Kerala High Court

Sherly D. Silva vs Stephen D.Silva on 27 July, 2022

          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.
                  ------------------------------------
                      Mat.Appeal No.853 of 2019
                  ------------------------------------
                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

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

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

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

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

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

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

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

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

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 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