Prema @ Prema K.P. v. Manoj S/o Viswanathan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937 Mat.Appeal.No. 45 of 2016 () ----------------------------- AGAINST THE JUDGMENT IN OP 1027/2012 of FAMILY COURT, PALAKKAD DATED 05-12-2015 ## APPELLANT/RESPONDENT: -------------------------------------- PREMA @ PREMA K.P. W/O.MANOJ, CHOZHIAMKADU, ANCHUMOORTHIMANGALAM POST MANGALAM AMSOM AND DESOM, ALATHUR TALUK PALAKKAD DISTRICT BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P ## RESPONDENT/PETITIONER: --------------------------------------- MANOJ S/O. VISWANATHAN, KALLIYANKATTIL ANCHUMOORTHIMANGALAM POST, MANGALAM AMSOM AND DESOM ALATHUR TALUK, PALAKKAD DISTRICT 678 101 BY ADVS. SRI. K. JAYAKUMAR (SENIOR) SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL) THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smv ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** ----------------------------------------------- ## **Mat.Appeal No.45 of 2016 ----------------------------------------------Dated this the 9[th] day of February, 2016.** ## **JUDGMENT** ## Shaji P. Chaly, J. Above appeal is preferred by the respondent against the judgment dated 5.12.2015 passed in O.P.No.1027 of 2012, by the Family Court, Palakkad. Respondent is the petitioner respectively in the original petition before the Family Court. By the impugned judgment, the Family Court has found that the Original Petition is not barred by limitation and the right to sue accrued to the respondent herein only on 5.6.2012, on which date according to the respondent the parties have started living separately. 2. Necessary facts for the disposal of the appeal are as follows: 3. The appellant and respondent are wife and husband respectively and their marriage was solemnized on 25.08.2004. Mat.Appeal No.45 of 2016 2 The Original Petition is filed by the respondent herein for declaring that the respondent is the true and absolute owner of the petition A, B and C schedule properties and for a consequential prohibitory injunction restraining the appellant from effecting sale of the said properties and for other related reliefs. 4. It is contended by the respondent in the Original Petition that the appellant and respondent were in Gulf and the properties were purchased while they were in Gulf. The properties were purchased from and out of the income derived through the respondent and as such he is the absolute owner of the properties. Respondent has also contended in the Original Petition that the petition A, B and C schedule properties were purchased as per registered deed Nos.2966/2005, 1991/2006 and 3372/2007 of the office of the Sub Registrar, Alathur and they were executed on 19.08.2005, 09.05.2006 and 02.08.2007 respectively. It is the further contention of the respondent that during the 1[st] week of June 2012 the appellant herein abandoned the company of the respondent for good and threatened to sell the schedule properties and thus the Original Petition was filed Mat.Appeal No.45 of 2016 3 seeking the reliefs specified above. 5. The appellant has filed objection refuting the claims and demands and the allegations made by the respondent. It is specifically disputed that the properties are not purchased with the fund belonging to the respondent. It is also contended by the appellant that A and B schedule properties were purchased by selling of the gold ornaments provided to her by her parents and also using the fund received by her, on retirement from the company she was working. It is also contended by the appellant that C schedule property was purchased in 2007 with the money advanced by the appellant's mother and therefore, it is the contention of the appellant that the respondent is not entitled to get any relief sought for in the Original Petition. 6. In the objection filed to the Original Petition the appellant has also pleaded that, the contention of the respondent that the appellant has deserted the respondent during June, 2012 is not correct. But on the other hand the appellant had to leave the house consequent to the physical and mental harassment meted out by the respondent. It is also contended that due to the physical injury inflicted by the respondent the Mat.Appeal No.45 of 2016 4 appellant had to run away from the house. However it is significant to notice that no contention is raised that the Original Petition is barred by the law of limitation. But an additional objection is filed raising the sole ground of limitation much later, in February 2015 and thereby invited the Family Court to decide the issue of limitation as a preliminary point and it is thus the Family Court has passed the judgment impugned. 7. Heard learned counsel for the appellant and the respondent. 8. The prime contention advanced by the learned counsel for the appellant is that since it is a suit for declaration, the parties are guided by Article 58 of the Limitation Act which read thus: - “ PART III - SUITS RELATING TO DECLARATIONS -------------------------------------------------------------------------------------------------Description of suit period of Time from which period limitation begins to run -----------------------------------------------------------------------------------------------56. x x x x x x x x x x x x x x x x x x x x x x 57. x x x x x x x x x x x x x x x x x x x x x x 58. To obtain any other Three years When the right to sue declaration first accrues. ---------------------------------------------------------------------------------------------------” Mat.Appeal No.45 of 2016 5 9. Learned counsel has contended by relying on Article 58 of the Limitation Act that the cause of action for the Original Petition arose on the date of the purchase of the properties and therefore, 3 year period of limitation is to be calculated from the date of execution and registration of the respective sale deeds. Learned counsel also contended that the respondent was aware about the purchase of A and B schedule properties in the joint names of the appellant and the respondent and C schedule was purchased in favour of the appellant and taking into account the contentions raised by the respondent it is categoric and clear that the respondent had knowledge about the execution of the sale deeds in the joint names of the parties and therefore three year period of limitation is to be calculated from the date of execution of the deed itself. According to the counsel, as provided under Article 58 of the Limitation Act, the right to sue first accrued on the date of execution of the sale deeds. 