IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 3599 of 2009(C) ------------------------- CMA.171/2008 of ADDL.DISTRICT COURT, THRISSUR .................... PETITIONER(S): --------------- K.SREEDEVI, AGED 80,S/O.LATE THERAMBIL GANGADHARAN, VENKITANGU VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): --------------- RADHAKRISHNAN, S/O.SREEDEVI, DESAMANGALAM VILLAGE, TALAPPILLY TALUK. BY ADV.MR.JIJO PAUL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.3599 OF 2009 =========================== Dated this the 10th day of February,2009 JUDGMENT Writ petitioner is the defendant and respondent the plaintiff in O.S.1528/2008 on the file of Addl.Munsiff Court, Thrissur. Writ petitioner is the mother of the respondent. The respondent was employed in Gulf country. Respondent instituted the suit for a decree for declaration that the plaint schedule property was purchased benami in the name of the Writ Petitioner and he is the absolute owner of the property and writ petitioner is not entitled to alienate the property or obstruct its peaceful possession by the respondent. In the suit I.A.4723/2008 was filed for an order of temporary injunction under Rule (1) of Order XXXIX of Code of Civil Procedure restraining the mother from alienating the property. Under W.P.(c) 3599/2009 2 Ext.P5 order learned Munsiff dismissed the application finding that respondent did not establish a prima facie case. Respondent challenged that order before District Court, Thrissur in CMA 171/2008. Learned Additional District Judge under Ext.P6 order set aside Ext.P5 order finding that there is fiduciary relationship between the mother and her son and under Ext.A1 and A2 the property though purchased in the name of the mother, the consideration paid was the one obtained by sale of the joint properties belonging to the mother, son and daughter sold under Ext.A3 and therefore Writ Petitioner is not entitled to alienate the share of the respondent in the plaint schedule property and granted an order of temporary injunction till the disposal of the suit. The order is challenged in this petition filed under Article 227 of the Constitution of India, as no revision will lie as against Ext.P6 order. 2. Learned counsel appearing for the petitioner and respondent were heard. W.P.(c) 3599/2009 3 3. Learned Additional District Judge set aside Ext.P5 order passed by the learned Munsiff finding that the relationship between the mother and the son is fiduciary and it is the admitted case that 48 cents of the property originally belonged to the mother and her two children the respondent and his sister was sold under Ext.A3 sale deed while respondent was in gulf on the strength of the power of attorney executed by respondent and prima facie consideration for Exts.A1 and A2 had flowed from the consideration obtained under Ext.A3 and therefore the property is held by the Writ Petitioner in trust for the respondent and therefore she is not entitled to alienate the property. As rightly pointed out by learned counsel appearing for Writ Petitioner, learned Additional District Judge did not properly consider the materials produced by the respondent to prove his case. 4. In a petition filed under Order XXXIX Rule 1 of Code of Civil Procedure, court has to see W.P.(c) 3599/2009 4 whether petitioner has shown a prima facie case and if so whether balance of convenience is in his favour and whether irreparable injury will be caused if the order is not granted in his favour. Plaint Schedule property was admittedly purchased under Exts.A1 and A2 registered sale deeds of 2004 and 2005. The Writ Petitioner the mother is the assignee under Ext.A1 and A2. What was contended by the respondent in the plaint is that the consideration for Exts.A1 and A2 was the share of the consideration due to respondent under Ext.A3 whereunder the joint property was sold. Though learned Additional District Judge found that 48 cents the joint property owned by petitioner and her children was sold under Ext.A3 and Petitioner did not establish how the share of the consideration due to the respondent was dealt with, in the written objection filed to the application for injunction itself petitioner contended that out of 48 cents jointly obtained by the mother and two children under document No.458 of 1989, 20 W.P.(c) 3599/2009 5 cents was sold for a consideration of Rs.10,000/- in favour of Krishnan and what was left with them thereafter was only 28 cents and out of the said 28 cents as per registered sale deed 5740/1996, 10 cents were sold for Rs.25,000/- and what was sold under Ext.A3 sale deed in 2004 was only the remaining 18 cents and the sale consideration was Rs.2,00,000/- and out of the sale consideration, the share due to the respondent was given to him. Therefore learned Addl.District Judge was not justified in finding that Writ Petitioner did not explain how the consideration due to the respondent was spent. Though learned Munsiff and learned Addl.District Judge did not consider this aspect, learned counsel appearing for respondent admitted that under Ext.A3 the property sold was only 18 cents for a consideration of Rs,2,00,000/-. It is clear that respondent did not approach in court with clean hands as the fact that thirty cents out of the fourty eight cents was sold by 1996 was suppressed in the plaint. Even if the case of the W.P.(c) 3599/2009 6 respondent is to be believed, the allegation in the plaint that there was an agreement to purchase the property in the name of the respondent out of the sale consideration received by the sale of 48 cents of property jointly belonged to the mother and son cannot be true, because by 1996 out of 48 cents 30 cents was already sold and what remained was only 18 cents which was sold under Ext.A3. 5. Even if the case of the respondent is true, and it is taken that 1/3rd share in the sale consideration due to him was not paid by the mother, as seen from Ext.A3 the share due to the respondent could only be one third of Rs.2,00,000/- which is Rs.66,667/-. Though learned counsel appearing for respondent argued that the consideration received was not Rs.2,00,000/-but 5 ½ lakhs, if the allegation in the plaint is to be taken as correct, it could only be the consideration for the entire 48 cents and cannot be for the 18 cents. Moreover, prima facie there is nothing to show that the consideration received W.P.(c) 3599/2009 7 under Ext.A3 is not Rs.2,00,000/- but more. Therefore even if it is taken that respondent is entitled to get 1/3rd share of the sale consideration obtained under Ext.A3, the claim could only one third of the consideration shown therein and not for the property purchased by the Writ Petitioner. 6. Even if it is taken that the plaint schedule property was purchased under Ext.A1 and A2 out of the sale consideration received under Ext.A3, the consideration paid as seen from Ext.A1 and A2 was only Rs.87,000/- and that Rs.87,000/- could be paid out of the sale consideration under Ext.A3,excluding the 1/3rd share due to the respondent. Therefore for the failure of the Writ Petitioner to establish that 1/3rd share due to the respondent under Ext.A3 was not paid, it cannot be presumed that the consideration paid for Ext.A1 and A2 is the said 1/3rd share due to the respondent. Even if that 1/3rd is also used for purchase of Exts.A1 and A2 propertyas seen from Ext.A1 and A2, W.P.(c) 3599/2009 8 the sale consideration paid for purchase of the property is more than 1/3rd share due to the respondent under Ext.A3. Unfortunately these aspects were not gone into by the learned Additional District Judge while interfering with Ext.P5 order passed by the learned Munsiff. 7. Exts.A1 and A2 do not prima facie prove the case of respondent as by the documents it is the petitioner who is the owner of the property. Ext.A3 at best will prove that by sale of the property over which respondent had equal right with petitioner and her daughter was sold for Rs.2,00,000/-. There is no material to show that Exts.A1 and A2 were obtained for the benefit of respondent. If there was an agreement to purchase the property in the name of respondent, it could have been obtained in his name. There is no material even to probabilise the case of such an agreement. 8. When documents stand in the name of the Writ Petitioner, unless respondent prima facie W.P.(c) 3599/2009 9 establishes that the consideration was paid by him or that there was an agreement to purchase the property benami in the name of the mother learned Addl.District Judge was not justified in reversing Ext.P5 order. On the material respondent has not established a prima facie case. Therefore neither the balance of convenience nor the question of irreparable injury is in his favour. Writ Petition is allowed. Ext.P6 order is illegal and it is set aside. Learned Munsiff is directed to dispose the suit expeditiously untrammelled by any observations in this order or Ext.P5 or Ext.P6 orders. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006