Kerala High Court
Kunjamma vs Eldose on 28 May, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 28TH DAY OF MAY 2012/7TH JYAISHTA 1934
RSA.No. 505 of 2012 (B)
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AS.33/2009 of ADDL.D.C., NORTH PARAVUR
IA.NO.414/2007 IN OS.82/2000 of SUB COURT, PERUMBAVOOR
APPELLANT:
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KUNJAMMA
W/O LATE ISSAC, POKKATTU HOUSE, KUNNAKKURUDIKARA,
AIRAPURAM VILLAGE
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 683541.
BY ADVS.SRI.P.CHANDRASEKHAR
DR.ABRAHAM P.MEACHINKARA
SRI.JOY C.PAUL
RESPONDENTS:
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1. ELDOSE
S/O LATE ISSAC, POKKATTU HOUSE, KUNNAKKURUDIKARA
AIRAPURAM VILLAGE
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 683541.
2. JOSEPH,
S/O LATE ISSAC, POKKATTU HOUSE, KUNNAKKURUDIKARA
AIRAPURAM VILLAGE
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 683541.
3. JOY,
S/O VARKEY, KAKKATHIL HOUSE, KUNNAKKURUDIKARA
AIRAPURAM VILLAGE
KUNNATHUNADU TALUK, ERNALULAM DISTRICT -683541.
R.S.A.No.505/2012
4. ELAMMA,
W/O VARGHESE
KANNANGANMALIL HOUSE, VLAYANCHIRANGARA P.O
PERUMBAVOOR, KUNNATHUNADU TALUK, ERNAKULAM 683556.
5. YACOB,
S/O VARKEY, PAPPALIL HOUSE, AIRAPURAM P.O
KUMMATHUNADU TALUK, ERNAKULAM-683541.
6. ELDO P.Y,
S/O YACOB, PAPPALIL HOUSE, AIRAPURAM P.O
KUMMATHUNADU TALUK, ERNAKULAM 683541
7. VARGHESE P.Y,
S/O YACOB, PAPPALIL HOUSE, AIRAPURAM P.O
KUMMATHUNADU TALUK, ERNAKULAM 683541
8. RAJU. P.Y,
S/O YACOB, PAPPALIL HOUSE, AIRAPURAM P.O
KUMMATHUNADU TALUK, ERNAKULAM 683541.
R7- BY ADV. SRI.P.VISWANATHAN(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
28-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A.No.505 of 2012
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Dated this the 28th day of May, 2012
JUDGMENT
Additional 5th defendant in O.S.No.82 of 2000 of the Sub Court, Perumbavoor is the appellant challenging the dismissal of I.A.No.414 of 2007 filed by her under order XX Rule 18 read with Section 151 of the Code of Civil Procedure as confirmed by the learned Additional District Judge, North Paravur in A.S.No.33 of 2009.
2. As the trial court has observed, this case has a tragic history. After the preliminary decree for partition was passed, the first defendant (husband of appellant) allegedly committed murder of the second plaintiff, his sister and then committed suicide. After the death of the first defendant, appellant, his wife was impleaded as additional 5th defendant in the proceeding for passing final decree pursuant to I.A.No.411 of 2007. In that proceeding, appellants/additional 5th defendant filed I.A.No.414 of 2007 to exclude an item of property from the final decree proceeding and to allow her realise certain amount with charge R.S.A.No.505/2012 2 over other properties. Her claim was that the said item of property sought to be excluded though purchased in the name of her father-in-law (father of the first defendant), was with her dowry. The application was opposed by the contesting respondents. Learned Sub Judge dismissed the application which learned Additional District Judge has confirmed in A.S.No.33 of 2009.
3. Learned counsel for appellant has submitted that the trial and first appellate courts have not referred to the evidence of PWs.1 to 3 in the proper manner. According to the learned counsel, the father-in-law stood in a fiduciary relationship with the appellant. In the matter of entrustment of dowry amount, Section 82 of the Indian Trust Act (for short, "the Act") applied and in the circumstances courts below ought to have found that purchase of property was done in the name of father-in-law with the funds of the appellant. She is the real owner of the property and hence it is liable to be exempted from the final decree proceeding.
4. Learned counsel who filed caveat on behalf of 7th respondent contended that the plea of appellant cannot be accepted. There is no reliable evidence to show that the R.S.A.No.505/2012 3 acquisition under Ext.A2 was benami for and on behalf of the appellant and placed for reliance of the decision in Aliyamma Vs. Thomas (2006(4)KLT 106) where it is held that the mere fact that dowry amount was utilised for the benefit of the husband's family would not confer right on the wife to claim share in the family property of the husband.
5. Appellant gave evidence as PW.1. She examined PWs.2 and 3 to show that a sum of Rs.800/- was given on behalf of her to her father-in-law as dowry at the time of her marriage in the year, 1958 and to say that the property under Ext.A2 was acquired making use of Rs.500/- out of the said sum of Rs.800/-. It is the balance sum of Rs.300/- which the appellant wanted to realise with charge over other properties.
6. It has come in evidence that appellant was married to the deceased first defendant in April, 1958 according to the appellant, when she was aged only 14 years. The acquisition as per Ext.A2 was made by the father-in-law of the appellant in April, 1959. It is not disputed and in Ext.A2, it is stated that the sale consideration came from the vendee, ie., the father-in-law of the appellant. It also came out in evidence that at the time the R.S.A.No.505/2012 4 acquisition was made as per Ext.A2, deceased first defendant was aged about 19 years. A further fact which has emerged in evidence is that deceased first defendant, during his life time executed Exts.B1 and B2 in respect of the property in favour of his children claiming that the said property belonged to his father (father-in-law of the appellant), obviously as per the Ext.A2.
7. Learned counsel for appellant in fairness submits that, though deceased first defendant while challenging the preliminary decree in Appeal had raised a contention that the property now under claim was acquired by his father with the funds of the appellant, no such contention was raised in the trial court. It is also admitted that the preliminary decree was confirmed by the first appellate court. The Second Appeal at the instance of deceased first defendant failed and a petition for review of that judgment also ended in a dismissal.
8. Now the question is whether finding of the courts below that the plea of benami is not established involve any substantial questions of law requiring decision by this Court.
9. There are various circumstances which the person pleading benami is to plead and prove to substantiate that plea. It R.S.A.No.505/2012 5 is not shown what was the motive of the father-in-law to acquire the property allegedly with the funds of the appellant in his name under Ext.A2 in April, 1959 when the acquisition could have been made in the name of the appellant, even if she was a minor, represented by guardian and at any rate, in the name of the deceased first defendant who by then was aged 19 years. It is true that PWs.1 to 3 have stated that a sum of Rs.800/- being the amount of dowry was entrusted with the father-in-law and that amount was used for acquisition of the property as per Ext.A2. The trial and first appellate courts noticed that the alleged entrustment of the dowry amount was in April, 1958 while the acquisition as per Ext.A2 was in April, 1959 and that there is no sufficient evidence to show that the sale consideration for Ext.A2 was from the dowry amount allegedly paid to the father-in-law of appellant. Various other circumstances required to prove a plea of benami are absent in this Appeal. There is no findings that appellant is in possession and enjoyment of the property, though the father-in-law is its ostensible owner.
10. No doubt, appellant stands in very difficult situation on account of the death of her husband. But, that is no reason why I R.S.A.No.505/2012 6 should interfere with the concurrent finding rendered by the courts below on the facts and evidence.
11. As rightly pointed out by the courts below there is no sufficient evidence to accept the plea of benami. If that be so, the question of application of Section 82 of the Act does not arise.
12. No substantial question of law is involved in this matter.
Hence, the Second Appeal is dismissed.
THOMAS P.JOSEPH, JUDGE skj