Santhakumari v. Swaminathan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945** **RFA NO. 306 OF 2010** **AGAINST THE JUDGMENT IN OS 175/2006 OF PRINCIPAL SUB COURT, PALAKKAD** **-----** ## **APPELLANT/PLAINTIFF:** SANTHAKUMARI, W/O SUDEVAN,PANCHAVADI,PALLAVOOR, PALAKKAD. BY ADV SRI.MATHEW JOHN (K) ## **RESPONDENT/DEFENDANT:** SWAMINATHAN @ SHANMUGHAN S/O.PANGUNNI, CHERAPARAMBIL HOUSE, KULAVANMOKE, KUZHALMANNAM, CHITHALI, KUZHALMANNAM, PALAKKAD. BY ADV SRI.A.R.GANGADAS THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.306 of 2010** **= = = = = = = = = = = = = = = = = = Dated this the 10[th] day of July, 2023** ## **J U D G M E N T** Challenging the dismissal of a suit for partition, the plaintiff is in appeal. 2. The plaint schedule property belongs jointly to the plaintiff and the defendant as per Ext.A3 Sale Deed No.358 of 1972. The suit is filed for partition and separate possession of plaintiff's half share over the property. 3. The defendant contended that, though Ext.A3 purchase is in the names of the plaintiff and the defendant, the acquisition was in fact made for religious purposes on behalf of the public. The consideration for the purchase was raised by the public. Pangunni and Theethan, the father of the defendant and the plaintiff respectively, were acting as trustees for the public. The plaintiff does not have exclusive right ## **R.F.A. No.306 of 2010** **==> picture [34 x 9] intentionally omitted <==** over the property. On such contentions, the defendant sought for dismissal of the suit. 4. The trial court held that the predecessors of the plaintiff and the defendant respectively, were the trustees of the Desom Committee and the property was purchased for conducting festivals and worship of the public. Accordingly, the suit was dismissed. 5. Heard Sri.Mathew John, learned counsel for the appellant – plaintiff and Sri.A.R.Gangadas, learned counsel for the respondent-defendant. 6. The point that arises for determination is: _“Do the evidence on record justify the finding of the trial Court that the purchase under Ext.A3 was for and on behalf of the people of the locality for festivals and religious purposes?”_ 7. To hold that the purchase under Ext.A3 was for the benefit of the public to conduct festivals and worship, the trial court entered into the following findings:- **R.F.A. No.306 of 2010** -: 3 :- _(i)_ Ext. C1 commissioner's report reveal that the property had been enjoyed by the public for conduct of festivals and for religious functions. _(ii)_ The plaintiff was not able to produce any basic tax receipt prior to the period of institution of the suit. _(iii)_ The evidence indicates that the fathers of the plaintiff and defendant respectively, are trustees of the Desom Committee which used to conduct festivals and worship in the property. - _(iv)_ Adverse inference is to be drawn against the - plaintiff for failure to mount the witness box. 8. The Court has held that, Ext.C1 Commissioner's Report supports the defence case that the property is being used for the conduct of religious functions and festivals. The learned counsel for the appellant took me through Ext.C1 report in its entirety. On a reading of the report, it is evident that the conclusion arrived at by the trial Court is erroneous. The Commissioner **R.F.A. No.306 of 2010** -: 4 :- noticed a rubble flooring in the property in a square shape at a height of one metre from the ground level. The Commissioner noticed that such construction was less than ten days old. The Commissioner noticed that there were no indications to find that it was an old construction. Commissioner noticed that a lamp and a flower garland is kept there. However, the Commissioner noticed that there were no burn marks or smoke marks which would normally occur by the continuous lighting of lamp for over a long period of time. The sides of the construction were seen covered with sand. However, the commissioner noticed the absence of growth of even grass or small plants thereon. The commissioner reported the age of the construction to be not more than ten days. From the above it is evident that, the construction was on the eve of the suit and an attempt was made to make it appear that some religious ceremonies were being conducted there. The finding entered into by the trial Court that Ext.C1 report indicates that the plaint **R.F.A. No.306 of 2010** -: 5 :- schedule property was being used for religious functions and for conduct of festivals, cannot thus be justified. 9. Though the trial court has entered into a finding that the plaintiff failed to produce any tax receipt prior to the period of suit, Ext.A2 is a tax receipt dated 24.12.2002 much prior to the filing of the suit. The same was not taken note of by the Court. 