Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941 Mat.Appeal.No.746 OF 2013 AGAINST THE JUDGMENT IN OP 2306/2010 DATED 13-06-2013 OF FAMILY COURT,ERNAKULAM APPELLANT/PETITIONER: JUBINA, D/O.MAJEED, AGED 32, KALAPPURACKAL HOUSE, WEST KADUNGALLUR PO, ALANGAD ROAD, ALUVA -10(SINCE SAGEER, WHO IS NO MORE THE HUSBAND OF THE PETITIONER, HIS NAME IS NOT ADDED TO THE NAME OF THE PETITIONER) BY ADV. SMT.R.LEELA RESPONDENTS/RESPONDENTS: 1 SAGEER, AGED 39 YEARS S/O.LATE ALIYAR, KALAPPURACKAL HOUSE, MULLUPADI, MUPPATHADAM, ALUVA,PIN 683 110. 2 UNION BANK OF INDIA ALUVA(NEAR KSRTC BUS STAND) REPRESENTED BY ITS MANAGER,PIN 683 110. R1 BY ADV. SRI.SAGEER K.A. PARTY-IN-PERSON THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 31st day of October 2019 SHAFFIQUE, J This appeal is filed by the petitioner in O.P.No.2306/2010 of the Family Court, Ernakulam challenging the judgment by which her claim for a declaration that the petition schedule property absolutely belongs to her has been declined.
2. The short facts of the case are as under and the parties are
described as shown in the original petition unless otherwise stated: The petitioner married the 1 st respondent as per Muslim Law and two children were born in the wedlock. The petition schedule property was purchased on 13.7.2001 in the joint names of the petitioner and the 1 st
respondent with the funds provided by the petitioner's father. The name of the 1st respondent was shown only as a trustee. Thereafter, a building was constructed in the property utilising the funds of the petitioner's father which was given as parental share. After purchasing the property, they mortgaged the property before the 2 nd respondent Bank and availed off a loan. Since the 1 st respondent was unable to repay any amount towards loan, the Bank had taken SARFAESI proceedings and the entire amount was repaid by the petitioner's
father. Matrimonial issues had arisen between the parties and later she sought for a declaration that the property absolutely belongs to her and also for a direction to the Bank to return the original title deed since the loan account had already been closed.
3. Though the respondent filed objection inter alia stating that he purchased the property with his hard earned money, later he did not participate in the proceedings. The Family Court had arrived at a
conclusion that there is no evidence to prove that the petitioner's
parents had expended the entire amount to purchase the property, however granted a decree directing the Bank to return the title deed to the petitioner as the loan account had already been closed.
4. In the proof affidavit filed as evidence, the petitioner had clearly stated that her parents had provided the funds for purchase of the property. The consideration paid for purchasing the property covered by Ext.A1 is only Rs.75,000/-. Her husband did not have any job and the entire expenses were met by her father. When this evidence is not controverted, the Family Court ought to have granted a declaration as prayed for.
5. Even before this Court, there is no appearance for the 1 st
respondent who is the husband of the petitioner. Though he filed an objection stating that money for purchasing the property was earned by him, he did not enter the box to prove the said fact. Whereas, the petitioner had given evidence in the form of an affidavit indicating that her parents had paid the money for purchasing the property. She was not cross examined by the 1st respondent. Under such circumstances, the Family Court ought to have taken note of the said fact and when parental share had been used for the purchase of the property, merely for the reason that it is purchased in the name of husband also does not create any right or title for the husband and the court below was not justified in disallowing the prayer sought for declaration.
In the result this appeal is allowed as under: The order declining declaration as prayed for is set aside and in addition to the decree already passed, it is decreed as under: It is declared that the petitioner is the absolute owner in respect of the petition schedule property. A.M.SHAFFIQUE JUDGE T.V.ANILKUMAR kp True copy JUDGE P.A. To Judge.