Purushan @ Purushothaman v. Omana

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 5TH DAY OF FEBRUARY 2016/16TH MAGHA, 1937 Mat.Appeal.No. 338 of 2012 -----------------------------OP 1167/2011 of FAMILY COURT,ERNAKULAM APPELLANT/PETITIONER ------------------------------------- PURUSHAN @ PURUSHOTHAMAN, AGED 68 YEARS, S/O KUMMADATH KARUNAKARAN, CHERAI MURIYIL PALLIPPURAM VILLAGE, KOCHI TALUK BY ADVS.SRI.SHAIJAN C.GEORGE SMT.S.REKHA KUMARI SMT.SAJITHA GEORGE SMT.FEMY M.ANTONY ## RESPONDENT/RESPONDENT ------------------------------------------ OMANA, AGED 60 YEARS D/O KUMARAN, MUDAKKARAPILLY HOUSE, MANJUMMELKAYAYIL ELOOR VILLAGE- 682015 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K.ABDUL REHIM & RAJA VIJAYARAGHAVAN.V, JJ** - - - - - - - - - - - - - - - - - - - - Mat.Appeal.338 of 2012 - - - - - - - - - - - - - - - - Dated 5[th] February, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** _Raja Vijayaraghavan.V.(J)_ - 1.Petitioner in the original petition before the Family Court is the appellant. The respondent is his wife. Under challenge is the judgment as per which his prayer for declaration and injunction was dismissed by the court below. For the sake of clarity, parties shall be described as per their status in the proceedings before the Family Court. - 2.The Petition was preferred originally for a declaration that the respondent/wife had no 2 ## **Mat.Appeal 338/2012** manner of right, title or possession over the petition schedule property and for an injunction restraining alienation and for consequential reliefs. ## 3.Pleadings in brief are as follows :- The marriage between the parties was solemnized on 3.2.1973, during which period, the petitioner was employed at the Hindustan Aeronautic Ltd. As there were some restrictions with regard to acquisition of properties, 17 3/8 cents of property comprised in Survey No.551 of 2010 had to be purchased in the name of the respondent as per Sale Deed No. 604 of 1977 of Kuzhuppilly Sub Registrar Office. The sale consideration was raised by the petitioner and not even a single paise was contributed by the respondent. The property has been in his possession and enjoyment since the date of its acquisition. **Mat.Appeal 338/2012** 3 Relationship between the parties strained in course of time and finding that there was no chance of reunion, the parties separated by executing a divorce agreement and since then they have been residing separately. On 11.6.2011, the respondent contacted the petitioner over telephone and demanded a sum of Rs.4,00,000/- and threatened that, on his failure to pay the amount, the petition schedule property would be disposed and the sale proceeds appropriated. It was in the said circumstances that the Original Petition was filed for declaration and injunction. - 4.The respondent did not appear though attempt to effect service by various modes of service including paper publication were exhausted. Consequently she was set _ex parte_ by the trial court. **Mat.Appeal 338/2012** 4 5.In order to prove his case, the petitioner filed proof affidavit and the sale deed was produced and marked as Ext.P1. 6.The trial court, after evaluating the facts, dismissed the petition by a cryptic order, relevant portion of which reads as follows: “ _But on going through the nomenclature of the document nothing could be revealed that it is a benami transaction or the sale consideration has been used by the petitioner himself for purchasing the property. It is pertinent to note that the Benami Act has already been abolished long ago, therefore no such benami transaction can be considered as a valid document since no such law is in existence for the time being in force. Hence I find no reason to grant the decree as prayed for by the petitioner. Holding so, the petition is dismissed_ .” 7.The appellant assails the above findings. Though **Mat.Appeal 338/2012** 5 notice was issued to the respondent, no one has entered appearance and contested the appeal. 8.Learned counsel appearing for the appellant contended before us that the Family Court had failed to consider the implication of S.3(1) and (2) of the Benami Transactions (Prohibition) Act, 1988. According to learned counsel, the prohibition contained in sub section (1) of S. 3 shall not apply to properties purchased by a person in the name of his wife or unmarried daughter and he could have adduced sufficient proof to rebut the statutory presumption that it was not for their benefit. The learned counsel further contended that sufficient opportunity to adduce evidence was not granted by the court below. It is alternatively contended that the respondent, who is none other than his wife, was **Mat.Appeal 338/2012** 6 standing in a fiduciary capacity and therefore S.4 of the Act cannot be applied to the facts of this case. According to the learned counsel, the trial Court was at error in holding that the reliefs claimed by him cannot be granted. The learned counsel, relying on the judgment of the Honourable Supreme Court in **N.K.Mehra v. S. Mehra (1995 (4) SCC 572)** , submitted that neither the filing of a suit nor the taking of a defence in respect of either the present or past benami transactions involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-s. (1) and (2) of S.4 of the Act. 9.We have anxiously considered the contentions and have perused the records. The original of the sale deed has been produced by the petitioner