{"id":72224,"date":"2010-07-23T00:00:00","date_gmt":"2010-07-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunitha-k-k-vs-a-s-ramesh-on-23-july-2010"},"modified":"2017-08-30T18:51:10","modified_gmt":"2017-08-30T13:21:10","slug":"sunitha-k-k-vs-a-s-ramesh-on-23-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunitha-k-k-vs-a-s-ramesh-on-23-july-2010","title":{"rendered":"Sunitha K.K. vs A.S.Ramesh on 23 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sunitha K.K. vs A.S.Ramesh on 23 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMat.Appeal.No. 985 of 2009()\n\n\n1. SUNITHA K.K., AGED 34 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. A.S.RAMESH, S\/O.SUKUMARAN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.VARGHESE C.KURIAKOSE\n\n                For Respondent  :SRI.C.A.CHACKO\n\nThe Hon'ble MR. Justice R.BASANT\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :23\/07\/2010\n\n O R D E R\n                                                       C.R.\n\n\n\n\n              R.BASANT & M.C. HARI RANI,JJ\n\n        ==============================\n\n              MAT APPEAL NO. 985 OF 2009\n\n         ============================\n\n        DATED THIS THE 23rd DAY OF JULY 2010\n\n                           JUDGMENT\n<\/pre>\n
Basant,J.\n<\/p>\n
     Is the plea of no means available to a husband against<\/p>\n
proposed arrest and detention under Section 51 of the Code of<\/p>\n
Civil Procedure in execution of a decree for money passed by<\/p>\n
the Family Court in favour of his wife for return of parental<\/p>\n
share and gold ornaments entrusted to him?       Can proviso (c)<\/p>\n
to Section 51 C.P.C. be said to be attracted ?    These, in short,<\/p>\n
are the questions raised in this appeal.\n<\/p>\n
     2. To the vitally relevant facts first. The appellant and the<\/p>\n
respondent were married on 19\/5\/1996. They lived together for<\/p>\n
some period of time.      Separate residence commenced from<\/p>\n
MAT APPEAL NO.985\/2009          -2-<\/span><\/p>\n
14\/9\/2002. The husband allegedly did not return to his wife cash,<\/p>\n
ornaments, articles etc. of value Rs.3,25,500\/-. The wife claimed<\/p>\n
return of the said amount of Rs.3,25,500\/- along with the interest<\/p>\n
and costs.\n<\/p>\n
     3. The husband was set ex parte once. The said ex parte<\/p>\n
order was set aside.    Though the husband was permitted to<\/p>\n
participate in the proceedings, he again did not co-operate and<\/p>\n
take part in the proceedings.     Accordingly, the Family Court<\/p>\n
proceeded to pass the decree directing him to pay the said<\/p>\n
amount of Rs.3,25,500\/- along with interest and costs.<\/p>\n
     4. The respondent\/wife took out execution before the<\/p>\n
Family Court. The husband was once directed to be arrested.<\/p>\n
He was arrested. While he was in custody, he approached this<\/p>\n
Court and on condition that he deposits an amount of Rs.25,000\/-<\/p>\n
and executes a bond with two solvent sureties for the balance<\/p>\n
amount, he was released from custody. Thereafter, before the<\/p>\n
execution court, the respondent-husband pressed the plea that<\/p>\n
he is without any means and that, in these circumstances, the<\/p>\n
money decree cannot be executed against him by arrest and<\/p>\n
detention. That plea was considered by the court below and by<\/p>\n
MAT APPEAL NO.985\/2009           -3-<\/span><\/p>\n
the impugned order, the court below came to the conclusion<\/p>\n
that the respondent\/judgment debtor has no means and<\/p>\n
consequently, he is not liable to be arrested and detained in<\/p>\n
execution of the money decree.         It is   that order, that is<\/p>\n
impugned in this appeal by the decree holder\/wife.<\/p>\n
     5. We may straight away refer to the contention that the<\/p>\n
sureties who had executed the bond as per the earlier order<\/p>\n
passed by this Court are also liable to be proceeded against. In<\/p>\n
the execution petition or in this appeal they are not parties. Our<\/p>\n
attempt to trace the bond, if any, executed by them has not<\/p>\n
succeeded. We are, in these circumstances, satisfied that it is<\/p>\n
not necessary for us to come to any authentic finding in this Mat<\/p>\n
Appeal about the liability of the sureties to be proceeded against.<\/p>\n
If execution is taken out against them on the strength of the<\/p>\n
bond allegedly executed by them, the Family Court will have to<\/p>\n
consider the claim for execution against them in the light of all<\/p>\n
contentions which may be raised before the Family Court.       We<\/p>\n
are not, in these circumstances, embarking on a consideration of<\/p>\n
that aspect of the matter in this appeal.\n<\/p>\n
MAT APPEAL NO.985\/2009           -4-<\/span><\/p>\n
     6. The learned counsel for the appellant\/decree-holder in<\/p>\n
this appeal before us raises only one contention. Sri Varghese<\/p>\n
C.Kuriakose,counsel    for   the    appellant,  raises  the  short<\/p>\n
contention that in view of Proviso (c) to Section 51 of the Code of<\/p>\n
Civil Procedure, the decree holder\/husband is not entitled to<\/p>\n
raise a plea that the decree is not liable to be executed against<\/p>\n
him by arrest and detention for the reason that he is without<\/p>\n
means.\n<\/p>\n
     7. That is the short question arising for consideration.<\/p>\n
     8. It will be apposite straight away to refer to Section 51 of<\/p>\n
the Code of Civil procedure. We extract the same below:<\/p>\n
           “Section 51. Powers of court to enforce<\/p>\n
           execution,- Subject to such conditions and<\/p>\n
           limitations as may be prescribed, the Court<\/p>\n
           may, on the application of the decree-<\/p>\n
           holder, order execution of the decree-<\/p>\n<\/blockquote>\n
           (a)xx      xx               xx         xx\n\n           (b)xx      xx               xx         xx\n\n<\/pre>\n
           (c)by arrest and detention in prison [for<\/p>\n
           such period not exceeding the period<\/p>\n
           specified in Section 58, where arrest and<\/p>\n
           detention is permissible under that section]<\/p>\n
MAT APPEAL NO.985\/2009            -5-<\/span><\/p>\n<\/blockquote>\n
          (d)xx        xx               xx           xx<\/p>\n<\/blockquote>\n
         (e)xx        xx                xx          xx<\/p>\n
         Provided that, where the decree is for the<\/p>\n
         payment of money, execution by detention<\/p>\n
         in prison shall not be ordered unless, after<\/p>\n
         giving the judgment-debtor an opportunity<\/p>\n
         of showing cause why he should not be<\/p>\n
         committed to prison, the              Court, for<\/p>\n
         reasons recorded in writing, is satisfied-<\/p>\n<\/blockquote>\n
          (a)that the judgment-debtor, with the<\/p>\n
          object or effect of obstructing or delaying<\/p>\n
          the execution of the decree,-\n<\/p><\/blockquote>\n
                (i) is likely to abscond or leave the<\/p>\n
          local limits of the jurisdiction of the Court,<\/p>\n
          or<\/p>\n<\/blockquote>\n
                 (ii) has, after the institution of the suit<\/p>\n
           in   which      the    decree    was     passed,<\/p>\n
           dishonestly     transferred,    concealed,    or<\/p>\n
           removed any part of his property, or<\/p>\n
           committed any other act of bad faith in<\/p>\n
           relation to his property, or<\/p>\n<\/blockquote>\n
          (b)that the judgment-debtor has, or has had<\/p>\n
          since the date of the decree, the means to<\/p>\n
          pay the amount of the decree or some<\/p>\n
          substantial part thereof and refuses or<\/p>\n
          neglects or has refused or neglected to pay<\/p>\n
MAT APPEAL NO.985\/2009           -6-<\/span><\/p>\n
            the same, or<\/p>\n<\/blockquote>\n
            (c)that the decree is for a sum for which the<\/p>\n
            judgment-debtor was bound in a fiduciary<\/p>\n
            capacity to account.<\/p><\/blockquote>\n
                   (emphasis supplied and portions not<\/p>\n
                   directly relevant are omitted)<\/p>\n
      9. The learned counsel for the appellant submits that arrest<\/p>\n
and detention in civil prison is a mode of execution recognised<\/p>\n
under Section 51(c) of the C.P.C. The counsel contends and we<\/p>\n
accept that to avoid the consequence of arrest and detention in<\/p>\n
civil prison by operation of the Proviso to Section 51 C.P.C, the<\/p>\n
court must be satisfied that the judgment debtor does not come<\/p>\n
within the sweep of clauses (a),(b), and (c) of the provisos to<\/p>\n
Section 51 C.P.C.\n<\/p>\n
      10. We need not be detained in this discussion with<\/p>\n
provisos (a) and (b). It is accepted that if proviso (c) applies,<\/p>\n
notwithstanding provisos (a) and (b), the money decree can be<\/p>\n
executed by arrest and detention.\n<\/p>\n<\/p>\n
      11. We straight away refer to the decision in Jolly George<\/p>\n
Varghese v. Bank of Cochin,<\/a> (1980)2 S.C.C.360. Relying on<\/p>\n
Article 11 of the International Covenant on Civil and Political<\/p>\n
MAT APPEAL NO.985\/2009         -7-<\/span><\/p>\n
Rights which declared that “no one shall be imprisoned merely<\/p>\n
on the ground of inability to fulfil a contractual obligation”, it<\/p>\n
was held that mere poverty      cannot expose a person to the<\/p>\n
consequence of arrest and detention in execution of a civil<\/p>\n
decree. We find it unnecessary to advert to that decision as<\/p>\n
Proviso(c) to Section 51 C.P.C. refers to breach of an obligation<\/p>\n
to account by a person who has a fiduciary capacity. Article 11<\/p>\n
of the International Covenant or the decision in Jolly George<\/p>\n
(supra) cannot, in these circumstances, have any reference to<\/p>\n
the controversy on hand.\n<\/p>\n
     12. Proviso (c) to Section 51 recognises the principle,<\/p>\n
which has been accepted in Section 4(3) of the Debtors Act, 1869<\/p>\n
of England. Section 4(3) is extracted by us below.<\/p>\n
           4. Abolition of imprisonment for debt,<\/p>\n
           with exceptions.\n<\/p>\n
          With the exceptions hereinafter mentioned,<\/p>\n
          no person shall be arrested or imprisoned<\/p>\n
          for making default in payment of a sum of<\/p>\n
          money.\n<\/p>\n
           There shall be excepted from the operation<\/p>\n
          of the above enactment.\n<\/p>\n
MAT APPEAL NO.985\/2009          -8-<\/span><\/p>\n
           1. xx           xx              xx\n\n           2. xx            xx             xx\n\n<\/pre>\n
           3. Default by a trustee or person acting in a<\/p>\n
           fiduciary capacity and ordered to pay by a<\/p>\n
           court of equity any sum in his possession or<\/p>\n
           under his control.\n<\/p>\n
           4. xx           xx              xx\n\n            5. xx          xx              xx\n\n           6. xx           xx              xx\n\n                (irrelevant portions omitted)\n\n<\/pre>\n
     13. The short question to be decided is whether the<\/p>\n
respondent herein\/the judgment debtor has suffered the decree<\/p>\n
because he was bound in a fiduciary capacity to account for such<\/p>\n
sum. For proviso (c) to Section 51 C.P.C. applies, the decree<\/p>\n
must be for a sum for which the judgment debtor was bound in a<\/p>\n
fiduciary capacity to account. The crucial question, hence, is<\/p>\n
whether the impugned decree has been suffered by the<\/p>\n
respondent for breach of his obligation to account for the<\/p>\n
amounts in a fiduciary capacity.\n<\/p>\n
     14. As to what is fiduciary capacity, we find no specific<\/p>\n
definition in the Code of Civil Procedure or under the General<\/p>\n
Clauses Act. The Family Courts Act also does not define the<\/p>\n
MAT APPEAL NO.985\/2009          -9-<\/span><\/p>\n
same. The Indian Contract Act in Section 16 (2)(a) though it<\/p>\n
refers to fiduciary capacity also does not bear any definition of<\/p>\n
fiduciary capacity. We are, in these circumstances, forced to fall<\/p>\n
back on the dictionaries, law lexicons and precedents,          to<\/p>\n
ascertain the precise scope of the      expression “bound in a<\/p>\n
fiduciary capacity to account”.\n<\/p>\n
     15. We note that a Division Bench of this Court earlier had<\/p>\n
occasion to consider the ambit of the expression “bound in a<\/p>\n
fiduciary capacity to account” in the decision in Francis v.<\/p>\n
Central Bank of India, 1990(2)K.L.T.983.            The question<\/p>\n
arose in totally different circumstances.    The question to be<\/p>\n
considered in that case was only whether surety in a commercial<\/p>\n
loan transaction with the Bank can be held to be bound in a<\/p>\n
