IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Mat.Appeal.No. 118 of 2004() ---------------------------- OP.115/2003 of FAMILY COURT, MALAPPURAM .................... APPELLANT/RESPONDENT ------------------------ KADENGAL BALAKRISHNAN NAIR @ KUTTAN NAIR AGED 63 YEARS, S/O.NARAYANAN @ KUNHUNNI NAIR, TIRUR TALUK, KURUMBATHOOR AMSOM, KOODASSERI DESOM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT : PETITIONER ------------------------- MADHAVIKUTTY AMMA, AGED 54 YEARS, D/O.VAZHAMKUNNATH KUNHUKUTTY AMMA, KURUMBATHOOR AMSOM, KOODASSERI DESOM, TIRUR TALUK. FOR R1 SMT.PREETHY KARUNAKARAN FOR R1 SRI.R.RAJESH KORMATH FOR R1 SMT.M.R.MINI FOR R1 SMT.MEENA.A. FOR R1 SRI.JAYKAR.K.S. FOR R1 SRI.RAHUL VARMA FOR R1 SRI.V.S.ROBIN FOR R1 SRI.KRISHNAN UNNI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2009, ALONG WITH MA NO.144 OF 2004 ,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal Nos.118 & 144 of 2004 ------------------------------------- Dated this the 1st day of December, 2009 JUDGMENT BASANT, J. These appeals are directed against a common order. An O.P was filed by the appellant/husband for declaration of his title over items of properties which are acquired in the name of the respondent, allegedly his wife. He prayed that his title may be declared and he may be permitted to recover possession of the properties from the respondent. 2. The respondent/wife in turn had filed another O.P and in that O.P, she claimed an injunction restraining the appellant herein from trespassing into the properties in question. 3. The crux of the contention was that the acquisition, though in the name of the respondent, was not really acquisition with the intention of conferring a title on her. It was contended in reply that in the light of the Benami Transaction (Prohibition) Act, 1988, such a contention is not available to the appellant. The court below allowed the O.P filed by the wife and dismissed the O.P filed by the husband. The husband has come up in appeal against the impugned common order. Mat.Appeal Nos.118 & 144 of 2004 2 4. When these appeals came up for hearing, after discussions at the Bar, it is fairly accepted that in the light of the decision in G.Mahalingappa v. G.M.Savitha [(2005) 6 SCC 441], the plea that the acquisition was for the benefit of the appellant is not available to the appellant/husband. To a pointed query by this Court, it is submitted fairly that the status as wife is itself in dispute and Section 3(2) of the Act may not have any application to the facts of the case. It is accepted that there is no evidence to rebut the presumption under Section 3 of the Act that the acquisition was for the benefit of the acquirer who is claimed to be the wife. At any rate, it is accepted that in the light of Sections 4 (1) and 4 (2), the claim for declaration and recovery will not be legally maintainable. It is not, in these circumstances, necessary for us to advert to facts in any greater detail. 5. In the result: a) These appeals are dismissed; b) The impugned common order is upheld. The parties are directed to suffer their respective cost. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/