{"id":6763,"date":"2010-04-27T00:00:00","date_gmt":"2010-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sankarankutty-vs-kochammini-on-27-april-2010"},"modified":"2015-07-20T00:44:51","modified_gmt":"2015-07-19T19:14:51","slug":"sankarankutty-vs-kochammini-on-27-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sankarankutty-vs-kochammini-on-27-april-2010","title":{"rendered":"Sankarankutty vs Kochammini on 27 April, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sankarankutty vs Kochammini on 27 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 273 of 2000(E)\n\n\n\n1. SANKARANKUTTY\n                      ...  Petitioner\n\n                        Vs\n\n1. KOCHAMMINI\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.P.SREEKUMAR\n\n                For Respondent  :SRI.N.P.SAMUEL\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\n\n Dated :27\/04\/2010\n\n O R D E R\n                    PIUS C. KURIAKOSE, J.\n             ------------------------------------------\n                      AS. No. 273 of 2000\n             -------------------------------------------\n             Dated this the 27th day of April, 2010\n\n                         J U D G M E N T\n<\/pre>\n
     The second defendant in a suit for partition which is<\/p>\n
decreed by the trial court is the appellant. The parties will<\/p>\n
be referred to as they were before the trial court. The<\/p>\n
plaintiffs, two sisters filed the suit arraying their father as<\/p>\n
the first defendant and siblings as the other defendants.<\/p>\n
     2. The case of the plaintiffs as averred in the plaint was<\/p>\n
that they and defendants 2 to 8 are the children of the first<\/p>\n
defendant and his wife Kochupennu. Kochupennu passed<\/p>\n
away on 4-3-1982. As per document No. 2801\/1118 M.E. of<\/p>\n
the Sub Registry Office, Thrissur, (Ext.A1), Ext.B5 the<\/p>\n
properties were acquired by late Kochupennu along with<\/p>\n
some other properties. Kochupennu had already assigned<\/p>\n
the remaining properties.          Kochupennu acquired these<\/p>\n
properties with her own funds. Kochupennu had exclusive<\/p>\n
possession and enjoyment of the properties till she died.<\/p>\n
AS. 273\/2000
\n                              -2-<\/span><\/p>\n
She had made valuable improvements in the properties.<\/p>\n
She assigned 49 cents of land to the third defendant who<\/p>\n
wanted to get her share out of her mother’s properties in<\/p>\n
advance. Hence the third defendant is not entitled to get<\/p>\n
further share in the property. Upon demise of Kochupennu<\/p>\n
the properties devolved upon the plaintiffs and defendants<\/p>\n
1, 2 and 4 to 8 who are in joint possession and enjoyment<\/p>\n
of the properties. The first defendant was looking after the<\/p>\n
properties on behalf of all the co-owners and he was paying<\/p>\n
share of profits to the plaintiffs till January, 1983.<\/p>\n
Thereafter he did not pay the share of profits. Hence the<\/p>\n
plaintiffs sent a notice demanding partition. To that notice,<\/p>\n
a reply was sent raising untenable contentions. The parties<\/p>\n
are Ezhavas governed by the Hindu Succession Act for<\/p>\n
inheritance. The mesne profits from the property per year<\/p>\n
will come to Rs.27,000\/-. Hence the suit for partition with<\/p>\n
future mesne profits.\n<\/p>\n
AS. 273\/2000
\n                              -3-<\/span><\/p>\n
      3. A joint written statement was filed by defendants 1,<\/p>\n
2, 4, 5, 7 and 8. It was contended that it is not correct to<\/p>\n
say that Kochupennu acquired the properties with her own<\/p>\n
funds and was in possession and enjoyment of the<\/p>\n
properties till her demise.    The properties were actually<\/p>\n
acquired by the first defendant in the name of Kochupennu.<\/p>\n
Kochupennu was only a benamidar. The first defendant was<\/p>\n
tenant under one Neelakanta Sasthrikal. After the marriage<\/p>\n
of Kochupennu, she was residing along with the first<\/p>\n
defendant in the house constructed by him. While so, the<\/p>\n
suit properties along other 12 acres and 87 cents was<\/p>\n
purchased by the first defendant from Neelakanta Sasthrikal<\/p>\n
for a consideration of Rs.800\/-. Rs.300\/- was paid by cash<\/p>\n
and the remaining Rs.500\/- was raised by executing a<\/p>\n
mortgage deed in favour of one Varunni.             The first<\/p>\n
defendant     subsequently   redeemed    portions  of  these<\/p>\n
properties from mortgage.      Even though the documents<\/p>\n
AS. 273\/2000
\n                              -4-<\/span><\/p>\n
