Kerala High Court
Bibin K Baby vs Manju David on 5 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
MAT.APPEAL NO.1156 OF 2015
1 2025:KER:39212
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
MAT.APPEAL NO. 1156 OF 2015
AGAINST THE ORDER DATED 09.04.2015 IN OP NO.33 OF 2012 OF THE
FAMILY COURT, KOTTARAKKARA
APPELLANT/RESPONDENT:
BIBIN K BABY, AGED 35 YEARS
S/O BABY, BIBIN COTTAGE,
MANNOOR (PO),MANNOOR MURI,
KOTTUKKAL VILLAGE,KOTTARAKKARA TAKUK,
KOLLAM DISTRICT
BY ADV SRI.K.V.ANIL KUMAR
RESPONDENT/PETITIONER:
MANJU DAVID, AGED 28 YEARS,
D/O LEELAMMA, MANOJ BHAVAN,
CHERUVALLOR DESOM, ANDOOR (PO),
UMMANNOOR VILLAGE, KOTTARAKARA TALUK,
KOLLAM DISTRICT, PIN-691532
BY ADV SRI.SAJITH KUMAR V.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
28.05.2025, THE COURT ON 05.06.2025, DELIVERED THE FOLLOWING:
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SATHISH NINAN & P.KRISHNA KUMAR, JJ
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Mat.Appeal No.1156 of 2015
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Dated this the 5th day of June, 2025
J U D G M E N T
P.Krishna Kumar.J
The respondent filed a petition before the Family
Court, Kottarakkara, claiming recovery of gold ornaments and
money, and seeking a declaration of absolute title over 45
cents of property described in the plaint. The family court
partly allowed the petition, declaring the absolute right of
the respondent over the said property and permitting her to
realise Rs. 1,50,000/- from the appellant, but rejected the
claim for the recovery of gold ornaments. The said order is
impugned in this appeal by the husband.
2. As per the impugned order, the trial court
disposed of two other pending proceedings, besides the above
case. In one such matter, the husband sought a decree of
divorce, but it was rejected by the common order. The court
further allowed the case filed by the wife seeking
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maintenance. The present appeal is only in respect of the
decree for the recovery of money and declaration.
3. The marriage between the appellant and the
respondent took place on 11.08.2004. The respondent alleged
that on 09.08.2004, Rs. 1,50,000/- was entrusted to the
appellant by her father towards expenses of the marriage.
The 20 sovereigns of gold ornaments worn by the respondent
at the time of marriage were later entrusted to the
appellant, but he failed to return the same. The
respondent's father purchased 45 cents of landed property in
the name of the appellant and the respondent, by spending Rs
3.5 lakhs. The appellant's name was also included in the
title deed in the best interests of their marital
relationship. The landed property has been in the enjoyment
and possession of the respondent. The respondent's father
further constructed a residential building in the said
property by spending his own funds, it is alleged by the
respondent.
4. The appellant filed a written statement together
with a counterclaim, disputing the contentions raised by the
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respondent. According to him, only Rs. 70,000/- was given by
the respondent's father towards marriage expenses. The
appellant further asserted that he and his father purchased
the petition scheduled property using their own funds. He
also contended that the land was purchased in their joint
names, for protecting their mutual interests. According to
him, a residential building was constructed in the family
property of the respondent using his funds. The appellant
further contended that 11.5 sovereigns of gold ornaments
purchased by him were misappropriated by the respondent. He
also claimed that a huge sum was given to the respondent and
her father through their bank accounts for constructing the
residential building on their family property. Accordingly,
he raised the counterclaim for a declaration of his absolute
title over the petition scheduled property and also for
recovering Rs. 8,08,500/- from the respondent.
5. After considering the evidence of PW1 to PW4, RW1 and
RW2, and examining Exts.A1 to A10 series and Exts.B1 to B9,
the trial court found that the case advanced by the
respondent is more probable than the one contended by the
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appellant, in respect of the title of the immovable property
in question. The court further allowed recovery of
Rs.1,50,000/-. The counterclaim was rejected for want of
evidence.
6. We have heard the learned counsel appearing on both
sides.
7. One of the reliefs granted by the trial court is for
the recovery of Rs.1,50,000/- with interest from the
appellant. The above claim made by the respondent was
partially admitted by the appellant during cross-
examination. In the pleadings, he stated that he received
only Rs.70,000/- towards expenses for the marriage from the
father of the respondent. In cross-examination, he said he
received Rs.75,000/-. The trial court found that the
appellant has no consistent case in respect of receipt of
money at the time of marriage. After going through the
testimony of PW1 and PW2 and RW1 and RW2, we find that the
respondent's case in this regard is more probable than the
appellant. As rightly observed by the trial court, when the
appellant prevaricates his version as regards the amount
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received by him at the time of marriage, it is only just and
proper to accept the consistent testimony of the respondent,
which is supported by the evidence of RW2. Hence, we find no
reason to interfere with the relief granted by the trial
court in respect of the above claim.
8. The main dispute in this appeal is related to the
title of the petition scheduled land. Both sides claim that
the immovable property was purchased by them. There is no
dispute that the title deed describes both their names as
the purchasers. The sale deed was attested by the fathers of
both the appellant and the respondent.
