IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 985 of 2009()
1. SUNITHA K.K., AGED 34 YEARS,
... Petitioner
Vs
1. A.S.RAMESH, S/O.SUKUMARAN,
... Respondent
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent :SRI.C.A.CHACKO
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :23/07/2010
O R D E R
C.R.
R.BASANT & M.C. HARI RANI,JJ
==============================
MAT APPEAL NO. 985 OF 2009
============================
DATED THIS THE 23rd DAY OF JULY 2010
JUDGMENT
Basant,J.
Is the plea of no means available to a husband against
proposed arrest and detention under Section 51 of the Code of
Civil Procedure in execution of a decree for money passed by
the Family Court in favour of his wife for return of parental
share and gold ornaments entrusted to him? Can proviso (c)
to Section 51 C.P.C. be said to be attracted ? These, in short,
are the questions raised in this appeal.
2. To the vitally relevant facts first. The appellant and the
respondent were married on 19/5/1996. They lived together for
some period of time. Separate residence commenced from
MAT APPEAL NO.985/2009 -2-
14/9/2002. The husband allegedly did not return to his wife cash,
ornaments, articles etc. of value Rs.3,25,500/-. The wife claimed
return of the said amount of Rs.3,25,500/- along with the interest
and costs.
3. The husband was set ex parte once. The said ex parte
order was set aside. Though the husband was permitted to
participate in the proceedings, he again did not co-operate and
take part in the proceedings. Accordingly, the Family Court
proceeded to pass the decree directing him to pay the said
amount of Rs.3,25,500/- along with interest and costs.
4. The respondent/wife took out execution before the
Family Court. The husband was once directed to be arrested.
He was arrested. While he was in custody, he approached this
Court and on condition that he deposits an amount of Rs.25,000/-
and executes a bond with two solvent sureties for the balance
amount, he was released from custody. Thereafter, before the
execution court, the respondent-husband pressed the plea that
he is without any means and that, in these circumstances, the
money decree cannot be executed against him by arrest and
detention. That plea was considered by the court below and by
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the impugned order, the court below came to the conclusion
that the respondent/judgment debtor has no means and
consequently, he is not liable to be arrested and detained in
execution of the money decree. It is that order, that is
impugned in this appeal by the decree holder/wife.
5. We may straight away refer to the contention that the
sureties who had executed the bond as per the earlier order
passed by this Court are also liable to be proceeded against. In
the execution petition or in this appeal they are not parties. Our
attempt to trace the bond, if any, executed by them has not
succeeded. We are, in these circumstances, satisfied that it is
not necessary for us to come to any authentic finding in this Mat
Appeal about the liability of the sureties to be proceeded against.
If execution is taken out against them on the strength of the
bond allegedly executed by them, the Family Court will have to
consider the claim for execution against them in the light of all
contentions which may be raised before the Family Court. We
are not, in these circumstances, embarking on a consideration of
that aspect of the matter in this appeal.
MAT APPEAL NO.985/2009 -4-
6. The learned counsel for the appellant/decree-holder in
this appeal before us raises only one contention. Sri Varghese
C.Kuriakose,counsel for the appellant, raises the short
contention that in view of Proviso (c) to Section 51 of the Code of
Civil Procedure, the decree holder/husband is not entitled to
raise a plea that the decree is not liable to be executed against
him by arrest and detention for the reason that he is without
means.
