IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
MAT.APPEAL NO. 853 OF 2019
AGAINST THE ORDER/JUDGMENT IN OP 630/2013 OF FAMILY COURT,
ERNAKULAM
APPELLANTS/PETITIONERS I AND 3 IN OP:
1 SHERLY D. SILVA,
AGED 52 YEARS
W/O.STEPHEN D SILVA, PUTHIYODATH HOUSE, MULAVUKAD
P.O., PIN - 682 504.
2 TEENA D.SILVA,
AGED 23 YEARS
D/O.STEPHEN D.SILVA, PUTHIYODATH HOUSE, MULAVUKAD
P.O., PIN - 682 504.
BY ADVS.
KAYALATT KUTTYKRISHNAN
SMT.SINDHU SANTHALINGAM
RESPONDENTS/RESPONDENT/2ND PETITIONER IN O.P:
1 STEPHEN D.SILVA,
AGED 57 YEARS
S/O.ALFRED D.SILVA, PUTHIYODATH HOUSE, MULAVUKAD
P.O., PIN - 682 504.
2 DR.MARY SHEFI D.SILVA,
AGED 26 YEARS, D/O.STEPHEN D.SILVA, PUTHIYODATH
HOUSE, MULAVUKAD P.O., PIN - 682 504.
BY SRI.STEPHEN D.SILVA,(Party-In-Person)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
06.07.2022, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.853 of 2019 2
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
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Mat.Appeal No.853 of 2019
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Dated this the 27th day of July, 2022
JUDGMENT
Sophy Thomas, J.
Against dismissal of O.P No.630 of 2013 on the file of Family Court, Ernakulam, the appellants/petitioners 1 and 3 preferred this appeal.
2. The short facts necessary for the appeal could be stated as follows:
The appellants and the 2nd respondent are the wife and daughters of the 1st respondent. The marriage between the 1st appellant and the 1st respondent was solemnised on 18.09.1983 at Our Lady of Mercy Church, Mulavukadu. The husband was employed in Tata Oil Mills in Stores Department, at the time of marriage. He was suffering from mental illness and he was admitted and treated at Kusumagiri Hospital, Kakkanad even prior to the marriage. He continued his abnormal behaviour even Mat.Appeal No.853 of 2019 3 after the marriage. She was not able to continue in her matrimonial home, since her mother-in-law also was a mental patient. So, she took initiative to purchase a house plot measuring 5.42 cents and the lion share of its consideration was arranged by selling away her 15 sovereigns of gold ornaments. Though the sale deed was registered in the name of the husband, as she expended money for that transaction, she was the real owner of that property. That property is scheduled as 'A' schedule in the O.P. With the assistance of her close relatives and by availing a housing loan, a small house was built up in that property, and the appellants and respondents shifted residence to that house, in June 1988. Their son Antony Shijay D'Silva got employment as a Quality Analyst in Slavoni Company, Kulalambur, Malaysia in the year 2005. He sent substantial amounts of his salary to the 1 st respondent for the sake of family, and persuaded his parents to purchase another piece of land. Thus six cents of land in resurvey No.189/9 at Mulavukadu village was purchased for the family in the name of the 1 st respondent, and the entire sale consideration was paid by the son. That property is scheduled as 'B' schedule in the O.P. Since the Mat.Appeal No.853 of 2019 4 1st respondent tried to sell away plaint A and B schedule properties after evicting the appellants, they filed the above O.P for declaration and injunction, both prohibitory and mandatory. The declaration prayed for is to the effect that, the 1 st appellant and her son are the real and rightful owners in possession and enjoyment of the plaint schedule properties, and the 1 st respondent is only a name lender. The prohibitory injunction is to restrain the 1st respondent and his men from interfering with the possession, use and enjoyment of 'A' and 'B' schedule properties by the appellants. The mandatory injunction relief is for incorporating the name of the 1st appellant in the sale deed of 'A' schedule property, and the name of her son Antony Shijay D'Silva in the sale deed of B schedule property.
3. The 1st respondent vehemently opposed the reliefs claimed in the O.P, and according to him, with his own hard earned money, he purchased plaint 'A' and 'B' schedule properties in his own name, and the 1st appellant or her son has no right, title or interest over any of those properties. The 1st appellant/ wife belonged to a very poor family and she had no source of income to purchase 'A' schedule property. He never received any Mat.Appeal No.853 of 2019 5 money from the 1st appellant in connection with the marriage. He purchased 'B' schedule property even before his son obtained a job in Malaysia. Though his children are well placed, they are not looking after him and in order to meet his financial needs, he may have to either mortgage plaint schedule properties or sell at least one of the plaint schedule properties. The appellants filed the O.P to prevent him from selling the properties, for which they have no right whatsoever.
4. On formulating necessary issues by the Family Court, the parties went on trial. PWs 1 to 3 were examined and Exts.A1 to A25 series were marked from the side of the appellants/petitioners. RW1 was examined and Exts.B1 to B10 were marked from the side of the respondent.
5. We are called upon for a reappraisal of the facts and evidence, to find out whether there is any illegality or impropriety in the judgment impugned.
6. 'A' and 'B' schedule properties stand in the name of the respondent/husband. The case of the 1 st appellant is that, 'A' schedule property was purchased on her initiative, and the lion share of the consideration was paid by selling away her 15 Mat.Appeal No.853 of 2019 6 sovereigns of gold ornaments. In the written statement, though the 1st respondent/husband has taken up a contention that the 1st appellant/wife was unemployed and she had no source of income and she hails from a poor family, there is no specific denial about the gold ornaments given to her from her family at the time of marriage.