stand in the name of Kochupennu, the properties are in the<\/p>\n
possession of the first defendant.       The first defendant<\/p>\n
caused late Kochupennu to execute a settlement deed in<\/p>\n
favour of the third defendant 48= cents in 1981.         The<\/p>\n
averment that the third defendant was given one share in<\/p>\n
the properties is not correct. The properties did not devolve<\/p>\n
upon the parties upon demise of Kochupennu.         The first<\/p>\n
defendant had already given in marriage        his daughters<\/p>\n
giving ornaments and utensils etc. and all the daughters are<\/p>\n
residing in the houses of their husbands. For conducting<\/p>\n
marriage of the 7th defendant, the first defendant had taken<\/p>\n
a loan of Rs.20,000\/- . In 1984, the A schedule property<\/p>\n
was settled by the first defendant in favour of second<\/p>\n
defendant and in 1985, the B- schedule property was settled<\/p>\n
in favour of the 5th defendant.  Similarly, the C – schedule<\/p>\n
properties were settled in favour of 7th defendant in 1985<\/p>\n
itself. The first defendant has executed a Will in respect of<\/p>\n
AS. 273\/2000
\n                                -5-<\/span><\/p>\n
the properties.     These properties will fetch mesne profits<\/p>\n
as stated is wrong.\n<\/p>\n
      3. The learned Subordinate Judge formulated the<\/p>\n
following issues for trial in the suit.\n<\/p>\n
      1. Whether the suit properties were acquired and held
\n          exclusively by deceased Kochupennu as is pleaded
\n          in the plaint, or whether the sale deed in her name
\n          was only a benami transaction?\n<\/p>\n
      2. Whether the plaintiffs are entitled to claim partition?<\/p>\n
      3. What are the correct shares?\n<\/p>\n
      4. Whether the documents executed by the 1st
\n          defendant are valid and binding?\n<\/p>\n
      5. Equities and reservations?\n<\/p>\n
      6. Whether the plaintiffs are entitled to mesne profits?\n<\/p>\n
          If so, what is the quantum?\n<\/p>\n
      7. Reliefs and costs?\n<\/p>\n
The issues were enquired into and at trial the evidence<\/p>\n
consisted of Exts.A1 to A3, B1 to B44 and the oral evidence<\/p>\n
of the first defendant as DW-1. On evaluating the evidence<\/p>\n
the learned Subordinate Judge found that the defendants<\/p>\n
AS. 273\/2000
\n                             -6-<\/span><\/p>\n
are not entitled to take the benefit of Section 2 of the<\/p>\n
Benami Transactions (Prohibition of the Right to Property)<\/p>\n
Ordinance, 1988. The court also relied on a statement made<\/p>\n
by first defendant as DW1 that he has no contention and<\/p>\n
that he has simply agreed for passage of a decree as prayed<\/p>\n
for. The court went on to find that the suit properties are<\/p>\n
partible and hence passed a preliminary decree for partition.<\/p>\n
Against that judgment and decree AS. No. 468 of 1990<\/p>\n
was filed before this Court by the present appellant himself.<\/p>\n
This court set aside that judgment and decree taking the<\/p>\n
view on the basis of the judgment of the Supreme Court in<\/p>\n
Nanda Kishore Mehra v. Sushila Mehra<\/a> (1995) 4 SCC 572<\/p>\n
that when Section 3(2) permits a person to enter into a<\/p>\n
benami transaction of purchase of property in the name of<\/p>\n
his wife or unmarried daughter, the question of punishing<\/p>\n
him under Section 3(3) or the question of acquiring the<\/p>\n
property concerned under Section 5 can never arise.     This<\/p>\n
AS. 273\/2000
\n                              -7-<\/span><\/p>\n
court accordingly held that there is no valid reason to deny<\/p>\n
to a person enforcement of his rights under Section 3(2) of<\/p>\n
the Act.    This court also relied on the judgment of the<\/p>\n
Supreme     Court   in    R.Rajagopal    Reddy   v.  Padmini<\/p>\n
Chandrasekharan,<\/a> (1995) 2 SCC 630 and held that since the<\/p>\n
suit is of the year 1985, the provisions of the Benami<\/p>\n
Transactions (Prohibition) Act, 1988 cannot apply.       This<\/p>\n
court was not very much impressed by the statement made<\/p>\n
by DW1 in his evidence. According to this Court, since DW1<\/p>\n
had filed a joint written statement along with the other<\/p>\n
defendants, the other defendants should be given an<\/p>\n
opportunity to adduce evidence in support of the written<\/p>\n
statement. Accordingly, the judgment and decree were set<\/p>\n
aside and the suit was remanded to the trial court giving<\/p>\n
opportunity to the defendants to adduce evidence regarding<\/p>\n
the benami nature of the transaction. It was also ordered<\/p>\n
that if the first defendant is not available for evidence the<\/p>\n
AS. 273\/2000
\n                              -8-<\/span><\/p>\n
other defendants will be allowed to give separate evidence.<\/p>\n
After the above order of remand the second defendant was<\/p>\n
examined as DW2 and the learned Subordinate Judge would<\/p>\n
formulate additional issue No.8 as follows:<\/p>\n
      “Whether the first defendant has acquired the property
\n      in the name of his wife as benami?\n<\/p>\n
Issue Nos. 1 to 6 and additional issue No. 8 were considered<\/p>\n
by the learned Subordinate Judge together. On appreciating<\/p>\n
the evidence and by relying on the judgment of the<\/p>\n
Supreme Court in Jagdagal Poddar v. Bibi Hazra and others<\/p>\n
(AIR 1974 SC 171) which lays down the principles to be<\/p>\n
kept in mind while finding out the benami nature of a<\/p>\n
particular transaction, the learned Sub Judge came to the<\/p>\n
conclusion that the purchase of the property under Ext.B5<\/p>\n
was made in the name of late Kochupennu and it can never<\/p>\n
be treated as a benami transaction.      In this regard the<\/p>\n
learned Sub Judge relied on Section 3(2) of the Benami<\/p>\n
Transaction (Prohibitory) Act also. Accordingly repelling the<\/p>\n
AS. 273\/2000
\n                               -9-<\/span><\/p>\n
contentions a preliminary decree was passed.            It is<\/p>\n
assailing the above preliminary decree and judgment that<\/p>\n
the present appeal is filed raising various grounds.<\/p>\n
      4. Before the arguments commenced I noticed that<\/p>\n
despite the mandate of Order 32A the possibility of a<\/p>\n
settlement between the parties in this case, which clearly<\/p>\n
comes within the ambit of Order 32A, had not been<\/p>\n
explored. Hence I directed the parties to be present in my<\/p>\n
chamber. Accordingly most of the parties and counsel were<\/p>\n
present in my chamber on 26-6-2008.            I explored the<\/p>\n
possibility of a settlement between the parties.       I was<\/p>\n
convinced that an out of court settlement is not possible and<\/p>\n
hence listed the appeal for hearing.\n<\/p>\n
      5.    Extensive and    strenuous     submissions  were<\/p>\n
addressed before me by Mr. K.P.Sreekumar, learned counsel<\/p>\n
for the appellant.      Equally extensive arguments were<\/p>\n
addressed before me by Mr.N.P.Samuel, learned counsel for<\/p>\n
AS. 273\/2000
\n                            -10-<\/span><\/p>\n
the respondents. Drawing my attention to the averments in<\/p>\n
the plaint Mr. Sreekumar submitted that the case pleaded<\/p>\n
by the plaintiffs was that the properties were acquired by<\/p>\n
Kochupennu and the acquisition of the plaint schedule<\/p>\n
property was with the own funds of Kochupennu. He also<\/p>\n
pointed out that Kochupennu had assigned 49 cents of land<\/p>\n
to the 3rd defendant as per Ext.B13 dated 7-1-1981 and<\/p>\n
therefore the 3rd defendant is not entitled to any further<\/p>\n
share in the plaint schedule property. Mr. Sreekumar<\/p>\n
submitted that the specific contention raised by DW1, the<\/p>\n
husband of Kochupennu was that Kochupennu had no assets<\/p>\n
at the time when Raman married her.         The funds for<\/p>\n
acquiring the plaint schedule property was generated by<\/p>\n
Raman and the improvements were all made in the property<\/p>\n
and the house was constructed by Raman.       The learned<\/p>\n
counsel would read over to me paragraph 3 of the written<\/p>\n
statement where these contentions are raised. Counsel<\/p>\n
AS. 273\/2000
\n                              -11-<\/span><\/p>\n
submitted that there was a specific contention that the<\/p>\n
marriage of the 7th defendant was conducted by raising a<\/p>\n
loan of Rs.20,000\/- on the security of the properties and<\/p>\n
that the first defendant has even executed a Will<\/p>\n
bequeathing the properties as desired by him.            Mr.<\/p>\n
Sreekumar would paraphrase issue No.1 remanded by this<\/p>\n
court    by judgment in AS. 468 of 1990 and submit that the<\/p>\n
above issue has two parts. According to him the two parts<\/p>\n
contemplated     by this issue are as to whether         the<\/p>\n
acquisition is exclusively by Kochupennu or whether the<\/p>\n
acquisition is benami for the 1st defendant. According to<\/p>\n
Mr. Sreekumar, it cannot be contended that the plaintiff has<\/p>\n
no burden of proof      in view of the nature of the issue<\/p>\n
