Kerala High Court
Arthur Zacharia vs P.M.Mary on 1 October, 2021
Author: K. Babu
Bench: A.Muhamed Mustaque, K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
MAT.APPEAL NO. 1246 OF 2015
AGAINST THE ORDER DATED 10.09.2015 IN OP.NO.320/2014 OF
FAMILY COURT, THODUPUZHA, IDUKKI
APPELLANT/PETITIONER:
ARTHUR ZACHARIA
AGED 47 YEARS
S/O.G.D.ZACHARIA, AYATHIL HOUSE,
VENKURINJI PO, ERUMELI
BY ADVS.
SRI.G.BIJU
SRI.V.A.VINOD
RESPONDENT/RESPONDENT:
P.M.MARY, AGED 49 YEARS
W/O.ARTHU ZACHARIA, PALLATHUKUDIYIL HOUSE,
ALLAPRA, VENGOLA VILLAGE,
KUNNATHUNADU TALUK, 683 556.
BY ADVS.
SMT.R.PRIYA
SRI.M.B.SANDEEP
SRI.B.SURJITH
SMT.M.S.SUBEENA
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
05.08.2021, THE COURT ON 01.10.2021 DELIVERED THE
FOLLOWING:
Mat. Appeal No.1246 of 2015
2
"CR"
A.MUHAMED MUSTAQUE &
K. BABU, JJ.
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Mat. Appeal No.1246 of 2015
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Dated this the 1st October, 2021
JUDGMENT
K. Babu, J.
This appeal arises from the order dated 10.09.2015 passed by the Family Court, Thodupuzha in O.P.No.320 of 2014. The petitioner who lost his case in the Court below is the appellant.
2. The appellant/petitioner instituted the original petition for a declaration that he has exclusive right over 'A' schedule property and for other ancillary reliefs.
3. The facts giving rise to this appeal are as follows:-
3.1 The petitioner is the husband of the respondent. Their marriage was solemnized on 12.02.1990 as per Christian Religious Rites and Customs. Before the marriage, the petitioner had entered into an agreement for sale in respect of 'A' schedule property having an extent of 89 Ares comprised in Sy.No.185/1 of Wagamon Village with one K.C.Antony. The petitioner paid the entire sale consideration and cleared all liabilities over the property. The possession of the property was handed over to the petitioner on the date of execution of Mat. Appeal No.1246 of 2015 3 the agreement for sale itself. Even though the agreement was executed in the year 1989, the registration of the sale deed in respect of the property was done only in the year 2003 as per sale deed No.3053 of 2003. In view of the delay in the registration of the document the owner of the property had demanded some more amount which the petitioner also paid. When the registration was effected in 2003, the petitioner had already purchased 2 acres and 20 cents of land in his name. To avoid the prohibitions to acquire property over and above the ceiling prescribed in the 'Thottam Act' (the petitioner failed to place any material to show that a statute, namely the 'Thottam Act' is in existence), the petitioner was constrained to purchase the property in the name of the respondent as a benami transaction. The petitioner himself gave the entire sale consideration for the property. The respondent has no right over the property. The petitioner is still in possession of the properties. He is entitled to a declaration that he is the absolute owner in possession of the petition schedule property.
3.2 The respondent resisted the claim of the petitioner. She pleaded that the entire sale consideration for purchasing the petition schedule property was given by herself and her family members. The retirement benefit of the father of the respondent was also used for Mat. Appeal No.1246 of 2015 4 purchasing the property. The respondent is in possession and ownership of the property. She had instituted O.S.No.186 of 2006 before the Munsiff Court, Peerumade in respect of the petition schedule property against some adjacent land owners when there was an attempt of trespass. According to the respondent, the claim of the petitioner that he had paid the entire sale consideration for purchasing the property is false. Petitioner had taken possession of the title deed in respect of the property from her. Litigations that arose from matrimonial disputes are pending between the petitioner and the respondent.
4. The evidence consists of the oral evidence of PWs 1 to 5 and that of RWs1 to 3; Exts.A1 to A8 marked on the side of the petitioner and Exts.B1 to B3 marked on the side of the respondent.
