Shajila Beevi d/o Nassiruddin Parayil v. P. H. Mohammed Salim

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939 Mat.Appeal.No. 633 of 2011 ( ) ------------------------------- AGAINST THE ORDER/JUDGMENT IN OP 777/2010 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 06-07-2011 APPELLANT(S)/RESPONDENT: ----------------------- SHAJILA BEEVI D/O. LATE NASSIRUDDIN PARAYIL, KUNNUMPURATH, KARAPPUZHA, KARAPPUZHA.P.O,, KOTTAYAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.R.AZAD BABU RESPONDENT(S)/PETITIONER: ------------------------- P.H.MOHAMMED SALIM S/O. LATE P.O. HASSAN KUTTY, KUNNUMPURATH, KARAPPUZHA, KARAPPUZHA.P.O,, KOTTAYAM VILLAGE, KOTTAYAM TALUK-686 582. R1 BY ADV. SRI.C.S.MANILAL BY ADV. SRI.S.NIDHEESH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 1406-2017, THE COURT ON 9/8/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== Mat.Appeal No. 633 of 2011 ================== Dated this, the 9[th] day of August, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed against the judgment in OP No.777/2010 of the Family Court, Kottayam at Ettumanoor. The original petition was filed by the respondent herein. 2. The facts of the case are as under and the parties are referred to as shown in the original petition. 3. The parties belong to Muslim community and they got married as per Muslim religious rites and ceremonies on 24/1/1991. At the relevant time, the petitioner was employed in Muscat. After marriage, they resided together for one month and thereafter he returned to Muscat. Since he was unable to arrange visa for the respondent, he resigned his job and returned to Kerala on 1/6/1991. He thereafter obtained a job and continued his search for an opportunity in Gulf countries. Later, he went to Mat.Appeal No.633/11 -:2:- Bahrain and the respondent was also taken to Bahrain in 1992. She became pregnant and came back to Kerala and on 30/8/1993, she gave birth to a female child. The respondent gave birth to the second daughter on 29/8/2000. 4. Petitioner contended that he had come back to Kerala on 7/6/1994. He intended to purchase 38 cents of land for a total consideration of `5,50,000/-. He made arrangements for the funds and purchased 28.5 cents as per sale deed No.2700/1994 dated 25/8/1994 which is described as plaint 'A' schedule. He purchased the remaining 9.5 cents including the residential house on 25/5/1995 as per sale deed No.1805/1995 which is described as plaint 'B' schedule. Both the properties were purchased by him in the name of his wife for convenience to enable her to take care of the affairs of the property in his absence. According to him, after purchasing the property, he was residing in the said property and he was in possession of the same. He further contended that plaint 'C' schedule property was also purchased by him in the name of the respondent and she was only a trustee of that property. It was purchased for the benefit of the family with his Mat.Appeal No.633/11 -:3:- own funds. Since he had only a girl child, to avoid inheritance by other male members of the family, the property was purchased in the name of the respondent though the entire consideration was paid by him. 5. Petitioner also contended that he had purchased and entrusted with the respondent substantial quantity of gold ornaments from time to time to keep the same in custody as a family asset and for the benefit of their minor children. It is contended that for raising funds for purchasing 'A' and 'B' schedule properties, gold ornaments entrusted by the petitioner to the respondent were pledged by the respondent and her mother and the ornaments were taken back by using his own funds. He also refers to the amounts sent by him through banks and financial institutions. He further contended that he had transferred `7 lakhs to the SB account of the respondent on different dates from 1995 onwards. It is stated that the intention of sending the said money was to keep the same for the purpose of the family and it was not for any expenditure as such. Other funds were available as rent which was being received by the Mat.Appeal No.633/11 -:4:- respondent for the day to day necessities. He also contended that another item of property having an extent of 15 cents was purchased at Ochira. However, the respondent got the sale deed executed in her own name though the entire consideration was paid by him. He further contended that he was asked to purchase another 36 cents of land adjoining the family property of the respondent in order to get road facility for them, which he had done. 6. Petitioner further submits that there were matrimonial disputes between the parties as she was not interested in taking care of the family. In April, 2006, the family members were taken to Bahrain on a visiting visa and they stayed there for two months. On 14/12/2006, he came on leave and during that visit, he could see a pregnancy test result dated 16/3/2006 and an O.P. ticket dated 17/3/2006 which indicated abortion of one Smt.Maheswari at District Hospital, Kottayam. Later, it was understood that the respondent was the patient and she had undergone an illegal abortion concealing her identity. Petitioner understood that one Akbar was a regular visitor in their house and Mat.Appeal No.633/11 -:5:- respondent had illegitimate relationship with him. When her close relatives were informed about the same, mother of the respondent had requested the petitioner and his elder daughter to pardon the respondent. It is stated that the respondent also admitted her illegitimate relationship with the said person. To avoid any further embarrassment to the family, he took the respondent and children to Bahrain in April, 2007 and children were admitted in an Indian school. It is alleged that during their stay, she was making false allegations against him and she took away the travel documents and returned back to Kerala along with the children on 10/10/2009. It is further alleged that the respondent continued her loose life and she started working as an agent for some financial companies. Though the relatives of the petitioner prevented her, she was not ready to obey their direction. When the petitioner came back, he made enquiries with the Bank and it was found that she had withdrawn an amount of `20,55,000/- from his bank account. It is in the said circumstances that the petitioner had sought for a declaration that he is the absolute owner of 'A', 'B' and 'C' schedule Mat.Appeal No.633/11 -:6:- properties, for a declaration of title in his favour, a decree for recovery of `7 lakhs with 9% interest and for a direction to return gold ornaments weighing 125 sovereigns and 5 grams given to the respondent or in the alternative to pay value of `16,58,250/with interest. 7. The respondent filed written statement denying the aforesaid allegations. According to her, all the allegations are baseless and the properties were purchased by her in her name after getting money from her parents and also by selling the gold ornaments belonging to her. She also denied the allegation of illicit relationship which has been stated by the petitioner. She also denied the allegation of abortion. According to her, all these allegations are fictitious and she claimed absolute title in respect of all the properties. 8. The Family Court after considering the respective pleadings of the parties took evidence to consider the following points. - _“1. Who paid the consideration for plaint A, B and C schedule properties?_ _2. Whether the declaration prayed for is_ Mat.Appeal No.633/11 -:7:- ## _allowable?_ _3. Whether the injunction relief is to be granted?_ _4. Whether the petitioner is entitled to recover Rs.7 lakhs from the respondent with interest?_ _5. Whether the petitioner entrusted 125 sovereigns and 5 grams of gold ornaments with the respondent to keep it for the benefit of the family, and if so whether she is liable to return the same or its equivalent value to the petitioner?_ _6. Reliefs and costs.”_ 9. Before the Family Court, the petitioner relied upon the evidence of PWs 1 to 6 and Exts.A1 to A53. Respondent relied upon the evidence of RWs1 to 7 and Exts.B1 to B14 documents. Exts.X1 to X9 were marked as court exhibits. The Family Court decreed the suit declaring ownership and title of the petitioner over the plaint A, B and C Schedule properties. The respondent was restrained from alienating, encumbering or creating any documents with respect to plaint A, B and C schedule properties. Petitioner was also granted a decree for recovering `7 lakhs from the respondent along with interest at the rate of 6% per annum. She was also directed to return gold ornaments weighing 125 sovereigns and 5 grams or equivalent value of `16,58,250/-. Mat.Appeal No.633/11 -:8:- 10. In the appeal, learned counsel for the appellant contended that the entire evidence requires to be reappreciated as the Family Court had erroneously passed the decree as sought for. Counsel for the appellant relied upon a judgment of this Court in _**Meenakshi Ammal v. S. Vijayalekshmi and Others**_ (2016 (4) KHC 287) 11. On the other hand, learned counsel appearing for the respondent supported the judgment of the Family Court. He also placed reliance on the following judgments:- (i) _**Muhammed Basheer v. Jameela**_ (2013 (1) KLT 1) (ii) _**Belcita Vincent Gomez v. Vincent Gomas**_ (2013 (4) KLT 890) 12. The points to be decided have been correctly evaluated by the Family Court. Therefore, the first question to be considered is whether the Court below was justified in granting a declaration of ownership in favour of the petitioner with reference to plaint A, B and C schedule properties. Admittedly, all these properties were purchased in the name of the respondent /wife. Plaint A schedule property is having an extent of 28.5 cents Mat.Appeal No.633/11 -:9:- covered by sale deed No.2700/1994. Plaint B schedule is having an extent of 9.5 cents covered by sale deed No.1805/1995. Plaint C schedule is a shop room bearing No.KMC 15/82A2 on the ground floor of building known as Aswathy towers along with 1.2% undivided interest over 4.79 Ares in Re.Sy.No.44 in Block No.91 of Kottayam village. The documents with reference to plaint A and B schedule properties are produced as Exts.A3 and A4 and with regard to Plaint C schedule as Ext.B12 which is dated 13/05/1999. Exts.A3 and A4 have been executed on 25/8/1994 and 25/5/1995 respectively. The contention of the petitioner/husband is that these properties were purchased in the name of the respondent as a trustee. Since the petitioner was employed abroad, it would be convenient for his wife to manage the property and rent out the building. It is also done to avoid “ _anavakaasam_ ”. According to him, the entire consideration for purchase of the properties was paid by him to the vendor and from his exclusive funds. In the written statement, respondent denied the aforesaid contention. According to her, petitioner had not paid any amount towards sale consideration for purchase of Mat.Appeal No.633/11 -:10:- the said property and the entire property was purchased by her using her own money. She however admits that gold ornaments gifted by the petitioner to her were collected back by him by the end of August, 1994. According to her, the sale consideration of 28.5 cents of A schedule property was `1,71,000/- and B schedule property `80,000/-, which included the price of building as well. She contends that sale consideration of `80,000/- was raised by the respondent by selling a portion of the gold stock in the jewellery of the family of the respondent and with her mother's permission. She reiterates that petitioner had not spent any amount for purchase of A, B and C schedule properties and the entire amount was spent by her. It is not in dispute that PW1 at the relevant time was a Non Resident Indian (NRI) and employed at Bahrain. Even at the time of marriage, he was employed in Muscat and the fact that he was drawing a monthly salary of 250 R.O. (Riyals Omani) is proved by Ext.A17, a copy of the employment certificate. He joined in the Ministry of Electricity and Water at Bahrain on 30/4/1992 with a monthly salary of 350 Bahrain Dirhams. He had produced documents to show his salary Mat.Appeal No.633/11 -:11:- and other perks which he had received from his employer. Therefore, it cannot be disputed that he was having sufficient income from his employment during the relevant time when the properties covered by Exts.A3 and A4 were purchased. PW1 in his evidence had indicated that he negotiated with the owners of property Abraham Scariah and his wife Thankamma. The title deed of the property was pledged to the Urban Co-operative Bank, Kottayam. He paid the requisite amount for releasing the documents from the Bank . The fact that these prior documents were pledged with the Co-operative Bank is borne out by Exts.A47 and A48. PW1 also produced Ext.A16, copy of post dated cheques issued by him to the vendor as security for payment of the consideration for purchase of property in instalments. PW1 has stated that he had withdrawn amounts from his SB account and NRI account for purchasing the A schedule property which is also evident from Exts.A5 to A7 which clearly indicates that he had withdrawn `2,51,000/- between 23/8/1994 and 25/8/1994. His evidence is corroborated by PW4, Smt.Thankamma Scariah. She deposed that the negotiations for sale of property were held Mat.Appeal No.633/11 -:12:- between her husband and the petitioner and the entire sale consideration was paid by the petitioner. PW2 is the brother of the petitioner who deposed that he had arranged brokers for purchasing Plaint A and B schedule properties. PW3 is one of the brokers to the transaction who would say that at the instance of PW2, PW1 had agreed to purchase the property and he had paid the entire consideration to the vendors. Though the respondent contended that she had expended money for purchasing A and B schedule properties, admittedly, she is a house wife and she never had any income during the relevant time. According to her, she had sold some gold jewellery of her family to raise funds. She also contended that she had taken loan from her uncle Dr.Ameen. She further contended that she had sold certain property of her father to raise funds for purchasing Plaint A and B schedule properties. As rightly observed by the Family Court, none of them had been examined to prove the aforesaid contention of the petitioner. Other than her oral testimony, she was unable to prove the fact that she was in possession of sufficient funds for acquiring the said property. Mat.Appeal No.633/11 -:13:- 13. Learned counsel for the appellant however submits that the evidence of the respondent/wife was not properly considered by the Family Court. It is argued that there was sufficient evidence to prove the fact that she was in possession of enough funds for acquiring the property. Specific reliance is placed on Ext.B7 which is a statement dated 9/8/2010 of PW4. In Ext.B7 statement, PW4 has stated that the sale price of A and B schedule properties was paid by RW1 and her uncle. But during examination of PW4, when she was confronted with Ext.B7, she had stated that she had occasion to sign Ext.B7 without knowing the intricacies of the document and on the request of the respondent. According to her, respondent had approached her three four times for signing the document. It is borne out by Ext.B7 that the signature was obtained in a statement which was written by some other person. The respondent also admitted during examination that Ext.B7 was prepared by her advocate clerk during the pendency of the original petition. In these circumstances, we do not think that Ext.B7 document will help the respondent to substantiate her contention. RW3 claims to be a Mat.Appeal No.633/11 -:14:- broker of the transaction involved in A schedule property. He deposed that `10,000/- was paid as advance and on the very next day, `1.75 lakhs was paid by the respondent. The balance amounts were paid in instalments by the respondent at Ochira. According to him, he had gone to the house of respondent on several occasions and received amount from her brother and uncle. His deposition was that the entire consideration for A schedule property was paid by the family of the respondents. But, the answer given in cross examination would indicate that he was having no connection whatsoever with the transaction. His evidence was found to be not believable by the Family Court during cross examination and we are also forced to confirm the said view. His statements are found to be incorrect and contrary to even the pleadings of the respondent. RW4 is a person who claims to have purchased gold ornaments from the respondent and her mother. He deposed that he had purchased about 89 sovereigns of gold ornaments and paid `3,05,270/-. In cross examination, he deposed that he had only `75,000/- with him and the balance amount was borrowed from his friends. It could be Mat.Appeal No.633/11 -:15:- seen from evidence of RW4 that the respondent was given `3,05,270/- by selling gold ornaments. In that event, it would have covered the value of entire A and B schedule properties which was below `3 lakhs. The Family Court observed that if such amount was available, there was no reason for her to borrow amount from her uncle Dr.Ameen. Hence, it was found that the evidence of RW4 was not believable under the circumstances. 14. Contrary to the above evidence adduced by respondent, Exts.A5, A6 and A7 would show that the gold ornaments brought by the petitioner and entrusted to his wife from time to time were pledged through the respondent and her mother. At the time of purchasing A schedule property, `99,000/was taken as gold loan in 1994 and `61,000/- was taken as gold loan in the year 1995 for purchasing B schedule property. During cross examination, RW1 admitted to have pledged the gold ornaments and it was later released using the amount sent by the petitioner. Ext.A36 is also a document which evidences that gold had been pledged at State Bank of Travancore, Ochira. From the evidence of the above witnesses and on a consideration of the Mat.Appeal No.633/11 -:16:- factual aspects involved in the matter, the case of the petitioner appeared to be more probable. There is enough evidence to show that he purchased 38 cents of land and the building with his own funds, but in the name of the respondent. Though the respondent contended that she was instrumental in raising the funds through the members of her family, there is no evidence for the same and the evidence adduced by her is not believable. Therefore, the Family Court was justified in coming to the conclusion that A and B schedule properties were purchased by the petitioner in the name of his wife. 15. With reference to C schedule property, according to the petitioner, while examined as PW1, he had stated that he sold 36 cents of property which was adjoining the family property of the respondent. The sale consideration of the said property along with the security which he had received from a tenant in his family property was used for purchasing the said shop room. Respondent on the other hand contended that she had purchased the land in the name of the petitioner by using sale consideration received by sale of her mother's property. The evidence in the Mat.Appeal No.633/11 -:17:- case would show that the petitioner had purchased 36 cents of land at Ochira adjoining 66.5 cents of property in the name of the respondent. The said property was jointly sold by them as per Ext.B6 sale deed for a consideration of `4 lakhs. Respondent while examined as RW1 deposed that the total consideration of the property was `24 lakhs and she received `4 lakhs as advance and, on execution of sale deed, she received `8.5 lakhs. She also purchased a shop room in Aswathy Towers in the name of petitioner as per document No.57/2009 marked as Ext.B3. Petitioner also purchased another shop room in his name covered by Ext.B5. The sale deed with reference to C schedule property is Ext. B12 dated 13/5/1999. In fact, the contention of the respondent in the written statement was that she had purchased C schedule shop room by using her share of income received by sale of her family jewellery. She had no contention that the consideration paid for purchasing C schedule property is the sale consideration received by sale of her property at Ochira. This stand of the respondent while being examined as RW1 is contrary to the stand taken in the written statement and therefore, her Mat.Appeal No.633/11 -:18:- contention that she had purchased C schedule property with her own funds obtained by her by sale of jewellery cannot be believed. It is rather clear from the factual circumstances that three shop rooms were purchased by the parties by effecting sale of property covered by Ext.B6. Two shop rooms were purchased in the name of the respondent/wife and one in the name of the petitioner/husband. Petitioner stakes a claim in respect of only one of the shop rooms. In so far as the case set up by the respondent cannot be believed, it has to be inferred that the petitioner's case has to be believed in so far as he has purchased the property by using the funds received by him by sale of his own property in the name of his wife, she is only a trustee and it has to be held that he alone is entitled for the right, title and interest over the said property. The aforesaid finding of ours is supported by the evidence of PWs5 and 6. PW5 is the assignor of the shop room and PW6 is the brother in law of the petitioner whose oral evidence supports the case of the petitioner. 16. The respondent has also adduced certain oral evidence to support her version with reference to C schedule property. Mat.Appeal No.633/11 -:19:- RWs5 and 6 are the said witnesses. RW5 claims that he is a mediator and he admits to have seen the respondent handing over the consideration to the owner of the property. RW6 is the vendor of C schedule property. He deposed that respondent had given advance amount of `49,000/- and the balance amount was given directly. He deposed that at the time of executing sale deed, petitioner was also present. His evidence does not help the respondent in any manner for the reasons already stated regarding the contradiction in the contention urged by the respondent and the evidence. 17. Now coming to the claim with reference to recovery of `7 lakhs, the petitioner has a case that as per Ext.A12 series receipts, he had deposited `7 lakhs in the account of respondent at SBT, Ochira. The amount was entrusted to her for the benefit of the family and was not for any expenditure. Respondent however contended that petitioner was not having sufficient salary and he was not taking care of the family and he was neglecting his wife and children. In evidence, the respondent admitted to have received the amount covered by Ext.A12 series receipts. Mat.Appeal No.633/11 -:20:- Evidence of PW1 would show that he had deposited more than `20 lakhs in his account as evident from Ext.A13 which has been withdrawn by the respondent for her own purpose. She was also receiving various amounts as rent from