10. Ext.A3 Sale Deed is an outright sale in the names of the plaintiff and the defendant. There is no recital of any public involvement or any public purpose. Though the purchase was in the year 1972, no documents have been produced to show that this property was under the enjoyment of the public or was being used for any religious functions or ceremonies. Though it is claimed that money for purchase of property was raised by contributions from the public and that the acquisition was for the benefit of the public, there is absolutely no document evidencing the same. There is no evidence of formation of any trust or even public involvement. The **R.F.A. No.306 of 2010** -: 6 :- vendors of Ext.A3 were not examined. DW1 while in crossexamination has stated that he does not know that who had authorised the fathers of the plaintiff and the defendant to purchase the property for public. DW2 deposed that though in the year 1992 he realised that purchase was in the individual names of the plaintiff and the defendants, no steps were taken in that regard. It tells upon the genuineness of the contention. 11. The trial court has observed that the evidence of PWs.1 to 3 reveal that the fathers of plaintiff and defendants respectively, were the trustees of the Desom Committee. DW3 was aged only 40 years on the date of his examination in the year 2009 and he could by no stretch of imagination have any sort of knowledge with regard to the acquisition of the property in the year 1972 under Ext.A3. Even DWs.1 and 2 were only in their early twenties. As DW1, the defendant would depose thus:- **R.F.A. No.306 of 2010** **==> picture [34 x 9] intentionally omitted <==** “]¦p-®n, Xo-¯³ F-ónh-sc Bcv G-ev-]n-¨p F-óv A-dnbnñ. A-hÀ Trustee-am-cm-Wv F-óv a-\-Ên-emb-Xv Aós¯ Im-ew th-e \-S-¯pó-Xv C-h-cm-Wv Fó-Xv sIm ïmWv.” Therefore, his evidence is of no assistance. DW2 would depose that it was only recently that he came to know that the properties were purchased in the names of the plaintiff and the defendant. He deposed thus:- “A-\ym-b ]«n-I h-I-IÄ A-\ym-b-¡m-cn-bp-tSbpw {]-Xn-bp-tSbpw t]-cn-em-Wv hm-§nb-Xv Fóv A-Sp-¯-Im-e¯m-Wv Rm³ A-dn-ªXv”. However, that does not go in tune with the defendant's case that the property was purchased in the names of the plaintiff and defendants on behalf of the public. DW2 would further depose that records regarding collection of funds for conduct of functions are available. However, he would add that no documents are available with regard to the decision and collection of funds for purchase of plaint schedule property. If since 1972 onwards the plaint schedule property was being used for ## **R.F.A. No.306 of 2010** -: 8 :- by public for festivals as contended by the defendant, necessarily there should be some documents to evidence the same. The evidence of DWs.1 to 3 does not advance the case of the defendant with regard to the alleged arrangement of trust. There has been a perverse appreciation of the evidence by the trial court. 12. The findings of the trial court that, the acquisition was in the nature of a trust, for and on behalf of the public, that the fathers of the plaintiff and defendant were acting as trustees, and that the property is being used for the conduct of public and religious functions, is totally unsupported by any evidence and are liable to be set aside. 13. Ext.A3 Sale Deed stands in the individual names of the plaintiff and the defendant. That there has been a purchase of property under Ext.A3 Sale Deed is not in dispute. Ext.A2 is the tax receipt of the year 2002. The burden is on the defendant to prove that under Ext.A3 sale deed title has not vested either with the plaintiff **R.F.A. No.306 of 2010** -: 9 :- or the defendant and that the acquisition part took the character of trust. Under such circumstances, the nonexamination of the plaintiff was not of much significance. 14. Though the learned counsel for the appellantplaintiff would urge that, the plea set up by the defendant is one of a benami purchase which is prohibited under the Benami Prohibition Act, irrespective of the question of applicability of the Act to the transaction in question being of the year 1972, the plea regarding the nature of arrangement being essentially one of trust, is exempted by the provisions of the Act. 15. On the discussions as supra, the plaintiff is entitled for partition and separate possession of his share. 16. Resultantly, this appeal is allowed. The decree and judgment of the trial court is set aside. The preliminary decree for partition is passed declaring one ## **R.F.A. No.306 of 2010** -: 10 :- half share of the plaintiff and defendant over the plaint schedule property. The property is to be divided by metes and bounds. Equity and reservation to be worked out in the final decree proceedings. In the light of the judgment of the Apex Court in _**Kattukandi Edathil Krishnan and another v. Kattukandi Edathil Valsan and others (2022 SCC OnLine SC 737),**_ parties are directed to appear before the trial court on 03.08.2023. and the trial court shall cause final decree proceedings to be commenced. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge