Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 MAT.APPEAL NO. 1180 OF 2015 AGAINST THE COMMON JUDGMENT IN OP 211/2014 DT 4/8/2015 OF FAMILY COURT,TRIVANDRUM APPELLANT/S: S.R.SURESH BABU AGED 57 YEARS S/O.RAMAN, RESIDING AT T.C.NO.13/334, KUNNUKUZHY P.O., VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SUMATHY DANDAPANI (SR.) S.V.BALAKRISHNA IYER (SR.) RAJESH P.NAIR RESPONDENT/S: BEENA AGED 47 YEARS D/O.PRABHAKARAN, RESIDING AT MADHAVA MANDIRAM, MUTHANA P.O., PIN - 695 146, CHAVARCODE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM. BY ADVS. SMT.R.BINDU SRI.HARISH GOPINATH SRI.R.S.KALKURA SRI.M.S.KALESH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 8.02.2022, ALONG WITH Mat.Appeal.984/2017, 623/2016, THE COURT ON 28/2/2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 MAT.APPEAL NO. 984 OF 2017 AGAINST THE COMMON JUDGMENT IN OP 212/2014 DT 4/8/2015 OF FAMILY COURT,TRIVANDRUM APPELLANT/S: 1 BEENA BABU AGED 50 YEARS, D/O. NALINI, RESIDING AT MADHAVA MANDIRAM, MITHURUMALA P.O., PALAYAM KUNNU, VARKALA VILLAGE. 2 ABSY AGED 28 YEARS, D/O.BEENA BABU,RESIDING AT MADHAVA MANDIRAM,MITHURUMALA P.O., PALAYAM KUNNU, VARKALA VILLAGE. BY ADV SRI.R.S.KALKURA RESPONDENT/S: SURESH BABU AGED 60 YEARS, S/O.RAMAN, SARASA MANDIRAM,ATTINGAL, VAKKOM VILLAGE, NOW RESIDING AT T.C.13/334,VANCHIYOOR P.O., PATTOM VILLAGE, THIRUVANANTHAPURAM-695035. BY ADVS. S.V.BALAKRISHNA IYER (SR.) RAJESH P.NAIR SUMATHY DANDAPANI (SR.) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 8.02.2022, ALONG WITH Mat.Appeal.1180/2015 AND 623/2016, THE COURT ON 28/2/2022 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 28TH DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 MAT.APPEAL NO. 623 OF 2016 AGAINST THE COMMON JUDGMENT IN OP 1665/2011 DT 4/8/2015 OF FAMILY COURT,TRIVANDRUM APPELLANT/S: S.R.SURESH BABU AGED 62 YEARS S/O.RAMAN, RESIDING AT T.C.NO.13/334, KUNNUKUZHY P.O., VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SUMATHY DANDAPANI (SR.) S.V.BALAKRISHNA IYER (SR.) RAJESH P.NAIR RESPONDENT/S: BEENA AGED 47 YEARS , D/O.PRABHAKARAN, RESIDING AT MADHAVA MANDIRAM, MUTHANA P.O., PIN - 695 146, CHAVARCODE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM. BY ADVS. SMT.P.ANJANA SRI.HARISH GOPINATH SRI.R.S.KALKURA SRI.M.S.KALESH SRI.P.M.UNNI NAMBOODIRI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 8.02.2022, ALONG WITH Mat.Appeal.1180/2015 AND 984/2017, THE COURT ON 28/2/2022 DELIVERED THE FOLLOWING: A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ. -------------------------------------- Mat. Appeal Nos. 1180/2015 (C.R.), --------------------------------------
J U D G M E N T
Dated this the 28th day of February, 2022
A.Muhamed Mustaque, J.
These matrimonial appeals are between same parties. The parties are referred to as per their marital status.
2. Mat.Appeal No.623/2016: This appeal is at the instance of the husband, who challenges dismissal of a petition for divorce. The husband filed a petition for divorce under Section 13(1)
(ib) of the Hindu Marriage Act, 1955. This ground relates to divorce on the plea of desertion. The parties married according to the Hindu customs and
ceremonies on 10/7/1985. One female child was born in the wedlock, who is now married and settled. The husband had filed a petition for
divorce as O.P.(HMA)No.387/2001 on the ground of cruelty. He was unsuccessful before the Family Court as well as in the appeal before this Court. -:2:- The appeal was disposed of by this Court on filed on 25/10/2011 alleging that from 20/4/2001, there has been no marital relationship and the wife deserted the husband without any intention to resume cohabitation. The wife countered the allegation of desertion contending that she was forced to shift her residence for congenial upbringing of the daughter and also on account of cruel attitude of the husband. The Family Court, noting the observations by this Court in the
judgment related to divorce sought by the husband
on the ground of cruelty, found that the husband failed to make out a case of desertion.