fiduciary capacity to account. But the discussions in that case by<\/p>\n
the Division Bench has reference to the sweep of the expression<\/p>\n
‘bound in a fiduciary capacity to account’.<\/p>\n
     16. It is unnecessary to extract specific passages. But it is<\/p>\n
now clear that “there can be no controversy that for the purpose<\/p>\n
of clause (c) of the proviso to Section 51, there need not be an<\/p>\n
express trust; it could as well be an implied trust or a quasi-<\/p>\n
MAT APPEAL NO.985\/2009          -10-<\/span><\/p>\n
trust. All that is necessary is that the decree must be for a sum<\/p>\n
of money for which the judgment debtor was bound in a fiduciary<\/p>\n
capacity to account”.\n<\/p>\n
      17. We make it clear that to attract clause (c), the<\/p>\n
requirement is not merely that the decree holder and the<\/p>\n
judgment debtor must share a fiduciary relationship.          The<\/p>\n
judgment debtor must be bound in such fiduciary capacity “to<\/p>\n
account”. There may be several instances of a decree passed in<\/p>\n
litigation between    persons in fiduciary capacity where the<\/p>\n
element of liability to account may not be there.       We may,<\/p>\n
therefore, hasten to observe that to attract proviso(c), the<\/p>\n
requirement is not only that there must be fiduciary<\/p>\n
capacity\/relationship   between the decree holder and the<\/p>\n
judgment debtor, the judgment debtor must have been made<\/p>\n
liable because he was bound in such fiduciary capacity to<\/p>\n
account.   We find that this aspect of the matter     – that the<\/p>\n
judgment debtor must be bound in fiduciary capacity to account,<\/p>\n
had received the attention of the Division Bench in Francis<\/p>\n
(supra).\n<\/p>\n
      18. That takes us to the crucial question whether in this<\/p>\n
MAT APPEAL NO.985\/2009         -11-<\/span><\/p>\n
case, the appellant and the respondent have a fiduciary<\/p>\n
relationship. It will  then have to be considered whether the<\/p>\n
judgment debtor was bound in such capacity to account and it is<\/p>\n
on the ground of his failure to account that the decree was<\/p>\n
passed against him.\n<\/p>\n
      19. We now come to the question whether husband-wife<\/p>\n
relationship is one which can be described to be a fiduciary<\/p>\n
relationship. We have already noted that there is no satisfactory<\/p>\n
and precise definition of the expression fiduciary relationship\/<\/p>\n
capacity in any of the relevant statutes.       Even in Francis<\/p>\n
(supra), the court was obliged to consider the dictionaries and<\/p>\n
Law Lexicon. Black’s Law Dictionary explains “fiduciary<\/p>\n
capacity” in the following words:\n<\/p>\n
       “One is said to act in a “fiduciary capacity” or to receive<\/p>\n
       money or contract a debt in a “fiduciary capacity”, when<\/p>\n
       the business which he transacts, or the money or<\/p>\n
       property which he handles, is not his own or for his own<\/p>\n
       benefit, but for the benefit of another person, as to when<\/p>\n
       he stands in a relation implying and necessitating great<\/p>\n
       confidence and trust on the one part and a high degree of<\/p>\n
       good faith on the other part. The term is not restricted to<\/p>\n
       technical or express trusts, but includes also such offices<\/p>\n
       or relations as those of an attorney at law a guardian,<\/p>\n
MAT APPEAL NO.985\/2009              -12-<\/span><\/p>\n
       executor, or broker, a director of a corporation and a<\/p>\n
       public officer”.<\/p><\/blockquote>\n
     20.   In   Stroud’s       Judicial  Dictionary,   the     expression<\/p>\n
“fiduciary capacity” is described as follows:<\/p>\n
        FIDUCIARY CAPACITY.                 An administrator who<\/p>\n
        has received money under letters of administration<\/p>\n
        and who is ordered to pay it over in a suit for the<\/p>\n
        recall of the grant, holds it “in a fiduciary capacity”<\/p><\/blockquote>\n
        within Debtors Act 1869 ………….; so, of the debt<\/p>\n
        due from an executor who is indebted to his<\/p>\n
        testator’s estate which he is able to pay but will<\/p>\n
        not …………….; so of moneys in the hands of a<\/p>\n
        receiver ………., or agent …….., or Manager …….., or<\/p>\n