settled. Counsel highlighted that the plaintiff had no case<\/p>\n
that the issue was wrongly settled and the same is to be re<\/p>\n
-cast before the trial started.   Counsel argued that a party<\/p>\n
accepting the onus without demur cannot object at a later<\/p>\n
AS. 273\/2000
\n                             -12-<\/span><\/p>\n
stage that the onus was wrongly put on him.     According to<\/p>\n
Mr. Sreekumar, there is absolutely no evidence on record<\/p>\n
that at the time of marriage Kochupennu was given money<\/p>\n
as a wedding gift.   There is no evidence on record to show<\/p>\n
that after the marriage and when she started staying with<\/p>\n
Raman she engaged herself in any avocation such as<\/p>\n
vending milk, rearing goats, poultry to augment the income<\/p>\n
of the family and while doing so she could save money<\/p>\n
with which she could acquire Ext.A1 properties.     Counsel<\/p>\n
submitted that it was not the case pleaded by the plaintiffs<\/p>\n
that there was financial help rendered to Kochupennu from<\/p>\n
her family to acquire Ext.A1 properties. According to Mr.<\/p>\n
Sreekumar, the crucial question is what is the presumption<\/p>\n
in respect of a lady who had no job, no private avocation, no<\/p>\n
family help acquiring property in her name. The learned<\/p>\n
counsel would ask whether it is to be presumed that the<\/p>\n
property was acquired with the funds generated by her<\/p>\n
AS. 273\/2000
\n                                -13-<\/span><\/p>\n
husband as claimed or the case of acquisition with the own<\/p>\n
funds as pleaded in the plaint, for, the documents stands in<\/p>\n
her name.      Counsel submitted that it is a well established<\/p>\n
principle of law that a person seeking partition of property<\/p>\n
must establish his right to demand partition. According to<\/p>\n
him, the right of the plaintiff to get partition will stand<\/p>\n
established only on establishing the fact comprised in the<\/p>\n
aforesaid issue, viz., whether the properties were acquired<\/p>\n
individually and held by Kochupennu.              Placing strong<\/p>\n
reliance on the judgment of the Supreme Court in<\/p>\n
Vidhyadhar v. Mankikrao, (AIR 1999 SC 1441) Mr.<\/p>\n
Sreekumar submitted that the non examination of the<\/p>\n
plaintiffs in this particular case will justify drawal of adverse<\/p>\n
inference against them.       The learned counsel blamed the<\/p>\n
court below for not entering in a finding on the question as<\/p>\n
to whether the plaintiffs’ case that the property has been<\/p>\n
acquired by their mother with her own funds is correct. The<\/p>\n
AS. 273\/2000
\n                             -14-<\/span><\/p>\n
court below considered only the second part of the first<\/p>\n
issue and omitted to consider the first part. This has<\/p>\n
resulted in serious prejudice to the interest of the appellant.<\/p>\n
Mr. Sreekumar would assail the conclusions of the learned<\/p>\n
Sub Judge     based    on Section 3(2) of the Benami<\/p>\n
Transactions (Prohibition) Act, 1988. According to him, while<\/p>\n
properties purchased by one      in the name of his wife or<\/p>\n
unmarried daughter the presumption can be that the<\/p>\n
purchase was for the benefit of wife or unmarried daughter<\/p>\n
unless the contrary is proved.         In the instant case<\/p>\n
Mr.Sreekumar referred to Exts.B14 to B16, the three<\/p>\n
assignment deeds and the recitals therein and argued that<\/p>\n
those documents and the recitals therein will amount to<\/p>\n
proving the contrary for the purpose of Section 3(2). He<\/p>\n
referred to Ext. B19 and B17 also and submitted that though<\/p>\n
A1 stood in the name of Kochupennu alone all the<\/p>\n
subsequent dealings in relation to the property, Raman also<\/p>\n
AS. 273\/2000
\n                             -15-<\/span><\/p>\n
was participating with Kochupennu.       After the death of<\/p>\n
Kochupennu, Exts.B14 to B16 were executed asserting his<\/p>\n
rights as the real owner.     A state of things is shown to<\/p>\n
have existed throughout. Hence the presumption will move<\/p>\n
forward and backward.      For this proposition the learned<\/p>\n
counsel relied on the judgment of the Supreme Court in AIR<\/p>\n
1996 SC 605.\n<\/p>\n
        6. Sri.N.P.Samuel was able to meet all the submission<\/p>\n
of Mr.K.P.Sreekumar to a considerable extent. Mr.Samuel<\/p>\n
referred to Section 3(1) and (2) of Benami Transaction<\/p>\n
(Prohibition) Act and submitted that since in the instant case<\/p>\n
the purchase of the property by Kochupennu as contended<\/p>\n
by the defendant was effected before the commencement of<\/p>\n
the Benami Transactions (Prohibition) Act, Section 3(1)<\/p>\n
cannot have any application regarding this case. What the<\/p>\n
learned counsel argued is that the burden to prove that a<\/p>\n
purchase of a property is benami as always on a person<\/p>\n
AS. 273\/2000
\n                             -16-<\/span><\/p>\n
who asserts it to be so and this burden can never shift. Even<\/p>\n
if an issue was wrongly framed casting burden on the<\/p>\n
plaintiff as is done in the present case, the onus will not<\/p>\n
shift. Counsel referred to paragraph 5 of the judgment of<\/p>\n
the Supreme Court in AIR 1974 Page 171 and submitted<\/p>\n
that “the essence of a benami is the intention of the party or<\/p>\n
parties concerned and not unoften such intention is<\/p>\n
shrouded in a thick veil which cannot be easily pierced<\/p>\n
through”. But such difficulty will not relieve the person<\/p>\n
asserting the transaction to be benami from the obligation<\/p>\n
of establishing that the transaction is benami. Referring to<\/p>\n
the same judgment Mr.Samuel highlighted that a registered<\/p>\n
document is a solemn document prepared and executed<\/p>\n
after considerable deliberations and that if so, the person<\/p>\n
expressly shown as the purchaser or transferee in the<\/p>\n
document always enjoys the initial presumption in his favour<\/p>\n
that the apparent state of affairs is the real state of affairs.<\/p>\n
AS. 273\/2000
\n                             -17-<\/span><\/p>\n
Mr.Sreekumar referred to the judgment of the Allahabad<\/p>\n
High Court in AIR 1979 page 47 and submitted that a<\/p>\n
registered sale deed carries a presumption of genuineness<\/p>\n
regarding the correctness of the recitals and the burden to<\/p>\n
prove that the sale is not a real and that the document is<\/p>\n
executed benami for the benefit of somebody else is on the<\/p>\n
person who alleges the same. Referring to the judgment of<\/p>\n
the Patna High Court in AIR 1964 Page 543 Mr.Samuel<\/p>\n
submitted that there is no presumption in Hindu Law that<\/p>\n
the transactions standing in the name of wives are<\/p>\n
transactions belonging to their husbands. Mr.Samuel<\/p>\n
reiterated that the defendants have not discharged their<\/p>\n
burden of proof in this case. Mr.Samuel submitted that after<\/p>\n
acquiring the suit property under Ext.A1 in the year 1118<\/p>\n
ME late Smt.Kochupennu had purchased property in the<\/p>\n
year 1123 also by paying sale consideration. Ext.B11 was<\/p>\n
referred to. It is submitted that extent of 2 acres and 4<\/p>\n
AS. 273\/2000
\n                             -18-<\/span><\/p>\n
cents of land with a house and a well is purchased by<\/p>\n
Kochupennu and the learned counsel highlighted the recitals<\/p>\n
in the document that the sale consideration is paid by<\/p>\n
Kochupennu and her possession of the property is delivered<\/p>\n
to Kochupennu. Mr.Samuel highlighted that in the joint<\/p>\n
written statement filed by D1, D2, D4, D5, D7 and D8, it<\/p>\n
was never claimed that Ext.B11 property purchased by late<\/p>\n
Kochupennu is a benami transaction and that it was Raman<\/p>\n
who paid the sale consideration and purchased the same in<\/p>\n
the name of Kochupennu. Ext.B11 was more than sufficient<\/p>\n
evidence to show that Kochupennu had her own funds for<\/p>\n
purchasing properties and that there is nothing incredible or<\/p>\n
improbable   about   Kochupennu    purchasing    the   plaint<\/p>\n
schedule properties with her funds as recited in Ext.A1.<\/p>\n
Mr.Samuel highlited that till Smt.Kochupennu passed away<\/p>\n
it was she who exercised the rights over ownership of the<\/p>\n
property and her husband never questioned the same.<\/p>\n
AS. 273\/2000
\n                            -19-<\/span><\/p>\n
Ext.B13 settlement deed dated 07\/01\/81 executed by<\/p>\n
Kochupennu regarding an extent of 48 1\/8th cents of<\/p>\n
property covered by Ext.A1 is highlited by Mr.Samuel.<\/p>\n
Mr.Samuel submitted that Ext.B13 is executed only by late<\/p>\n
Kochupennu and Raman is not a co-executant. Raman who<\/p>\n
was aware of the execution of Ext.B13 had no demur<\/p>\n
against Ext.B13 or the assertion of ownership by Ext.B13<\/p>\n
over the property covered by Ext.B13. Mr.Samuel submitted<\/p>\n
it was after the demise of Kochupennu and after receiving<\/p>\n
Ext.A4 demand for partition on 16.07.1984 Ext.DW1 Raman<\/p>\n
came out with the case of Benami for the first time. Till<\/p>\n
Kochupennu died Raman never claimed that it was he who<\/p>\n
paid the consideration for purchase of Ext.A1. It is after his<\/p>\n
wife passed away that Raman declared himself as the owner<\/p>\n
and started transferring properties by executing settlement<\/p>\n
deeds. Exts.B14, B15 and B16 settlement deeds executed<\/p>\n
by Raman in favour of his children are the documents<\/p>\n
AS. 273\/2000
\n                              -20-<\/span><\/p>\n
through which Raman introduced the theory of benami for<\/p>\n
the first time. Mr.Samuel submitted that in the written<\/p>\n
statement no reason is stated as to why Kochupennu<\/p>\n
transferred the property in favour of one of the daughters<\/p>\n
by Ext.B13. The reason brought out in evidence is that the<\/p>\n
transfer became necessary as the properties stood in the<\/p>\n
name of Kochupennu. But this is only a lame reason. The<\/p>\n
properties covered by Exts.B14 to B16 also stood in the<\/p>\n
name of Kochupennu. After the demise of Kochupennu<\/p>\n
Raman can claim only co-ownership along with the other<\/p>\n
legal representatives of Kochupennu. The action of Raman<\/p>\n
in executing Exts.B14 to B16 declaring himself to be the<\/p>\n
owner without      support of any court verdict came up for<\/p>\n
severe attack at the hands of Mr.Samuel. According to him,<\/p>\n
it is after the issuance of Ext.A4 partition notice that Raman<\/p>\n
usurped the power of court to declare himself as the owner<\/p>\n
of the property. According to Mr.Samuel the junction of<\/p>\n
AS. 273\/2000
\n                             -21-<\/span><\/p>\n
Raman also to the mortgage deed executed by Kochupennu<\/p>\n
in spite of Raman having no right over the property is easily<\/p>\n
explicable.   Counsel   submitted   that  Raman    was    the<\/p>\n
subscriber to the Kuri conducted by Guruvijaya Kuri<\/p>\n
Company and Smt.Kochupennu’s liability was only as<\/p>\n
mortgagor. Therefore, in order that Raman also became<\/p>\n
personally liable it was absolutely necessary that Raman<\/p>\n
also joined the mortgage deed. Answering the argument<\/p>\n
that Kochupennu had no funds Mr.Samuel would refer to<\/p>\n
various aspects of the evidence and argue that the evidence<\/p>\n
is to the effect that Raman was in considerable financial<\/p>\n
difficulties and had no funds to purchase the properties. As<\/p>\n
for Kochupennu’s financial ability Mr.Samuel argued that the<\/p>\n
recitals in the registered document arouses a presumption<\/p>\n
that consideration was paid by the purchaser Kochupennu<\/p>\n
and the evidence in the case falls short of holding that such<\/p>\n
presumption has been rebutted by acceptable legal<\/p>\n
AS. 273\/2000
\n                             -22-<\/span><\/p>\n
evidence.\n<\/p>\n
      7. I have very anxiously considered the rival<\/p>\n
submissions addressed at the Bar. I have made a thorough<\/p>\n
re-appraisal of the entire evidence available in the case. I<\/p>\n
have gone through the impugned judgment as well as the<\/p>\n
earlier judgment of this Court in A.S.468\/90 by which the<\/p>\n
case was remanded to the Sub Court for fresh decision.<\/p>\n
      8. The submissions of Sri.K.P.Sreekumar, the learned<\/p>\n
counsel for the appellant that issue No.1 which was<\/p>\n
remanded     to  the  court    below   for   re-consideration<\/p>\n
contemplates two parts and that the court below has<\/p>\n
considered only the second part is attractive, but if one goes<\/p>\n
deeper it will be seen that the attractiveness is superficial.<\/p>\n
According to me, in the light of the pleadings raised once<\/p>\n
the so called second part of the issue as to whether the sale<\/p>\n
deed in favour of the Kochupennu is a benami transaction is<\/p>\n
answered against the contesting defendants it has to follow<\/p>\n
AS. 273\/2000
\n                               -23-<\/span><\/p>\n
that the apparent tenor of the title document Ext.A1 under<\/p>\n
which absolute ownership and possession of the property is<\/p>\n
conveyed to the purchaser Kochupennu is real. The manner<\/p>\n
in which the issue is framed and the use of the word or<\/p>\n
between what Mr.Sreekumar described as the two parts of<\/p>\n
the issue will show that the decision on the so called second<\/p>\n
part will have its inevitable effect on the first part also.<\/p>\n
      9. In order that the scope of the remand order is<\/p>\n
understood correctly it is necessary to read the remand<\/p>\n
order itself. A careful reading of the remand order will show<\/p>\n
that the point which is relegated to be re-considered is the<\/p>\n
point whether the purchase covered by Ext.A1 is a purchase<\/p>\n
by the first defendant in the name of his wife Kochupennu<\/p>\n
benami for him and for his benefit. Permission is granted to<\/p>\n
the defendant’s alone to adduce evidence regarding the<\/p>\n
benami nature of the transaction and other defendants have<\/p>\n
been permitted to give separate evidence if the first<\/p>\n
AS. 273\/2000
\n                                 -24-<\/span><\/p>\n
defendant is not available for adducing further evidence.<\/p>\n
Once the scope of the remand oder is understood correctly<\/p>\n
then the only question that arises is whether the defendants<\/p>\n
were successful in establishing that purchase under Ext.A1<\/p>\n
was a purchase actually by the first defendant in the name<\/p>\n
of his wife Kochupennu for his benefit.\n<\/p>\n
      10. The observations of the Supreme Court in 1974 SC<\/p>\n
171 at paragraph 5 are significant.\n<\/p>\n
            “The essence of a benami is the intention of
\n      the party or parties concerned and not unoften
\n      such intention is shrouded in a thick veil which
\n      cannot be easily pierced through. But such
\n      difficulties do not relieve the person asserting the
\n      transaction to be benami ….. …… . The reason is
\n      that the deed is a solemn document prepared and
\n      executable after considerable deliberations, and
\n      the person expressly shown as the purchaser or
\n      the transferee in the deed, starts with the initial
\n      presumption in his favour that the apparent state
\n      of affairs is the real state of affairs.”\n<\/p><\/blockquote>\n
                                       (underline supplied).<\/p>\n
      11. The burden to prove that a purchase of a property<\/p>\n
is benami for the benefit of another person is on that person<\/p>\n
AS. 273\/2000
\n                              -25-<\/span><\/p>\n
who asserts the same to be benami and this is a burden that<\/p>\n
will seldom shift. Any difficulty in the framing of the issue<\/p>\n
will not relieve the person on whom the onus rests to prove<\/p>\n
the transaction to be a benami,         of such onus. That<\/p>\n
registered sale deed carries a presumption regarding the<\/p>\n
correctness of the recitals therein (rebuttable though the<\/p>\n
same may be) is also settled by a line of decision including<\/p>\n
the judgment of the Allahabad High Court in AIR 1979<\/p>\n
Allahabad 47 relied on by Mr.Samuel.\n<\/p>\n
      12. There is evidence in the case to hold that even<\/p>\n
after acquiring the property under Ext.A1 in the year 1118<\/p>\n
M.E. late Smt.Kochupennu had purchased the property in<\/p>\n
1123 also by paying sales consideration. Ext.B11 is<\/p>\n
document executed by one Rajan Menon in favour of<\/p>\n
Kochupennu in 1123 in respect of a fairly extensive area of<\/p>\n
land with building. It is seen that no contention is raised by<\/p>\n
Raman in his written statement that Ext.B11 property was<\/p>\n
AS. 273\/2000
\n                              -26-<\/span><\/p>\n
also purchased by him in the name of Kochupennu as a<\/p>\n
benami transaction. This according to me is a circumstance<\/p>\n
which supports the case of the plaintiff that Ext.A1<\/p>\n
transaction is not a benami transaction.<\/p>\n
      13.    Ext.B13   settlement     deed    executed     by<\/p>\n
Smt.Kochupennu on 07\/01\/81 in favour of her daughter<\/p>\n
Parukutty with respect to an extent of 14 and 1\/8th cents of<\/p>\n
the property from out of the properties covered by Ext.A1 is<\/p>\n
again a circumstance which will show that Kochupennu was<\/p>\n
asserting her ownership rights over the property covered by<\/p>\n
Ext.A1 during her life time. Significantly in Ext.B13<\/p>\n
Kochupennu     is  the  sole    executant  though    Raman’s<\/p>\n
contention is it was at his instance that Ext.B13 is executed<\/p>\n
there is no evidence to support the above contention.<\/p>\n
      14. The one circumstance which is highlighted by<\/p>\n
Mr.Sreekumar to show that Kochupennu herself conceded<\/p>\n
Raman’s interest over the property is the junction of Raman<\/p>\n
AS. 273\/2000
\n                              -27-<\/span><\/p>\n
to Ext.B19 mortgage deed. But I am of the view that the<\/p>\n
circumstance of Raman also joining Ext.B19 mortgage deed<\/p>\n
has been satisfactorily explained. The mortgage deed is<\/p>\n
executed as a Kuri security mortgage in favour of<\/p>\n
Guruvijaya Kuri Company where Raman was the subscriber.<\/p>\n
It was to facilitate payment of the Kuri amount due to<\/p>\n
Raman that the mortgage became necessary. In fact the<\/p>\n
recitals in Ext.B19 itself are to the effect that the property<\/p>\n
covered by the mortgage deed belongs absolutely to party<\/p>\n
No.2 namely Kochupennu alone. The explanation that it was<\/p>\n
for the purpose of fastening Raman the subscriber and<\/p>\n
Parukutty, co-guarantor with personal liability that they also<\/p>\n
joined the mortgage deed is convincing.\n<\/p>\n
      15. Ext.B19 can be safely relied on to conclude that<\/p>\n
even Raman had admitted that as on the date of that<\/p>\n
document his wife Kochupennu was the person in<\/p>\n
possession and enjoyment of the property in question.<\/p>\n
AS. 273\/2000
\n                             -28-<\/span><\/p>\n
      16. Now we will consider whether any evidence has<\/p>\n
been adduced by the contesting defendants to show that<\/p>\n
Raman was having funds with him to advance to his wife for<\/p>\n
the purpose of purchasing the property. Ext.B17 is another<\/p>\n
mortgage deed executed by Kochupennu in which also<\/p>\n
husband Raman is a co-executor. Ext.B17 is executed for<\/p>\n
the purpose of securing the amounts borrowed from<\/p>\n
Smt.Devaky Amma for discharge of the debts inclusive of<\/p>\n
Rs.1,000\/- borrowed for giving in marriage to one of their<\/p>\n
daughters. This document will also show that the co-<\/p>\n
mortgagor Raman has admitted that the property is<\/p>\n
mortgaged belonged to Kochupennu.\n<\/p>\n
      17. The oral evidence of DW1 continues to be a very<\/p>\n
relevant piece of evidence for resolving the issue. Raman<\/p>\n
admitted that plaintiffs can be given 40 cents each from out<\/p>\n
of the plaint schedule property. In cross examination, he<\/p>\n
further admitted that he has no objection whatsoever in the<\/p>\n
AS. 273\/2000
\n                            -29-<\/span><\/p>\n
suit being decreed in favour of the plaintiffs. Of course, this<\/p>\n
Court while passing the remand order has permitted the<\/p>\n
other defendants to substantiate the contention that the<\/p>\n
purchase was by Raman for Raman’s benefit in the name of<\/p>\n
Raman’s wife. Let us examine the evidence adduced by<\/p>\n
them after remand. DW2 Shankarankutty son of Raman is<\/p>\n
examined after remand. He had no explanation to offer as to<\/p>\n
why the property was purchased in the name of mother<\/p>\n
rather than in the name of father himself. He stated that he<\/p>\n
has not come across any document which will show that his<\/p>\n
father was having income. He also stated that father did not<\/p>\n
maintain any income and expenditure accounts. He further<\/p>\n
stated that his father had no bank deposit. He also did not<\/p>\n
deny the suggestion that his father was hard pressed for<\/p>\n
money. I do not find any evidence which will show that it<\/p>\n
was Raman who advanced the consideration recited in<\/p>\n
Ext.A1.\n<\/p>\n
AS. 273\/2000
\n                             -30-<\/span><\/p>\n
      18. Under the above circumstances, I do not find any<\/p>\n
warrant for interfering with the preliminary decree for<\/p>\n
partition passed by the court below. The appeal fails and will<\/p>\n
stand dismissed. However, considering the relationship<\/p>\n
between the parties I refrain from awarding cost to the<\/p>\n
respondent.\n<\/p>\n<\/p>\n
                         PIUS C.KURIAKOSE, JUDGE<\/p>\n
ksv\/kns-\n<\/p>\n
AS. 273\/2000
\n                -31-<\/span><\/p>\n
                     PIUS C.KURIAKOSE, J.\n<\/p>\n
                     AS. No. 273 of 2000<\/p>\n
                        JUDGMENT<\/p>\n
                      27th April, 2010<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sankarankutty vs Kochammini on 27 April, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS.No. 273 of 2000(E) 1. SANKARANKUTTY … Petitioner Vs 1. KOCHAMMINI … Respondent For Petitioner :SRI.K.P.SREEKUMAR For Respondent :SRI.N.P.SAMUEL The Hon’ble MR. Justice PIUS C.KURIAKOSE Dated :27\/04\/2010 O R D E R PIUS C. KURIAKOSE, J. —————————————— […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-6763","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSankarankutty vs Kochammini on 27 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sankarankutty-vs-kochammini-on-27-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sankarankutty vs Kochammini on 27 April, 2010 - 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