IN THE HIGH COURT OF KERALA AT ERNAKULAM
CMA.No. 175 of 2000()
1. BALAN
... Petitioner
Vs
1. C.M. LEELA
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.V.V.SURENDRAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/12/2008
O R D E R
M.N. KRISHNAN, J
-----------------------
C.M.A.No. 175 OF 2000
&
C.M.A.No. 239 OF 2000
---------------------------------
Dated this the 9th day of December, 2008
JUDGMENT
Both these appeals are preferred against the judgment
rendered by the Additional District Judge, Kozhikode in Appeal Suit
No. 8/1998. C.M.A 175/2000 is filed by the first defendant in the
suit and C.M.A 239/2000 is filed by the plaintiff in the suit. The
brief facts necessary for the disposal of these appeals are stated as
follows:
2. The Original Suit O.S. 735/93 is filed for partition of the
plaint schedule property into 4 shares and to allot one such share to
the plaintiff and one such share each to defendants 1 to 3. It is the
case of the complainant that the property belonged to her mother
Devaki by virtue of a partition deed. It is submitted that the
property can be divided into 4 shares and partition can be affected.
3. The first defendant in the suit would contend that the
property was purchased in the name of Devaki by him with his
funds for his benefit and she was only a name lender and she had
never obtained any title to or possession of the property and in
C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000
-2-
paragraph 8 of the written statement it is specifically contended
that even if the Benami Transactions Prohibition Act is to be applied
it will come within the exemption under Section 4(3)(b) of the Act
considering the fiduciary relationship between the mother and the
son. Various other contentions such as plea of ouster, reservation
etc. were also raised in the suit.
4. The defendants 2 and 3 contended for the position that the
property was purchased in the name of the mother with the funds
of the father and therefore the mother is only benamidar and on her
death the property had devolved upon the 4 children equally
entitling each one of them to have one out of 4 shares.
5. The trial court on consideration of the entire materials
arrived at a decision that the transaction is not a benami one. The
first defendant has not proved that the right of the plaintiff or other
defendants is lost by ouster and that the first defendant is not
entitled to any reservation. Thereafter the suit was decreed in line
with the prayer in the plaint. It is against that decision the appeal
was preferred before the District Court as A.S. 8/1998. It was
proved by the 1st defendant in the suit and after elaborately
considering the materials the court held that documents are
C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000
-3-
produced along with I.A. 1329/99 is relevant for the purpose of
determination of the case. Therefore the case is remanded back to
the trial court for a fresh finding on issue Nos.1 and 2 and also for a
fresh finding on issue No.5 by affording an opportunity to the first
defendant to adduce evidence to prove the documents produced in
the case. It is against that decision the first defendant as well as
the plaintiff has come up in appeal.
6. The grievance of the first defendant is that the court below
had passed an order of remand which is liable to be interfered with
and the plaintiff has preferred the appeal contending for the
position that the appellate court committed error in admitting those
documents and reopening the question regarding the partibility of
the property. After hearing both sides, I consider the following
substantial questions of law:
Whether the lower appellate court has justified in passing an
order of remand and whether the circumstances which had been
discussed by the appellate court is legal.
7. I will consider this matter in detail so that the questions
raised by both the parties can be met with this one judgment. At
the out set I may like to point out that before the court below the
C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000
-4-
parties have not adverted to the legal question that should have
been considered but did spend their time more on the question of
the benami nature of the transaction. Admittedly the suit is filed
after coming into force of the Benami Transactions Prohibition Act
1988 and therefore the question whether the transaction is Benami
should not have been considered, even if it is raised by the parties
for reason that Section 3 and 4 of the Act bars an enquiry in to that
question. But section 4(3)(b) of the Act saves a transaction where
the person in whose name the property is held is a trust or other
person standing in a fiduciary capacity. Admittedly here is a case
where the first defendant is none other than the son of Devaki in
whose name the documents stands. The contention of the plaintiff
is that the property is acquired and purchased by Devaki with her
own funds and she was the owner in possession of the property till
her date of death. On the other hand the first defendant would
contend that due to certain reasons the property was purchased in
the name of Devaki by making use of his funds. According to him
considering fiduciary relationship and as the consideration for the
transaction had been parted with by the first defendant the property
belongs to him and therefore other will not have any title to or
C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000
-5-
right or possession over the property. But in order to adjudicate
this question even regarding fiduciary capacity prime point to be
considered will be, whether the sale consideration for the purchase
of the property was spent by Devaki or whether it was the funds of
the first defendant which he had used for the purchase of the
property in the name of his mother namely Devaki. So for this
purpose, though the question of the benami nature of the
transaction may not have to be considered in that perspective the
source of consideration and the resultant effect of the same will
have to be considered by the trial court to find out with whose fund
the property had been purchased. An answer is given to that
question by appreciating and evaluating the evidence, both oral and
documentary as well as the additional documents produced in the
appeal. Any further document which the parties intend to produce
for the purpose of arriving such a decision including additional oral
evidence. The matter has to be considered in that perspective and
decided. Therefore I make the order of remand very clear in this
aspect namely the purpose of the remand would be for the purpose
of finding out with whose fund the property had been purchased.
If first defendant succeeds in proving that it was with his funds that
C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000
-6-
the property was purchased then the question whether the carved
out exemption of 4(3)(b) would apply or not. I make it very clear
that all the documents produced and to be produced and all the oral
evidence adduced and to be adduced to be considered for the
purpose of arriving that decision.
8. The next question is regarding plea of ouster. The learned
trial Judge has elaborately considered the question of ouster. The
dictum in the decision of this court reported in Krishnan v.
Raman (1986 Short Notes 63 Case No. 104), when applied
would show that in a case of ouster really something more has to
be proved that is the hostile animus. Therefore I do not propose to
interfere the said decision rendered regarding plea of ouster decided
by the trial court. Now lastly let us come to the question of
reservation decided by the trial court. Even if it is found that the
money has been parted by Devaki, if one of the co-owners spend
the entire amounts for improving the property and when there are
circumstances or evidence to show that the other co-owners are
having other house or property, then necessarily the question of
equity and reservation has also to be considered. So I permit both
sides to adduce evidence on the question of reservation as well and
C.M.A.No. 175 OF 2000 & C.M.A.No. 239 OF 2000
-7-
direct the trial court to consider the question of entitlement of
reservation claimed by the first defendant. No other points arise for
consideration and therefore the Civil Miscellaneous appeals
175/2000 and 239/2000 are disposed of with a direction to the trial
court to consider the matters that has been elaborately considered
by this court in the previous paragraphs of the judgment.
The parties are directed to appear before the trial court on
20.1.2009. The registry is directed to send back the records also as
early as possible.
M.N. KRISHNAN,JUDGE
vkm