IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 217 of 2004()
1. VASANTHAKUMARY, SHANMUGAVILASAM VEEDU,
... Petitioner
Vs
1. OMANAKUTTAN NAIR,
... Respondent
For Petitioner :SRI.S.ABDUL RAZZAK
For Respondent :SRI.JOHN MATHEW
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :05/06/2009
O R D E R
R.BASANT &
M.C.HARI RANI, JJ.
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Mat.Appeal No.217 of 2004
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Dated this the 5th day of June, 2009
JUDGMENT
BASANT, J.
In a transfer for consideration in the name of 2 persons
where such consideration is paid exclusively from the separate
fund of one of them, is Section 45 or the salutary rule of equity
underlying Section 45 of the Transfer of Property Act applicable ?
This is the short question that arises for consideration. To be more
specific, the question is whether Section 45 or the principle
therein can apply when the consideration is paid “out of exclusive
funds of one of them” and not “out of separate funds belonging to
them respectively”?
2. This Appeal is filed by the wife whose petition for
declaration that she is the absolute owner of the property
purchased under Ext.A3 and for consequential relief was dismissed
by the Family Court. She was found to be having only half rights
in the property.
3. On fundamental facts, there is no serious dispute. The
property in question was acquired under Ext.A3 sale deed for
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consideration. The marriage between the spouses took place on
25.01.1986. The sale deed Ext.A3 in their favour was obtained
on 26.10.1988. In the document, in page 3, there is an
unambiguous recital about consideration which on translation
reads roughly as follows:
“The consideration for this document has
been obtained from Murukan, brother of
Vasanthakumari (the appellant herein) and
that represents the share which she is
entitled in her family property.”
4. The document of acquisition shows that the
acquisition was in the name of both the husband and the wife.
Though the document is taken in the name of both the husband
and wife, there is no recital whatsoever that they are to enjoy the
property equally or jointly. There is of course a statement that
tax is to be paid hereafter in the name of both of them. Except
this, the recitals in the document do not give any idea as to how
the property is to be enjoyed.
5. The wife/petitioner/appellant claimed that she is
entitled to a declaration that she is the absolute owner of Ext.A3
property. She prayed for an injunction restraining her husband
from creating any document or encumbering the property in
question. In the course of the proceedings, it was revealed that
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trees valued at Rs.10,000/- by the Advocate Commissioner had
been cut and the logs removed by the husband. The wife had
claimed the entire value thereof from the husband.
6. The matter was taken up by the Family Court along
with other connected matters. All the 4 matters were disposed of
by a common judgment. We are concerned only with the relief
claimed in O.P.No.448 of 2003. It was found by the Court that
both the husband and wife are entitled to half share each in the
property. Consequently the wife was not granted declaration
and injunction as prayed for. An amount of Rs.5,000/-, being half
the value of the trees cut and removed, was directed to be paid
by the husband to the wife.
7. Before the court below, the wife/appellant examined
herself as PW1. A brother of hers was examined as PW2 and a
neighbour was examined as PW3. Exts.A1 to A5 were marked.
Ext.C1 report of the Commissioner was also marked. No oral
evidence was adduced by the respondent/husband. He did not
prove any document also.
8. We have heard the learned counsel for the appellant .
There is no representation for the respondent though he has
been served and has entered appearance through a counsel.
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9. The learned counsel for the appellant assails the
impugned order on the following grounds:
i) The court below erred grossly in not
adverting to the relevant recitals in Ext.A3 at all.
ii) The court below ought to have held,
following Section 45 of the Transfer of Property Act
and the principle underlying the same that the
respondent, who has not paid any amount towards
the consideration for Ext.A3 sale deed is not entitled
for any share in the property and that the appellant
is exclusively entitled to rights over Ext.A3
property.
10. Ground No.1: We are perfectly satisfied that the
court below has erred grossly in not even referring to the crucial
recital that appears in Ext.A3, the sale deed, relied on by the
appellant. The nature of the pleadings and evidence suggests
that importance or significance of the recital was not brought to
the notice of the court below in the course of the trial. That
conclusion appears to be inevitable from the totality of
circumstances as also the nature of the pleadings, evidence and
the arguments advanced as reflected in the impugned order.
Mat.Appeal No.217/04 5
But, all these cannot absolve the courts of their responsibility and
duty to consider the recital in the document which is admittedly
there and which clinches the issue so far as the case of the
appellant is concerned. We hold that non-consideration of the
recital by the court below is totally unjustified. The challenge
succeeds.
11. Ground No.2: On facts, in the light of the relevant
recital, there can be no room for any dispute at all. The parties
who were married in 1986 had acquired the property under
Ext.A3 sale deed dated 26/10/1988. The purchase was in the
joint name of the husband and wife. Funds came exclusively from
the kitty of the wife. The husband had not contributed any
amount towards the sale consideration. It is unnecessary to look
for oral evidence on this aspect. The clear and unambiguous
recital in the document clinches the issue as to who had paid the
consideration and from whose fund the consideration had been
given entirely and exclusively.