7. That is the short question arising for consideration.
8. It will be apposite straight away to refer to Section 51 of
the Code of Civil procedure. We extract the same below:
“Section 51. Powers of court to enforce
execution,- Subject to such conditions and
limitations as may be prescribed, the Court
may, on the application of the decree-
holder, order execution of the decree-
(a)xx xx xx xx
(b)xx xx xx xx
(c)by arrest and detention in prison [for
such period not exceeding the period
specified in Section 58, where arrest and
detention is permissible under that section]
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(d)xx xx xx xx
(e)xx xx xx xx
Provided that, where the decree is for the
payment of money, execution by detention
in prison shall not be ordered unless, after
giving the judgment-debtor an opportunity
of showing cause why he should not be
committed to prison, the Court, for
reasons recorded in writing, is satisfied-
(a)that the judgment-debtor, with the
object or effect of obstructing or delaying
the execution of the decree,-
(i) is likely to abscond or leave the
local limits of the jurisdiction of the Court,
or
(ii) has, after the institution of the suit
in which the decree was passed,
dishonestly transferred, concealed, or
removed any part of his property, or
committed any other act of bad faith in
relation to his property, or
(b)that the judgment-debtor has, or has had
since the date of the decree, the means to
pay the amount of the decree or some
substantial part thereof and refuses or
neglects or has refused or neglected to pay
MAT APPEAL NO.985/2009 -6-
the same, or
(c)that the decree is for a sum for which the
judgment-debtor was bound in a fiduciary
capacity to account.
(emphasis supplied and portions not
directly relevant are omitted)
9. The learned counsel for the appellant submits that arrest
and detention in civil prison is a mode of execution recognised
under Section 51(c) of the C.P.C. The counsel contends and we
accept that to avoid the consequence of arrest and detention in
civil prison by operation of the Proviso to Section 51 C.P.C, the
court must be satisfied that the judgment debtor does not come
within the sweep of clauses (a),(b), and (c) of the provisos to
Section 51 C.P.C.
10. We need not be detained in this discussion with
provisos (a) and (b). It is accepted that if proviso (c) applies,
notwithstanding provisos (a) and (b), the money decree can be
executed by arrest and detention.
11. We straight away refer to the decision in Jolly George
Varghese v. Bank of Cochin, (1980)2 S.C.C.360. Relying on
Article 11 of the International Covenant on Civil and Political
MAT APPEAL NO.985/2009 -7-
Rights which declared that “no one shall be imprisoned merely
on the ground of inability to fulfil a contractual obligation”, it
was held that mere poverty cannot expose a person to the
consequence of arrest and detention in execution of a civil
decree. We find it unnecessary to advert to that decision as
Proviso(c) to Section 51 C.P.C. refers to breach of an obligation
to account by a person who has a fiduciary capacity. Article 11
of the International Covenant or the decision in Jolly George
(supra) cannot, in these circumstances, have any reference to
the controversy on hand.
12. Proviso (c) to Section 51 recognises the principle,
which has been accepted in Section 4(3) of the Debtors Act, 1869
of England. Section 4(3) is extracted by us below.
4. Abolition of imprisonment for debt,
with exceptions.
With the exceptions hereinafter mentioned,
no person shall be arrested or imprisoned
for making default in payment of a sum of
money.
There shall be excepted from the operation
of the above enactment.
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1. xx xx xx
2. xx xx xx
3. Default by a trustee or person acting in a
fiduciary capacity and ordered to pay by a
court of equity any sum in his possession or
under his control.
4. xx xx xx
5. xx xx xx
6. xx xx xx
(irrelevant portions omitted)
13. The short question to be decided is whether the
respondent herein/the judgment debtor has suffered the decree
because he was bound in a fiduciary capacity to account for such
sum. For proviso (c) to Section 51 C.P.C. applies, the decree
must be for a sum for which the judgment debtor was bound in a
fiduciary capacity to account. The crucial question, hence, is
whether the impugned decree has been suffered by the
respondent for breach of his obligation to account for the
amounts in a fiduciary capacity.
14. As to what is fiduciary capacity, we find no specific
definition in the Code of Civil Procedure or under the General
Clauses Act. The Family Courts Act also does not define the
MAT APPEAL NO.985/2009 -9-
same. The Indian Contract Act in Section 16 (2)(a) though it
refers to fiduciary capacity also does not bear any definition of
fiduciary capacity. We are, in these circumstances, forced to fall
back on the dictionaries, law lexicons and precedents, to
ascertain the precise scope of the expression “bound in a
fiduciary capacity to account”.
