IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 SA.No. 879 of 2000(D) --------------------- AS.102/1991 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1684/1985 of III ADDL.MUNSIFF COURT,TRIVANDRUM .................... APPELLANT(S): APPELLANT:DEFENDANT: --------------------------------------------------------------- NALLATHAMPI LAWRENCE, USHA BHAVAN, PUTTUMMELKONAM, KARODE MURI, VILAPPIL VILLAGE, VILAPPILSALA PO, THIRUVANANTHAPURAM - 695 587. (NOW RESIDING AT KALA BHAVAN, PUTTUMMELKONAM, KARODE MURI, VILAPPIL VILLAGE, VILAPPILSALA PO, THIRUVANANTHAPURAM - 695 006). BY ADV. SRI.P.S.VASAVAN PILLAI RESPONDENT(S): RESPONDENT:PLAINTIFF: ------------------------------------------------------------------ AMMUKUTTY KOMALAM, VILAYIL VEEDU, PULIYANCODE, CHEMPAZHANTHI PO, THIRUVANANTHAPURAM (ORIGINALLY RESIDING AT VETUVILA PUTHEN VEEDU, ...DO..DO....) BY ADV. SRI.D.SAJEEV THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ..2/- ..2.... SA.NO.879/2000 J U D G M E N T Today, when this Second Appeal came up for hearing neither the appellant nor his counsel present. Hence, the Second Appeal is dismissed for default. 20/06/2011 SD/- P.BHAVADASAN,JUDGE Order on CMP.No.2318/2000 in SA No.879/2000 Dismissed 20/06/2011 SD/- P.BHAVADASAN,JUDGE /True Copy/ P.A.to Judge kss P.BHAVADASAN, J. ---------------------------- S.A.No. 879 of 2000 --------------------------------- Dated this the 19th day of July, 2011 JUDGMENT The suit was one for partition. The plaintiff and defendant are wife and husband. The marriage took place in 1979. The wife instituted O.S.No.1684/1985 seeking partition of the property covered by Ext.A1 dated 26.07.1979. She claimed that even though acquisition was using her exclusive funds since the property stood in their joint names she was constrained to lay the suit for partition. 2. The defendant resisted the suit. The matrimonial dispute which is highlighted in the written statement is not relevant in the present context. It is contended that the plaint schedule property was acquired with the exclusive funds of the defendant and property belonged exclusively to him. He also filed a counter claim, claiming half share over 33½ cents, which is scheduled to the written statement. He prayed for a dismissal of the suit and for a decree on the counter claim. 3. The plaintiff replied to the counter claim by pointing out that 33½ cents of property covered by Ext.B1 was obtained her as S.A.No. 879 of 2000 2 Sreedhana property and it exclusively belonged to her though contains that the name of the defendant also. Her contention is that that property is not partible. 4. On the above pleadings, issues were raised. The evidence consists of the testimony of PWs 1 and 2 and Exts.A1 to A3 marked from the side of the plaintiff. The defendant examined himself as DW1 and had Exts.B1 and B2 series marked. The trial court found that the claim of the plaintiff that the acquisition of the plaint schedule property was utilising the funds of her father was not true. But there was no contra evidence on the side of the defendant to show that it was utilising his exclusive funds, that acquisition was made under Ext.A1. The trial court found that since the property stands in the joint names, the plaintiff is entitled to half share and granted a preliminary decree for partition to that extent. 5. As regards the property covered by Ext.B1, the trial court was of the view that it was given in lieu of marriage and the property exclusively belonged to the plaintiff, though the name of the defendant is included in the document. Therefore, relief was S.A.No. 879 of 2000 3 declined to the defendant on the counter claim. 6. The aggrieved defendant took up the matter in appeal as A.S.No.102/1991 before the District Court, Thiruvananthapuram. The District Court on re-appreciation of the evidence concurred with the trial court and dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following substantial questions of law: i. Whether the suit was to be tried by the family Court or a civil Court. ii. While the plaintiff claimed a share in the property was not the burden to prove the right on the plaintiff herself ? Was it the burden of the defendant to prove that the plaintiff had no right ? iii. Was the concept of 'Sthreedhanam' and Section 2 to 6 of the Dowry Prohibition Act 1961 involved in the suit ? 8. The learned counsel appearing for the appellant contended that the judgment and decree passed by the lower S.A.No. 879 of 2000 4 court is without jurisdiction and is null and void. It is contended that while the appeal was pending, the Family Court had started functioning at Thiruvananthapuram and going by Sections 7 and 8 of the Families Courts Act the appeal should have been transferred to the Family court. The decision by the lower appellate court is therefore without jurisdiction. As regards the merits of the case, it is contended that the rejection of the counter claim was improper and illegal. The courts below omitted to note that Ext.B1 had come into existence long prior to the marriage and therefore, the transaction could not have been in lieu of the marriage. There was no reason to reject the claim for partition of 33½ cents. 9. The learned counsel appearing for the respondent on the other hand contended that what is contemplated under Sections 7 and 8 of the Family Court Act, is not transfer of appellate proceedings. The suit was instituted in 1985 and the judgment and decree of the suit was passed on 28.06.1990. The appeal was filed in 1991. The Family Court in Trivandrum started functioning only from since 6.6.1992. There is no provision S.A.No. 879 of 2000 5 under the Family Courts Act to transfer an appeal to the Family Court. As regards the merits of the case, the learned counsel pointed out that Ext.B1 document having been acted upon by the defendant, he cannot now turn round and say that the recitals contained therein are not binding on him. The courts below have considered these aspects in considerable detail and have come to the conclusion that the defendant is not entitled to any relief in respect of the property scheduled to the counter claim. That is a finding of fact and no substantial question of law arises for consideration. 10. The appellant laid considerable stress on the view expressed by the lower appellate court that going by the definition of Shrithanam in Travancore Cochin Succession Act ,the transaction covered by Ext.B1 is a Sreedhana property. The contention is that in 1992, Travancore Cochin Succession Act was not in force and therefore, the definition in the said Act could not have been relied on. That according to the appellant vitiates the whole proceedings. S.A.No. 879 of 2000 6 11. Though, there is some substance in the above contention it does not mean that the finding as regards property is to be set aside. The lower court only borrowed the definition of Sridhanam contained in Travancore Cochin Succession Act, in the context of the case. Even without the aid of that definition, the said transaction comes within the definition of dowry in the dowry prohibition Act, 1961 which has been extracted by the lower appellate court. If one goes through Ext.B1, its recitals are very clear and explicit. It leaves one in no doubt that the settlement was made in lieu of marriage and it was intended to benefit the plaintiff in the suit. True, the evidence on record shows that Ext.B1 was executed long prior to the actual marriage between the parties. The evidence also discloses that they were residing together even before the marriage. The defendant takes objection only to the recital in Ext.B1 but does not disown the document as such. The finding of the courts below cannot be found fault with. On going through Ext.B1, settlement deed it is evident that it was executed to the benefit of the plaintiff. S.A.No. 879 of 2000 7 12. As regards the property covered by Ext.A1 is concerned, even though the defendant had a case that the acquisition was using his exclusive funds, he was unable to establish the said fact by adducing cogent and convincing reasons. True, the plaintiff had a case that she had purchased the property by utilising funds provided by her father. She also failed to establish the said fact. Both the courts below have noticed that in the light of the fact that the document stands in the joint name of the defendants it is presumed that they have equal share in the property. The lower courts rightly granted a decree for preliminary partition in respect of the property covered by Ext.A1. No substantial question of law arises for consideration in the second appeal. The Second appeal is without any merits and it is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE. ln