Kerala High Court
Naseema K.H vs Abdul Kareem on 27 January, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:6455
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
MAT.APPEAL NO. 42 OF 2014
AGAINST THE JUDGMENT DATED 22.07.2013 IN OP NO.268 OF 2012
OF FAMILY COURT,ERNAKULAM
APPELLANT/1ST RESPONDENT:
NASEEMA.K.H
AGED 49 YEARS
D/O.HAMMED KB, KARUPPUM VEETIL, FASHION HOUSE,
CHARKKALALLAL ROAD, PERMANOOR, KOCHI - 15.
BY ADVS.
SRI.P.SAMSUDIN
SRI.K.C.ANTONY MATHEW
SMT.NIMA JACOB
RESPONDENTS/PETITIONER AND 2ND RESPONDENT:
1 ABDUL KAREEM
AGED 59 YEARS
S/O.KHADER, PARIPPUKALATHINKAL HOUSE,
SHANTHIPURAM, PATHAYAKKAD POST, VEMBALLOOR,
SN PURAM VILLAGE, KODUNGALLOOR - 680 668.
2025:KER:6455
Mat.Appeal Nos.42, 116 & 244 of 2014
-: 2 :-
2 SECRETARY, EDAVILANG SERVICE SAHAKARANA BANK,
EDAVILANG P.O., EDAVILANG VILLAGE,
KODUNGALLOOR TALUK - 680 671.
BY ADVS.
SRI.T.H.ABDUL AZEEZ
SRI.P.M.ABDUL JALEEL KODUNGALLUR
SRI.K.S.RAJESH
SRI.M.SHAJU PURUSHOTHAMAN
SRI.T.V.SHAJI
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
27.01.2025, ALONG WITH Mat.Appeal.116/2014, 244/2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:6455
Mat.Appeal Nos.42, 116 & 244 of 2014
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
MAT.APPEAL NO. 116 OF 2014
AGAINST THE JUDGMENT DATED 22.07.2013 IN OP NO.1405 OF
2010 OF FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
NASEEMA K.H.
AGED 49 YEARS
D/O.HAMMED KB, KARUPPAM VEETIL, FASHION HOUSE,
CHAKKALALLAL ROAD, PERUMANOOR, KOCHI-15.
BY ADVS.
SRI.P.SAMSUDIN
SRI.K.C.ANTONY MATHEW
SMT.NIMA JACOB
RESPONDENTS/RESPONDENTS:
1 ABDUL KAREEM
S/O.KHADER, PARIPPUKALATHINKAL HOUSE,
SHANTHIPURAM, PATHAYAKKAD POST, VEMBALLOOR,
SN PURAM VILLAGE, KODUNGALLOOR.
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Mat.Appeal Nos.42, 116 & 244 of 2014
-: 4 :-
2 SHIYADH
AGED 30 YEARS
S/O.ABDUL KAREEM, PARIPPUKALATHINKAL HOUSE,
SHANTHIPURAM, PATHAYAKKAD POST, VEMBALLOOR,
SN PURAM VILLAGE, KODUNGALLOOR.
BY ADVS.
SRI.T.H.ABDUL AZEEZ
SRI.P.M.ABDUL JALEEL KODUNGALLUR
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
27.01.2025, ALONG WITH Mat.Appeal.42/2014 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:6455
Mat.Appeal Nos.42, 116 & 244 of 2014
-: 5 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
MAT.APPEAL NO. 244 OF 2014
AGAINST THE ORDER DATED 22.07.2013 IN OP NO.268 OF 2012
OF FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
ABDUL KAREEM
S.O.KHADER, PARIPPUKULATHINKAL HOUSE,
VEMBALOOR DESOM, SHANTHIPURAM PATHAYAKAT POST,
S.N.PURAM VILLAGE, KODUNGALLUR TALUK, THRISSUR
DISTRICT.
BY ADVS. SRI.P.M.ABDUL JALEEL (KODUNGALLUR)
SRI.T.V.SHAJI
RESPONDENTS/RESPONDENTS:
1 NASEEMA
AGED 49 YEARS, D/O.HAMEED, RESIDING AT
KARUPPAM HOUSE, NEAR WORLD FISHERIES QUARTERS,
PERUMANOOR DESOM, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, KOCHI - 682 015.
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Mat.Appeal Nos.42, 116 & 244 of 2014
-: 6 :-
2 SECRETARY
EDAVILANGU SERVICE CO-OPERATIVE BANK,
EDAVILANGU P.O., EDAVILANGU VILLAGE,
KODUNGALLUR TALUK, TRISSUR DISTRICT.
BY ADVS.
SAMSUDIN PANOLAN
JASNEED JAMAL(K/1383/2018)
LIRA A.B.(K/001251/2021)
DEVIKA E.D.(K/1132/2024)
ABIN RASHID(K/002131/2024)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
27.01.2025, ALONG WITH Mat.Appeal.42/2014 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:6455
SATHISH NINAN & P.M. MANOJ, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal Nos.42, 116 and 244 of 2014
= = = = = = = = = = = = = = = = = =
Dated this the 27th day of January, 2025
JUDGMENT
Sathish Ninan, J.
Mat Appeal No.42 of 2014 arises from O.P.No.268 of
2012. The original petition was filed by the husband
against the wife, seeking a declaration of his title
over the plaint A schedule property having an extent of
5.85 cents and for recovery of money under various
heads. The Family Court granted a decree for declaration
of title, but dismissed the claim for money. The wife is
in appeal challenging the decree of declaration.
2. Mat.Appeal No.244 of 2014 is filed by the
husband challenging that part of the decree in
O.P.No.268 of 2012, which declined the claim for money.
3. Mat.Appeal No.116 of 2014 is filed by the wife
challenging the dismissal of her original petition,
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O.P.No.1405 of 2010, which was filed seeking to set
aside Ext.A2 Settlement Deed and for recovery of gold
and money.
4. The marriage between the parties was on
31.08.1981. Two children were born in the wedlock. Since
the year 1970, her husband was abroad at Gulf countries.
The parties separated in the year 2010 that is, after
almost 30 years.
5. According to the husband, the plaint A
schedule property in O.P.No.268 of 2012 was purchased by
him in the name of the wife under Ext.B1 Sale Deed, with
the funds provided by him. The title over the property
vests with him. He seeks for a declaration of his title
over the property. The plaint B schedule is claimed to
be money with the wife, having been obtained by the sale
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of two items of properties belonging to the husband and
also the loan amount availed by the husband and handed
over to the wife. Under the plaint C schedule, the
husband claims the value of movables and gold ornaments
provided to the wife.
6. The claim of the wife is for 80 sovereigns of
gold and for Rs.5,00,000/- alleged to be entrusted at
the time of marriage. A further relief is also sought
seeking to set aside Ext.A2 Settlement Deed executed by
the husband in favour of their son.
7. With regard to O.P.No.268 of 2012, the Family
Court granted a decree of declaration of title. The
claim for money was dismissed for lack of evidence.
O.P.No.1405 of 2010 was dismissed.
8. We have heard Shri.P. Shamsuddin, the learned
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counsel for the wife and Shri.T.H. Abdul Azeez, the
learned counsel for the husband.
9. The claim of the husband is that the plaint A
schedule property in O.P.No.268 of 2012, though
purchased under Ext.B1 Sale Deed in the name of wife,
the entire consideration was provided by him.
Admittedly, the husband was employed in Gulf countries
since the year 1970. The wife is unemployed and does not
have any source of income. It is the claim of the wife
that her father was a textile merchant and had provided
funds to her for the purchase of the property. As was
noticed, the marriage was in the year 1981. The purchase
of the property under Ext.B1 is in the year 2006. No
special reason is assigned why after so many years of
marriage the father provided funds to the wife to
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purchase Ext.B1 property. So also, there is no evidence
to prove that any funds were so provided by the father.
The circumstances probabilise that the consideration for
Ext.B1 Sale Deed proceeded by the husband. The finding
of the family Court is justified.
10. The learned counsel for the wife contends
that, in the light of the proviso to Section 34 of the
Specific Relief Act, a mere suit for declaration of
title could not be maintained and the husband ought to
have sought for the relief for recovery of possession.
It is the definite case of the husband that the property
absolutely belongs to him and is in his possession and
enjoyment. It is his further case that the building in
the property has been leased out and that the tenants
are in occupation. The factum of lease is evidenced by
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Ext.B8 rent agreement. In the circumstances, there is no
question seeking for recovery of possession against the
wife. As noticed supra, the evidence on record indicates
that the husband is the owner of the property and the
wife was dealing with the same on his behalf. In the
circumstances, the contention of the learned counsel
fails.
