IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 RSA.NO. 220 OF 2005() -------------------------------- AS.66/1996 OF DISTRICT COURT, PATHANAMTHITTA OS.221/1993 OF M.C.,PATHANAMTHITTA .................... APPELLANT – APPELLANT - PLAINTIFF ---------------------------------------------------- KURIAN GEORGE, SON OF K.K.GEORGE, KANHIKUZHY MAMPAZHASSERI HOUSE, THOTTAMAN MURI, THEKKEPURAM VILLAGE, P.O.RANNI, PATHANAMTHITTA DISTRICT. BY ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN RESPONDENT - RESPONDENT - DEFENDANT: ------------------------------------------------------------ CHINNAMMA K.GEORGE, WIFE OF KURIAN GEORGE, MAMBAZHASSERIL, THUMPAMAN NORTH P.O., ELAVUMTHITTA, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT. ADV. SRI.BABU CHERUKARA FOR R1 SRI.ISAAC GEORGE FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.220 of 2005 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of March, 2010 J U D G M E N T --------------------- This appeal is admitted framing the following substantial questions of law: (i) Whether the civil court has jurisdiction to entertain a suit for declaration after the commencement of the Benami Transactions (Prohibition) Act, 1988 (for short, “ Act”) by one of the vendees to sale deed to the effect that he is the absolute owner in spite of the fact that the sale deed stands in the joint names of the plaintiff and defendant? (ii) When the documents in question stand in the name of the husband and wife, namely plaintiff and the defendant, would R.S.A. No.220 of 2005 -: 2 :- Sec.4(3)(b) of the Act apply to such a case? (iii) Whether the decree obtained against the provisions of the Act will operate as res judicata? 2. Fight between an estranged husband and wife (I am told that they got divorce during the pendency of litigation). Appellant/husband filed O.S.No.221 of 1993 in the court of learned Munsiff, Pathanamthitta for partition of item Nos.1 to 6, last item being a residential house in itmem No.1. He claimed one half share in the suit property. Respondent contended that item Nos.1, 4 and 5 are not partible since those items exclusively belonged to her having been purchased with the funds of her father and name of R.S.A. No.220 of 2005 -: 3 :- appellant was included in the respective documents of title only as a trustee. So far as item No.6 is concerned that also is not partible. According to the respondent since building is situated in plaint schedule item No.6 which is not partible for the reason stated above. She filed O.S. No.336 of 1993 against the appellant for declaration of her absolute right over items 1, 4 and 5. In O.S. No.336 of 1993 an ex parte decree was passed in favour of the respondent as evidenced by Exts.B1 and B2, certified copy of judgment and decree as per which absolute right claimed by the respondent over item Nos.1 and 5 declared. In the light of Exts.B1 and B2 trial court after evidence fond that other items (2, 3, 4) are partible among appellant R.S.A. No.220 of 2005 -: 4 :- and respondent. Appellant took up the matter in appeal not being satisfied with the decree. First appellate court however confirmed the judgment and decree and hence this Second Appeal. It is contended by learned counsel for the appellant that Exts.B1 and B2 cannot stand since the suit (O.S.No.336 of 1993) itself is barred by Sec.4 of the Act and hence question of Exts.B1 and B2 operating as res judicata did not arise. According to learned counsel courts below were not correct in holding that item Nos.1 and 5 are not partible. Learned counsel contends that the said items are also partible among the appellant and respondent equally. Learned counsel for respondent would contend that Exts.B1 and B2 have R.S.A. No.220 of 2005 -: 5 :- become final, appellant had preferred an application to set aside Exts.B1 and B2 and that application was dismissed long back. As such in a separate proceeding correctness of Exts.B1 and B2 cannot be gone into. According to learned counsel a reading of Exts.A3 and A4, documents of title in respect of item Nos.1 and 5 would also show that appellant has no right over the said items since funds for purchase of the said items came from respondent's father. Learned counsel has placed reliance on Section 45 of the Transfer of Property Act and the decision in Vasanathakumary v. Omanakutan Nair (2009 [3] KLT 43). 