Preetha Vinod alias Preetha Sebastian v. Vinod Xavier (Mat.Appeal No.303 of 2012)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** **Mat.Appeal.No.303 OF 2012** **AGAINST THE JUDGMENT IN OP 444/2009 OF FAMILY COURT, ALAPPUZHA** ## **APPELLANT/RESPONDENT IN THE COURT BELOW:** **PREETHA VINOD ALIAS PREETHA SEBASTIAN W/O.VINOD XAVIER AND D/O.SEBASTIAN, MUKKADAN HOUSE, RUBY NAGAR.P.O, MADHUMOOLA,CHANGANASSERY, REPRESENTED BY POWER OF ATTORNEY HOLDER SEBASTIAN KURIAN, S/O.KURIAN,MUKKADAN HOUSE, RUBY NAGAR.P.O, MADHUMOOLA,CHANGANACHERRY,PIN-686103.** **BY ADV. SRI.S.VINOD BHAT** ## **RESPONDENT/PETITIONER IN THE COURT BELOW:** **VINOD XAVIER, S/O LATE XAVIER,KURISINGAL HOUSE, 49/1093/C-1,INDIRA ROAD,EDAPPALLY.P.O,KOCHI-24. NOW EMPLOYED IN NATIONAL SHIPPING GULF AGENCY CO.LTD, P.O.BOX NO.377,ABU DABI,U.A.E.** ## **R1 BY ADV. SRI.K.J.KURIACHAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal.No.303 OF 2012 2 ## **JUDGMENT** ## **A.M. SHAFFIQUE, J.** This appeal arises out of the judgment in O.P. No.441/2009 of the Family Court, Alappuzha. 2. By the impugned judgment, the court has decreed the Original Petition filed by the respondent herein/husband, declaring that he is having title and possession in respect of the plaint schedule properties and a permanent prohibitory injunction also is granted restraining the respondent from creating any documents, inducting strangers and interfering with the peaceful possession of the petitioner over the said property. 3. The appellant/wife while impugning the aforesaid judgment, inter alia, contends that the Court below had committed serious error in decreeing the suit. From the pleadings itself, it is clear that the property was purchased for the benefit of the wife and therefore in terms of Section 3(2)(a) of the Prohibition of Benami Property Transactions Act, 1988, (hereinafter referred as the Act) as it then stood, a presumption is available that the property is purchased for the Mat.Appeal.No.303 OF 2012 3 benefit of wife and therefore, the petitioner/husband was not entitled for a decree. That apart, evidence was adduced to prove that the money spent for purchasing the property was given by the wife also and therefore joint ownership was well established in the case. 4. The factual aspects involved in this case would indicate that an extent of 53.850 cents of property situated in Arookutty village, was purchased in the joint names of the couple, as per sale deed No.2121/2007 of the S.R.O., Panavally. According to the petitioner/husband, the amount for purchasing the property was paid by him, but taking into account the relationship with the respondent/wife, the property was purchased in their joint names. Later, on account of matrimonial issues, they started living separately. According to him, in so far as the property was purchased in the name of both the parties, both of them were holding the property in trust for each other and therefore the provisions of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as 'the Act') has no application to the transaction. Hence he sought for a declaration that the entire property absolutely belongs to him and for other reliefs. Mat.Appeal.No.303 OF 2012 4 5. The respondent in her objection, inter alia, contended that her gold ornaments and money given at the time of marriage had been appropriated by her husband and utilised for his own personal use. He purchased certain landed properties at Shanthanpara in Idukki in the joint names of the petitioner and the respondent by utilising Rs.3,00,000/- (Three lakhs rupees only), which she received as parental share. According to her, the petition schedule property was purchased from the sale proceeds received by sale of the properties at Shanthanpara and Rs.4,00,000/- (Four lakhs rupees only) given by her parents. She claimed that she has the right to remain as a co-owner of the property. 6. A reply was filed by the petitioner stating that the property at Shanthanpara having an extent of 6 hectares 75 Ares 42 sq. metres was purchased pursuant to an agreement dated 18.09.2002. The agreement was executed by his father as a power of attorney holder. Subsequently, the properties were purchased on 24.09.2002 as per three separate sale deeds in the name of the petitioner, his mother and the respondent/wife with the funds expended by him. He also denied having utilised any money given by the respondent's Mat.Appeal.No.303 OF 2012 5 father for purchasing the property at Shanthanpara. It is submitted that, after sale of the properties at Santanpara, the present property had been purchased. He denied the fact that he had appropriated any of her money and gold and the allegation that her father had paid Rs.4 lakhs at the time of purchase of the property also had been denied. 