Thomas M. Mathew and Reji Thomas Pappen v. Jacob Thomas, Molly Jacob and Dr. Ashly Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** ## **MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945** ## **CRP NO. 365 OF 2022** ## **AGAINST I.A.NO.4/2022 IN OS 336/2022 OF MUNSIFF COURT ,PATHANAMTHITTA** ## **REVISION PETITIONERS/PETITIONERS/DEFENDANTS:** 1 THOMAS M. MATHEW AGED 72 YEARS S/O LATE. THOMAS M. MATHEW, GRACE COTTAGE, KHSB HOUSING COLONY, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689641 2 REJI THOMAS PAPPEN AGED 55 YEARS S/O LATE. ABRAHAM PAPPEN, THOTUPATTU HOUSE, KOZHENCHERRY P.O, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT - 689641, PIN - 689641 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) SAMEER M NAIR GEETHU KRISHNAN SAILAKSHMI MENON DHANALAKSHMI V.K. ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 JACOB THOMAS AGED 75 YEARS S/O THOMAS, MULAMOOTTIL HOUSE, KOZHENCHERRY P.O, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689641 2 MOLLY JACOB AGED 69 YEARS W/O JACOB THOMAS, MULAMOOTTIL HOUSE, KOZHENCHERRY P.O, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689641 3 DR. ASHLY THOMAS AGED 49 YEARS S/O JACOB THOMAS, MULAMOOTTIL HOUSE, KOZHENCHERRY P.O, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, PIN - 689641 BY ADVS. ARUN.B.VARGHESE AISWARYA V.S.(K/001596/2018) S.SREEKUMAR (SR.)(S-571) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** ## **O R D E R** _**Dated this the 27[th] day of November, 2023**_ **Defendants in O.S.No.336/2022 pending before the Munsiff Court, Pathanamthitta, are the revision petitioners herein. They are aggrieved by an order dated 15.10.2022 of the learned Munsiff in I.A.No.4/2022, which dismissed the defendants' application under Order VII, Rule 11 of C.P.C. seeking rejection of the plaint.** **2. Heard Sri.Manu Ramachandran, learned counsel for the petitioners and Sri.S.Sreekumar, learned senior counsel, instructed by Arun B. Varghese, on behalf of the respondents.** **3. Learned counsel for the petitioners submitted that the instant suit is hit by Section 4 of the** **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** **Prohibition of Benami Property Transactions Act, 1988 (the Act, for short) as also, by the provisions of the Limitation Act. In elaboration, learned counsel invited the attention of this Court to Section 4 to point out that the transaction which has been pleaded in the plaint is nothing, but one which falls within the teeth of Section 4 and such a suit is clearly barred, inviting the wrath of Order VII Rule 11 of C.P.C. On the question of limitation, learned counsel pointed out that the transaction in question was of the year 1994 and a declaration of title in respect of the said property, is sought for only in the year 2022, wherefore, the claim is hopelessly barred. In this regard, learned counsel invited the attention of this Court to the relief sought for in the plaint, which is for a declaration that the objectionable sale deeds of the year 1994 are benami in character and that the** **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** **1[st] defendant has no right, title or interest over plaint schedule item no.2 property. It was also submitted by the learned counsel that, the plaintiffs cleverly avoided pleading the dates on which they have made requests to convey the property in their favour. Clever drafting, to hush up the bar of limitation or to create the illusion of a cause of action, was frowned upon by the Hon'ble Supreme Court way back in 1977 in P. Arivandanandam v. T.V. Satyapal & another [1977 (4) SCC 467]. According to the learned counsel, it is the bounden duty of an activist Judge to nip at the bud, a suit which creates the illusion of a cause of action by clever drafting.** **4. Per contra, the learned Senior counsel would submit that a perusal of the plaint pleadings reveal a clear fiduciary relationship between the plaintiffs and the 1[st] defendant, the 1[st] defendant** **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** **being an employee under the plaintiffs until 2001. Pleadings are also to the effect that even after 2001, the 1[st] defendant continued to be a confidant of the 1[st] plaintiff. According to the learned senior counsel, the confidence was shaken only, when they received a caveat lodged by the 2[nd] defendant, to whom item no.2 property was transferred by the 1[st] defendant. As regards the demands for re-conveyance, it is specifically pleaded in paragraph no.7 of the plaint that such demand for re-conveyance was never refused by the defendant, but was only sought to be adjourned for personal convenience, or for that matter, inconvenience, wherefore, there existed no situation for the plaintiffs to doubt the 1[st] defendant's allegiance. On law, learned senior counsel pressed into service the decision of the Hon'ble Supreme Court in Marcel Martin v. M. Printer and Others [2012 (5) SCC 342]. After** **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** **inviting the attention of this Court to paragraph nos. 15,16,17,18, 19 & 20, learned Senior Counsel emphasised on paragraph nos.21 & 22 to point out that, fiduciary capacity extends to all situations, where the parties are founded on confidence and trust on one part and good faith on the other. Thus reckoned, the relationship between the plaintiffs and the 1[st] defendant herein was nothing, but one in fiduciary capacity, wherefore, it is quite permissible for the plaintiffs to lay the instant suit, uninfluenced by the bar under Section 4 of the Act. As answer to Section 4 of the Prohibition of Benami Property Transactions Act, learned counsel invited the attention of this Court to Section 2(9), which defines a 'benami transaction' and especially to Section 2(9)(A)(ii). Learned Senior Counsel pointed out that, Sub-Section 3, which formed part of Section 4 previously, was deleted by an** **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** **amendment of the year 2016. Simultaneous to the same, the definition clause was also amended, to the effect that a person standing in a fiduciary capacity for the benefit of another person is exempted from the purview of a benami transaction, wherefore, Section 4 cannot operate to the instant facts.** **5. Having heard the learned counsel appearing on both sides, this Court concludes that the impugned order rejecting the application under Order VII Rule 11, suffers from no infirmity or illegality. The learned Munsiff concluded the application only by holding that the question as to whether the 1[st] defendant stood in a fiduciary relationship to the plaintiffs and also the question of limitation requires detailed consideration, after adducing evidence. In other words, the same is not manifest on the pleadings of the plaintiffs,** **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** **wherefore, an application under Order VII Rule 11 cannot, straight away, be allowed. As regards the bar under Section 4, the explanation offered by the learned Senior Counsel is a complete answer. The persons who are standing in fiduciary capacity for the benefit of another person and properties held by such person, who stands in such fiduciary capacity, is outside the purview of a benami transaction, as per the definition under Section 2(9)A(ii). If it is not a benami transaction, there arises no question of transaction being hit under Section 4 of the Prohibition of Benami Property Transactions Act. As rightly found by the learned Munsiff, the question as to whether the relation between the plaintiffs and the 1[st] defendant was in a fiduciary relationship, is a question to be decided with more inputs in the form of evidence and the same cannot be decided only on the basis of the averments in the plaint.** **C.R.P.NO. 365 of 2022** **==> picture [37 x 9] intentionally omitted <==** **Per contra, if it is to be decided only on the averments in the plaint, it can only be concluded, prima facie, that there was a fiduciary relationship between the plaintiffs and the 1[st] defendant. This Court is also not in a position to attorn to the contention that the moment the 1[st] defendant left the service of the plaintiff, the fiduciary relationship cease to exist. It is not on account of the employment alone that a fiduciary relationship is created. The question essentially depends upon the position of the parties as to whether it is founded on confidence and trust on one part, and good faith on the other, as held by the Hon'ble Supreme Court in** _**Marcel Martins**_ **(supra).** **6. Coming to the second contention on the question of limitation, here again, this Court can only endorse the findings of the learned Munsiff.** **C.R.P.NO. 365 of 2022** **==> picture [45 x 9] intentionally omitted <==** **Learned counsel for the petitioner emphatically pointed out that an illusion of a cause of action has been created to overcome the bar of limitation, by not specifying the date on which the properties were sought to be re-conveyed to the plaintiff. As per the pleadings available in the plaint, which was the solitary input before the learned Munsiff, as also, this Court, it cannot be concluded that an act prejudicial to the plaintiffs was committed by the defendant, so as to erode the trust, occurred prior to the receipt of notice in the caveat petition. As rightly pointed out by the learned Senior Counsel, there was no negation or repudiation of the request for re-conveyance, going by the averments in the plaint. All what the 1[st] defendant sought for, was to postpone such re-conveyance on the ground of convenience and the plaintiffs, having regard to the conduct of the 1[st] defendant hither to, had no** **C.R.P.NO. 365 of 2022** **==> picture [45 x 9] intentionally omitted <==** **occasion to doubt his allegiance to the plaintiffs. In such circumstances, it cannot be concluded that the suit is barred by limitation from the statements made in the plaint, as envisaged in Order VII Rule 11 (d) of the Code of Civil Procedure.** **7. This Court therefore finds little merit in this Civil Revision Petition and the same will stand dismissed. It is clarified that all observations and findings in this order are only made for the purpose of the C.R.P. and the suit will proceed, untrammeled by any of the observations made herein above.** Sd/- **C. JAYACHANDRAN** **JUDGE** **TR** **C.R.P.NO. 365 of 2022** ..12.. ## **APPENDIX OF CRP 365/2022** PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE PLAINT IN O.S NO.336/2022 OF MUNSIFF'S COURT, PATHANAMTHITTA Annexure A2 THE TRUE COPY OF THE I.A NO.4/2022 IN O.S NO.336/2022 OF MUNSIFF'S COURT, PATHANAMTHITTA Annexure A3 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PLAINTIFFS TO ANN.A2 APPLICATION