IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 SA.No. 606 of 1997(E) --------------------- AS.18/1988 of SUB COURT, HOSDRUG OS.24/1995 of MUNSIFF COURT, HOSDRUG .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------- A.UMMERKANNU, S/O.ALIKUNHI, CULTIVATOR, RESIDING AT PALAKUNNU OF WEST ELERI VILLAGE, HOSDURG TALUK, KASARAGOD DIST., POST MANDAPAM. BY ADV. MS.VIDHYA. A.C RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------- 1. N.RAFIABEEBI, D/O.NAHUR MERRAN LABBA, KIZHAKKANDARA PUTHAN VEEDU THEVANKODE, POST CHERIA VELLUNGALOOR, VIA COYOOR, KOTTARAKKARA TALUK, QUILON DISTRICT. 2. OLAKARA CHATHUKUTTY NAMBIAR, S/O.THAMBAYI AMMA, PALAKKUNNU WEST ELERI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, POST MANDAPAM. 3. CHERAMMAL ISMAIL, S/O.AISUMMA, PALAKUNNU, WEST ELERI VILLAGE, HOSDURG TALUK, KASARAGODE DIST, POST MANDAPAM. *4. R.THAHIRA, D/O.UMMERKANNU, THEVANKATTU, KIZHAKKEKKARA, AKKAL PO., KOLLAM DIST. *5. SULEKHA, D/O. -DO- -DO- *ADDL. RESPONDENTS 4 & 5 ARE IMPLEADED AS PER ORDER DATED 13.11.2006 IN I.A.NO.484/2006. ADV. MR.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE MR.S.ANANTHAKRISHNAN FOR R4 AND 5 MR.N.K.SUBRAMANIAN FOR R4 & 5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 606 of 1997(E) ORDER ON C.M.P.NO.1606/1997 & I.A.NO.2116/2006 IN S.A.NO.606/1997 DISMISSED. 28.7.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.606 Of 1997 ---------------------- Dated this the 28th day of July, 2010. J U D G M E N T The plaintiff in O.S.No.24 of1985 on the file of the Munsiff Court, Hosdurg is the appellant. The second appeal is directed against the judgment and decree dated 12.6.1997 in A.S.No.18 of 1988 of the Sub Court, Hosdurg. Suit was filed for a declaration that the suit property belongs to the plaintiff, that the registered sale deed Ext.A3 standing in the name of the first defendant is benami for the plaintiff and for consequential injunction restraining the defendants or their men from trespassing into the suit property. The trial court dismissed the suit and the same was confirmed in appeal. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The short facts leading to the filing of the suit is as follows: The plaintiff is the husband of the first defendant. They were married on 10.4.1977. They have two children who are the additional respondents 4 & 5 in the appeal. The wife left the matrimonial home in 1982. The plaintiff married another woman S.A.No.606 Of 1997 ::2:: in December 1982. The plaintiff had entered into an agreement to purchase an item of property from the assignor as per agreement dated 6.5.1977. Pursuant to the agreement he paid the balance consideration to the assignor and Ext.A3 sale deed was executed in the name of his wife benami for him. It is also stated in the plaint that the first defendant has no financial capacity to purchase the suit property, that he has been in possession of the suit property and is residing in the house in the property along with his second wife. Since the sale was taken benami in the name of the wife, the plaintiff sued for declaration as aforementioned. The first defendant contested the suit. Defendants 2 & 3 are the purchasers of portions of suit property from the first defendant. The first defendant denied the plaint averments and prayed for dismissal of the suit. She inter alia contended that the plaintiff has no title or possession, that the suit property was purchased by the first defendant utilizing her own funds, that for the purpose of mobilizing the amount necessary for the purchase of the property she sold her property at Quilon and that fund was also utilized for the purchase of the suit property. She denied the averment in the plaint that the suit S.A.No.606 Of 1997 ::3:: property was purchased with the funds of the plaintiff and alleged that the plaintiff had no sufficient means to purchase the property, that the sale agreement was taken for the benefit of the first defendant, that at that time as husband and wife they were on cordial terms. The suit property was purchased vide Ext.A3 sale deed dated 16.8.1977, immediately after the marriage, that they lived together as husband and wife till 1982 and the title deeds are kept by the plaintiff in the house when the first defendant was driven away. Therefore, the first defendant had no occasion to carry the documents to her parental house. It is the plaintiff’s case that the property was purchased by him utilizing his own funds and his wife is the benami. Ext.A3 recitals prima facie proved that the first defendant had obtained title and possession over the suit property on payment of valid consideration. The husband contended that the purchase was for his benefit alone, that he was capable of purchasing the suit property and the consideration for Ext.A3 sale deed was advanced by him, that he had been treating the suit property eversince as his own property, that he has kept the title deed with him and that he was in possession of the suit property to the S.A.No.606 Of 1997 ::4:: exclusion of his wife. 3. The first defendant wife on the other hand maintained the stand that Ext.A3 is not a benami one, that she has raised consideration to purchase Ext.A3 out of her own funds which she was having at that time by disposing her property at Quilon, her husband did not advanced any money for purchase of Ext.A3 and that her husband was not having sufficient means to purchase Ext.A3 property. 