Kerala High Court
Meela Pradeep vs Mary Benatt on 18 July, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY,THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935
Mat.Appeal.No. 364 of 2006 ( )
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AGAINST THE ORDER/JUDGMENT IN OP 870/1998 of FAMILYCOURT,ERNAKULAM
DATED 18-07-2006
APPELLANTS/ADDL. RESPONDENTS 3 & 4:
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1. MEELA PRADEEP, W/O. JOSE PRADEEP,
VALIAPARAMBIL HOUSE, ST.VINCENT ROAD, COCHIN-18.
2. ROSILY MANGALY, W/O. XAVIER ARAKKAL,
VALIAPARAMBIL HOUSE, ST.VINCENT ROAD, COCHIN-18.
BY ADVS.SRI.K.V.SOHAN
SMT.SREEJA SOHAN.K.
SMT.SANJANA R.NAIR
RESPONDENT(S)/PETITIONER & RESPONDENT NO.1:
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1. MARY BENATT, W/O. LAMI ARAKKAL,
JAIN COTTAGE, CHERUMOODU, VELLIMON P.O.
KOLLAM.
2. LAMI ARAKKAL, S/O. XAVIER,
ARAKKAL, CHAKKALACKAL HOUSE, NEAR A.J.HALL
KALOOR, NOW AT RASHID NASSER ABDULLA
AL MAZROUI GROUP OF CO., P.O.BOX NO.2139, ABUDHABI
U.A.E.
R,R1 BY ADV. SRI.M.S.UNNIKRISHNAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
acd
ANTONY DOMINIC & P.D. RAJAN, JJ.
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Mat. Appeal No.364 of 2006
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Dated this the 18th day of October, 2013
JUDGMENT
ANTONY DOMINIC,J.
This appeal arises from the judgment of the Family Court, Ernakulam in O.P No.870 of 1998. The parties are referred to in the order in which they appear in the O.P.
2. The marriage between the petitioner and the first respondent was solemnized on 17.10.1993. It was preceded by their betrothal held on 26.9.1993. The deceased second respondent before the Family Court is the father of the first respondent and additional respondents 3 and 4 are his legal representatives. Subsequent to the marriage, on 17.12.1993 an immovable property was purchased in the name of deceased second respondent. While the couple were residing in the matrimonial house, the first respondent left for Gulf on 8.4.1994. In 1998 the petitioner filed O.P No.870 of 1998 with the following prayers:
Mat. Appeal No.364/06 2
"a) a decree of declaration that the petitioner is the owner of 6.012 cents land in Sy. No.11/IC of Edappally South Village comprised in sale deed No.6026/1993 of SRO Ernakulam.
b) to issue a mandatory injunction commanding the 2nd respondent to deliver up the original of sale deed No.6026/1993 of Ernakulam Sub Registry.
c) to set aside the sale deed No.6026/1993 to the extent of the purchaser's description as shown in the sale deed.
d) to pass a decree for recovery of possession of the schedule property on the basis that the petitioner is the legal owner of the property as the sale consideration was paid by her and the document was executed in the name of the 2nd respondent fraudulently without the knowledge and consent of the petitioner.
e) to pass a money decree for realisation of a sum of Rs.6,34,000/- (Rupees six lakhs thirty four thousand only) with interest at the rate of 12% per annum from the person and properties of the respondents.
and
f) to pass such other and further reliefs as may be prayed for hereinafter."
3. First respondent husband remained exparte and second respondent father contested the matter. The petitioner-wife and second respondent father were examined as PW1 and RW1 respectively. Ext.A1 to A4 were also marked in evidence. It was while so that the second respondent expired on 23.4.2004 and additional respondents 3 and 4 were thereafter impleaded as his legal representatives. The Family Court, thereafter passed the impugned judgment on 18.7.2006 allowing the O.P on the following terms:
"In the result, the O.P is allowed in part on the following lines:-
(1) That the petitioner is granted an order to recover a sum of .1,83,500/- from respondents jointly and severally with 10% interest thereon from 17.12.1993 till realisation.