12. The purchase was in the joint names. Tax was
directed to be paid in the joint names. But consideration came
exclusively from the fund of the appellant/wife. What is the
nature of respective rights, if any, which the parties have over
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Ext.A3 property in these circumstances? This is the short
question of law that is to be considered now.
13. The relevant statutory provisions appear in Section 45
of the Transfer of Property Act. We extract Section 45 below:
45. Joint transfer for consideration:-
When 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 evidences 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 supplied)
14. Section 45 of the Transfer of Property Act imports into
Indian law a rule of equity, fairness and justice which was
recognized under the English law. When acquisition is in joint
names and consideration has been paid out of a common fund,
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rights of the joint owners will be proportionate to their share in
the common fund. This is what the first part of Section 45
declares.
15. The 2nd part of Section 45 deals with the situation
where property is acquired in the joint names of persons and the
consideration comes not out of a common fund; but from the
separate funds of the acquirers. In such an event, Section 45
declares that their share of rights in such property shall be
proportionate to the contribution made by them respectively
from their separate funds.
16. The 3rd part of the Section is in the nature of a proviso
which declares that where there is absence of evidence as to the
interests in the common fund or the share in which consideration
has been paid, there must be a presumption that all acquirers
have equal rights in the property.
17. In the instant case, the first part of the Section does
not obviously apply as there is no case at all that the purchase in
the joint names was made utilising consideration from a common
fund. The 3rd part of the Section also has no application
whatsoever as there is unimpeachable evidence in the document
itself as to the person who had exclusively and entirely
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contributed the consideration for the purchase.
18. The only question is whether the 2nd part of Section 45
would apply. We have emphasized the relevant portion while
extracting Section 45 above. Here consideration is paid
exclusively by one of the acquirers and not from “the separate
funds” respectively of all the acquirers. The recitals in Ext.A3 do
not show that there was any contract between the parties as to
their share of rights in the property. The recitals do not even
show that the acquirers are to enjoy the property equally. The
only possible argument is that as consideration was paid not “out
of the separate funds belonging to the acquirers respectively”,
the 2nd part of Section 45 cannot apply. Consideration is paid out
of the exclusive fund of one of the acquirers and not out of the
separate funds belonging to them respectively. For this reason
Section 45 cannot have any application. Can this possible
argument be accepted?
19. If a very literal interpretation were accepted, it is
possible to take a view that only when both have contributed at
least some amount for the purchase, section 45 can have
application, it can possibly be argued. It cannot apply when
consideration is not paid out of the separate funds belonging to
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the acquirers and is paid out of the fund exclusively of one of
them. But the purpose of Section 45 will have to be borne in
mind. The salutary rule of equity and fairness which finds
expression in Section 45 cannot be ignored. If persons
contribute in the proportion/ratio of 1:99, then in the absence of
a contract to the contrary, following the 2nd part of Section 45
their share in the property will be 1/100 and 99/100. Merely
because the funds are contributed exclusively by one of the
acquirers, it appears to us that it would be unjust and unfair to
deny such person the benefit of the salutary rule of equity and
fairness which underlies Section 45. Separate funds referred to
in the 2nd part of Section 45 must definitely be held to take in a
situation where the consideration comes entirely and exclusively
from the fund of one of the acquirers and nothing comes from the
fund of the other. 0 : 100 (Zero is to hundred) is also a
proportion in language and law. It cannot be held that because
the contribution by one person is cypher, the rule of proportion
in the 2nd part of Section 45 will not apply. We are, in these
circumstances, of the opinion that the 2nd part of Section 45,
following rule of purposive interpretation does take in a situation
where consideration came exclusively from the fund of one of the
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two joint acquirers with the other contributing nothing for the
purchase. In such a situation, notwithstanding the fact that the
name of one of them is included in the document for whatever
purpose, such person cannot be held to acquire any rights.
20. Of course, the view taken above would mean that even
though the name of a person is shown in the document of
acquisition as one of the joint owners of property, he will be
virtually divested of his rights in the property. Even if that
happens, we are of the opinion that the equitable rule in Section
45 must apply and the other acquirer, who has contributed the
consideration entirely and exclusively, must be held to have
absolute rights over such property. Different would be the
conclusion if the recitals in the document or evidence reveals a
contract to the contrary. On the nature of the pleadings and
evidence, it is impossible to hold that there has been a gift of half
share of Ext.A3 property by the appellant to the respondent.
Such a possible contention is not raised in the pleadings. There
is total absence of evidence also in support of such a theory.
21. The learned counsel for the appellant, who alone is
available to assist us, was requested to research and make
submissions before court. No binding precedents in which this
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issue is specifically considered has been brought to our notice.
The decision in Palayya v. Kochukrishnan & Another [1973
K.L.R 547] has been perused by us. The play of Section 45 is
not considered specifically in that decision. That was a case
where acquisition was in the joint name of the husband and the
wife; but the consideration for acquisition had come entirely from
the Streedhanam given to the wife at the time of marriage.
Relying on the provisions of the Christian Succession Act and
principles of equity, it has been held that though the husband is
shown as one of the joint owners in the document of acquisition,
only the wife can claim title over the property. Though the play
of Section 45 is not considered and reliance is placed on the
specific stipulations of Section 5 of the Christian Succession Act,
we are satisfied that the rule of equity accepted can apply while
attempting to interpret Section 45 of the Act.
22. In Rajeswari v. Balchand Jain [AIR 2001 M.P
179], a Division Bench of Madhya Pradesh High Court had
considered an analogous issue; though not exactly the same
issue. The Madhya Pradesh High Court proceeded to hold that
the mere fact “that somebody’s name is mentioned in the sale
deed who is a member of the family, would not make him the
Mat.Appeal No.217/04 12
owner when the evidence on record is clear” that there was no
contribution by him towards the consideration.
23. Another decision squarely on the point interpreting
Section 45 of the Transfer of Property Act by the Madhya
Pradesh High Court appears in Syed Tufel Ahemad v. Syed
Abrar Ahemad [1960 M.P. L.J S.N.204]. There, the court
appears to have considered an exactly identical issue. The
relevant portions available in the decision reported as short note
show that applying the principle contained in Section 45 of the
Transfer of Property Act it was held that the ” plaintiff’s share
would be in proportion to the share of the consideration
advanced by him. Therefore, as no part of the consideration was
paid by the plaintiff, his share in the property would be nil”,
notwithstanding the fact that the document of acquisition shows
the name of the plaintiff as a joint assignee.
24. By an application of Section 45 and also the principles
of equity and fairness underlying Section 45, we feel that the 2nd
part of Section 45 must apply even when out of the two
acquirers, contribution of one is nil and the other has exclusively
and entirely paid the consideration. In such event, the one who
has contributed will have absolute interest in the property
Mat.Appeal No.217/04 13
notwithstanding the fact that the name of the person who has not
contributed any consideration is shown in the document as one of
the acquirers for whatsoever purpose. In the contemporary
societal context, it is very evident that the husband’s name
figured in Ext.A3 document only in the view of the dependent,
weaker and inferior position of the fairer sex. He was supposed,
after the marriage, to maintain, protect and safeguard not only
his wife, but also her property. The inclusion of his name in the
document in the context would confer no exclusive or fractional
rights on him, in the absence of any contract to the contrary.
25. More so, in a case like the instant one, where the
parties are spouses and the purchase is in the name of the
husband and wife, utilising consideration which came exclusively
and entirely out of the share of the wife in her ancestral
property.
26. Where spouses during the currency of marriage
purchase any property, normally the irresistible inference must
be that the property is purchased out of their common funds and
the contribution is equal notwithstanding the fact that one of the
spouses is not employed. But that rule cannot be imported
blindly and mechanically and applied to the facts of the instant
Mat.Appeal No.217/04 14
case in the light of the circumstance that the document is
executed shortly after and in connection with the solemnisation
of marriage and in the light of the unambiguous recital that
consideration came entirely from the wife – representing her
share in her family property. To achieve the interests of justice,
fairness and equity and to give true effect to the legislative
purpose the language of the 2nd part of Section 45 must be held
to cover a situation where consideration is paid entirely and
exclusively from the separate fund of one of the acquirers.
Section 45 of the Transfer of Property Act must hence squarely
apply. Even if it were assumed that Section 45 may not apply,
the equitable rule underlying the same must undoubtedly apply.
27. In any view of the matter, we are satisfied that the
court below has gone completely wrong in taking the view that
the declaration of exclusive title and consequential relief cannot
be granted to the petitioner/appellant/wife. The challenge raised
in this appeal hence succeeds.
29. In the result,
a) This appeal is allowed.
b) The impugned order is modified.
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c) The appellant is granted a declaration that she has
exclusive title over the plaint schedule property purchased under
Ext.A3. She is granted a consequential injunction restraining the
respondent from creating any document or encumbering the
plaint schedule property. In supersession of the direction for
payment issued, it is directed that the respondent/husband shall
pay to the appellant/petitioner, an amount of Rs.10,000/- (Rupees
ten thousand only) along with future interest @ 6% per annum
from the date of the O.P till realisation from the respondent. She
is also entitled for cost throughout.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
jsr