4. The plaintiff deposed before the court in terms of the plaint. In support of his case he had examined PWs 2 to 4. The first defendant was examined as DW1. She testified in terms of her pleadings. The third defendant was examined as DW2. The trial court in detail examined the question as to whether Ext.A3 sale deed is taken benami by the plaintiff in the name of the first defendant. The trial court followed the settled position of law and relied on the decisions of the Apex Court in examining the question. The trial court held that the question as to whether a particular sale is benami or not is largely one of fact and for determining that question the court is guided by various circumstances. The court formulated 6 circumstances in S.A.No.606 Of 1997 ::5:: identifying and ascertaining whether Ext.A3 sale deed was executed as a benami document. The court also after narrating the 6 facts and circumstances which are applied uniformly by the Apex Court in several cases observed that the most important factor is the source of money for purchase and second factor the motive for taking purchase in another’s name. 5. Plaintiff married the first defendant in 1977. Parties resided together till 1982 from the date of marriage and admittedly they were living under the same roof on very intimate and cordial terms. Two children were also born to them in the wedlock. Admittedly, only in April, 1982 the first defendant went back to her parental house in Quilon. The children were also living with their mother from that date. Taking into account the close relationship of the parties and the circumstances under which the first defendant had to return her parental home and further fact that she was not able to carry her belongings and the documents with her and in such circumstances the retention or custody of the documents with the husband as rightly held by the trial court is of no consequence. As PW1 the husband also testified before the court that he used to keep all the documents S.A.No.606 Of 1997 ::6:: while they were living together and that he used to keep all the valuables out of her reach. It has come out in evidence that on a fine morning she was taken by her brother to her parental house in Quilon. She has not taken any valuables belonging to her is a reasonable explanation which was accepted by both courts. The important question regarding the payment of consideration or the source from which the purchase price came were also examined by the trial court as well as the appellate court. After taking into consideration the various facts and circumstances, the court below held that the consideration for the in purchase of Ext.A3 sale deed was paid by the first defendant. The court also examined the evidence adduced by both sides and preferred to believe the case advanced by the first defendant. In evidence she testified before the court that for the purchase of Ext.A3 property she had sold an item of property. Ext.B4 is the sale deed produced which would go to show that she sold 8½ cents of land to a third person. She also testified that her brothers and relatives also helped her in purchasing the property and that the price of the gold ornaments and other valuables were also utilized for purchasing the property. The trial court as well as the S.A.No.606 Of 1997 ::7:: appellate court taking into account the above said factors as well held that there is nothing strange and unusual to take such a recourse to such human conduct and held that the plaintiff has not succeeded in proving that he had advanced money for purchasing Ext.A3 property. The court below also examined the motive of the plaintiff. In the plaint the only sentence stated is that Ext.A3 sale deed was taken in the name of the first defendant only because she happened to be his wife. When testified before the court he said some other reasons quite contrary to the reason stated in the plaint and after examining the reasons set up at the time of evidence the courts below held that the evidence falsifies the case set up as benami. The trial court held that it is evidently clear that absolutely there is no motive to make a colourable transaction. The courts below also examined the factum of possession of the property purchased. The first defendant produced the basic tax receipts. She also produced two sale deeds namely, Exts.B5 & B6 conveying portions of her property in favour of third persons. The trial court also taking note of the recitals in Ext.A3 r/w Exts.B1 to B5 series held that consequent to Ext.A3, patta was changed into the S.A.No.606 Of 1997 ::8:: name of the first defendant and also observed that there is no piece of documentary evidence before the court which may even suggest that the plaintiff was dealing with the property in such a manner so as to assert exclusive ownership and possession. The courts below further held, the mere fact that after 1982 plaintiff was managing the suit property which is seriously disputed by the defendants does not loom large in this case in view of the close relationship between the parties. After analysing the facts, evidence and relationship between the parties the courts below found that the plaintiff has not succeeded in establishing his case that Ext.A3 was taken by him in the name of his wife benami for him. After discussing all the facts and circumstances leading to execution of Ext.A3 the courts below draw the legal inference that Ext.A3 is not a nominal and benami document and held that Ext.A3 was obtained by the first defendant exclusively out of her fund and that the plaintiff was not in possession of the suit property. 6. The discussion of the merits of the case in the preceding paragraphs would go to show that the plaintiff is not entitled to the reliefs sought for in the suit. The questions raised S.A.No.606 Of 1997 ::9:: by the plaintiff are elaborately considered by the courts below and on facts, evidence and attendant circumstances the courts took the view that Ext.A3 document was not taken benami by the plaintiff in the name of the first defendant. All the related issues were also answered in favour of the first defendant and the court held that the plaintiff is not entitled to any reliefs prayed in the suit. I do not find any reason to interfere with the findings of facts recorded by the courts below. No question of law muchless any substantial question of law arises for consideration in the appeal. In the result, the appeal fails and accordingly, it is dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-