the buildings of the petitioner. Sufficient documentary evidence is available to show that she was collecting rent on behalf of the petitioner and also other amounts which was due to him from Life Insurance Corporation, National Savings Account etc. Learned counsel for the appellant/respondent contended that whatever amount had been received by her during the marital relationship was for the benefit of the family and for the expenditure to be incurred. The money was being paid over a period of time and to account it at a later stage of the marital life will be very difficult. Perusal of Ext.A12 series documents would show that the amounts were being deposited at SBT, Ochira over a period of time. When the amount is being utilized, petitioner was in a position to know the purpose for which the amount was being spent and he had all the facility to enquire about the same. At a very late stage, when the marital tie has been broken, it is not proper to seek for return of Mat.Appeal No.633/11 -:21:- the amount which had been permitted to be utilized by the wife. Of course, there is evidence to show that substantial amounts had been taken by the respondent from the account of the petitioner. But, the deposit and the withdrawals were being effected over a period of time with the consent and knowledge of the petitioner. Under such circumstances it is not proper to direct the respondent/wife to return any such amount. Though the contention urged by the petitioner that there had been over expenditure by the wife might be true, still,when there is substantial delay in seeking for recovering the said amount, we do not think that the Family Court was justified in granting a decree for recovering such amount. 18. Now coming to the direction to return gold ornaments, it is apparent that all the gold ornaments purchased by him on various occasions and were entrusted with the respondent for treating it as a wealth of the family. It is common practice that gold is brought in the form of ornaments so that the women at the household can use the same and it is a valuable property of the family. Entrustment of the gold brought by the husband is Mat.Appeal No.633/11 -:22:- therefore an asset of the family and the respondent was bound to retain the same as a trustee. She had no authority to appropriate the same without the consent or approval of the petitioner. The evidence in this case consists of Ext.A2, which indicates that petitioner had brought 466.64 grams of 24 carrot gold. Exts.A38, 39 and 40 to indicate that he had purchased various items of gold ornaments. The respondent however contended that she herself has purchased several gold ornaments and that some of the gold ornaments were gifted by the petitioner to the respondent. She however admitted that she was having only a few of the ornaments and she was not aware of the weight. According to her, the gold ornaments were kept in the locker and she does not know whether it is available presently. Petitioner however contended that all the gold ornaments were retained by the respondent and it is kept in her locker. Ext.X5 is the ledger extract of the respondent's account with Tamilnadu Mercanitle Bank which indicate the locker details and its operation. It is evident from Ext.X5 that the respondent was regularly operating the locker until 30/5/2011. Mat.Appeal No.633/11 -:23:- 19. Family Court found that when she was still operating the locker facility, it has to be inferred that she was in possession of the gold ornaments. The Family Court did not believe her contention that she was operating the locker to keep LIC documents. When the petitioner had clearly proved the fact of acquisition of such quantity of gold ornaments, we do not think that the Family Court had committed any error in directing return of 125 sovereigns and 5 grams of gold ornaments or its equivalent value. 20. Having regard to the aforesaid finding of ours, we are of the view that the judgment and decree have to be sustained with reference to the declaration given in respect of A, B and C schedule properties and the direction to return 125 sovereigns and 5 grams or its equivalent value of `16,58,250/-. However, we set aside the direction of the Family Court by which petitioner was permitted to recover `7 lakhs from the respondent. Appeal is hence partly allowed as under:- (i) The direction of the Family Court permitting the petitioner to recover `7,00,000/- with interest is set aside. Mat.Appeal No.633/11 -:24:- - (ii) In all other respects, the decree is confirmed. - (iii) Parties shall bear their own costs. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge