Yamuna A.G. v. D. Sasi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944 MAT.APPEAL NO. 479 OF 2019 AGAINST THE JUDGMENT DATED 22.04.2019 IN O.P.NO.700 OF 2014 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD APPELLANT:** **YAMUNA A.G. AGED 52 YEARS D/O. AMBIKAVATHY, RESIDING AT TC 24/1484, THYCAUD P.O., THIRUVANANTHAPURAM 695 014.** **BY ADVS. G.RANJU MOHAN M.SANTHI** ## **RESPONDENT/S:** **D.SASI AGED 65 YEARS RESIDING AT TC 41/1535, DEVI BAKERY, NEAR SASTHAM KOVIL, MANACAUD P.O., THIRUVANANTHAPURAM 695009** **BY ADV SRI.V.VINAR** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.12.2022, THE COURT ON 11.01.2023 DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.479 of 2019 ## **JUDGMENT** ## P.G.Ajithkumar, J. This is an appeal filed under Section 19(1) of the Family Courts Act, 1984. The petitioner in O.P.No.700 of 2014 on the file of the Family Court, Nedumangad is the appellant. She filed the Original Petition seeking a decree of declaration of title, injunction, return of gold ornaments and recovery of money. As per the judgement dated 22.04.2019 that O.P. was dismissed. The petitioner assails legality and correctness of the said judgement. 2. This appeal was admitted on 01.07.2019. On 17.10.2019 as per the order in I.A.No.1 of 2019, both parties were directed to maintain status quo in respect of the immovable property. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. Marriage between the appellant and the respondent was solemnised on 05.08.1991. They have two daughters. At 3 Mat.Appeal No.479 of 2019 the time of marriage, mother of the appellant executed settlement deed No.1493/1991 in respect of 75 cents of property belonging to her in favour of the appellant and the respondent. The said assignment was in consideration of the marriage. Although the respondent also was shown as a settlee, he did not get any right in the property. At the time of marriage, 12 sovereigns of gold ornaments and Rs.20,000/was given to the appellant. The respondent misappropriated the said gold ornaments and money. 12 cents out of the aforesaid 75 cents of property was sold by virtue of sale deed No.1738/1996 for an amount of Rs.6 lakhs. That amount was also misappropriated by the respondent. A building was constructed in the remaining 63 cents of property by the appellant utilising her own fund. 10 cents of land from that 63 cents was later sold. The property remaining is 53 cents and the building thereon. The appellant is the sole owner of it, but the respondent has been trying to alienate half right in the property claiming title. He has no such right. In such circumstances, the appellant filed the original petition seeking 4 Mat.Appeal No.479 of 2019 declaration of her title in respect of the said 53 cents of land and the building thereon, an injunction restraining the respondent from interfering with the appellant’s peaceful enjoyment of the property, to recover Rs.6 lakhs being the sale price of 12 cents of land, Rs.13,38,000/- being the interest thereon, Rs.20,000/-, which was paid to the respondent at the time of marriage and also recovery of 12 sovereigns of gold ornaments. 5. The respondent filed an objection controverting the claims and contentions of the appellant. He contended that the original petition was filed without any bona fides. At the time of marriage, the mother of the appellant did not have any money to meet the marriage expenses. Therefore, the respondent who was working abroad advanced money sufficient to meet the marriage expenses and in consideration thereof 75 cents of property was assigned in favour of the appellant as well as the respondent. It was a transfer not in consideration of the marriage. The respondent improved the property by planting rubber trees spending Rs.8,80,000/-. He 5 Mat.Appeal No.479 of 2019 has constructed the house thereon spending Rs.28 lakhs. He was working abroad during that period also and the entire cost of construction was borne by him. The sale proceeds of 12 cents of land was appropriated by the appellant herself. Rs.28 lakhs received when 10 cents of land was sold was deposited in the name of the mother of the appellant. The respondent did not sell the gold ornaments and misappropriated its value. It is totally incorrect that Rs.20,000/- was paid by the mother of the appellant at the time of marriage. Accordingly, the respondent contended that he has half right in the petition schedule property, and the building belongs to him and that he had no obligation to return the gold ornaments or pay any money to the appellant. 6. Before the Family Court, PWs.1 to 3 were examined on the side of the appellant and RWs.1 to 4 were examined on the side of the respondent. Exts.A1 to A6 and B1 to B37 were marked. 7. After considering the said evidence, the Family Court took the view that the evidence on record 6 Mat.Appeal No.479 of 2019 overwhelmingly proved that the respondent is a co-owner of the petition schedule property and the building thereon was constructed utilising his money. It was further held that the mother of the appellant did not have financial capacity to make payment of Rs.20,000/- at the time of marriage. The claim of the appellant that her mother paid huge amounts for the purpose of construction of the building was found against. On the basis of Exts.B3 to B7(a) and B22 to B27, a finding was entered into by the Family Court that the respondent invested money in the name of the appellant and the whole expenses for the construction of the building was met by the respondent. 8. The decision in **Rani v. Sasidharan [2002 (1) KLT 194]** which was relied on by the appellant to fortify her contention that Ext.A2 settlement deed did not enure any right in favour of the respondent in the petition schedule property was found not applicable to the facts of the case. The Family Court held that, when the appellant along with the respondent together executed the sale deeds for alienating 12 7 Mat.Appeal No.479 of 2019 cents initially and 10 cents later from the 75 cents of property covered by Ext.A2 and the evidence on record proved that the building was constructed utilising the money sent by the respondent through his bank accounts, he is a joint owner of the petition schedule property. The contention of the appellant that Ext.A2 was executed in consideration of marriage was accordingly rejected. The contentions of the appellant regarding gold ornaments and payment of Rs.20,000/- was also found against holding that the evidence brought on record was insufficient to prove that fact. The allegation regarding appropriation of Rs.6 lakhs, which was received when 12 cents of property was sold was also turned down by the Family Court. 9. The learned counsel appearing for the appellant would submit that Ext.A2 was executed on 31.07.1991, just before the marriage between the appellant and the respondent, which itself is enough to show that the settlement was in consideration of the marriage. It is further submitted that the claim of the respondent that he advanced money to 8 Mat.Appeal No.479 of 2019 the mother of the appellant in order to meet the marriage expenses is unsupported by any evidence, and therefore the court below should not have accepted that contention. It is urged that subsequent sale deeds with respect to 12 cents and 10 cents were to be executed by the appellant and the respondent together for the simple reason that the name of the respondent was happened to be in Ext.A2 as one of the settlees, though for namesake. That fact, at any rate, would not be indicative that the transaction underlined in Ext.A2 was not in consideration of the marriage. 10. In **Rani** (supra) this Court considered as to what shall be the nature of transaction under a gift deed executed by the bride’s parents on the eve of the marriage. The Division Bench held in paragraph No.8 as follows:- “8. We are also of the view that in any event, the plaintiff was clearly constituted a trustee for his wife and the children to be born in the wedlock. The intention behind the gift as recited in the deed of gift itself is that it was intended to make available to the couple the necessary income for their livelihood. The intention was, therefore, to benefit the matrimonial home of the spouses. The 9 Mat.Appeal No.479 of 2019 name of the plaintiff was included only with a view to ensure that the future of the daughter and her children to be born in the wedlock was secured. In that situation and in the absence of anything to show that there was any intention to benefit the plaintiff, independent of his status as the husband of the first defendant, we are of the view that the plaintiff was constituted a trustee for the wife and the children to be born to her, in respect of the property.” 11. The evidence let in by the respondent to prove his contention that he advanced money prior to the marriage and in consideration of that Ext.A2 was executed in the joint name of the appellant and himself is essentially his oral testimony. Marriage was solemnised on 05.08.1991 and Ext.A2 was executed on 31.07.1991. The recitals in Ext.A2 are to the effect that the marriage was in contemplation, and hence it was executed in the names of the newly wedded couple. From the said facts and circumstances, the inference shall be that Ext.A2 was executed for the benefit of the appellant, unless proved otherwise. Insertion of the name of the respondent in that document alone, does not ordinarily clothe him with title to the property. Such a presumption is permitted in law and 10 Mat.Appeal No.479 of 2019 possibly that presumption can be rebutted by proving the contrary. 12. In a settlement deed, the nature of transfer and consideration are the terms of disposition of property by virtue of it. Section 92 of the Evidence Act says: "When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms." 13. Parol evidence is permitted under the proviso only to prove the facts and situations mentioned therein, but not relating to such essential terms of the transaction. Here, the respondent relies on not only his oral evidence but also certain other facts and circumstances to establish that Ext. A2 is a settlement deed executed for the benefit of both the appellant and the respondent. 14. The Family Court relied on such subsequent events and circumstances to hold that Ext.A2 enured co-ownership 11 Mat.Appeal No.479 of 2019 right to the respondent. Undisputed is the fact that the appellant along with the respondent had executed two sale deeds, Exts.P36 and P37 in respect of parts of the property covered by Ext.A2. The claim of the appellant that she utilising her own funds constructed the building in the petition schedule property was seriously disputed by the respondent. He claimed that his funds were used to construct the house. 15. Exts.B22 to B27 are the statements of accounts regarding the accounts maintained by the respondent with Syndicate Bank, State Bank of Travancore and the Federal Bank. From these documents, it is quite evident that during the period 2010 to 2012, the respondent had transferred various amounts and all such amounts were withdrawn, obviously by the appellant. The appellant as PW1 deposed that such amounts were utilised for discharging the liability incurred by the respondent in connection with his debts. The said version is belied by Ext.B35, which is a copy of the diary written by the appellant in her own handwritings. Details of expenses incurred in connection with the construction of the 12 Mat.Appeal No.479 of 2019 building are stated in it. The transactions reflected in Ext.B22 to B27 and the expenses reflected from Ext.B35 approximately coincide by time and quantum. In the light of the said documentary evidence, _ipse dixit_ of PW1, the appellant, and PW2, her mother are not enough to substantiate the claim of the appellant that she had constructed the building utilising her own fund. 16. PW2 admitted that when she retired from service in 1999, what she received was Rs.86,060/- as retirement benefits. Her monthly pension was Rs.850/-. There is no evidence to show that she had any other sources of income. Similarly, no evidence is available on record to show that the appellant had sufficient income to carry out the whole construction. In such circumstances, possible finding is that the building was constructed mostly utilising the money belonging to the respondent. 17. Now, the fact that the respondent also joined in executing Exts.B36 and B37 sale deeds with respect to 12 cents and 10 cents of land out of the property covered by 13 Mat.Appeal No.479 of 2019 Ext.A2 is beyond dispute. Describing themselves as coowners, the appellant and the respondent together had executed Exts. B36 and B37 sale deeds. As per Ext.A2 title to the property stands in the name of the appellant and the respondent. The recitals in Exts. B36 and B37 sale deeds are that they are co-owners. As pointed out above, building in the petition schedule property was constructed for which funds of the respondent was utilised. Thus, there has always been an assertion of title to the property by the respondent. The appellant accepted and acted upon it both by acts and deeds. When her marital relationship with the respondent estranged only she retracted and claimed independent title. In the facts and circumstances of this case, it can only be said that Ext. A2 was executed for the benefit of both the appellant and the respondent. Further, in the light of such circumstances the appellant is estopped from denying the title of the respondent, and also she had acquiesced to the right of the respondent. Hence we are of the view that the appellant and the respondent are the co-owners of the petition schedule 14 Mat.Appeal No.479 of 2019 property and the building. The Family Court is therefore right in holding that the appellant is not entitled for a declaration and injunction as she claimed. 18. As regards the reliefs of recovery of gold ornaments, recovery of Rs.20,000/-, the amount allegedly paid to the respondent at the time of marriage and Rs.6 lakhs being the value of 12 cents of land sold by virtue of Ext. P36 and its interest findings of the Family Court are based on evidence. Having gone through the entire evidence, we find no reasons to interfere with the said findings. Accordingly, we find no reason to interfere with the findings in the impugned judgement. The appeal is dismissed. No costs. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr