Kerala High Court
Sobha vs *1 Ravindran Nair on 23 January, 2020
Bench: A.M.Shaffique, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
Mat.Appeal.No.654 OF 2012
AGAINST THE ORDER/JUDGMENT IN O.P.(O.S).NO.578/2007 DATED
21-07-2010 OF THE FAMILY COURT, ALAPPUZHA
APPELLANT/PETITIONER:
SOBHA,
AGED 39 YEARS,
D/O.SANTHAMMA, LATHA BHAVANAM, CHUNAKARA P.O,
MAVELIKKARA 690 534
BY ADVS.
SRI.SREEKANTH S.NAIR
SRI.P.BIJIMON
RESPONDENTS/RESPONDENTS:
*1 RAVINDRAN NAIR, S/O KRISHNAKURUPPU, RAVI BHAVANAM,
PULIMEL, NOORANAD P.O, MAVELIKKARA (DIED) (DELETED)
(THE NAME OF THE 1ST RESPONDENT IS DELETED FROM THE
PARTY ARRAY OF THE APPEAL MEMORANDUM AS PER ORDER
DATED 05/12/2018)
2 KARTHYAYANI AMMA, AGED 84 YEARS,
W/O KRISHNAKURUPPU, RAVI BHAVANAM, PULIMEL, NOORANAD
P.O, MAVELIKKARA 690 504
3 ATHIRA, AGED 20 YEARS,
D/O. LATE RAVINDRAN NAIR, LATHA BHAVANAM,
CHUNAKARA P.O, MAVELIKKARA 690 534
4 USHA, W/O RAVINDRAN NAIR, RAVI BHAVANAM, PULIMEL,
NOORANADU P.O, PALATHARAYIL, MENAPPALLY,
KANNAMANGALAM, MAVELIKKARA 690 504
R2 BY ADV. SRI.RASHEED C.NOORANAD
R2 BY ADV. SMT.ANITHA M.N. (EKM)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.654 OF 2012 2
JUDGMENT
Dated this, the 23rd day of January, 2020 Shaffique, J.
This appeal is filed by the petitioner in O.P.(O.S).No.578 of 2007 of the Family Court, Alappuzha. During the pendency of the original petition, the 1st respondent/husband died and the legal heirs have already been impleaded in the case as Additional respondent Nos.2 to 4.
2. The contention raised by the petitioner was that she is the absolute owner of the plaint schedule property having an extent of 10 cents and shop buildings. Ext.A1 is the sale deed which was executed on 31.10.1989. The contention raised by the petitioner was that her marriage was fixed on 08.12.1989, she was given Rs.15,000/- as parental share. The money was paid even prior to the marriage and with the said amount, the property covered by Ext.A1 sale deed was purchased in the joint names of the petitioner and the 1 st respondent. Later matrimonial issues had developed between the parties, which Mat.Appeal.No.654 OF 2012 3 resulted in divorce between them and thereafter she claimed that she is the absolute owner of the entire property.
3. The 1st respondent while he was alive disputed the fact that the property was purchased with the funds given as parental share of the petitioner. It was contended that the said property belongs to his sister and he purchased the property with his own funds and in the process, the name of the petitioner was also included in the sale deed as the engagement between the couple had taken place prior to the date of purchase of the property. He further contended that with the parental share given by the petitioner's father, an extent of 1.40 ares of land and shop building were purchased as per Ext.B1.
4. As evidence in the case, on behalf of the petitioner PW1 and PW2 were examined and on behalf of the respondents RW1 and RW2. RW1 is the 2nd respondent who is the mother of the 1st respondent and RW2 is an independent witness. The Family Court found that the petitioner could not prove payment of Rs.15,000/- as parental share and therefore rejected her claim for the entire property.
5. The learned counsel for the appellant would submit that in so far as the property was purchased prior to the Mat.Appeal.No.654 OF 2012 4 marriage which was held on 08.12.1989, it has to be presumed that the same was purchased with the parental share given by the petitioner's parents. But this fact is disputed by the 1 st respondent. Under such circumstances, it was obligatory on the part of the petitioner to prove that Rs.15,000/- was paid before 31.10.1989. In her evidence as PW1, it was stated that her father has paid the said amount. PW2 had been examined to corroborate the evidence of PW1. But, during evidence, PW2 stated that petitioner's father had given the said amount to one Mr.Raveendran Pillai who handed over the money to the 1 st respondent. The Family Court observed that in view of the contradictory stand taken by the petitioner and her witness, it may not be possible to arrive at a conclusion that such an amount had been paid as parental share especially in the light of the fact that neither petitioner's father nor Mr.Raveendran Pillai was examined in the case. Having regard to the aforesaid finding, the Family Court held that the declaration as sought for cannot be granted.
6. Of course, according to the documents, the petitioner is the joint owner of the property and half right definitely vest with her. No claim had been made by the legal heirs of the 1 st Mat.Appeal.No.654 OF 2012 5 respondent with reference to the petitioner's rights and she is entitled to seek partition of the said property by metes and bounds.
7. However, as far as the declaration the petitioner had sought for, we are of the view that the court below had rejected the said claim on valid grounds and we do not find any reason to interfere with the said judgment.
The Mat. Appeal is therefore dismissed. No costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
MARY JOSEPH JUDGE NAB