IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE1T DAY OF JANUARY201411TH POUSHA, 1935 Mat.Appeal.No. 143 of 2007 ( ) ------------------------------- AGAINST THE ORDER
/JUDGMENT
IN OP4152004 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR APPELLANT/RESPONDENT: -------------------------------------------- K.J.GEORGE @ VARGHESE,S/O.JOSEPH RESIDING AT KUMMIPURAYIDAM VEEDU, ARUVIKKUZHY, BHAGOM ANICKAD KARA, ANICKAD VILLAGE. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT/PETITIONER: ---------------------------------------- P.M.THRESSIAMMA @ KUNJAMMA, W/O.K.J.
GEORGE, RESIDING AT PODIMATTOM VEETTIL, MUNDUPALAM BHAGOM, LALAM KARA, LALAM VILLAGE. R1 BY ADV. SRI.RAJEEV V.KURUP THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON0101-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & P.D.RAJAN, JJ.
======================== Mat. Appeal No. 143 OF2007======================= Dated this the 1st day of January, 2014
JUDGMENT
Antony Dominic, J.
This appeal is filed against the judgment of the Family Court, Kottayam at Ettumanoor in OP No.415/2004. The said OP was filed by the respondent herein, the appellant's wife, for partition of the property covered by Exts.A2 and A3 documents.
2. Before the Family Court, respondent was examined as PW1 and RWs 1 to 4 were examined on behalf of the appellant. Exts.A1 to A3, Exts.B1 and B2 and Ext.X1 were marked in evidence. The Family Court by judgment dated 13th of November, 2006 held the property partible and passed the following preliminary decree:- "The plaint schedule properties has to be divided into two shares by metes and bounds and the petitioner is entitled to get half share in the property. The house in the property is to be set apart to the share of the respondent without valuing it subject to the right of the petitioner to reside in the house as far as practicable. The petitioner is also allowed a permanent prohibitory injunction restraining the respondent from committing any waste in the property. The petitioner is also allowed to realise her half share in the mesne profits and the quantum of which is relegated to the final decree stage. Any one of the parties can apply for Mat.Appeal No.143/07 :
2. : passing final decree. The costs of the suit will be born out of the Estate." It is aggrieved by this decree, the appeal is filed.
3. We heard the learned counsel for the appellant and also the learned counsel appearing for the respondent.
4. The petition schedule contained two items. Item No.1 consists of 30 cents of land comprised in Sy.No.289/1-A/1 of Anikkad Village and Item No.2 consists of 31 cents of land comprised in Sy.No.289/1-A/6 of the same village. The properties were acquired by Exts.A2 and A3 documents. Ext.A2 document is in the joint name of one Souriyar and the respondent. Subsequently, half right of Souriyar was assigned to the appellant by Ext.A3 document. It is on the basis that half right of the property belongs to the respondent that she claimed partition, mesne profits and injunction restraining the appellant from committing waste in the property.
5. These claims of the respondent were resisted by the appellant contending that though the property was acquired in the name of the respondent also, the entire sale consideration was paid by him and that therefore, she had no right over the Mat.Appeal No.143/07 :
3. : property to claim partition or other reliefs. According to him, on account of certain disputes that he had with previous owner of the properties, the previous owner was unwilling to assign the property in the name of the appellant. Therefore, he acquired the property in the name of one Souriyar and the respondent. He also contended that there was no income from the property and that he did not intend to commit any waste therein. According to him, the thatched shed that was available was reconstructed by him expending his own resources.
6. The case of the appellant that he had expended amounts to acquire the property in question was sought to be substantiated by producing Ext.B1 series of receipts. These receipts evidenced remittance of various amounts to the Anikkadu Service Co-operative Bank in the name of the original vendor of the property in question. However, these receipts do not either show that it was the appellant who remitted the amounts mentioned therein nor does it in any manner indicate that such remittances were made for discharging the liability over the property as contended by the appellant. Therefore, Ext.B1 series of receipts did not in any manner substantiate the case of Mat.Appeal No.143/07 :
4. : the appellant that he had expended the entire sale consideration for acquiring the property covered by Exts.A2 and A3.
7. Further, it is also in evidence that parties had entered into an agreement on 11/2/2005, whereby, according to the appellant, the respondent had agreed to assign her share over the property to the appellant on his paying her an amount of `1,15,000/-. If as stated by the appellant, there was such an agreement by the appellant himself agreeing to pay the sale consideration of `1,15,000/- to the respondent, he was atleast impliedly accepting that the respondent had title over the portion of the property which stood in her name. Therefore, this agreement relied on by the appellant, in fact, supported the case of the respondent only. Added to these two factual aspects, it cannot also be forgotten that although the parties are residing separately since 1993, the appellant did not at any point file any case before any forum seeking a declaratory relief that he is the exclusive owner of the property including that stood in the name of the respondent. It was taking note of all these facts that the Family Court decreed the OP in the manner as it has done in the impugned judgment. Mat.Appeal No.143/07 :
5. :
8. However, the judgment shows that despite the fact that the respondent is residing separately since 1993, the Family Court has allowed her right to reside in the house constructed, which is allotted to the appellant. This, in our view, is totally unjustified. At any rate, the counsel for the respondent himself submitted before the Court that subject to her rights under the Protection of Women from Domestic Violence Act, 2005, the respondent will not be enforcing the aforesaid right in any manner against the appellant. We therefore record the above submission and subject to the above, the appeal will stand dismissed. Sd/- ANTONY DOMINIC, JUDGE Sd/- P.D.RAJAN, JUDGE Rp //True Copy// PA TO JUDGE