11. With regard to the claim for money in
O.P.No.262 of 2012, though the husband claims that two
items of property belonging to him were sold by the
wife, as noticed by the trial court, there is no
evidence to prove the same. The husband could have
produced any documents evidencing such conveyances.
Further, the Family Court found that from the evidence
on record it is evident that the husband and his brother
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were doing real estate business through the wife. There
is no material to find that the amount as claimed is due
to the husband under that head. In the absence thereof,
the Family Court is justified in having negatived the
claim.
12. Coming to the claim for the value of gold,
household articles and vehicles allegedly purchased by
the husband, but for his ipse dixit, no evidence is
available to substantiate the claim. The Family Court on
appreciation of the evidence found that there is no
material to substantiate the claim. A decree could not
be on mere surmises. Accordingly the claim was rejected.
No material is brought to our notice which would
substantiate the claim. Hence the rejection of the claim
warrants no interference.
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13. The husband has a further claim that he had
availed a loan for Rs.1,50,000/- from a Bank and that
the amount was given by him to the wife. He seeks for
recovery of the same. The allegation is that the loan
was availed for the purpose of renovation of the house
but that the wife did not effect any such renovation.
Ext.B7 letter from the Bank suggests payment of some
amounts by the husband into the loan account. However,
he has no case that he has closed the loan account. On
the contrary, the learned counsel for the wife contends
that she has closed the loan account and got return of
the original title deed, which was mortgaged in the
Bank. The mere payment of some amount into the loan
account by her husband does not mean that he is entitled
to claim the loan amount from the wife. Even regarding
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the amounts paid there is nothing to indicate that such
payments were non-gratuitous payments, such being the
relationship between the parties at that time. Under
such circumstances, the husband is not entitled for any
claims under the said head.
14. Now coming to the claim of the wife made in
O.P.No.1405 of 2010, according to her, at the time of
marriage, she had 100 sovereigns of gold ornaments. Out
of the same, 20 sovereigns are with her. From the
husband, she claims the value of 80 sovereigns of gold.
It is also claimed that, at the time of marriage, she
was provided with an amount of Rs.5,00,000/-. The gold
and cash are allegedly misappropriated by her husband.
It is further alleged that, in order to defeat the
claims of the wife, the husband has executed Ext.A2
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Settlement Deed with regard to 20 cents of property in
favour of their son under Ext.A2 Settlement Deed.
15. Exts.B10 and B11 are the wedding photographs of
the couple. The Family Court noticed a bare glance at
the same indicates that the claim of the wife that she
had 100 sovereigns of gold is apparently a false claim.
It was noticed that at best the wife adorned 25
sovereigns. Apart from Exts.B10 and B11 there is no
material to arrive at a conclusion. No evidence was
adduced by the wife with regard to the claim. Even going
by her case she has 20 sovereigns with her. Therefore
the Family Court rightly concluded that the wife is not
entitled for any decree regarding the claim. With regard
to the claim for money also, there is no evidence based
on which a decree could be granted by the Court. The
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said claim was also rightly negatived by the Family
Court.
16. The relief sought for is to declare Ext.A2 as
null and void and to set aside the document. The grounds
for setting aside the document are different from the
grounds to declare a document as void. Both prayers do
not go together. Admittedly, pursuant to Ext.A2
Settlement Deed, the son had filed a suit against the
mother as O.S.No.682 of 2010 for a prohibitory
injunction against trespass. The suit was decreed ex
parte. The decree has become final. In the suit, the
title claimed by the son was Ext.A2 Settlement Deed. In
the light of the decree in O.S.No.682 of 2010, the
challenge against Ext.A2 is bound to fail. That apart,
admittedly the husband has other assets and the mere
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fact that one item of property was settled in the name
of the son under Ext.A2 does not make the transfer as
one to defeat the claims of the wife.
17. Therefore, on the discussions as above, we
find that the decree passed by the Family Court is based
on the available evidence and warrants no interference.
Resultantly, the appeals fail and are dismissed. No
cost.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P.M. MANOJ
JUDGE
yd
