IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 CMA.No. 175 of 2000() --------------------- AS.8/1998 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.735/1993 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S)[1ST DEFENDANT - APPELLANT]: -------------- MANGANADATH PULPARAMBIL BALAN, SON OF AYYAPPUTTY CHEVAYUR AMSOM AND DESOM, KOZHIKODE TALUK,\ KOZHIKODE DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR RESPONDENT(S)[PLAINTIFF AND DEFENDANTS 2 AND 3 - RESPONDENTS]: ----------------------------------- 1. C.M. LEELA, WIFE OF GOVINDAN, KONOTTU, KUNNAMANGALAM, KURUVATTUR AMSOM AND KONOTH DESOM, KOZHIKODE TALUK AND DISTRICT. 2. MANGANADATH PULPARAMBIL SANKARAN, SON OF AYYAPPUTTY, C/O. M.K. ASOKHAN, KARE ELIVETOR INDIA LIMITED, PADMA JUNCTION, CHITTUR ROAD, COCHIN - 35. 3. MANGANADATH PULPARAMBIL SOMAN, S/O. AYYAPPUTTY, MATHA AMRITHANANDA MAYI MADAM. AMRITHAPURI, ATHINAD, KOLLAM. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.TOJAN J. VATHIKULAM FOR R2 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2008, ALONG WITH CMA NO. 239 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.A.NO. 175/2000 ORDER ON C.M.P.NO. 4712/2000 IN C.M.A. NO. 175/2000 DISMISSED. SD/- M.N. KRISHNAN, JUDGE 9.12.2008 /TRUE COPY/ P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000 --------------------------------- Dated this the 9th day of December, 2008 JUDGMENT Both these appeals are preferred against the judgment rendered by the Additional District Judge, Kozhikode in Appeal Suit No. 8/1998. C.M.A 175/2000 is filed by the first defendant in the suit and C.M.A 239/2000 is filed by the plaintiff in the suit. The brief facts necessary for the disposal of these appeals are stated as follows: 2. The Original Suit O.S. 735/93 is filed for partition of the plaint schedule property into 4 shares and to allot one such share to the plaintiff and one such share each to defendants 1 to 3. It is the case of the complainant that the property belonged to her mother Devaki by virtue of a partition deed. It is submitted that the property can be divided into 4 shares and partition can be affected. 3. The first defendant in the suit would contend that the property was purchased in the name of Devaki by him with his funds for his benefit and she was only a name lender and she had never obtained any title to or possession of the property and in C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000 -2- paragraph 8 of the written statement it is specifically contended that even if the Benami Transactions Prohibition Act is to be applied it will come within the exemption under Section 4(3)(b) of the Act considering the fiduciary relationship between the mother and the son. Various other contentions such as plea of ouster, reservation etc. were also raised in the suit. 4. The defendants 2 and 3 contended for the position that the property was purchased in the name of the mother with the funds of the father and therefore the mother is only benamidar and on her death the property had devolved upon the 4 children equally entitling each one of them to have one out of 4 shares. 5. The trial court on consideration of the entire materials arrived at a decision that the transaction is not a benami one. The first defendant has not proved that the right of the plaintiff or other defendants is lost by ouster and that the first defendant is not entitled to any reservation. Thereafter the suit was decreed in line with the prayer in the plaint. It is against that decision the appeal was preferred before the District Court as A.S. 8/1998. It was proved by the 1st defendant in the suit and after elaborately considering the materials the court held that documents are C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000 -3- produced along with I.A. 1329/99 is relevant for the purpose of determination of the case. Therefore the case is remanded back to the trial court for a fresh finding on issue Nos.1 and 2 and also for a fresh finding on issue No.5 by affording an opportunity to the first defendant to adduce evidence to prove the documents produced in the case. It is against that decision the first defendant as well as the plaintiff has come up in appeal. 6. The grievance of the first defendant is that the court below had passed an order of remand which is liable to be interfered with and the plaintiff has preferred the appeal contending for the position that the appellate court committed error in admitting those documents and reopening the question regarding the partibility of the property. After hearing both sides, I consider the following substantial questions of law: Whether the lower appellate court has justified in passing an order of remand and whether the circumstances which had been discussed by the appellate court is legal. 7. I will consider this matter in detail so that the questions raised by both the parties can be met with this one judgment. At the out set I may like to point out that before the court below the C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000 -4- parties have not adverted to the legal question that should have been considered but did spend their time more on the question of the benami nature of the transaction. Admittedly the suit is filed after coming into force of the Benami Transactions Prohibition Act 1988 and therefore the question whether the transaction is Benami should not have been considered, even if it is raised by the parties for reason that Section 3 and 4 of the Act bars an enquiry in to that question. But section 4(3)(b) of the Act saves a transaction where the person in whose name the property is held is a trust or other person standing in a fiduciary capacity. Admittedly here is a case where the first defendant is none other than the son of Devaki in whose name the documents stands. The contention of the plaintiff is that the property is acquired and purchased by Devaki with her own funds and she was the owner in possession of the property till her date of death. On the other hand the first defendant would contend that due to certain reasons the property was purchased in the name of Devaki by making use of his funds. According to him considering fiduciary relationship and as the consideration for the transaction had been parted with by the first defendant the property belongs to him and therefore other will not have any title to or C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000 -5- right or possession over the property. But in order to adjudicate this question even regarding fiduciary capacity prime point to be considered will be, whether the sale consideration for the purchase of the property was spent by Devaki or whether it was the funds of the first defendant which he had used for the purchase of the property in the name of his mother namely Devaki. So for this purpose, though the question of the benami nature of the transaction may not have to be considered in that perspective the source of consideration and the resultant effect of the same will have to be considered by the trial court to find out with whose fund the property had been purchased. An answer is given to that question by appreciating and evaluating the evidence, both oral and documentary as well as the additional documents produced in the appeal. Any further document which the parties intend to produce for the purpose of arriving such a decision including additional oral evidence. The matter has to be considered in that perspective and decided. Therefore I make the order of remand very clear in this aspect namely the purpose of the remand would be for the purpose of finding out with whose fund the property had been purchased. If first defendant succeeds in proving that it was with his funds that C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000 -6- the property was purchased then the question whether the carved out exemption of 4(3)(b) would apply or not. I make it very clear that all the documents produced and to be produced and all the oral evidence adduced and to be adduced to be considered for the purpose of arriving that decision. 8. The next question is regarding plea of ouster. The learned trial Judge has elaborately considered the question of ouster. The dictum in the decision of this court reported in Krishnan v. Raman (1986 Short Notes 63 Case No. 104), when applied would show that in a case of ouster really something more has to be proved that is the hostile animus. Therefore I do not propose to interfere the said decision rendered regarding plea of ouster decided by the trial court. Now lastly let us come to the question of reservation decided by the trial court. Even if it is found that the money has been parted by Devaki, if one of the co-owners spend the entire amounts for improving the property and when there are circumstances or evidence to show that the other co-owners are having other house or property, then necessarily the question of equity and reservation has also to be considered. So I permit both sides to adduce evidence on the question of reservation as well and C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000 -7- direct the trial court to consider the question of entitlement of reservation claimed by the first defendant. No other points arise for consideration and therefore the Civil Miscellaneous appeals 175/2000 and 239/2000 are disposed of with a direction to the trial court to consider the matters that has been elaborately considered by this court in the previous paragraphs of the judgment. The parties are directed to appear before the trial court on 20.1.2009. The registry is directed to send back the records also as early as possible. M.N. KRISHNAN,JUDGE vkm