3. The marriage was solemnised on 10/7/1985.
The parties were in Dubai for 10 years and, thereafter, they returned to Thiruvananthapuram and settled there. The husband filed the divorce
case on the ground of cruelty in the year 2001. That ended in dismissal. The present case of divorce on the ground of desertion was filed on as follows:
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; -:3:- In the explanation to Section 13 it is stated as follows:
Explanation. In this sub-section, the expression ”desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
4. No doubt, in this case the parties are living separately for more than two years as on the date of presentation of the case. The wife has also no intention to resume cohabitation. Desertion as a ground for divorce is recognized under law on the basis of the fault of a spouse to
the marriage. Under Hindu law, as revealed from the above explanation, if a spouse has a reasonable cause to live separately, such a
separate stay or refusal to cohabitation cannot be construed as desertion. Perhaps in this context the relevant observation of this Court in an earlier Mat.Appeal No.16/2005 filed by the husband is worth mentioning, particularly, at paras.13 and 14 which read as follows:
13. ..On the other hand, there is sufficient
evidence to show that the appellant used to ill-treat the respondent due to some mental disorder which can be corrected by taking medicines.. The fact that the marriage has broken down is no reason in itself for a finding of cruelty. In the present case, there are allegations and -:4:- counter allegations against each other as is evident from the petition and the counter statement which are indications of strain in the relationship between the parties and the same cannot be taken as a circumstance to grant the relief of divorce. The stand taken by the respondent/wife clearly shows that though there is strain in the relationship between the parties, the marriage has not irretrievably broken down yet.
14. After considering the respective contentions of both parties and the arguments advanced by the learned
counsel for the appellant-husband as well as the respondent-wife, and the evidence adduced by both parties in this case before the trial court, we find there is no evidence of any intention on the part of the wife to disrupt the marital life with the appellant, her husband. There is no evidence to sustain the allegations of cruelty against her. Instead the husband's behaviour establishes an intention to break the married life. So, there is no cause of action for the husband to claim a decree for divorce
against the respondent. A contumacious spouse cannot be permitted to take advantage of his own inappropriate conduct and claim divorce on that ground.
5. The observation as above would stand
against the husband. This Court in Mat.Appeal No.16/2005 specifically noted that the cruel attitude of the appellant-husband to the
respondent-wife was due to some mental disorder which can be corrected by taking medicines. Husband has no case that his mental state has been improved and he offered to cohabit with the respondent-wife. The refusal on the side of the wife can be justified if there is no change in the attitude of the husband. The husband never made -:5:-
an attempt for resumption with his wife. He was also not able to prove change of circumstances for the wife to resume cohabitation with him. If the wife has a reason to reside separately due to the conduct of the husband, the husband cannot take advantage of his own conduct and behaviour to the disadvantage of the wife. Wife had no option but to stay separately due to misbehaviour and cruelty of the husband. This has been clearly found out in the earlier appeal (Mat.Appeal No.16/2005) filed by the husband before this Court challenging dismissal of the claim for divorce on the ground of cruelty.
6. In the above circumstances, we have to
concur with the findings of the Family Court in the impugned judgment to negative the claim for divorce on the ground of desertion and Mat.Appeal No.623/2016 is only to be dismissed.