9. While arriving at the conclusion against the
appellant, the trial court noted the following aspects: The
appellant does not even know the actual area of the building
constructed in the petition scheduled property, whereas the
respondent produced the building permit and she deposed the
extent of the building correctly before the court. As per
Exts.B5 and B6 receipts issued by the Panchayat, the
respondent's father is the owner of the building. Ext.B7
order of assessment of the building by the Tahsildar,
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Kottarakkara, also shows the father of the respondent as the
building owner. When both sides agree that the actual sale
consideration is not shown in the title deed, the appellant
is unable to state the actual value for which the property
was purchased. Though the appellant claimed that he paid
sufficient amounts for purchasing the said plot through his
bank account, he failed to produce the same. Despite making
a claim that the father of the appellant had been paying the
property tax, he did not produce any tax receipt, but the
respondent was able to produce it. It was purchased within
three months of marriage. The appellant admitted that the
respondent's father had agreed to give a share of his
paternal property after the marriage to them.
10. During the course of the hearing, we have been
extensively taken through the oral and documentary evidence
available in this case. On evaluation of the evidence
adduced by both sides, it appears that the trial court was
inclined in favour of the respondent, assuming at one part
of the order that a new residential building was constructed
in the petition scheduled building and it was assessed in
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the name of the respondent's father. Though the pleadings in
the petition filed by the wife justify such an assumption,
the wife and her father had no such case during the trial.
It was categorically stated by the respondent (RW1) and her
father (RW2) during the trial that a new residential
building was constructed on their family property, and a
housewarming ceremony was also conducted thereafter. In
fact, RW2 has clearly stated this in his chief examination
itself (Page 9). RW2 further deposed that the newly
constructed residential building in his property was
assessed in his name in the Panchayat and revenue
departments and his daughter had been residing in that house
(Page no.9). On the other hand, RW2 further stated that the
petition scheduled property is in the possession of the
appellant (Page no.6). In that circumstance, the finding of
the trial court based on Exts.B5 to B7 building assessment
receipts in the name of RW2 are clearly erroneous.
11. It is true that the appellant is not able to state
the actual amount spent for the purchase of the land over
and above the value shown in the title deed. He also failed
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to produce any tax receipts. Nevertheless, according to him,
he had been abroad at the time of purchasing the plot and
thereafter for several years, and that the purchase price
was partially raised by his father.
12. Though it was contended by both sides that there are
records to show that the entire purchase price was paid by
them, nothing reliable and material has been produced by
them during the trial. The appellant has indeed contended
that the amount necessary for purchasing the property was
transferred by him through his father's account, but the
bank passbooks produced before the court do not show that
there were sufficient transactions at the relevant time.
Likewise, the respondent also failed to produce any evidence
to show that the purchase price was paid by her father.
Failure of the appellant to prove the said fact is not
sufficient enough to hold that the entire property belongs
to the wife, particularly when the wife also failed to
provide sufficient evidence to show that it was her father
who paid the entire consideration for the sale.
13. As per Section 45 of the Transfer of Property Act,
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when an immovable property is transferred for consideration
in the name of two or more persons and there is no evidence
as to the shares in which the purchasers respectively
advanced the fund towards the consideration, such persons
shall be presumed to be equally interested in the property.
Section 45 reads as follows:-
"45. Joint transfer for consideration.--
Where immovable property is transferred for consideration
to two or more persons and such consideration is paid out
of a fund belonging to them in common, they are, in the
absence of a contract to the contrary, respectively
entitled to interests in such property identical, as
nearly as may be, with the interests to which they were
respectively entitled in the fund; and, where such
consideration is paid out of separate funds belonging to
them respectively, they are, in the absence of a contract
to the contrary, respectively entitled to interests in
such property in proportion to the shares of the
consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund
to which they were respectively entitled, or as to the
shares which they respectively advanced, such persons
shall be presumed to be equally interested in the
property."
(Emphasis added)
14. After evaluating the entire evidence, we are of
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the view that none of the circumstances noted by the trial
court are sufficient to rebut the presumption available
under Section 45 of the Transfer of Property Act. In the
absence of positive evidence or a chain of circumstances
leading to a definite inference that the entire sale
consideration was paid by the respondent or her father, it
cannot be held that the property absolutely belongs to her.
To that extent, we find that the impugned judgment is liable
to be set aside.
15. On the finding entered into by us above regarding
the source of consideration for purchase of the property,
and in the light of the second paragraph to Section 45 of
the Transfer of Property Act, the appellant and the
respondent are entitled to one-half share each over the
property. As the litigation started in the year 2012 and we
do not consider it just in the interest of both sides to
drive them to another litigation for partition of the
property, the relief is liable to be moulded and a
preliminary decree for partition is liable to be passed.
16. With regard to the counterclaim, as found by the
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family court, there is lack of evidence. Hence, the said
finding on the counterclaim is only to be upheld.
In the result, the appeal is allowed in part. The
declaratory relief granted by the trial court that the
petition scheduled property having 45 cents in extent
absolutely belongs to the respondent is set aside. A
preliminary decree for partition is passed declaring the
one-half right each of the appellant and the respondent over
the plaint schedule property. The family court shall proceed
for final decree without waiting for an application in the
said regard, in the light of the judgment of the Apex Court
in Kattukandi Edathil Krishnan and Another v. Kattukandi
Edathil Valsan and Others (AIR 2022 SC 2841). In all other
respects the decree and judgment of the family court will
stand affirmed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P.KRISHNA KUMAR
dlk
JUDGE