10. In order to substantiate the said contention raised, learned counsel has invited our attention to the judgment of the Bombay High Court in **Vimal Builders v. Nand Kumar Anant** Mat.Appeal No.45 of 2016 6 **Vaity and Others** [2013 KHC 2991] and canvassed the proposition that so far as Article 58 is concerned, the cause of action for the suit arises on the date of conveyance of the deed or its knowledge. It is the contention of the counsel that when the date of the execution of the deed, and knowledge about it was aware to the respondent, the respondent ought to have filed the suit within a period of 3 years from the respective date of conveyance. 11. On going through the said judgment, what we find is that same is a proceeding instituted against third parties, wherein the parties were aware that the documents are created adverse to their interest and therefore, the cause of action for the suit arose on the date of execution of the conveyance deed itself. 12. Yet another judgment that was pointed out by the learned counsel is the judgment in **Moosa v. Moideen** reported in [2001 (1) KLT 183[ wherein a learned single Judge of this Court was considering a question relating to execution of a sale deed with intention of providing security to a transaction by and between the parties. In the said case also it can be seen that the Mat.Appeal No.45 of 2016 7 affected party knew that the deed was executed against his interest and therefore, no doubt the cause of action for the declaratory relief under Article 58 arose on the date of execution of the conveyance itself. 13. Therefore the learned counsel for the appellant contended that the Original Petition is barred by limitation since 3 year period have exceeded from the date of execution of the respective deeds. 14. On the other hand the learned Senior Counsel for the respondent contended that, going by Article 58 of the Limitation Act it is clear that the cause of action for the suit arises when the right to sue is accrued to the respondent, i.e., on 5.6.2012, when the appellant separated from the respondent with the intention of abandoning the marital life. It is also contended before us that going by the contentions raised by the respondent in the Original Petition it is categoric and clear that appellant and respondent were residing together as husband and wife till 5.6.2012, on which date they separated and further the appellant has threatened the respondent that she will sell the properties belonging to her. Therefore the learned Senior Counsel Mat.Appeal No.45 of 2016 8 contends that the cause of action for the Original Petition arose when the appellant has raised a threat asserting her right over the immovable properties covered by A to C schedules. 15. In order to substantiate the contention learned Senior Counsel has invited our attention to a Division Bench judgment of this Court in **Muhammed Basheer v. Jameela** reported in [2013(1) KLT 1]. There the question considered by this court is the cause of action arising under Article 58 of the Limitation Act vis-a-vis on similar material facts and held that the date of cause of action is the date when there is a clear and unequivocal threat to infringe the right and therefore the real test is not to ascertain when the factum of purchasing the property or constructing buildings in the name of the respondent came to the knowledge of the appellant for reckoning the commencement of the period of limitation. But such commencement of the period of limitation depends on the fact, when the clear and unequivocal threat to or infringement of the right of the appellant had taken place. According to the respondent, such a threat arose on 5.6.2012 when the appellant asserted to him that the appellant will sell off the properties under which the appellant has right. Therefore Mat.Appeal No.45 of 2016 9 the learned Senior Counsel contended that no interference in the impugned judgment passed by the Family Court is warranted. 16. Having considered the rival submissions advanced by the learned counsel for the appellant Sri.Sajan Varghese and learned Senior Counsel Sri.K.Jayakumar, we find that the sole question for consideration revolves round the interpretation to be provided to Article 58 of the Limitation Act, 1963. We have extracted Article 58 (supra) and going by the said provision we find that the Parliament has used very flexible terminologies so far as the accrual of cause of action is concerned. According to us, if the intention of the Parliament was to stipulate definite nature of cause of action, the Parliament would have enacted the provision to mean and understand that the cause of action will arise from the date of execution of the respective documents. Having used the phraseologies to the effect that the time limit for suing arises when the right to sue is first accrued, which thus means the cause of action for a declaratory relief will depend on facts and circumstances of each case. To test the said law against the facts of this case, we are of the considered opinion that the cause of action for the respondent to sue first Mat.Appeal No.45 of 2016 10 accrued when the wife deserted him on 5.6.2012 after making a threat that she will sell off the properties covered by A to C schedules. We also find force in the contention advanced by the learned Senior Counsel based on Section 34 of the Specific Relief Act that, cause of action for a declaratory relief arises to a person entitled to any legal character, or to any right as to any property, when such right is denied, or interested to deny, his title to such character or right. Viewed in any circumstances, the Family Court was right in holding that the Original Petition filed by the respondent is within the time frame prescribed under Article 58 of the Limitation Act (incorrectly shown in the judgment as Article 56). We are also of the considered opinion that if such a meaning is not provided to Article 58, same would become a dead letter in the eye of law, so far as similar facts are concerned. One cannot think of having a cause of action to sue the wife when the husband and wife are maintaining a harmonious marital relationship. To put it more straight, propounding such a theory is far-fetched and far-flung, capable of inviting disastrous consequences to the equanimity and equilibrium of family life. Mat.Appeal No.45 of 2016 11 17. As a last submission, learned counsel for the appellant submitted that the appellant has disputed the date of separation between the parties alleged by the respondent, in the written statement filed by the appellant, and therefore the question of limitation is also dependent on the said fact raised by the respondent and disputed by the appellant and the same can therefore a question also of fact, to be considered at the time of trial. It is also contended by the learned counsel that only pure question of law can be considered as a preliminary issue as contemplated Order XIV Rule 2 (2) of the Code of Civil Procedure. In order to substantiate the said contention learned counsel has invited our attention to a Division Bench judgment of this Court in **Anilkumar v. Boby Joseph** reported in [2014(1) KLT 114] and contended that there the very same question was considered by this Court and held that whenever there is a mixed question of facts and law the same can only be considered along with the suit itself and not by raising a preliminary issue. Learned counsel also contended that so far as the preliminary point considered by the court is concerned, same is only with respect to the pure question of law under Article 58 of the Mat.Appeal No.45 of 2016 12 Limitation Act and nothing more and therefore, the appellant is entitled to contest the question of limitation on the basis of the alleged date of cause of action raised by the respondent viz., 5.6.2012, which is disputed by the appellant. Thus it is contended that a question based on facts can be considered by the court below along with the original petition and that opportunity may be reserved to the appellant. 18. We have considered the said contention raised by the learned counsel for the appellant. Curious aspect to the said matter is that, the appellant has invited the judgment of the Family Court by raising a preliminary point of limitation. That apart we have gone through the Original Petition and the objection filed by the appellant thereto. The respondent has a specific case that the parties were separated on 5.6.2012 and the appellant had made a threat that she will alienate the property covered by Schedules A to C. In the objection filed by the appellant, the appellant has raised a contention, that the averment that the appellant has deserted the respondent in June 2012 is not correct and further that it was due to the physical and mental cruelty exerted by the respondent that the appellant Mat.Appeal No.45 of 2016 13 ## left the matrimonial home. 19. Therefore, taking into account the specific averment with regard to the cause of action raised by the respondent and the dispute with regard to the same, the appellant does not have a case that the desertion happened any time before June 2012. If that be so, if it is on any date after the said specific date of cause of action raised by the respondent the same will not in any manner comes to the rescue of the appellant, because, only if the appellant has a case that the desertion was anterior to June 2012, the appellant can be said to have raised the dispute factually. But with regard to the cause of action of the petition, since such a contention is not raised in the objection or in the additional objection, we do not find any force in the contention of the learned counsel for the appellant that he has still a claim on the question of limitation based on the fact of cause of action raised by the respondent and the dispute raised by the appellant to the said contention. So also we bear in mind that the contention with regard to limitation was raised in the additional objection filed for the said sole purpose, much after the filing of the objection and towards the fag end of the proceedings. Mat.Appeal No.45 of 2016 14 Therefore the said argument advanced by the appellant is also declined. 20. Resultantly, we do not think that the order passed by the Family Court suffers from any incorrectness, illegality or any other legal infirmity warranting interference of this court exercising the powers conferred on us in the appellate jurisdiction. The appeal therefore fails and the same is accordingly dismissed. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY** //true copy// **JUDGE** P.A. To Judge smv 10.2.2016