[Cites 4, Cited by 0]
Kerala High Court
Dr.A.George Mathew vs George John on 9 January, 2026
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal Nos.993/2019, 718/2019, 769/2019, 897/2019
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2026:KER:1051
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 9TH DAY OF JANUARY 2026 / 19TH POUSHA, 1947
MAT.APPEAL NO. 993 OF 2019
AGAINST THE JUDGMENT DATED 08.02.2019 IN OP NO.896 OF 2013
OF FAMILY COURT, NEDUMANGAD
APPELLANT/2ND RESPONDENT:
GEORGE JOHN,
AGED 82 YEARS
S/O.GEEVARGHESE, ARIMATHAEA VEEDU, NEAR KAMAL NAGAR,
NALANCHIRA P.O., MANNANTHALA,
THIRUVANANTHAPURAM - 695 015.
BY ADV SRI.ALEX VARGHESE
RESPONDENT/PETITIONER:
DR.A.GEORGE MATHEW,
AGED 45 YEARS
S/O.A.G.GEORGE, ANJILIVELIL HOUSE,CHIRAYIRAMBU P.O.,
MARAMON, PATHANAMTHITTA DISTRICT - 689 549.
BY ADVS.
SRI.G.SUDHEER
SRI.R.HARIKRISHNAN (H-308)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
07.01.2026, ALONG WITH MAT.APPEAL.718/2019, 769/2019 AND
CONNECTED CASES, THE COURT ON 09.01.2026 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.993/2019, 718/2019, 769/2019, 897/2019
2
2026:KER:1051
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 9TH DAY OF JANUARY 2026 / 19TH POUSHA, 1947
MAT.APPEAL NO. 718 OF 2019
AGAINST THE JUDGMENT DATED 08.02.2019 IN OP NO.97 OF 2013
OF FAMILY COURT, NEDUMANGAD
APPELLANT/RESPONDENT:
DR.A.GEORGE MATHEW
AGED 45 YEARS
S/O.A.G.GEORGE, ANJILIVELIL HOUSE, CHIRAYIRAMBU P.O.,
MARAMON, PATHANAMTHITTA DISTRICT, PIN-689 549.
BY ADVS.
SRI.G.SUDHEER
SRI.R.HARIKRISHNAN (H-308)
RESPONDENT/PETITIONER:
GEORGE JOHN
AGED 76 YEARS
S/O.GEEVARGHESE, ARIMATHAEA VEEDU, NEAR KAMAL NAGAR,
NALANCHIRA P.O., MANNANTHALA, THIRUVANANTHAPURAM,
PIN-695 015.
BY ADV SRI.ALEX VARGHESE
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
07.01.2026, ALONG WITH MAT.APPEAL.NO.993/2019 AND CONNECTED
CASES, THE COURT ON 09.01.2026 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.993/2019, 718/2019, 769/2019, 897/2019
3
2026:KER:1051
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 9TH DAY OF JANUARY 2026 / 19TH POUSHA, 1947
MAT.APPEAL NO. 769 OF 2019
AGAINST THE JUDGMENT DATED 8.2.2019 IN OP NO.896 OF 2013 OF
FAMILY COURT, NEDUMANGAD
APPELLANT/PETITIONER:
DR.A.GEORGE MATHEW
AGED 45 YEARS
S/O. A. G. GEORGE, ANJILIVELIL HOUSE,
CHIRAYIRAMBU P. O., MARAMON, PATHANAMTHITTA DISTRICT,
PIN - 689 549
BY ADVS.
SRI.G.SUDHEER
SRI.R.HARIKRISHNAN (H-308)
RESPONDENT/ADDL.2ND RESPONDENT:
GEORGE JOHN
AGED 76 YEARS
S/O. GEEVARGHESE, ARIMATHAEA VEEDU, NEAR KAMAL NAGAR,
NALANCHIRA P. O., MANNANTHALA, THIRUVANANTHAPURAM,
PIN - 695 015.
BY ADV SRI.ALEX VARGHESE
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
07.01.2026, ALONG WITH MAT.APPEAL.NO.993/2019 AND CONNECTED
CASES, THE COURT ON 09.01.2026 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.993/2019, 718/2019, 769/2019, 897/2019
4
2026:KER:1051
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 9TH DAY OF JANUARY 2026 / 19TH POUSHA, 1947
MAT.APPEAL NO. 897 OF 2019
AGAINST THE JUDGMENT DATED 8/2/2019 IN OP NO.97 OF 2013 OF
FAMILY COURT, NEDUMANGAD
APPELLANT/ADDL.2ND PETITIONER:
GEORGE JOHN,
AGED 76 YEARS
S/O.GEEVARHGESE, ARIMATHAEA VEEDU, NEAR KAMAL NAGAR,
NALANCHIRA P.O., MANNANTHALA,
THIRUVANANTHAPURAM - 695 015.