15. We note that a Division Bench of this Court earlier had
occasion to consider the ambit of the expression “bound in a
fiduciary capacity to account” in the decision in Francis v.
Central Bank of India, 1990(2)K.L.T.983. The question
arose in totally different circumstances. The question to be
considered in that case was only whether surety in a commercial
loan transaction with the Bank can be held to be bound in a
fiduciary capacity to account. But the discussions in that case by
the Division Bench has reference to the sweep of the expression
‘bound in a fiduciary capacity to account’.
16. It is unnecessary to extract specific passages. But it is
now clear that “there can be no controversy that for the purpose
of clause (c) of the proviso to Section 51, there need not be an
express trust; it could as well be an implied trust or a quasi-
MAT APPEAL NO.985/2009 -10-
trust. All that is necessary is that the decree must be for a sum
of money for which the judgment debtor was bound in a fiduciary
capacity to account”.
17. We make it clear that to attract clause (c), the
requirement is not merely that the decree holder and the
judgment debtor must share a fiduciary relationship. The
judgment debtor must be bound in such fiduciary capacity “to
account”. There may be several instances of a decree passed in
litigation between persons in fiduciary capacity where the
element of liability to account may not be there. We may,
therefore, hasten to observe that to attract proviso(c), the
requirement is not only that there must be fiduciary
capacity/relationship between the decree holder and the
judgment debtor, the judgment debtor must have been made
liable because he was bound in such fiduciary capacity to
account. We find that this aspect of the matter – that the
judgment debtor must be bound in fiduciary capacity to account,
had received the attention of the Division Bench in Francis
(supra).
18. That takes us to the crucial question whether in this
MAT APPEAL NO.985/2009 -11-
case, the appellant and the respondent have a fiduciary
relationship. It will then have to be considered whether the
judgment debtor was bound in such capacity to account and it is
on the ground of his failure to account that the decree was
passed against him.
19. We now come to the question whether husband-wife
relationship is one which can be described to be a fiduciary
relationship. We have already noted that there is no satisfactory
and precise definition of the expression fiduciary relationship/
capacity in any of the relevant statutes. Even in Francis
(supra), the court was obliged to consider the dictionaries and
Law Lexicon. Black’s Law Dictionary explains “fiduciary
capacity” in the following words:
“One is said to act in a “fiduciary capacity” or to receive
money or contract a debt in a “fiduciary capacity”, when
the business which he transacts, or the money or
property which he handles, is not his own or for his own
benefit, but for the benefit of another person, as to when
he stands in a relation implying and necessitating great
confidence and trust on the one part and a high degree of
good faith on the other part. The term is not restricted to
technical or express trusts, but includes also such offices
or relations as those of an attorney at law a guardian,
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executor, or broker, a director of a corporation and a
public officer”.
20. In Stroud’s Judicial Dictionary, the expression
“fiduciary capacity” is described as follows:
FIDUCIARY CAPACITY. An administrator who
has received money under letters of administration
and who is ordered to pay it over in a suit for the
recall of the grant, holds it “in a fiduciary capacity”
within Debtors Act 1869 ………….; so, of the debt
due from an executor who is indebted to his
testator’s estate which he is able to pay but will
not …………….; so of moneys in the hands of a
receiver ………., or agent …….., or Manager …….., or
moneys due on an account from the London agent
of a country solicitor ……, or proceeds of sale in the
hands of an auctioneer………, or moneys which in
the compromise of an action have been ordered to
be held on certain trusts ………. of partnership
moneys received by a partner…….. [Note. The
period to be looked to is that of the act
done ………..]