7. Mat.Appeal No.1180/2015 “(C.R.)”: This
appeal arises from a dispute between the parties consequent upon cancellation of a gift deed by the husband. The husband executed a gift deed in favour of the wife in respect of 'A', 'B' & 'C' schedule properties in the petition before the Family Court. The petition, O.P.No.211/2014 was -:6:- filed by the wife consequent upon the creation of a cloud on title based on the cancellation deed
executed by the husband. The husband executed the gift deed in respect of 'A', 'B' & 'C' schedule properties by a registered document No. 3692/2000
of SRO Thiruvananthapuram. The husband executed a cancellation deed as per registered document No.3486/2001. The wife filed the above O.P.No.211/2014 for a declaration that cancellation deed No.3486/2001 is legally
unsustainable and will not affect the right of the wife over the property. She also sought a prayer for revocation of the cancellation deed. An incidental prayer for injunction was also sought with the main relief. The husband resisted the prayers. According to the husband, the wife violated the stipulations and conditions in the settlement deed, and he has reserved the authority for revocation of the settlement deed in the deed itself. It is further contended that the wife was aware of the cancellation deed in the year 2004 itself. It is also contended that the husband was paying tax and the mutation of the property was affected in his favour. The Family Court found that the right of revocation of a donor can be -:7:-
exercised only through the Court and not unilaterally and, therefore, found that the cancellation deed was illegal. Accordingly, the prayers of the wife over the property were allowed. Challenging the above findings of the Family Court, the learned Senior Counsel
S.V.Balakrishna Iyer appearing on behalf of the appellant-husband argued in extenso. According to the learned Senior Counsel, the wife was aware of the cancellation deed in the previous proceedings. He particularly drew our attention to Ext.A9 deposition of the husband and Ext.A10 deposition of the wife in the previous litigation. In Ext.A9 deposition of the husband, in chief examination, he has mentioned that he was forced to cancel the deed executed in favour of the wife. As seen from Ext.A10 deposition, the wife was examined on claimed by the husband for the reason that the nature of cancellation was not disclosed to her. The learned Senior Counsel for the appellant- husband submitted that the wife had the knowledge of cancellation in the year 2004 and the suit for declaration is barred by limitation. According to the learned Senior Counsel, under Part III of -:8:- Schedule to the Limitation Act, 1963, as referred in Article 58, the suit has to be instituted within three years, when the right to sue first accrues. The learned Senior Counsel further elaborated his argument that no declaratory relief would lie without seeking relief for possession, as the possession is admittedly with the husband. It was also argued by the learned Senior Counsel
that the gift deed has no legal effect and, therefore, even if the cancellation deed is bad, declaratory relief cannot be granted to the wife. The learned Senior Counsel relied on the following judgments : Bharat Singh and Others v. Mst.Bhagirathi [AIR 1966 SC 405 (V 53 C 84)] Biswanath Prasad and Others v. Dwarka Prasad and Others [AIR 1974 SC 117 (V 61 C 17)] MD.Noorul Hoda v. Bibi Raifunnisa and Others [(1996) 7 SCC 767] Illoth Valappil Ambunhi (D) by LRs. v. Kunhambu Karanavan [2019 KHC 5629] Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran & Ors [2018 SAR (Civil Supp. 1) 98 SC] Union of India v. Ibrahim Uddin & Anr. [2012 SAR (Civil) 684 SC] Anathula Sudhakar v. P.Buchi Reddy (Dead) By Lrs. & Ors. [2008 SAR (Civil) 878]
-:9:- Government of Orissa v. Ashok Transport Agency and Others [(2002) 9 SCC 28]
8. Rebutting the above argument, the learned counsel Shri R.S.Kalkura for the respondent-wife submitted that when a gift is complete by acceptance by the donee, the donor has no right to revoke it in the absence of any condition imposed in the deed. It is further argued that the recitals in the gift deed itself would show that
the donee had accepted the deed and that is sufficient to prove that the gift has been accepted by the donee. It is further argued that
the unilateral cancellation of a gift deed is bad in law and no right of the beneficiary of the deed would be affected on account of such cancellation. It is further submitted that the beneficiary can
ignore the deed as though the cancellation deed has not affected the right of the beneficiary to enjoy the said property. It is further argued that in the previous proceedings, the wife did not acknowledge the existence of the cancellation deed, as no details of such cancellation deed were furnished to her. Thus, the knowledge of the existence of cancellation deed was not known to the wife. The limitation would only run from the date of knowledge of the execution of the -:10:- cancellation deed and not from the date on which
the husband claims to have revoked the deed. It is further submitted that absolutely there was no evidence on record to show that the wife was aware of the existence of the cancellation deed prior to three years of the institution of the petition for declaration. The learned counsel further relied