BY ADV SRI.ALEX VARGHESE
RESPONDENT/RESPONDENT:
DR.A.GEORGE MATHEW,
AGED 45 YEARS
S/O.A.G.GEORGE, ANJILIVELIL HOUSE, CHIRAYIRAMBU P.O.,
MARAMON, PATHANAMTHITTA DISTRICT - 689 549.
BY ADVS.
SRI.G.SUDHEER
SRI.R.HARIKRISHNAN (H-308)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
07.01.2026, ALONG WITH MAT.APPEAL.993/2019 AND CONNECTED CASES,
THE COURT ON 09.01.2026 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.993/2019, 718/2019, 769/2019, 897/2019
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal Nos.718, 769, 897 &
993 OF 2019
= = = = = = = = = = = = = = = = = =
Dated this the 9th day of January, 2026
JUDGMENT
P.Krishna Kumar, J.
These appeals are preferred by the husband and the wife
against the common judgment in O.P. Nos. 97/2013 and
896/2013 on the file of the Family Court, Nedumangad. O.P.
No. 97/2013 was filed by the wife seeking a declaration of
her absolute title over the petition scheduled property
purchased in their joint names. O.P. No. 896/2013 was filed
by the husband seeking a similar relief in respect of the
very same property. By the impugned common judgment, the
trial court dismissed both the petitions, holding that the
petition scheduled property jointly belong to the husband
and the wife.
2. For the sake of convenience, the wife is hereinafter
referred to as the petitioner, and the husband as the
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respondent. They were married on 11.08.2003. After the
marriage both of them were working in Muscat in different
companies and earning a decent salary. On 22.06.2009, a
landed property having an extent of 5.92 Ares was purchased
in the joint names of the petitioner and the respondent as
per Sale Deed No. 1216/2009 of SRO, Kanyakulangara, for a
sale consideration of ₹1,35,000/-. The petitioner alleges
that the entire amount towards the purchase of the property
as well as the registration of the sale deed was paid by
her. According to her, the respondent withdrew the money
earned by her using her ATM card from Sohar Bank, Seeb
Branch, Muscat, and sent the same to her father through bank
for paying the advance amount and the balance sale
consideration.
3. On the other hand, the respondent contended that the
property was purchased by utilising the funds transferred by
his brother to the account of the petitioner's father, as
requested by the respondent. According to him, the sale
consideration was ₹13,10,000/-. The respondent further
contended that though the entire sale price was paid by him,
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the petitioner deceitfully incorporated her name as well in
the title deed and, therefore, she has no right over the
property.
4. The parties do not have any children. While the
petitions were pending trial, the petitioner died, and her
father was impleaded as the additional petitioner.
Meanwhile, the marriage between the petitioner and the
respondent was dissolved by a decree of divorce granted by
the Family Court, Tiruvalla.
5. Both the cases were tried jointly and disposed of by
the Family Court through a common judgment. The trial court
found that both sides failed to prove any exclusive right
over the property.
6. The point that arises for consideration is whether
the petition scheduled property is jointly owned by the
petitioner and the respondent, or is exclusively owned by
either of them.
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7. During the course of trial, PW1 to PW3 and RW1 were
examined, and Exts. A1 to A7 and R1 to R3 (noted as B1 to B3
on the document) were marked in evidence. It appears that
there occurred an error in the numbering of the witnesses,
inasmuch as the evidence of George John, the father of the
petitioner, and that of one Shibudas, the vendor of the
property, were both recorded as PW2. For the sake of
clarity, Shibudas will hereinafter be referred to as PW3. In
order to substantiate the contentions raised by the
petitioner, she got herself examined as PW1, besides
examining her father as PW2 and the vendor of the property
as PW3.
8. Though the petitioner claimed that the entire sale
consideration was paid by her using her own funds, we find
no evidence on record to substantiate the said claim. It is
significant to note that the case set up by her in the
pleadings is wholly inconsistent with the facts narrated by
her during the course of evidence. In the original petition,
she pleaded as follows:
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"6. The petition scheduled property over which the
declaration is sought for has been purchased on 22-06-
2009 as per Sale Deed No.1216/2009 through the Sub
Registrar Office, Kanyakulangara for the sale
consideration of Rupees One Lakh Thirty Five Thousand.