        moneys due on an account from the London agent<\/p>\n
        of a country solicitor ……, or proceeds of sale in the<\/p>\n
        hands of an auctioneer………, or moneys which in<\/p>\n
        the compromise of an action have been ordered to<\/p>\n
        be held on certain trusts ………. of partnership<\/p>\n
        moneys received by a partner…….. [Note. The<\/p>\n
        period to be looked to is that of the act<\/p>\n
        done ………..]<\/p>\n
Warton’s Law Lexicon refers to the expression “fiduciary” and<\/p>\n
explains the same in the following words:\n<\/p>\n
     “One who holds anything in trust. See TRUST”<\/p>\n
In Bouvier’s Law Dictionary, “fiduciary relationship ” is defined<\/p>\n
MAT APPEAL NO.985\/2009           -13-<\/span><\/p>\n
in the following words:\n<\/p>\n
            “What constitutes a fiduciary relation is<\/p>\n
            often a subject of controversy. It has been<\/p>\n
            held to apply to all persons who occupy a<\/p>\n
            position of peculiar confidence towards<\/p>\n
            others, such as a trustee, executor, or<\/p>\n
            administrator, director of a corporation or<\/p>\n
            society……Medical or religious adviser, …..<\/p>\n
            husband and wife ….. an agent who<\/p>\n
            appropriates money put into his hands for<\/p>\n
            a specific purpose of investment collector<\/p>\n
            of city taxes who retains money officially<\/p>\n
            collected,….one who receives a note or<\/p>\n
            other security for collection…..In the<\/p>\n
            following cases debt has been held not a<\/p>\n
            fiduciary one; a factor who retains the<\/p>\n
            money of his principal ….. an agent under<\/p>\n
            an agreement to account and pay over<\/p>\n
            monthly;……one    with whom a general<\/p>\n
            deposit of money is made.”\n<\/p><\/blockquote>\n
                                          (emphasis supplied)<\/p>\n<\/blockquote>\n
      21. We thus find that to understand the expression<\/p>\n
fiduciary capacity, we have to look at the nature of the<\/p>\n
relationship inherently and the nature of the relationship in the<\/p>\n
instant facts. At least in Bouvier’s Law Dictionary, the husband<\/p>\n
MAT APPEAL NO.985\/2009          -14-<\/span><\/p>\n
and wife relationship is specifically referred to as a fiduciary<\/p>\n
relationship. All relationships which are built on mutual trust,<\/p>\n
dependence and confidence of a special variety can certainly be<\/p>\n
described to be fiduciary relationship for the purpose of Section<\/p>\n
51(c), according to us.    Following the dictionaries, a trustee,<\/p>\n
executor, administrator, director of a Corporation or Society,<\/p>\n
Medical or Religious Adviser, husband and wife, ward and<\/p>\n
guardian, agent and principal etc. can safely be held to be<\/p>\n
fiduciary relationship for the purpose of Section 51(c) C.P.C. We<\/p>\n
asked for precedents specifically on the point as to whether<\/p>\n
husband and wife relationship can be described to be a fiduciary<\/p>\n
relationship.   Specific precedents on the point are not brought<\/p>\n
to our notice.<\/p><\/blockquote>\n
      22. We have heard both counsel. In our anxiety to ensure<\/p>\n
that unbiased assistance is also available, we requested Advocate<\/p>\n
C.S.Dias also to assist the court as amicus curiae.   The counsel<\/p>\n
have traced a precedent in Dwaraka Prasad v. Nasir<\/p>\n
Ahmad,1925 Oudh 16.           That decision did not specifically<\/p>\n
consider the expression ‘fiduciary capacity’. For the purpose of<\/p>\n
Section 111 of the Evidence Act, it was considered and held that<\/p>\n
MAT APPEAL NO.985\/2009          -15-<\/span><\/p>\n
the relationship of husband and wife is one of active confidence.<\/p>\n
By necessary implication – as fiduciary relationship is one in<\/p>\n
which there must be active confidence, the decision in Dwaraka<\/p>\n
Prasad (supra) can also be held to support the view that<\/p>\n
husband and wife relationship is one which can be described to<\/p>\n
be fiduciary.     Considering the nature of the       marital tie<\/p>\n
inherently, and on principle, we are satisfied that it will be<\/p>\n