upon the following judgments to buttress his argument: Subramonia Iyer v. Sankara Iyer [AIR 1952 TC 47] Vannathi Valappil Janaki and Others v. Puthiya Purayil Paru and Others [AIR 1986 Ker.110] Narayani Bhanumathi v. Lelitha Bhai [1973 KHC 206] Sarala v. Nalinakshan [1991 (2) KLT 146] Gopalakrishnan M.K. and others v. Rajamma M.K. and others [2006 KHC 958] Vijayalakshmi C. v. C.Gopalakrishna Menon [2010 (4) KHC 111] P.K.Mohan Ram v. B.N.Ananthachary and Others [(2010) 4 SCC 161]
Darshan Gupta v. Radhika Gupta [2013 (3) KLT SN 32 (C.No.34) SC] Kuttian Padmini v. Nelliyullaparambath Mathu and Others [2014 (1) KHC 759] Renikuntla Rajamma (D) by LRs. v. K.Sarwanamma [214 KHC 4466] Kanhirakottil Mani and Others v. Madhavi and Others [2017
(1) KHC 854] Radhamani Amma v. Vimala Kumari [2017 (4) KLT SN 67 (C.No.76)] -:11:-
Pattila Chinnamma (Dead) v. Bignu Rama Chandra Reddi alias Laxman Reddi and Others [2017 KHC 5225] Sarojini Amma S. v. Velayudhan Pillai Sreekumar [(2019) 11 SCC 391]
9. It is evident from the petition filed before the Family Court that the wife along with the petitioner have produced the gift deed as well as the cancellation deed. But it seems that both the documents were not marked. Along with I.A.No.2980/2017 in Mat.Appeal No.1180/2015, the appellant-husband has produced the original gift deed and a certified copy of the cancellation deed. I.A.No.2980/2017 is filed on 11/8/2017. The
wife has no objection in receiving the same. Accordingly, I.A.No.2980/2017 in Mat.Appeal No.1180/2015 is allowed and the documents are
marked as Exts.A19 and A20 in O.P.No.211/2014.
10. The wife also has filed I.A.No.3222/2017 on 29/8/2017 for accepting additional documents as
Annexures A1 to A3 in appeal. The additional documents are accepted. Annexures A1 and A2 are the same documents produced by the husband which are being marked as Exts.A19 and A20. Annexure A3 is the certified copy of the thandaper to show that on 28/11/2000 mutation has been effected in -:12:- the name of the wife. It is already marked as Ext.B1 in O.P.211/2014.
11. We note that the Family Court had not raised the necessary issue in regard to the limitation alleged by the husband in his objection
before the Family Court. We are, therefore, of the view that the said issue can be framed in this appeal and no prejudice would be caused to either parties as both have adduced evidence on the point urged as above.
12. We shall first advert to the question on
limitation based on the declaratory relief sought by the wife in view of the cloud created by the cancellation deed executed by the husband cancelling the gift deed: 12(i). Though a prayer has been sought to cancel the cancellation deed, that was not specifically allowed by the Family Court. We are also of the view that such a prayer is legally unsustainable in as much as the wife was not a
party to the cancellation deed. Under Section 31 of the Specific Relief Act, 1963, relief of cancellation can be sought by one who is a party to such a written instrument. The statutory provision confers right to adjudge a written -:13:- instrument as void or voidable on a person who is bound by such written instrument. The written instrument would become void or voidable only when
parties are part of such written instrument. When a person is not a party to the written instrument, he cannot seek a relief to cancel such written
instrument on the ground that it is void or voidable. However, nothing prevents such person seeking a declaratory relief as to the legal
character or right over the property, ignoring the
written instrument or cancellation. This distinction is necessary in this case for the purpose of understanding the application of limitation. Under Article 59 of Part IV of the Limitation Act, 1963 three years' time is
stipulated for a suit relating to cancellation of a written instrument. This three years would run from the date on which the plaintiff has first become known about cancellation of the instrument. Under Article 58 of Part III, in regard to suit for declaration, the period of limitation of three years would run from the time when the right to sue first accrues. 12(ii). The cause of action based on knowledge as referred in Article 59 of Part IV of the -:14:- Limitation Act and the cause of action based on right to sue as referred in Article 58, are distinct for the purpose of legal proceedings. In the former, the cause of action will begin to run from the date of knowledge. In the later, even if there is knowledge, the period of limitation will not begin unless there is threat or injury to the legal character or right of the plaintiff. 12(iii). The wife was not a party to the cancellation deed. She is not bound by the cancellation deed. She has sought both declaration of title over the property and cancellation of cancellation deed. In the earlier proceedings between the parties, when husband was examined in O.P.(HMA).No.387/2001, in his chief examination on
deed. However, no details of cancellation deed were mentioned. Wife was also examined in the same proceedings. In her chief examination on
claimed to have cancelled the deed, since he had not furnished the details, she denied the claim of the husband that the gift deed has been revoked. As already noted, this is not a case covered by Article 59 of Part IV of the Limitation Act for -:15:- the simple reason that the wife cannot claim cancellation of a written instrument to which she was not a party. According to us, the limitation in this case is as applicable under Article 58.