before the **Mat.Appeal 338/2012** 7 trial court. In spite of issuing notice the respondent had not appeared. Same is the case here as well. Admittedly, the property was acquired in the year 1977. Sections 3, 5 and 8 of the Benami Transactions Prohibition Act , 1988 came into force on 5.9.1988. The other sections came into force on 19.5.1988. In **Mithilesh Kumari v. Prem Behari Khare (AIR 1989 SC 1247),** the Honourable Supreme Court had held that S 3 (1) of the Act is prospective in its operation. This finding was upheld by the Honourable Supreme Court in **R. Rajagopal Reddy ( dead) by Lrs. And Others V Padmini Chadrasekharan ( dead) by Lrs (AIR 1996 SC 238)** even though it was held that the decision in **Mithilesh Kumari** ( supra ) does not lay down the correct law in so far as the applicability of S.4(1) and 4(2) to proceedings pending when the sections came into force are **Mat.Appeal 338/2012** 8 concerned. 10.At the same time, in **N.K. Mehra V S. Mehra (1995 (4) SCC 572)** , the Honourable Supreme Court, after considering **Mithilesh Kumari** (supra) and **Rajagopal Reddy** (supra), had held as follows:- _[7]. Therefore, our answer to the question under consideration is that neither the filing of a suit nor taking of a defence in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-s.(1) and (2) of S.4 of the Act._ _[8]. Coming to the facts of the case on hand, the plaintiff had filed the suit in the High Court seeking relief in respect of properties alleged to have been purchased benami in the name of the defendant -- his wife. A learned single Judge rejected the application filed by the defendant in that suit seeking rejection of the plaint on the ground that the suit was barred under S.4 of the Act. The order of rejection of that application was appealed_ **Mat.Appeal 338/2012** 9 _against by the defendant in a First Appeal filed in the same court. A Division Bench of the High Court reversed the order of the learned Single Judge and granted the application of the defendant made in the suit seeking rejection of the plaint. It is that order which is now questioned by the plaintiff-husband in this appeal. Since the plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, as we have held earlier, he is entitled to enforce his rights in the properties concerned if he can succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporated in - sub s.(2) of S.3 of the Act, he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he succeeds in showing that the consideration for the purchases of the properties had been paid by him.”_ _( emphasis supplied )_ 11.It has been held by the Honourable Supreme Court in **N.K. Mehra** (supra) that neither the filing of a suit nor taking of a defence in respect of either the **Mat.Appeal 338/2012** 10 present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-s. (1) and (2) of S.4 of the Act. It was also held that a husband who purchases property in the name of his wife or unmarried daughter is entitled to enforce his rights in the properties if he is able to succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporated in sub-s.(2) of S.3 of the Act he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of the wife, even if he succeeds in showing that the consideration for the purchases of the properties had been paid by him. 12.That being the settled law, we are unable to **Mat.Appeal 338/2012** 11 persuade us to agree with the conclusions arrived at by the Family Court, which has been extracted above. We find force in the contention raised by the appellant that no opportunity was granted to the petitioner to advance his contentions as it appears from the records that on the day the proof affidavit was filed along with the sale deed, the matter was heard and taken up for orders. It does not appear to us that the learned Family Judge has considered the various aspects in its proper perspective. After bestowing our anxious consideration to the facts of the instant case, we are of the view that another opportunity is to be granted to the appellant to advance his contentions and also to adduce evidence in support of his case. No findings are being rendered by us as regards the sustainability of the grounds raised by the petitioner. The Family Court should **Mat.Appeal 338/2012** 12 reconsider the issue in the light of the legal provisions and also the precedents. The Family Court will also have to consider whether S.3 (1) of the Act will apply as the document was executed prior to the commencement of the Act. 13.In the result, we allow the appeal and set aside the judgment of the Family Court dated 19.03.2012 in O.P.1167 of 2011 and the Original Petition is remanded back for fresh consideration. The petitioner shall appear before the Family Court on 01.03.2016. Fresh notice shall be issued to the respondent. The parties shall be permitted to adduce evidence, if any. The Family Court is directed to consider and dispose of the matter afresh untrammeled by any of the observations contained herein. **Mat.Appeal 338/2012** 13 14.Considering the fact that the case is of the year 2011 all earnest efforts shall be taken by that court to have an early disposal of the case, at any rate, within six months from the date of receipt of this judgment. There shall be no order as to costs. ## **Sd/-** **C.K.ABDUL REHIM Judge** **Sd/RAJA VIJAYARAGHAVAN.V. Judge** Mrcs/28.1.2016 //True Copy// P.S To Judge