7. The entire money for the purpose of purchase and
for registration of the document was spent from the
money of the petitioner. The respondent has taken the
cash by using the ATM Card of the petitioner from the
Sohar Bank, Seeb Branch, Muscat. After taking the
money as said above the respondent sent the money to
his father through Bank to be utilized for paying the
advance amount and the balance sale consideration."
It is also pertinent to note that the petitioner
consistently set up a case that the sale consideration was
only ₹1,35,000/-. She stated so even in her chief affidavit.
In paragraph 18 thereof, she specifically stated as follows:
"ടടി വസ്തുക്കൾ വവാങടിയവാൻ 1,35,000/- രൂപ ചചെലവവായടിട്ടുണണ്ട് . അലവാചതെ എതൃകകടി
പറയുന്നതുപപവാചല 13,10,000/- അല ആയടിട്ടുള്ളതെണ്ട്."
However, in the objection filed to O.P. No. 896/2013, she
contended that the actual sale consideration was
₹16,00,000/-. She also conceded the same during her cross-
examination. In short, though she contended that the entire
sale consideration was paid out of her own funds, she failed
to produce any material to substantiate the said claim. As
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noticed above, her oral evidence is inconsistent with her
pleadings.
9. On the other hand, the respondent set up a specific
case that the plaint scheduled property was purchased for a
consideration of ₹13,10,000/-, and that the said amount was
raised by him by borrowing it from his brother, Riju George,
who transferred the said amount to the account of the
petitioner's father on 19.06.2009, i.e., three days prior to
the purchase of the property. Ext. B2 series bank documents
marked through RW1, the respondent, would show that the said
amount was transferred by Riju George to the account of the
petitioner's father. Though the learned counsel appearing
for the petitioner contended that the said documents are
inadmissible in evidence as they were not produced in
accordance with the provisions of the Bankers' Books
Evidence Act, we are unable to accept the said contention in
view of the specific provision contained in Section 14 of
the Family Courts Act.
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10. However, we cannot also accept the case of the
respondent that the entire sale consideration was paid by
him, in the absence of reliable evidence. If, as contended,
Riju George had transferred the said amount at the request
of the respondent and it was a loan arrangement between the
brothers, the best person to speak to that fact was Riju
George himself. However, he was not examined before the
court. Though it was argued by the learned counsel for the
respondent that the failure of the petitioner to explain why
such a large amount was transferred to her father's account
by the respondent's brother ought to have resulted in a
decree in his favour, we are unable to accept that
contention. The non-examination of Riju George is fatal to
the case of the respondent.
11. The learned counsel appearing for the petitioner
vehemently argued that when PW3, the vendor, deposed that
the father of the petitioner paid ₹3,00,000/- as advance on
the date of execution of the agreement for sale and when the
said testimony remained unchallenged, the case of the
petitioner ought to have been accepted. However, the
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petitioner has no such case in her pleadings. PW3 also did
not state so in his chief affidavit. What he stated in
cross-examination was only that on the date of execution of
the agreement for sale, he received ₹3,00,000/- as advance.
He did not state that the amount was paid either by the
petitioner or by her father. When the petitioner had
specifically pleaded that the sale consideration was only
₹1,35,000/- and reiterated the same in her chief affidavit
by even denying the contrary version put forward by the
respondent, she cannot subsequently be permitted to set up a
different case.
12. Both sides attempted to capitalise on the weaknesses
in the case of the other; however, that by itself is
insufficient to entitle either of them to a decree. As noted
above, the evaluation of the oral and documentary evidence
unmistakably shows that the petitioner failed to prove her
contention that the entire sale consideration was paid by
her. Likewise, the evidence on record does not support the
contention of the respondent that the entire sale
consideration was paid by him. In the absence of positive
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evidence establishing that the entire purchase price was
contributed by either party exclusively, the only course
open is to apply the mandate of Section 45 of the Transfer
of Property Act. This is precisely what has been done by the
Family Court, and we concur with the said view.
13. Considering that the litigation commenced in the
year 2013 and that it would not be just or expedient to
drive the parties to yet another round of litigation for
partition of the property, the relief is liable to be
moulded, in the interest of justice. Accordingly, a
preliminary decree for partition is liable to be passed, in
respect of the petition scheduled property.
14. In the result, all the appeals are disposed of as
follows:
A preliminary decree for partition is passed declaring
the one-half right each of the second petitioner in
O.P.No.97/2013 and the respondent/husband over the petition
scheduled property. The Family Court shall proceed for final
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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.
Parties to appear before the Family Court on 28.01.2026.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
