Kerala High Court
This Appeal Arises Out Of The ... vs Unknown on 26 February, 2021
J U D G M E N T
[Mat. Appeal No.117/2015]
Dated this the 26th day of February, 2021
A.Muhamed Mustaque, J.
This appeal arises out of the judgment of the
Family Court, Nedumangad, in a petition filed by
the appellant for declaration and injunction. The
subject matter of the petition is an immovable
property consisting of a building. The appellant
is the former wife of the respondent. The
marriage between the appellant and respondent was
dissolved through a decree of divorce on a joint
petition moved by them. The total extent of the
property was originally 9½ cents. Out of the
total extent, the appellant sold 4 cents.
2. Admittedly, the title of the land stands
in the name of the appellant. The case of the
respondent was that the marriage took place in the
year 1998 and 5 cents of property was purchased in
the year 1992 through the money provided by him.
According to him, he constructed the building
availing a loan.
[Mat. A.No.117/2015]
3. The Family Court entered into a finding
that 5 cents of property was purchased by the
appellant using the fund provided by the
respondent as the appellant failed to produce any
document to prove the same. It was also observed
that the appellant had no job. Therefore, the
only possibility of purchasing the property was
through the respondent. Premising this
reasoning, the Family Court declined to grant the
relief as sought for by the appellant and
declared that the appellant and respondent are
having equal share in the property. The purchase
of the property in the year 1992 by the appellant
was from her sister. Ext.A3 is the sale deed.
Ext.A2 is the sale deed in respect of 4 cents of
property obtained by her in a partition deed.
Both 4 cents and 5 cents were lying contiguous
and formed a compact area after the purchase made
by the appellant. Out of the compact area,
4 cents were sold. It appears that there is 0.5
cent extent of land available in excess. Going
by the admission of parties, the balance property
after the sale of 4 cents will be 5½ cents.
[Mat. A.No.117/2015]
4. We are of the view that the Family Court
wrongly cast burden on the appellant to prove
payment of sale consideration for the purchase of
5 cents made by her in the year 1992. When the
title stands in the name of the appellant, the
appellant has no such obligation to prove as to
the payment of consideration. The burden is on
the respondent to prove that the entire sale
consideration was provided by him. In the absence
of any materials or evidence, to prove that the
entire consideration was provided by the
respondent, the Family Court could not have
arrived at a finding that the respondent is
having equal share over the land. Therefore, we
are of the view that the impugned findings have
to be set aside.
5. However, we find that the evidence
adduced by the parties clearly establish the fact
that for the construction of the building a loan
was obtained and payment was effected by the
husband. It has come out in evidence that old
building was demolished and a new building was
constructed in its place. The respondent also
succeeded in proving that he had discharged the
[Mat. A.No.117/2015]
loan liability. The respondent produced pass book
relating to the loan transaction and letters
issued by the bank discharging the loan
liability. We, in such circumstances, hold that
the building was constructed by the respondent by
utilizing his own funds. The appellant miserably
failed to prove that she had contributed for
construction of the building.
6. There cannot be any dispute as to the
law on the point that one can be the owner of the
land and another can be the owner of the
building. In such circumstances, we have to hold
that the land belonged to the appellant and the
building belonged to the respondent. Thus, we
modify the impugned judgment and decree and
dispose of the appeal as above. The parties are
directed to suffer respective costs.
A.MUHAMED MUSTAQUE, JUDGE
C.S.DIAS, JUDGE
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