7. In order to prove the case set up by the petitioner, he examined himself as PW1 and five other witnesses were examined as PW2 to PW6. Exts.A1 to A18 documents were relied upon by him. The respondent/wife placed reliance on the oral testimony of RW1 and RW2 and Exts.B1 to B4 were the documents relied upon. Exts.X1 to X6 were the documents summoned and proved before the Court. 8. The first question to be considered is whether the property at Shanthanpara was purchased by utilising Rs.3,00,000/- given to the petitioner/husband at the time of marriage. During the relevant time when the properties were purchased, the parties were at Abu Dhabi and they were on cordial terms. Exts.A2 to A4 are the documents relating to the same. PW5, the witness examined on the side of the petitioner has stated that he was aware of execution of Exts.A2 to A4 Mat.Appeal.No.303 OF 2012 6 documents. The entire properties were purchased by the petitioner and the consideration was paid by the father of the petitioner from his NRE account. PW2 is a document writer who prepared Exts.A2 to A4 documents. PW3 is another document writer, who deposed that he had prepared Ext.A1 document. Advance for the petition schedule property was paid from the sale proceeds of other properties and the balance amount was paid by the petitioner himself. Court below found that petitioner's mother or the respondent did not have any job of their own. The evidence of PW1 to PW3 and PW5 indicates that no part of the consideration was paid by the mother of the petitioner or the respondent, and the entire consideration for purchasing Exts.A2 to A4 was paid by petitioner's father on his behalf. Exts.A9 and A10 prove that petitioner had made payments to an LIC policy for Rs.8 lakhs and Exts.A11 to 18 are the Fixed Deposits for Rs.5,32,022/- to prove the source of income. 9. PW4 and PW6 are the Managers of Catholic Syrian Bank, Palarivattom and SBT, Kalamasserry. They proved the NRE account of the petitioner and the fact that money was drawn during the relevant time from the said account of the Mat.Appeal.No.303 OF 2012 7 petitioner. Exts.X1 to X4 are the documents which would substantiate the fact that at the time when the properties at Shanthanpara was purchased, money was withdrawn from the account of the petitioner. PW6 has proved Ext.X5, copy of the extract of the ledger account No.10963 that stood in the name of the petitioner. It also would show that there is substantial remittance and withdrawals during the relevant time when the properties at Shanthanpara was purchased. 10. From the totality of the aforesaid evidence, it is rather clear that the property at Shanthanpara was purchased by the petitioner in the name of his mother, his wife and himself with his own funds. There is no reason to interfere with the said finding of fact, especially when the trial court has placed reliance upon sufficient materials to arrive at the said finding. 11. The next question is whether the petitioner was entitled to claim the right in respect of the share of the respondent and whether it would hit by the provisions under section 4(1) of the Act. The learned counsel for the appellant submitted that as per section 3(2)(a) of the Act as it then was, if a person purchased any property in the name of his wife or Mat.Appeal.No.303 OF 2012 8 unmarried daughter, there is a presumption that the said property has been purchased for the benefit of the wife or the unmarried daughter, unless the contrary is proved. Section 3(2)(a) reads as under:- _''(2) Nothing in sub-section (1) shall apply to :-_ _(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;_ The learned counsel for the appellant submits that the said presumption is not rebutted, and therefore the petitioner is not entitled to invoke section 4(3)(a) of the Act. She specifically referred to paragraph No.8 of the Original Petition, which reads as under:- '' It is submitted that the plaint schedule property ever since the purchase of the same is fully owned and possessed and enjoyed by the petitioner. In fact the petitioner is the trustee of the properties of the respondent and vice versa. The petitioner and respondent being husband and wife at the time of purchase of petition schedule property and even now are persons standing in fiduciary capacity to each other. It is also submitted that the petitioner was and is holding the entire property for the benefit of the respondent also as the parties are husband and wife. In the above circumstances it is submitted that the prohibitions contained in the Benami Transaction (Prohibition) Act, 1988 will Mat.Appeal.No.303 OF 2012 9 not apply with respect to the reliefs sought for in this Original Petition.'' The contention of the appellant's counsel is that, the petitioner has stated that he was holding the entire property for the benefit of the respondent also as the parties are husband and wife, which amounts to an admission, that the property was purchased for the benefit of the wife and therefore he cannot claim back the property invoking the provisions under section 4(3) of the Act. 12. We heard the learned counsel for the respondent/husband, who argued that evidence in the case has been correctly appreciated by the trial court, and a different view is not possible. According to him, paragraph No.8 of the petition only states that both parties were holding the property in trust or in a fiduciary capacity. 13. Section 4(3)(b) of the Act is in the form of an exception to section 4(1) and 4(2). If a person holds any property in a fiduciary capacity or as a trustee, or if a transfer is made to a person as a trustee or standing in a fiduciary capacity, the provisions of the Act cannot have an application. If a person holds the property in a fiduciary capacity, the property Mat.Appeal.No.303 OF 2012 10 is to be held for the benefit of the other person for whom he has been in fiduciary capacity or stands in fiduciary capacity. 14. In the case on hand, the petitioner had specifically pleaded he was the trustee of the properties of the respondent and vice versa. He also pleaded that being husband and wife at the time of purchase of petition schedule property they stand in a fiduciary capacity to each other. That apart, he was holding the entire property for the benefit of the respondent also as the parties are husband and wife. While the matrimonial relationship exists between the parties, it is common that spouses may purchase property in the name of other spouse and when matrimonial disputes arise, they claim right over it. Thereafter, the parties plead that the money for purchasing the property was expended by one or the other person and the property is purchased in a fiduciary capacity in the name of the other spouse. It is for the court to decide as to whether the property was held by one spouse on behalf of the other spouse in a fiduciary capacity or as a trustee. 15. In the case on hand, the wife had taken up a contention that the property was purchased by utilising her own funds. The said contention has been belied taking into account Mat.Appeal.No.303 OF 2012 11 the evidence adduced on behalf of petitioner/husband. Then the only question that remains is whether the purchase in the name of the wife was for her benefit alone. First of all the wife does not have a case that the property was purchased for her benefit. But of course when the statute indicates that when property is purchased in the name of one's wife, there is a presumption that it is purchased for her benefit. The presumption under section 3(2) of the Act is a rebuttable presumption as well, as held by this Court in **Pushpy @Kochuthresssia and others v. Anthony and others** (2019 (1) KHC 85(DB). The argument is that petitioner has admitted in his pleading that the property was purchased for the benefit of his wife. In the pleading petitioner has only stated that he was holding the entire property for the benefit of the respondent. This does not mean that the property was purchased for the benefit of wife. The petitioner has proved that the property was purchased for his benefit, and therefore the presumption stands rebutted. When it is proved by adducing cogent evidence that the property was purchased in the name of one's wife, in a fiduciary capacity, the presumption available to the wife under section 3(2) stands rebutted. Mat.Appeal.No.303 OF 2012 12 16. That apart, section 4(1) and (2) Act has no application in respect of the properties purchased by a person in the name of another who stands as trustee or in a fiduciary capacity. When such facts are pleaded and proved by the petitioner as evident from the materials placed on record, the Court below was justified in granting a decree. We do not find any reason to interfere with the said finding. The Mat. Appeal is hence dismissed. No costs. **Sd/-** **A.M.SHAFFIQUE JUDGE** **Sd/-** ajt **N.ANIL KUMAR JUDGE**