, there are contradictions with reference to the pleadings and sufficient evidence is not available regarding the source of funds, the manner in which it was entrusted for purchasing property etc. It was not safe for the Court to infer that she alone had expended the money for purchasing the property. Under such circumstances we do not find any infirmity in the judgment of the Family Court warranting interference by exercising the appellate jurisdiction. 16. As far as the preliminary decree is concerned, admittedly the property is jointly owned by the appellant and respondent and therefore when a claim for exclusive right is rejected, the Family Court was justified in granting a preliminary decree for partition of the property. Further, it is also evident that Mat.Appeal Nos.704 & 705/16 **==> picture [27 x 9] intentionally omitted <==** another item of property which she purchased according to her was partitioned among them which by itself would indicate that the parties wanted to separately own each and every item of property. Under such circumstances, we do not find an error in the judgment. As no grounds are made out for interference, the Mat.appeals are dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.RAMAKRISHNAN, JUDGE** Rp //TRUE COPY// PS TO JUDGE