3. Now dispute is only concerning the partibility of item R.S.A. No.220 of 2005 -: 6 :- Nos.1 and 5. Other disputes have already resolved by the trial court and they are not under challenge before me. Contention raised by the learned counsel for appellant is that going by Exts.B1 and B2 case of respondent is that appellant was only a trustee and Exts.A3 and A4 happened to be taken in the name of the appellant in that capacity attempt evidently is to bring the transactions as per Exts.A3 and A4 within the purview of sub-sec.(3) of Sec.4 of the Act. Learned counsel would contend that to apply sub-sec.(3) of Sec.4 of the Act evidently the matter must otherwise be one coming under sub-sec.1 of Sec.4 of the Act. Learned counsel contends that sub- sec.(3) of Sec.4 of the Act has no application and the contention of R.S.A. No.220 of 2005 -: 7 :- respondent as to her absolute right over item Nos.1 and 5 as per Exts.A3 and A4 and further that appellant is only a trustee of the said items is hit by Sec.4 of the Act. Hence O.S. No.336 of 1993 (which culminated in Ext.B1 and B2) itself is not maintainable. Learned counsel submits that as per the Act Section 66 of the Code of Civil Procedure as it stood prior to amendment has also been repealed and hence O.S. No.336 of 1993 was not maintainable. Therefore Exts.B1 and B2 cannot operate as res judicata as against the appellant. 4. In Ext.A3 source of sale consideration is traced to father of respondent (father-in-law of appellant). It is stated that sale R.S.A. No.220 of 2005 -: 8 :- consideration was given to the vendor by the father of respondent for the purpose of acquisition of the property for appellant and respondent. When it came to Ext.A4 it is stated that sale consideration came from the father of respondent for the purpose of acquiring the property on her behalf. 5. Learned counsel for the appellant does not dispute that petition to set aside Exts.B1 and B2 preferred by the appellant was dismissed long back. As such Exts.B1 and B2 became final. Now question is whether in view of Sec.4 of the Act it can be said that Exts.B1 and B2 will not operate as res judicata against the contention now raised by the appellant in the present suit. R.S.A. No.220 of 2005 -: 9 :- 6. I have gone through Exts.B1 and B2 as well as Exs.A3 and A4. Going by Exts.B1 and B2 it is not the case of respondent that her suit is saved by sub-sec.(3) of Sec.4 of the Act and instead, she only stated that name of appellant was included in Exts.A3 and A4 only in his capacity as a trustee of the respondent. I must also bear in mind that going by Exts.A3 and A4 sale consideration came from the father of respondent and it is not a case of father of respondent claiming that he purchased the property in the name of appellant as well. Whatever that be, question is whether Exts.B1 and B2 would operate as res judicata. If the earlier decision is based on pure question of law, it may be possible to say in a R.S.A. No.220 of 2005 -: 10 :- subsequent proceeding that the decision would not operate as res judicata. But question whether Exts.A3 and A4 were benami in nature and if it is so respondent was entitled to the protection of sub-sec.(3) of Sec.4 of the Act are matters involving question of fact and law. In such a situation if Exts.B1 and B2 are found to be erroneous that cannot take Exts.B1 and B2 within the purview of Sec.11 of the Code of Civil Procedure. Therefore question whether the decision in O.S. No.336 of 1993 is correct on the facts involved and law arising therefrom is not a matter required to be decided in this appeal as that has been concluded by Exts.B1 and b2. That decision would operate as res judicata so far as the appellant and R.S.A. No.220 of 2005 -: 11 :- his claim over item Nos.1 and 5 are concerned. Substantial questions of law framed are answered accordingly. Consequently, Second Appeal has to fail. It is dismissed. No costs. THOMAS P.JOSEPH, JUDGE. vsv