5. After appreciating the rival contentions on the basis of the materials available, the Court below found that the respondent is the absolute owner of the petition schedule property. The original petition was hence dismissed.
6. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
7. The case of the petitioner is that he is the absolute owner in possession of the petition schedule property and that he registered Mat. Appeal No.1246 of 2015 5 the sale deed in respect of the property in the name of the respondent with intent to limit the extent of property in his possession below the ceiling prescribed in the 'Thottam Act'. According to the petitioner, the entire sale consideration for the property was given by him.
8. The case of the respondent is that the entire sale consideration for the property was paid by herself and her relatives.
9. Since the claim of the petitioner is that the transaction covered by Ext.A2 sale deed No.3053/2003 is a benami transaction, it is useful to extract Sections 3 and 4 of The Prohibition of Benami Property Transactions Act, 1988 (for short 'the Act').
10. Sections 3 and 4 read thus:
"3. Prohibition of benami transactions- (1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to-
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non-cognizable and bailable.
4. Prohibition of the right to recover property held benami-
(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.Mat. Appeal No.1246 of 2015 6
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
11. As per Sub-sections (1) and (2) of Section 4 of the Act, no filing of suit or taking of defence in respect of a benami transaction involving the purchase of property shall lie by or on behalf of a person claiming to be the real owner of such property. However, when a suit is filed or defence is taken in respect of such benami transaction involving the purchase of property by any person in the name of his wife or unmarried daughter, there is no prohibition, still, he cannot succeed in such suit on defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either of the wife or the unmarried daughter as the case may be, because of the statutory presumption contained in Sub-section (2) of Section 3 of the Act.
12. In the instant case to succeed, the petitioner has to establish (a) that the transaction covered by Ext.A1 sale deed was benami in the sense that the petitioner purchased it by utilising his Mat. Appeal No.1246 of 2015 7 own funds in the name of the respondent and (b) the property had not been purchased for the benefit of the respondent, his wife.
13. The petitioner gave evidence as PW1. The executant of the agreement in respect of the property was examined as PW2. The petitioner deposed that he had paid the entire consideration for the petition schedule property, and the delay in the registration of the sale deed in respect of the property was caused owing to some pending resurvey proceedings. PW2, the vendor of the property, supported the case of PW1. The petitioner (PW1) admitted that he had purchased another property as per Ext.B1 on 27.01.1992. The consideration set forth in Ext.A2 sale deed is Rs.60,000/-. It is pertinent to note that the consideration mentioned in Ext.A1 sale agreement dated 03.08.1989 is much less. The explanation given by PW1 to this discrepancy is that the sale deed had to be executed, setting forth the fair value that existed then. According to PW1, though the actual consideration for the property was much less, a higher value was to be set forth in the sale deed as it was required as per the then existing Registration Rules.
14. RW1, the respondent, gave evidence that in connection with her marriage, an amount of Rs.1,00,000/- was deposited in the joint names of the petitioner and herself towards her family share. She Mat. Appeal No.1246 of 2015 8 further stated that the petitioner paid Rs.10,000/- from the above said amount towards the sale consideration for the property and thereafter, a sum of Rs.50,000/-, received from her father, was utilised for purchasing the petition schedule property. RWs 2 and 3 gave evidence in support of the case of the respondent that a sum of Rs.50,000/- was obtained from her father at the time of purchase of the property to be utilized as sale consideration.
15. PW4, the petitioner's father, deposed that the petitioner had no landed property or income at the time of marriage and he obtained a job abroad only in the year 2006. It has also come out in evidence that the petitioner depended on his father for his livelihood. The petitioner also admitted that he had neither job nor landed property in his name at the time of marriage.
16. The petitioner has not given any evidence regarding the actual consideration passed to the vendor. He also failed to set up specific pleading regarding the consideration actually passed to the vendor of the property.