Warton’s Law Lexicon refers to the expression “fiduciary” and
explains the same in the following words:
“One who holds anything in trust. See TRUST”
In Bouvier’s Law Dictionary, “fiduciary relationship ” is defined
MAT APPEAL NO.985/2009 -13-
in the following words:
“What constitutes a fiduciary relation is
often a subject of controversy. It has been
held to apply to all persons who occupy a
position of peculiar confidence towards
others, such as a trustee, executor, or
administrator, director of a corporation or
society……Medical or religious adviser, …..
husband and wife ….. an agent who
appropriates money put into his hands for
a specific purpose of investment collector
of city taxes who retains money officially
collected,….one who receives a note or
other security for collection…..In the
following cases debt has been held not a
fiduciary one; a factor who retains the
money of his principal ….. an agent under
an agreement to account and pay over
monthly;……one with whom a general
deposit of money is made.”
(emphasis supplied)
21. We thus find that to understand the expression
fiduciary capacity, we have to look at the nature of the
relationship inherently and the nature of the relationship in the
instant facts. At least in Bouvier’s Law Dictionary, the husband
MAT APPEAL NO.985/2009 -14-
and wife relationship is specifically referred to as a fiduciary
relationship. All relationships which are built on mutual trust,
dependence and confidence of a special variety can certainly be
described to be fiduciary relationship for the purpose of Section
51(c), according to us. Following the dictionaries, a trustee,
executor, administrator, director of a Corporation or Society,
Medical or Religious Adviser, husband and wife, ward and
guardian, agent and principal etc. can safely be held to be
fiduciary relationship for the purpose of Section 51(c) C.P.C. We
asked for precedents specifically on the point as to whether
husband and wife relationship can be described to be a fiduciary
relationship. Specific precedents on the point are not brought
to our notice.
22. We have heard both counsel. In our anxiety to ensure
that unbiased assistance is also available, we requested Advocate
C.S.Dias also to assist the court as amicus curiae. The counsel
have traced a precedent in Dwaraka Prasad v. Nasir
Ahmad,1925 Oudh 16. That decision did not specifically
consider the expression ‘fiduciary capacity’. For the purpose of
Section 111 of the Evidence Act, it was considered and held that
MAT APPEAL NO.985/2009 -15-
the relationship of husband and wife is one of active confidence.
By necessary implication – as fiduciary relationship is one in
which there must be active confidence, the decision in Dwaraka
Prasad (supra) can also be held to support the view that
husband and wife relationship is one which can be described to
be fiduciary. Considering the nature of the marital tie
inherently, and on principle, we are satisfied that it will be
absolutely safe to conclude that husband and wife can be safely
held to share a fiduciary relationship unless the contra is shown.
There may be instances where in an acrimonious matrimony that
relationship may lose its fiduciary nature. Be that as it may, at
least in the absence of a counter plea it can safely be held that
husband-wife relationship is a classic example of a fiduciary
relationship.
23. We now have to consider the question whether the
husband in the instant case has suffered the decree for the
breach of his liability “to account” in such a fiduciary capacity.
According to the claimant-wife, cash (representing her share in
paternal property), gold ornaments and articles were brought by
her to the matrimonial home at the time of marriage. They were
MAT APPEAL NO.985/2009 -16-
entrusted to the husband. After the relationship soured the
husband who was bound in such fiduciary capacity to account for
the articles entrusted to him, failed to account for the articles
and consequently the wife approached the court and claimed a
decree. The decree was granted. The question hence is whether
a husband having such articles of the wife in his possession is
bound in a fiduciary capacity to account to his wife. The learned
counsel for the respondent argues that there is no element of
obligation in a fiduciary capacity to account in the instant case.
24. On this aspect, we have precedents in abundance.
When a wife walks into the matrimonial home with cash,
ornaments and articles belonging to her and leaves them with
the husband, is the husband liable to account in trust? This
question has come up for consideration before courts on many
occasions. Our attention has been drawn to the following
decisions.