Article 58 prescribes a period of 3 years for obtaining a declaration when the right to sue first accrues. The specific case of the wife is
that she approached the Court for a declaration when she suspected adversities to her interest during the proceedings in O.P.No.1665/2011. She also made an enquiry during the pendency of the
court case in respect of the property in the petition schedule and was able to find out about the execution of the cancellation deed. She has
specifically stated that, on 28/11/2011 she came to know about the cancellation deed. The petition was filed before the family court on 13/9/2012. 12(iv). The next question that arises is, when does the right to sue accrue? 12(v). The right to sue in relation to a suit for declaration means, when an aggrieved person perceives that an injurious action would operate adversely or be a threat to the legal character of person or property. The plaintiff needs to have actual or perceived threat to the -:16:- character of his right, to reckon limitation. Mere challenge to title is not sufficient to hold that the right to sue accrued on the date of challenge. Challenge must be of such nature where it must be shown that the plaintiff realised a threat to his right and if the threat is not removed, the cloud formed over his legal character
would eclipse its recognition. The details of the registered cancellation deed according to the wife came to her knowledge only on 28/11/2011. According to her, she filed O.P.No.211/2014 when she apprehended creation of document by husband on the strength of cancellation deed. The wife perceived threat to her property only in the year
2011. The knowledge attributed to her in the
earlier proceedings in 2004 have no specific details of the cancellation deed. The knowledge of cancellation deed without details cannot be
relied upon by the husband to claim that the right to sue accrued in the year 2004 itself. The wife's adverse interest has to be noticed with reference to the registered cancellation deed and not with reference to the claim made by the husband in the year 2004 without any reference to the registration of the cancellation deed. One is not -:17:- expected to conduct a roving enquiry to take legal action. The law of limitation is to discourage a litigant who has slept over his right. If the claim of the husband is accepted, wife was expected to conduct enquiry before the Registrar Officer in regard to the cancellation deed for taking action. No doubt, if the details of the cancellation deed were furnished in the year 2004, the Court can readily assume that the right to sue accrued to the wife in the year 2004 itself. No other evidence was adduced by the husband to show that the wife was aware of the existence of the registered cancellation deed prior to 28/11/2011. In such circumstances, we overrule the objection raised by the husband that the petition was barred by limitation.
13. Validity of the cancellation deed on being executed unilaterally: 13(i). The gift deed would show that the husband retained possession and enjoyment of the property during his life time. The subject matter of the gift was the transfer of ownership right to the wife. It is stipulated in the gift deed that the property can be mutated in the name of the wife and she can effect necessary changes in the -:18:-
revenue records as well as the records of the local authority. As seen from Ext.B1, in the revenue records, changes have been effected in favour of the wife. Gift was not an onerous gift. There was no reservation in the gift deed to
suspend or revoke the deed by the husband. The very execution of the cancellation deed would show that the husband was aware of the acceptance and acting on the deed, by the wife. 13(ii). In Renikuntla Rajamma (D) by Lrs. v.