17. In Jaydayal Poddar (Deceased) v. Mst. Bibi Hazra And Ors. [1974 KHC 370 = AIR 1974 SC 171] while considering the circumstances to be taken into account in weighing the probabilities in a benami transaction, the Apex Court held thus:
Mat. Appeal No.1246 of 20159
"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances, unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him: nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title- deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."
The pleadings and evidence, in this case, are to be analysed in the backdrop of the principles declared by the Apex Court.
18. On the source from which the purchase money came, as aforementioned, the petitioner failed to establish that he had utilized his own funds for the purchase of the property, whereas the version of the respondent is found to be more probable.
Mat. Appeal No.1246 of 201510
19. The case of the respondent is that she is in exclusive possession of the petition schedule property. She has given oral evidence in support of her contention. She added that she had been taking yield from the property till the straining of their marital relationship, and thereafter, the petitioner attempted to forcefully take yield from the property. The respondent instituted O.S.No.186 of 2006 before the Munsiff Court, Peerumade, seeking a permanent prohibitory injunction against one of the neighbouring property owners, which is evident from Ext.B2 and Ext.B3, the copy of the plaint and decree, respectively. The Munsiff Court, Peerumade, decreed O.S.No.186 of 2006 based on the finding that the respondent was in possession of the property.
20. Coming to the motive for bringing the transaction a benami colour, the case of the petitioner is that he was constrained to register the property in the name of the respondent to tide over the legal restrictions that arose out of the ceiling prescribed in the 'Thottam Act'. The petitioner has not succeeded in establishing this contention.
21. Regarding the custody of the title deeds in respect of the property, the case of the respondent is that the title deeds were in her possession but, when their family relationship got strained, the petitioner took possession of those documents. Mat. Appeal No.1246 of 2015 11
22. The petitioner relied on Ext.A3 series receipts to establish that he had paid a sum of Rs.10,483/- towards the bank loan availed by the vendor as agreed between the parties. All the receipts in Exts.A3 series except the one dated 30.03.1989 amounting to Rs.745/-, were of the period after the marriage of the parties. The case of the respondent is that the money deposited in the joint names of the petitioner and the respondent in connection with their marriage towards her family share was utilized for paying part of the sale consideration in respect of the property. The deposit of a sum of Rs.1,00,000/- in the joint names of the petitioner and the respondent towards the family share of the respondent is admitted by the petitioner. The case put forward by the respondent becomes more probable and strengthened in view of the admission of the petitioner that at the time of marriage, he had neither any job nor any property in his name. PW4, his father, also supported this version.
23. Ext.A2 sale deed being a registered document carries there with a presumption as to the correctness of the contents of it.
24. On an analysis of the pleadings and evidence, we are of the considered view that the petitioner failed to prove that the transaction alleged in respect of the petition schedule property was a benami and that he had paid the consideration for the same.
Mat. Appeal No.1246 of 201512
25. Even if it is assumed that the sale consideration was paid by the petitioner himself, the burden is on him to establish that the property had not been purchased for the benefit of the respondent- wife.
26. In the discussions made above, we hold that the petitioner failed to establish the motive for giving the transaction a benami colour, so much so, even if it is assumed that a part of the consideration was given by the petitioner, it is to be presumed that the same was given by him for the benefit of the respondent-wife.
27. Petitioner has prayed for a declaration that he is the absolute owner in possession of the petition schedule property. The Court below has rightly analyzed the pleadings and evidence and recorded a finding that the petitioner is not entitled to the reliefs as prayed for. The Court below has further found that the respondent is the absolute owner in possession of the petition schedule property.
28. The petitioner has also prayed for a decree for the cancellation of Ext.A2 sale deed. As the petitioner failed to establish any right in respect of the petition schedule property, he is not entitled to the relief of cancellation as prayed for. The petitioner is also not entitled to the permanent prohibitory injunction as prayed for in the petition. We are of the considered view that the impugned order Mat. Appeal No.1246 of 2015 13 requires no interference. We confirm the findings recorded by the Court below. The appeal stands dismissed.
Parties are directed to bear their respective costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE Sd/-
K. BABU, JUDGE AS