7. According to our custom in Kerala, a Christian bride, even if she belongs to a poor family, might have been bedecked with gold ornaments at the time of marriage, the quantum of which may vary in accordance with the financial status of her parents. PWs 2 and 3 stated that, gold ornaments of the 1 st appellant were sold away to purchase 'A' schedule property, but their information is only hearsay. But PW1 stated that her 15 sovereigns were sold away by the husband himself to purchase 'A' schedule property. It is difficult to get documentary evidence for every transactions in a matrimonial life. Ground realities of human conduct in day-to-day life are to be taken note of. Probabilities, presumptions and surrounding circumstances are to be looked into, to find out whether the fact alleged was a probable one or not. It is a normal human conduct that, gold Mat.Appeal No.853 of 2019 7 ornaments given to the wife from her family is being used for setting up a separate residence for the couple, by purchasing/constructing a house. The 1 st respondent is not disputing the fact that, the 1st appellant was having gold ornaments given from her family at the time of marriage. He was only a workman Grade II with monthly income of Rs.750/-, and so there is every possibility for taking her gold ornaments also for purchasing the property.
8. Specific pleading of the wife is to the effect that, lion share of the consideration for 'A' schedule was arranged by selling away her 15 sovereigns of gold ornaments. While cross examining the 1st appellant, the suggestion put to her by the 1 st respondent was that, since only lion share of the consideration was paid by her, she was not entitled to declare her ownership over that property. Admittedly, the 1 st respondent, who was working in Tata Oil Mills might have expended the balance amount to pay the consideration. RW1, the 1st respondent, deposed before court that, he himself purchased the property by availing PF loan and using his personal savings. But, no scrap of paper has been produced by him to show that, he had availed PF Mat.Appeal No.853 of 2019 8 loan or he was having personal savings enough to purchase 'A' schedule property. A housing loan was availed from HDFC for constructing a house in 'A' schedule property. According to the 1st appellant, it was she who availed the loan. But she could not produce any documents in support. But the 1st respondent produced Ext.B10 document to show that, in the year 1987 he had availed a housing loan from HDFC and it was closed in the year 1995. So, there is clear evidence to show that the 1st respondent availed housing loan from HDFC to construct a house in the 'A' schedule property.
9. So, the available evidence is sufficient to infer that, 'A' schedule property was purchased using the sale proceeds of gold ornaments of the 1st appellant also, and a house was constructed therein using the housing loan availed by the 1 st respondent. So, that property and house belong to them jointly, though the sale deed was registered in the name of the 1 st respondent alone. Therefore, the 1st appellant was not entitled for absolute ownership or possession over 'A' schedule property as it belonged to herself and her husband, jointly as co-owners. So, the finding of the Family Court with respect to 'A' schedule property is liable Mat.Appeal No.853 of 2019 9 to be set aside.
10. Now with respect to 'B' schedule property, the prayer of the appellants is to the effect that, the 1st appellant and her son are the rightful owners in possession of that property and the 1 st respondent was only a name lender. According to her, the son Sri.Antony Shijay D'Silva sent money to the 1 st respondent for purchasing property and with that money, 'B' schedule property was purchased. They produced Exts.A5 to A24 documents to prove the money transactions by which the son had sent money to the 1st respondent.
11. The son is not a party in the O.P or in the appeal. Even if there was monetary/property disputes between the 1st respondent and his son, Family Court was not the forum to agitate the issues between them. The 1st appellant/mother was not entitled to seek any relief on behalf of her son through the Family Court, as it is not the proper forum to work out the remedies of a son against his father. The 1st appellant has no case that, she expended money for purchasing 'B' schedule property. According to her, it was her son who expended the money, and so the son himself has to approach appropriate forum Mat.Appeal No.853 of 2019 10 to work out his remedies if any. So, the 1 st appellant, either on her own behalf, or on behalf of her son, is not entitled to get any reliefs with respect to 'B' schedule property.
In the result, the Mat. Appeal is allowed in part, declaring joint ownership of the 1st appellant and 1st respondent over plaint 'A' schedule property, and injuncting the 1st respondent from causing obstruction to the peaceful possession and enjoyment of that property by the 1st appellant as a co-owner. The impugned judgment is set aside to that extent. No order as to costs.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
SOPHY THOMAS JUDGE smp Mat.Appeal No.853 of 2019 11 APPENDIX I.A No.1/2020 ANNEXURE R1 : TRUE COPY OF THE ORDER No.M6-46670/2016 DTD.20.01.2017 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM.
ANNEXURE R2 : TRUE COPY OF THE JUDGMENT DATED 24.7.2019 IN CON.CASE © No.1280 OF 2019 IN WP(C) No.4959/2019.
ANNEXURE R1(a) : TRUE COPY OF THE OBJECTION DTD.12/8/2013 IN I.A. No.1118/2013 IN O.P No.630/2013 FILED BY STEPHEN D'SILVA BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM.
ANNEXURE R1(b) : TRUE COPY OF THE COUNTER STATEMENT FILED BY STEPHEN D'SILVA IN O.P No.630/2013 FILED BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM.
I.A No.1/2021 ANNEXURE R1 : TRUE COPY OF THE OP No.630/13 OF PETITION FILED BY THE 1ST APPELLANT AT HON'BLE FAMILY COURT, ERNAKULAM.
True Copy P.S to Judge smp