(2) The petitioner is also granted an order to recover an Mat. Appeal No.364/06 3 amount of .81,250/- towards value of 25 sovereigns of gold ornaments with 10% interest thereon from date of O.P. till realisation from the first respondent. (3) The petitioner is granter an order to recover an amount of .50,000/- with 10% interest thereon from date of O.P till realisation from the first respondent. (4) The petitioner is also granted an order to recover 3 sovereigns of gold ornaments or in case of failure to recover a sum of .9,750/- with 10% interest thereon from date of O.P till realisation.
(5) The respondents 3 and 4 on application made by the petitioner herein are directed to surrender Godrej almirah along with articles contained therein at Court premises and in case of failure to pay a sum of .
7,000/- towards it is value with 10% interest thereon from date of O.P. till realisation. The other reliefs prayed for by the petitioners are hereby expressly rejected.
(6) Attachment of property as per I.A.2060/98 is made absolute."
4. It is aggrieved by this judgment, respondents 3 and 4 before the Family Court filed this appeal and their grievance is confined to the decree of the Family Court enabling the petitioner in the O.P. to recover .1,83,500/- jointly and severally with 10% interest from 17.12.1993.
5. The counsel for the appellants contended that the petition before the Family Court with prayer against deceased respondent No.2 was not maintainable under any of the provisions of section 7 of the Family Courts Act and that even if the arguments of the petitioner wife is accepted, the case is one covered by Benami Transaction (Prohibition) Act rendering the O.P. not maintainable for that reason itself. He also contended that Ext.A2 relied on by the first respondent was not proved as provided in the Banker's Book Evidence Act and Mat. Appeal No.364/06 4 therefore, could not have been relied on by the Family Court. In support of the first contention, learned counsel also placed reliance on judgment of this court in Suprabha v. Sivaraman [2006(1) KLT 712] and Minoti Anand and Another v. Subhash Anand and Others [AIR 2011 Bom. 61]. On the other hand, learned counsel appearing for the petitioner/first respondent defended the judgment by contending that her case is squarely covered by explanations (c) and (d) to section 7(1)of Family Court's Act. He also disputed the applicability of Benami Transaction (Prohibition Act) to the transaction in question.
6. We have considered the submissions made by both sides.
7. The first question that we have to address is the tenability of the contention raised by the learned counsel for the appellants that the petition filed by the petitioner wife was not maintainable under Section 7 of the Family Courts Act. According to the counsel, the dispute essentially is one between the petitioner wife on the one side and the deceased 2nd respondent on the other. It was his contention that since both of them are not "parties to a marriage," the petition is out side the provisions of Section 7 of the Family Courts Act.
8. This contention has to be answered with reference to the provisions of Section 7 and in particular the clauses (c) Mat. Appeal No.364/06 5 and (d) of Explanation to sub section (1). Section 7(1) and Clauses (c) and (d) to the Explanation read thus:
"7. Jurisdiction.- (1) subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purpose of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation.- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) a suit or proceeding between the parties
to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
Reading of the above shows that while clause (c) to the Explanation provides that a suit or proceeding "between the parties to a marriage" with respect to the property of the parties or of either of them, clause (d) deals with a suit or proceeding for an order of injunction "in circumstances arising out of a marital relationship". Therefore, while suits coming under clause (c) are to be between the parties to a marriage that requirement is dispensed with by the legislature while drafting Section (d) to the Explanation.
9. The scope of clause (c) to the Explanation was Mat. Appeal No.364/06 6 considered by this Court in the judgment in Shyni v. George & Ors.[1997 (1) KLJ 573] , where, it was held thus:
"5. On the scheme of the Act and considering the conferment of jurisdiction of the Family Court, it is clear that a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them comes within the purview of the Family Court. When a wife sues her husband for recovery of her property or which she claim to be her property, obviously the suit could be tried and disposed of only by the Family Court and when in such a suit the wife is obliged to add a close relative of the husband or even a stranger on the allegation that the husband had made over the property to that close relative or stranger,it will be too much to hold that the jurisdiction of the Family Court is ousted to deal with the claim of the plaintiff in view of the mere presence of the stranger or the close relative of the husband. In such a situation, the close relative of the husband or the stranger could only be the agent of the husband or a confident of the husband holding the property claimed by the wife on behalf of the husband. It is not possible to accept the argument that in such a circumstance also the wife would be obliged to file the suit against the stranger in an ordinary civil court even while she is forced to maintain her suit against the husband in the Family Court. Would it make any difference if in a given case, the property of the wife was entrusted not merely to the husband but also to a close relative of the husband, in this case, the father-in-law? I think that it will be the very negation of the scheme of the Family Courts Act and the attempt made by that Act to constitute including disputes about property to hold that the wife would not be entitled to maintain a suit for recovery of her property against the father-in-law in the Family Court. If it were merely a suit against the father- in-law it is quite clear that the suit could be instituted only in ordinary civil court. Equally, if it is merely a suit against the husband for recovery of property, the same could only be maintained in the Family Court. In a case where the claims have to be combined or the same has to be made against both the husband and the father-in-law as in the present case, could it be said that the jurisdiction of the Family Court would stand ousted? My answer is an emphatic no. The suit will remain as suit against the spouse for recovery of the property Mat. Appeal No.364/06 7 of the wife. No doubt even at the time of the marriage the property was handed over not only to the husband but also to the father-in-law. But that would not make the suit anything other than for recovery of the property of a party to the marriage from the other party to the marriage and persons connected with him or related to him. It is notorious that in our State, what is called Streedhanam or what is understood as the share of the bride in the properties of her father is normally handed over at the time of the marriage not to the husband but to the father-in-law who receives it on behalf of the husband. It is really a case of the father-in-law action for and on behalf of the husband while he receives the property of the wife. In the case of the streedhanam paid at the time of the marriage of Christian woman, this court has held that the father-in-law would be holding the property as a trustee for the bride. Taking in the sweep of the Family Court Act and the objects sought to be achieved by the Family Courts Act, I am of the view that the property of the wife or a portion of it had also been handed over to him the suit cannot be entertained by the Family court is not warranted. In any view such a construction of the statute to confine the jurisdiction of the Family Court only to the other spouse and not to anyone else who acts either for that spouse or under that spouse would tend to defeat the very object of the enactment of the Act and the establishment of the Family Courts. One of the important aims of the setting up of the Family Courts Act is to bring about a reconciliation between the spouses if possible and to permit them to separate with dignity only if all attempts at conciliation fall. Can there not be a conciliation even in a case where the wife sues her husband and her father-in-law for recovery of the property which she claims to be hers? The answer can only be in the affirmative. There cannot be any doubt that a special machinery has been constituted by the Family Courts Act for counselling and for bringing about a conciliation between the spouses. Then, the Family Court Judges is charged with the duty to attempt a conciliation. Should the spouses be deprived of that machinery specially provided by the Family Courts Act and not available in that form in the ordinary civil court merely because one of them is compelled to sue not only the other spouse but also a close relation of that spouse or a confidential assignee of that spouse? The answer can only be 'no' since an answer otherwise would mean that Mat. Appeal No.364/06 8 the very scheme of the Act would stand defeated and the spouse who is sued can always take up the stand that he had made over the property to a stranger and when the suing spouse is compelled to implead that person, the suit would be taken out of the purview of the Family Court. I have Therefore no hesitation in holding that so long as he suit is by one spouse against the other the suit would be maintainable in the Family Court even if for the purpose of seeking relief in respect of the cause of action put forward in the suit, the suing spouse is forced to implead persons other than the other spouse including the close relatives of the other spouse."
10. Subsequently, clauses (c) and (d) to the Explanation of Section 7(1) of the Family Courts Act came up for consideration of a Division Bench of this Court in Suprabha v. Sivaraman [2006(1) KLT 712] and the Division Bench held thus in paragraphs 4, 5 and 6:
"4. First we will consider whether clause c of Explanation to S.7 of the Act is attracted or not. Whether a suit or proceeding between the parties to a marriage will include a suit or proceeding between the parties to a marriage which is not subsisting was considered by the Supreme Court in Abdul Jaleel V. Shahida (2003(2) KLT 403) (SC). While construing this provision, the Supreme Court found that that clause is applicable even in cases where the marriage between the parties was not subsisting. In that case, the Supreme Court observed that from a perusal of the Statement of Objects and Reasons, it appeared that the said Act inter alia extends the jurisdiction of the Family Court to properties of spouses or of either of them. The contention was that a suit or proceeding between the parties to a marriage can mean only a suit or proceeding between the parties to a subsisting marriage. That contention was rejected stating that the jurisdiction was created specially for resolution of disputes of certain kinds and the provision should be construed liberally. Otherwise, it would frustrate the object of the Act. But at the same time the Supreme Court approved the decision of the Allahabad High Court in Amjum Hassan Siddiqui V. Salma (AIR 1992 Allahabad 322). In that case, the application was filed under S.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It was contended that the parties were Mat. Appeal No.364/06 9 married on 4.10.1983 and the appellant divorced the respondent on 25.2.1991. But she had neither been paid the dower money nor the articles given to her on the occasion of her marriage returned to her. The Allahabad High Court held that since an application under S.3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, can be moved before the First Class Magistrate, proceeding under S.7 of the Act will not lie before the Family Court unless jurisdiction is specifically conferred on it.
5. When either the husband or the wife is not alive and the suit is filed against the parents of either of them, it cannot be said that it is a suit or proceeding between the parties to a marriage. The learned counsel for the appellant relied on the meaning of the word "parties" in Ramanatha Iyer's Law Lexicon as " the person who take part in the performance of any act, or who are directly interested in any affair, contract or conveyance or who are actively concerned in the prosecution and defence of any legal conveyance or who are actively concerned in the prosecution and defence of any legal proceeding". The learned counsel for the respondents on the other hand relied on the meaning of the word "parties" in Black's Law Dictionary, which reads: "The person who take part in the performance of any act, or who are directly interested in any affair, contact, or conveyance, or who are actively concerned in the prosecution and defense of any legal proceeding". We are of opinion that in the context of S.7(c) the meaning of the words "parties to a marriage"
cannot be given such a wide interpretation as to include all those who are interested in the welfare of the couple or those who take part to the marriage ceremony. Therefore, the suit or proceeding must be between the husband and the wife with respect to the property of the parties or either of them. Thus we are of opinion that S.7(c) of the Act is not applicable in such cases and the Family Court was justified in holding so.
6. The next point to be considered is whether S.7(d) of the Act is attracted or not. In S.7(d), the words "between the parties to a marriage" are conspicuously absent. But it applies to a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship. What is the meaning of the words "in circumstances arising out of a marital relationship" ? Another Division Bench of this Court had occasion to consider the scope of S.7(d) of the Act recently. In Leby Isaac V. Leena M.Ninan (2205(3) KLT 665), Justice Hema, speaking for the Bench, analysed S.7(d) of the Act with the help of the Family Courts (Kerala) Rules, 1989. It was found that all the proceedings initiated before the Family court have to be treated as petitions and the relief granted will be orders. Therefore, the first part of S.7(d) will be satisfied even though the section does not mention anything about a decree for recovery of money as coming under the provisions of S.7(d) of the Act. The meaning of the Mat. Appeal No.364/06 10 word "circumstances" as found in Law Lexicon and Black's Law Dictionary was referred to and it was found that it will include those particulars which closely precedes, surrounds, accompanies or follows a marital relationship. It was found that the main requirement was that such circumstances must have a direct bearing on marriage. was also found that "circumstances arising out of marital relationship" means not only those occurrences which transpired during marital life, but also include such circumstances which led to the marriage, which developed thereafter, and those such followed as a consequence. It was also found that if the intention of the legislate was to take in only those occurrences which took place during a marital relationship, there was no necessity to use the word 'circumstances'. The inclusion of the word 'circumstances' in the provision was found to be quite significant which was done to include all such circumstances surrounding, preceding and closely following a marital relationship. That was a suit for recovery of damages by the husband against the wife and father in law. The claim was that the husband had spent Rs.2,50,000/- for conducting the marriage but the wife refused to cohabit, with the husband and she had illicit relationship with the 3rd respondent. All these resulted in pain and suffering to the appellant and he claimed Rs.10,00,000/- as compensation. The Family Court held that it had no jurisdiction since the cause of action in the suit was the alleged misrepresentation on the part of the respondent and the suit cannot be treated as a suit arising in the circumstances out of a marital relationship. The Division Bench of this Court set aside that finding and held that the OP, was maintainable before the Family Court"
11. Having thus seen, the law as interpreted by this Court, we shall now proceed to examine the case pleaded by the 1st respondent. In this context, the averments in the petition are to be seen and the relevant averments in the petition are at paragraphs 7 to 9 of the petition, which read thus:
"7. The amount of Rs.2 lakhs deposited in the Indian Overseas Bank, Chemmakkad, Kollam was transferred to South Indian Bank, M.G. Road Branch. For the said purpose, forms and cheques were got signed from the petitioner. Altogether six or seven cheques in the Mat. Appeal No.364/06 11 cheque book starting 907841 was got signed from the petitioner. Cheque No.907843 alone was utilised for the purpose of transferring the entire amount of Rs.1,99,000/- to the South Indian Bank, M.G. Road, Ernakulam. The other cheques 907841, 907842, 907845 and 907846 were signed by the petitioner are available with the 1st and 2nd respondents. The amount of Rs.1,99,000/- was transferred from Indian Overseas Bank, M.G. Road, Ernakulam on 9th October 1993. At that time during December 1993 the petitioner was told that the respondents are going to purchase a land at Vyttila. The sale consideration fixed was Rs.26,000 per cent. In connection with the purchase of the land, only a token advance was given initially on 16th December 1993 as per Cheque No.421385 of South Indian Bank Ernakulam an amount of Rs.4,000/- was withdrawn from the Bank for meeting various incidental expenses and for preparation of the document. Thereafter on 17th December, 1993 as per cheque Nos.421386 & 421387 an amount of Rs.1,26,000/ and 24,000 were withdrawn from the Bank to pay the sale consideration. The sale deed was executed on 17th December 1995. Even after that also the impression given was that the property was purchased in the name of the petitioner.
8. Recently the petitioner got reliably known that the said property is going to be sold by the 2nd respondent. The petitioner immediate applied for certified copy of the document. It was after that the petitioner came to know that the property was purchased in the name of the 2nd respondent. As a matter of fact the sale consideration was taken from the bank account of the petitioner. The 1st and 2nd respondents cheated the petitioner and the sale deed was got executed in the name of the 2nd respondent. Hence the petitioner is entitled to get a decree of cancellation of the document and also a declaration to the effect that she is the owner in possession of the said property.
9. Even if the property stands in the name of the 2nd respondent his status is only that of a name lender as the sale consideration was taken from the bank account of the petitioner. Moreover, the provisions in Benamy Transaction (Prohibition) Act is not applicable as to transaction is between fiduciary relations. The petitioner is also entitled to get the amount spent by the petitioner's is also entitled to get the amount spent by the petitioner's father for securing a job for him and also the cost of household articles retained by the 2nd respondent in his house."
Mat. Appeal No.364/06 12
12. From the above averments in the petition, it can therefore, be seen that, according to the 1st respondent, after her betrothal with the 2nd respondent, her father had deposited Rs.2 lakhs in the Indian Overseas Bank. That deposit was transferred to South Indian Bank, M.G. Road, Ernakulam. At that time, the 1st respondent husband and the deceased 2nd respondent father were planning to purchase a property and that property was purchased on 17.12.1993. It was her case that sale consideration was paid out of the amount withdrawn from her account in the South Indian Bank, Ernakulam. She also says that it was only when she came to know that the deceased 2nd respondent was planning to alienate the property, she obtained a copy of the document and that, only then, she came to know that the property was not purchased in her name, but was purchased in the name of the deceased 2nd respondent. In other words, what she pleaded is that the amounts belonging to her were utilised by respondents 1 and 2 in the O.P. for purchasing the property and that instead of buying property in her name, it was purchased in the name of the deceased 2nd respondent. Therefore, she was seeking relief not only against the 1st respondent, her husband but also against the deceased 2nd respondent in whose name the property was purchased. Such a dispute, in our view is Mat. Appeal No.364/06 13 essentially one between the parties to the marriage as provided in Explanation (c) and at any rate, is one which arises out of a marital relationship as provided in Explanation (d) to Section 7 (1) of the Family Courts Act. Therefore, we have no doubt in our mind that the petition filed by the 1st respondent before the Family Court was maintainable under Section 7 of the Act and we therefore, reject the contention raised by the learned counsel for the appellants.
13. The second contention that is required to be dealt with is that the transaction is one to which the provisions of Benami Transaction (Prohibition) Act applies and therefore, the suit was not maintainable. The expression "Benami transaction" has been defined in Section 2(a) of the Act as under:
"(a) "Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."
Reading of the above shows that "Benami transaction" is a transaction in which the property is transferred to one person for a consideration paid or provided by another person. Therefore, in this case, if the wife pays the sale consideration and the property is purchased in the name of the deceased second respondent, this definition might apply. From the facts, Mat. Appeal No.364/06 14 it is abundantly clear that, according to the petitioner wife, she paid the consideration for acquiring the property in her name and not in the name of anybody else and that by cheating her, the property was fraudulently purchased in the name of the deceased 2nd respondent. Therefore, this is a case, where she did not pay consideration for transferring the property in anybody else's name to attract Section 2 (a) of the Benami Transactions (Prohibition) Act, 1988. Therefore, this contention also has to fail.
14. The third contention that was raised by the learned counsel for the appellants was that Ext.A2, photocopy of the passbook of the South Indian Bank was not proved in terms of the provisions contained in the Banker's Book Evidence Act and therefore, could not have been relied on.
15. Insofar as this objection is concerned, from the judgment of the Family Court, it is evident that this objection was not raised by the appellants at the time when the case was tried or heard by the Family court. The appellants also did not argue otherwise. Therefore, it is too late in the day for the appellants to raise this contention. For that reason, we do not find this contention also tenable.
16. The learned counsel for the appellants then contended that the cause of action for the plaint has arisen on Mat. Appeal No.364/06 15 17.12.1993 when the property was purchased. Therefore, the O.P. filed on 31.12.1998 with a prayer for declaration of title was barred by limitation and in support, he relied on Art.58 of the Limitation Act.
17. However, prayers in the O.P. would show that the petitioner wife sought to set aside sale deed 6026/1993 to the extent the purchaser's description is shown in the sale deed and, as a consequence, also sought a declaration that she is the owner of 6.012 cents of land covered by the sale deed mentioned above. Therefore, the primary relief that is sought for was to set aside the description of the purchaser in sale deed No.6026/1993 and such a prayer is governed by the provisions of Article 59 of the Limitation Act. As per this Article, three year period of limitation begins to run when the facts entitling the plaintiff to have the instrument cancelled or decree cancelled or set aside or the contract rescinded, first become known to him. If that be so, limitation, insofar as the prayers sought for by the plaintiff are concerned, could not have started to run from 17.12.1993 when the property was purchased, but could have started to run from the date when she had knowledge that the property was purchased not in her name but in the name of the deceased 2nd respondent. Therefore, this contention raised by the learned counsel for the Mat. Appeal No.364/06 16 appellants also does not merit acceptance.
We do not find merit in any of the contentions raised. Therefore, the Mat. Appeal will stand dismissed.
ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE.
acd Mat. Appeal No.364/06 17