Kerala High Court
A.Vijayakumar vs K.S.Sasikala
Bench: A.M.Shaffique, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY,THE 10TH DAY OF JANUARY 2017/20TH POUSHA, 1938
Mat.Appeal.No. 195 of 2012
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AGAINST THE JUDGMENT IN OP 635/2009 of FAMILYCOURT,TRIVANDRUM DATED 31-01-
2012
APPELLANT(S)/COUNTER PETITIONER:
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A.VIJAYAKUMAR
AGED 60 YEARS, S/O.ARJUNA PANICKER,
KATTACHAL PUTHEN VEEDU, PALLICHAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM NOW
RESIDING AT PARATHANAM HOUSE,
KUMILI, ATTAPPALLAM P.O., IDUKKI DISTRICT
(*) DIED, ADDITIONAL APPELLANTS 2 AND 3 IMPLEADED.
*ADDITIONAL APPELLANTS.
2. PRAMOD KUMAR, AGED 35 YEARS,
S/O LATE A.VIJAYAKUMAR,
KATTACHAL PUTHEN VEEDU,
PALLICHAL VILLAGE,
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM.
3. PRADEEP KUMAR, AGED 33 YEARS,
S/O LATE A.VIJAYAKUMAR,
KATTACHAL PUTHEN VEEDU,
PALLICHAL VILLAGE,
NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM.
(*ADDITIONAL APPELLANTS 2 AND 3 ARE IMPLEADED AS PER ORDER DATED 7/10/2015 IN IA
NO.1603/2014)
BY ADVS.SRI.E.D.GEORGE
SRI.BOBAN PALAT
RESPONDENT(S)/PETITIONER:
--------------------------------------------
K.S.SASIKALA
AGED 52 YEARS, W/O.A.VIJAYAKUMAR,
KALA BHAVAN, KURIVIKKADU LANE, KALLIYOOR VILLAGE,
THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM.
R1 BY ADV. SRI.D.AJITHKUMAR
R1 BY ADV. SMT.T.MANASY
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MA No.195/2012
APPENDIX
APPELLANT'S EXHIBITS
ANNEXURE 1: TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE
SUB INSPECTOR OF POLICE, NEMOM.
ANNEXURE II: ORIGINAL OF THE BANK PASS BOOK OF THE
APPELLANT ISSUED FROM STATE BANK OF TRAVANCORE.
ANNEXURE III: ORIGINAL CERTIFICATE FROM THE COMMUNITY HEALTH
CENTRE, VANDIPERIYAR.
ANNXURE IV: ORIGINAL OF THE BUILDING PERMIT DATED 20/5/1983
AND RECEIPT ISSUED FROMKALLIYOOR PANCHAYATH.
ANNEXURE V: THE ORIGINAL SETTLEMENT DEED NO.1641/09/5 DATED
15/7/2009 EXECUTED BY APPELLANT IN FAVOUR OF HIS SONS.
ANNEXURE VI: THE ORIGINAL TAX RECEIPT DATED 31/5/2011 ISSUED
FROM KALLIYOOR PANCHAYAT TO THE APPELLANT'S SONS PRAMOD KUMAR
AND PRADEEP.
ANNEXURE VII: TRUE COPY OF THE PETITION SUBMITTED BY THE
RESPONDENT BEFORE THE RDO.
ANNEXURE VIII: TRUE COPY OF THE REPORT OF THE TAHSILDAR.
RESPONDENT'S EXHIBITS
ANNEXURE A1: TRUE COPY OF THE OP NO.302/1995 FILED BY THE
PETITIONER BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM
ANNEUXURE A2: TRUE COPY OF THE JUDGMENT IN OP NO.302/1995
DATED 29/9/2011.
ANNEXURE A3: TRUE COPY OF THE JUDGMENT IN OP NO.50/09 DATED
7.5.2011.
ANNEXURE A4: TRUE COPY OF THE CERTIFICATE ISSUED FROM THE
GENERAL SECRETARY, MISRA VIVAHA SAHAKARA SANGHAM, STATE
COMMITTEE DATED 7/2/89.
ANNEXURE A5: TRUE COPY OF THE OP NO.635/2009 OF THE FAMILY
COURT, THIRUVANANTHAPURAM.
ANNEXURE A6: TRUE COPY OF THE FIRST INFORMATION REPORT DATED
11/5/2012.
ANNEXURE A7: TRUE COPY OF THE OP NO.776/2012 ON 10/5/2012.
Rp //True Copy//
PS to Judge
A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.
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Mat.Appeal No. 195 of 2012
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Dated this, the 10th day of January, 2017
J U D G M E N T
Ramakrishnan, J.
The counter petitioner in OP No.635/2009 on the file of the Family Court, Thiruvananthapuram is the appellant herein. The Original Petition was filed by the respondent for a declaration that she is having title, right and possession over petition schedule property and the house building and for consequential injunction restraining the defendant husband from causing any mischief in the plaint schedule property. It is alleged in the petition that the petitioner and respondent are husband and wife and the respondent has contracted an inter caste marriage with the petitioner on 11/4/1977 and the same was registered at the Sub Registrar's Office Peerumedu. They resided together as husband and wife at Vandiperiyar and later they resided in the petition Mat.Appeal No.195/2012 -:2:- schedule property. The property was purchased with the funds entrusted to the husband in his name. They resided in the house till 30/5/1995 and three male children were born to them in that wedlock. The appellant had developed an illicit connection with one Sreekala, daughter of Gnanamma, Karuvatta, Alleppey District. In order to continue that illicit relationship, he deserted her and withdrawn from the relationship after having matrimonial relationship for 20 years. The respondent was employed in the Health Department. The appellant was not having any source of income. In view of her employment, herself and her husband were living at Vandiperiyar adjacent to her work place. On 10th May, 1982, the appellant has purchased the petition schedule property and the building by virtue of sale deed No.814/1982 by utilising the amount raised by the respondent from her savings from her employment. However, the appellant got the document executed in his name in a deceitful manner. The entire sale consideration was paid out of the funds of the respondent. The building was constructed with her funds. When the appellant tried to evict her from the property, she filed OS No.302/95 before the Family Court, Thiruvananthapuram and obtained an injunction Mat.Appeal No.195/2012 -:3:- against the appellant from forcibly evicting her from the property. Since the appellant was making unnecessary claim over the plaint schedule property, the respondent was compelled to file the suit for the above relief.
2. The appellant filed written statement contending that the petition is not maintainable, she has no interest in the petition schedule property, there was no valid marriage between the parties and the Family Court has no jurisdiction to entertain the suit. The very same petitioner filed OS No.302/1995 before the same Court and the Court has entered into a finding that there was no valid marriage. So the present petition is not maintainable. He has got his own income, he purchased the property by his own income, he had no illicit relationship with any lady as claimed and the respondent is not entitled to any relief as she has no title or possession over the plaint schedule property. So, he prayed for dismissal of the suit.
3. Petitioner in court below was examined as PW1. Exts.A1 to A3 were marked on her side. Respondent in the court below was examined as DW1 and no documents were marked on his side. After considering the evidence, the Court below came to Mat.Appeal No.195/2012 -:4:- the conclusion that respondent has absolute right, title, ownership and possession over the petition schedule property and decreed the case as prayed for. Dissatisfied with the same, the present appeal is filed.
4. During the pendency of the appeal, the appellant died and his legal representatives were impleaded as additional appellants as per order in IA No.1603/2014. The appellant also filed IA No.1090/2012 before this Court for reception of additional documents where he had produced documents to show that he is having business and he is having fund in his account. Having considered the averments in the petition, we allowed the application and received the documents invoking Order XLI Rule 27 C.P.C. subject to its reliability and admissibility to be considered at the time of disposal of the case.
5. Heard Sri.E.D.George, learned counsel appearing for the appellant and Sri.D.Ajith Kumar, learned counsel appearing for the sole respondent.
6. Learned counsel for the appellant argued that there is no evidence adduced on the side of the respondent to prove that she had contributed the amount for purchase of the property. She Mat.Appeal No.195/2012 -:5:- had not mentioned as to when the amount was entrusted, how she raised the amount etc,. Appreciation of evidence made by the Court below is not correct. In fact, he had specifically denied in the written statement that she has no title over the petition schedule property and also contended that he purchased the property with his own funds. But the court below had observed that these facts were not denied, which is not correct. Further documents are produced before this Court to show that he is having business and he is getting independent income and if at all this Court feels that the evidence adduced is not sufficient, he may be given an opportunity to adduce evidence and for that purpose, the judgment can be set aside and remanded the case to the Court below.
7. On the other hand, learned counsel for the respondent submitted that there is no evidence to show that he is having sufficient income. On the other hand, the respondent had proved that she was having employment and salary. That fact was not denied by the appellant. Further, the case of the defendant in the earlier case was that there was no valid marriage and she was only a tenant in respect of the property. But that was found Mat.Appeal No.195/2012 -:6:- against in the earlier suit. So, there is no consistency in the case of the defendant and the Court below had correctly come to the conclusion that the appellant has failed to prove that he has got income to purchase the property and rightly decreed the suit.
8. Though there was a dispute regarding the marital relationship in the earlier proceedings, viz., OS No.302/1995, it is evident from Ext.A1 judgment that the Family Court came to the conclusion that there was marriage between the parties and the relationship between the appellant and the respondent was that of husband and wife. In the written statement filed in this suit, defendant had no case that the marital relationship is not correct So the fact that they are husband and wife has been concluded in Ext.A1 judgment. It is admitted fact that Ext.A2, which is the certified copy of Sale deed No.814/82 by which the petition schedule property was purchased, stands in the name of the defendant, who is the appellant herein. The case of the respondent in the lower court was that the property was purchased with her funds as she had entrusted the money to her husband when they were living together and they lived in the house for a long period and thereafter the appellant had an illicit Mat.Appeal No.195/2012 -:7:- connection with another lady. He had deserted her and tried to evict her, which prompted her to file the earlier suit which culminated in Ext.A1 judgment. Ext.A3 is the suit filed by the appellant herein claiming arrears of rent on the premise that the respondent herein was residing in the house as a tenant. But as per Ext.A3 judgment, the Court found that there is no landlord- tenant relationship, but she is residing in the house as the wife of the appellant. Under such circumstances, the fact that they are husband and wife have been established by the findings in the previous litigations between them.
9. Once the document has been executed or purchased in the name of a particular person, the contra will have to established and the burden is on the person who alleges that he is the person who purchased the property with his funds has to prove the same. Except the fact that she is working in Health department, she has not produced any document before the court below to show that she had excess income which has been entrusted to the defendant for the purpose of purchasing the property. However, the appellant also has not produced any document to show that he was having any independent income. Mat.Appeal No.195/2012 -:8:- In Ext.A2, it was mentioned that he was an agriculturist. But his case was that he was a business man and he was getting income from his business. However, he had produced certain documents before this Court to show that he is having income. But those documents cannot be received in evidence without giving an opportunity for the parties to adduce evidence regarding the reliability of those documents and without considering how far the entries in the passbook will be helpful for the appellant herein to prove that he was having independent income which has been credited in the account which has been withdrawn for the purpose of purchasing the property. The court below came to the conclusion that there was no denial of the allegations made in the pleadings. But on going through the counter statement also and the evidence of DW1, we are not able to agree with that observation made by the court below. It is only on the basis of that observation that the Court below came to the conclusion that the respondent had proved her case and she is entitled to get the decree as prayed for. The observation made above is unsustainable and the same is liable to be set aside. Considering the above circumstances, we feel that on the basis of evidence Mat.Appeal No.195/2012 -:9:- available, we do not think that the decree passed by the Court below will stand. But the counsel for the respondent also submitted if for any reason this Court found that the evidence is not sufficient, she may be also be given an opportunity to adduce further evidence to prove her case.
10. Considering the fact that certain documents have been produced by the appellant, which requires proof and further evidence, we feel that it is necessary in the interest of justice to set aside the decree and judgment passed by the Court below and remand the case to the Court below for fresh disposal after giving an opportunity to the parties to adduce evidence to prove the respective case. The documents produced by the appellant along with IA No.1090/12 is also directed to be sent to the court below along with the records so as to enable the parties to adduce evidence on that aspect as well. Therefore, the judgment passed by the Court below decreeing the claim as prayed for is set aside and the matter is remitted to the court below for fresh disposal. The Court below is directed to give an opportunity to both the parties to adduce further evidence. Considering the fact that the case is of the year 2009, we feel that the Court below can Mat.Appeal No.195/2012 -:10:- be directed to expedite disposal of the case after giving necessary opportunity to adduce evidence, as expeditiously as possible, at any rate, within four months from the date of a receipt of a copy of this judgment.
Parties are directed to appear before the Court on 8/2/2017. Registry is directed to send back the records along with the judgment to the Court below immediately.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
K.RAMAKRISHNAN, JUDGE Rp10/1/2017 //True Copy// P.S to Judge