K.Sarwanamma [2014 KHC 4466], the Apex Court considered the validity of the gift without delivery of possession. The Apex Court was of the
opinion that merely because the donor had reserved the right to enjoy the property during the life time of the donor, it will not affect the validity of the deed. The parties were Hindus. It is appropriate to refer the relevant portion of the judgment, which reads thus: Judicial pronouncements as to the true and correct interpretation of S.123 of the T.P. Act have for a fairly long period held that S.123 of the Act supersedes the rule of Hindu Law if there was any making delivery of possession an essential condition for the completion of a valid gift... -:19:- ..In the case at hand as already noticed by us, the execution of registered gift deed and its attestation by two witnesses is not in dispute. It has also been concurrently held by all the three Courts below that the
donee had accepted the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is
only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor. 13(iii). In Sarojini Amma S. v. Velayudhan Pillai Sreekumar [2018 KHC 6847], the Apex Court upheld cancellation of the gift deed on the premise that there was no completed gift of the
property. It was a case where the gift itself would take effect only after the death of the donor and her husband and it was also a conditional gift deed. In such circumstances, the Apex Court held that the cancellation deed executed was valid. It is also to be noted in the
above case that there was no recital of acceptance of the gift deed nor was there any evidence of proof of acceptance of the gift deed. 13(iv). In this case before us, though there was no recital in the gift deed regarding acceptance of the gift deed, the wife was -:20:- authorised to effect mutation. The mutation subsequently effected by the wife would clearly show that the gift deed has been accepted. 13(v). The learned Single Judge of this Court in Vijayalakshmi C. v. C.Gopalakrishna Menon [2010
(4) KHC 111] opined that when it was not an onerous gift, the normal presumption is that the donee in whose favour such a gift has been made would be willing to accept the gift deed once he
or she comes to have knowledge of such gift. Some of the other precedents relied upon by the learned counsel Shri R.S.Kalkura is not referred here as it has not much relevance for consideration of the
facts involved.
13(vi). The Apex Court in Thota Ganga Laxmi v. Government of Andhra Pradesh [2011 (3) KLT 345 (SC)] and this Court in Noble John v. State of Kerala [2010 (3) KLT 941], and Hamsa P.A. v. District Registrar General, Kozhikode and Others [2011 (3) KHC 342 (DB)] frowned upon registration of unilateral cancellation deed. 13(vii). There cannot be any amount of doubt as to the validity of the gift deed. It is to be noted that in the objection filed by the husband before the Family Court, he did not dispute the -:21:- validity of the gift deed. On the other hand, the petition was resisted based on a cancellation deed as well as on the ground of limitation. 13(viii).In the absence of any right for
revocation of the deed in the deed itself, unilateral execution of the cancellation deed according to us is bad in law and is legally
unsustainable.
14. Granting of declaratory relief to the
wife without seeking possession of the property: 14(i). The learned Senior Counsel Shri S.P.Balakrishnan vehemently argued on the maintainability of the declaratory relief. He contended that the wife had not sought possession and the declaratory relief without seeking possession cannot be granted by the Family Court. We find this argument legally untenable in the light of Section 34 of the Specific Relief Act,
1963. The wife could have sought recovery of
possession only if she could seek further relief of possession. Admittedly, husband retained possession and the right to enjoy property, in the gift deed itself. The possessory right and the right to enjoy property would be available to the wife only after the demise of the husband. -:22:- Therefore, wife cannot seek relief of possession
during the life time of the husband. The facts
being so, the precedents, Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran & Ors (supra) and Union of India v. Ibrahim Uddin & Anr. (supra) relied upon by the learned Senior Counsel appearing for the husband have no bearing on this case. The above precedents are related to declaratory suits where possession could have been sought and the
plaintiff did not ask for restoration of possession of property. In those cases it was held that a suit for declaration without
consequential reliefs is not maintainable.
15. MAT 984/2017: The wife filed this appeal being aggrieved by dismissal of a petition for
recovery of Rs.69 lakhs from the husband. The wife has raised different claims in that regard. She claims to have expended Rs.16,16,000/- for the marriage of the daughter and also claims that 73 sovereigns of gold ornaments have been misappropriated by the husband. She also claimed a sum of Rs.45 lakhs being the money appropriated by the husband by selling her property. The -:23:- Family Court negatived her claim as it is unsupported by any evidence.
16. The parties were at loggerheads from 2001
onwards. They are living separately since then. In the previous proceedings, the wife had not raised such claim against the husband. The Family Court specifically noted these aspects while disallowing the claim of the wife. Absolutely, no evidence was adduced to show that the husband misappropriated gold ornaments or the sale consideration of the property of the wife. The Family Court also noted that the daughters marriage was solemnised on 27/3/2005 and the present claim was filed only in the year 2014. It
is obvious that the present petition was filed as a counter blast and to resist the claim of the husband for divorce. We concur with the finding of facts entered into by the Family Court. The appeal is only to be dismissed. In the result, all the appeals are dismissed. No order as to costs. Sd/-- A.MUHAMED MUSTAQUE, JUDGE Sd/- SOPHY THOMAS, JUDGE ms