25. In Prathibha Rani v. Suraj Kumar, A.I.R.1985
S.C.628, the question had come up before the Supreme Court,
whether appropriation by the husband of stridhana property
which the wife had brought to the matrimonial home would
MAT APPEAL NO.985/2009 -17-
amount to criminal misappropriation to attract the provisions of
the Penal Code. It was clearly held in that decision that such
articles entrusted must be held to be the articles entrusted to the
husband by the wife in a fiduciary capacity and that the husband
is liable to account for such properties in trust whenever the
wife makes the demand. In Maniyamma v. Abdul Rasaak,
1989(1)K.L.T.636, this Court had followed the said dictum and
had further clarified that the dictum is not limited in its
operation to Hindu husbands and wives notwithstanding the
fact that the decision in Prathibha Rani (supra)dealt with a
Hindu wife and a Hindu husband and stridhana properties
which such wife had brought to the parental home.
26. A learned single Judge of this Court had occasion to
consider the question whether the husband can be held to be
bound in trust to restore the articles in Swapna v. Thankavelu
(1990 (2) KLT 604). The following observations in paragraph-5
beyond any controversy settles that the husband is in the
circumstances certainly in the position of a trustee and is bound
to account to the wife all her properties at any time when she
demands. We extract the relevant passage i.e., paragraph-5
MAT APPEAL NO.985/2009 -18-
below:
"5. Counsel for the appellant
contended that in the facts and
circumstances of this case there cannot be
any limitation at all in filing the suit is filed
by the wife for return of the ornaments
and utensils entrusted by her to the
husband. According to the counsel the
husband is in the position of a trustee in so
far as the `sreedhana properties’ are
concerned and that he is bound to return
them as and when demanded by the wife.
After hearing counsel for both sides I am
satisfied that there is much force in the
contention raised by the counsel for the
appellant. It is normal for the husband
and wife to reside together after the
marriage and the wife normally is not
expected to keep her ornaments and other
valuable articles under a separate locker
and key. Normally any wife may entrust
her valuable things to the husband for safe
custody and by that it does not mean that
the husband is the owner thereof and that
he has having a hostile title thereto so as
to defeat the wife by claiming that it is
barred by limitation. The husband in the
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circumstances is certainly in the position
of a trustee who is bound to account to the
wife all her properties at any time when
she demands. The above position has been
accepted by the Lordships of the Supreme
Court also in Pratibha Rani v. Surajkumar
and another (AIR 1985 SC 628) which was
followed by this Court in Maniyamma v.
Abdul Rasaak (1989 (1) KLT 636). Though
both the cases arises out of a prosecution
for criminal breach of trust the principles
therein stated are applicable even in
respect of a suit pending before the Civil
Court. Their Lordships have held that in
such circumstances the husband is in the
position of a trustee and he is bound to
return the ornaments and utensils as and
when the wife demands for the same. If
the husband is the trustee and the wife is
entitled to follow the property in the
possession of the trustee, certainly S.10 of
the Indian Limitation Act will apply and in
such cases there shall not be any period of
limitation. In the facts of the case I have
no hesitation to hold that the husband is in
the position of a trustee so far as the
ornaments and utensils entrusted to him
MAT APPEAL NO.985/2009 -20-
by the wife are concerned and under S.10
of the Indian Limitation Act there shall not
be any limitation for such a suit by the wife
against husband. In these circumstances
the view taken by the Appellate Court that
the suit is barred by limitation is
erroneous and I reverse the same.”
(emphasis supplied)
27. We may immediately take note that the question came
up before the learned single Judge to decide the play of Sec.10 of
the Limitation Act and not in the context of proviso (c) to Sec.51
of the CPC. But the decision shown unmistakably that in such a
situation, the husband as a trustee is liable to account to the wife
for such properties. That is the substratum of the expression
“bound to account in a fiduciary capacity” appearing in Sec.51(c)
of the CPC. We are in complete agreement with the conclusion
of the learned single Judge in paragraph-5 extracted above.
28. We note that an earlier Division Bench of this Court in
Chacko v. Annamma (1993 (1) KLT 675) had also taken a
similar view though their Lordships in that case was concerned
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with properties of a Christian wife and the liability of a Christian
husband to account for the same. It remains that the question
was considered under Sec.10 of the Limitation Act where also
the crucial element to be established is whether the elements of
trust exist in the relationship between the parties. That was also
a transaction of entrustment of properties of the wife with the
husband.
29. The above discussions lead us to the conclusion that
husband and wife relationship can be held to be a fiduciary
relationship. It also follows that in respect of cash, ornaments
and articles brought by the wife to her matrimonial home and
entrusted to the husband, he is bound in a fiduciary capacity to
account to the wife whenever she makes a demand. Elements of
trust are involved in such relationship and in the entrustment of
cash/ornaments/articles. We do not, in these circumstances,
have any hesitation to agree that proviso (c) to Sec.51 of the
CPC squarely applies and the pleas which may be available
under Clauses (a) and (b) of Sec.51 of the CPC shall not be
available to a judgment-debtor, if the case falls within Clause (c).
30. It follows from the above discussions that the impugned
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order by which the relief of execution by arrest and detention of
the respondent was denied to the appellant is unjustified and
does warrant interference.
31. One more incidental question remains. Does the entire
decree relate to amounts payable for breach of obligation on the
part of the judgment-debtor bound in a fiduciary capacity to
account? We have already noted that what is crucial is not
merely the existence of fiduciary relationship between the
judgment-debtor and the decree-holder. What is relevant is
whether the decree is for a sum which the judgment-debtor is
bound in a fiduciary capacity to account to the decree-holder.
We therefore must consider the entire claim and ascertain
whether any part of the claim is there to which proviso (c) to
Sec.51 of the CPC will not apply.
The claim is under the following heads:
(1) Currency brought as share in
parental property - Rs.1,50,000/-
(2) Value of 22 sovereigns of
gold ornaments (22 x Rs.4,000/-) - Rs. 88,000/-
(3) Value of the articles other than
gold ornaments entrusted. - Rs. 17,500/-
MAT APPEAL NO.985/2009 -23-
(4) Amounts received subsequently
for various purposes - Rs. 70,000/-
--------------------
Total - Rs.3,25,500/-
========
32. We have no hesitation to agree that claims under heads
(1), (2) and (3) referred above which were brought by the young
wife when she came from the parental home to the matrimonial
home squarely fall within the sweep of proviso (c) to Sec.51 of
the CPC. But so far as the 4th item of claim is concerned, that
represents even admittedly only amounts obtained by the
husband from the wife/her parents from time to time during the
currency of the marriage for various purposes. We are of the
opinion that in the absence of better materials, it is not possible
to come to a conclusion that the husband was bound in fiduciary
capacity to account for the said amount of Rs.70,000/-. In so far
as the said amount, the proportionate costs and interest due on
the said amount, proviso (c) to Sec.51 of the CPC cannot have
any application.
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33. We are, in these circumstances, satisfied that this
appeal deserves to be allowed in part. We held that in the
proceedings for execution of the decree amount of Rs.2,55,500/-
(i.e., Rs.3,25,500/- minus Rs.70,000/- as shown earlier) along
with interest and proportionate costs, the respondent is not
entitled to take up the plea of no means.
34. This appeal is allowed to the above extent. The court
below shall proceed with the execution petition and pass
appropriate orders. Parties/counsel shall appear before the
Family Court on 30/8/10 to continue the proceedings.
34. The Registry shall forthwith forward the records to the
Family Court.
35. We place on record our appreciation for the worthy
assistance rendered to this Court by the Advocates for the
contestants and by Advocate Sri.C.S.Dias who assisted us as
amicus curiae.
Sd/-
R. BASANT
(Judge)
Sd/-
M.C. HARI RANI
ks. TRUE COPY (Judge)
MAT APPEAL NO.985/2009 -25-
R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.