absolutely safe to conclude that husband and wife can be safely<\/p>\n
held to share a fiduciary relationship unless the contra is shown.<\/p>\n
There may be instances where in an acrimonious matrimony that<\/p>\n
relationship may lose its fiduciary nature. Be that as it may, at<\/p>\n
least in the absence of a counter plea it can safely be held that<\/p>\n
husband-wife relationship is a classic example of a fiduciary<\/p>\n
relationship.\n<\/p>\n
      23. We now have to consider the question whether the<\/p>\n
husband in the instant case has suffered the decree for the<\/p>\n
breach of his liability “to account” in such a fiduciary capacity.<\/p>\n
According to the claimant-wife, cash (representing her share in<\/p>\n
paternal property), gold ornaments and articles were brought by<\/p>\n
her to the matrimonial home at the time of marriage. They were<\/p>\n
MAT APPEAL NO.985\/2009          -16-<\/span><\/p>\n
entrusted to the husband.      After the relationship soured the<\/p>\n
husband who was bound in such fiduciary capacity to account for<\/p>\n
the articles entrusted to him, failed to account for the articles<\/p>\n
and consequently the wife approached the court and claimed a<\/p>\n
decree. The decree was granted. The question hence is whether<\/p>\n
a husband having such articles of the wife in his possession is<\/p>\n
bound in a fiduciary capacity to account to his wife. The learned<\/p>\n
counsel for the respondent argues that there is no element of<\/p>\n
obligation in a fiduciary capacity to account in the instant case.<\/p>\n
     24. On this aspect, we have precedents in abundance.<\/p>\n
When a wife       walks into the matrimonial home with cash,<\/p>\n
ornaments and articles belonging to her and leaves them with<\/p>\n
the husband, is the husband liable to account in trust? This<\/p>\n
question has come up for consideration before courts on many<\/p>\n
occasions.    Our attention has been drawn to the following<\/p>\n
decisions.\n<\/p>\n
     25. In Prathibha Rani v. Suraj Kumar, A.I.R.1985<\/p>\n
S.C.628, the question had come up before the Supreme Court,<\/p>\n
whether    appropriation by the husband of stridhana property<\/p>\n
which the wife had brought to the matrimonial home would<\/p>\n
MAT APPEAL NO.985\/2009         -17-<\/span><\/p>\n
amount to criminal misappropriation to attract the provisions of<\/p>\n
the Penal Code. It was clearly held in that decision that such<\/p>\n
articles entrusted must be held to be the articles entrusted to the<\/p>\n
husband by the wife in a fiduciary capacity and that the husband<\/p>\n
is liable to account for such properties in trust whenever the<\/p>\n
wife makes the demand. In Maniyamma v. Abdul Rasaak,<\/p>\n
1989(1)K.L.T.636, this Court had followed the said dictum and<\/p>\n
had further clarified that the dictum is not limited         in its<\/p>\n
operation to Hindu husbands and wives notwithstanding the<\/p>\n
fact that the decision in Prathibha Rani (supra)dealt with a<\/p>\n
Hindu wife and a Hindu husband and           stridhana properties<\/p>\n
which such wife had brought to the parental home.<\/p>\n
      26. A learned single Judge of this Court had occasion to<\/p>\n
consider the question whether the husband can be held to be<\/p>\n
bound in trust to restore the articles in Swapna v. Thankavelu<\/a><\/p>\n
(1990 (2) KLT 604). The following observations in paragraph-5<\/p>\n
beyond any controversy settles that the husband is in the<\/p>\n
circumstances certainly in the position of a trustee and is bound<\/p>\n
to account to the wife all her properties at any time when she<\/p>\n
demands.     We extract the relevant passage i.e.,    paragraph-5<\/p>\n
MAT APPEAL NO.985\/2009         -18-<\/span><\/p>\n
below:\n<\/p>\n
               \"5.    Counsel    for    the   appellant\n\n         contended     that    in     the   facts     and\n\n<\/pre>\n
         circumstances of this case there cannot be<\/p>\n
         any limitation at all in filing the suit is filed<\/p>\n
         by the wife for return of the ornaments<\/p>\n
         and utensils entrusted by her to the<\/p>\n
         husband.     According to the counsel the<\/p>\n
         husband is in the position of a trustee in so<\/p>\n
         far as the `sreedhana properties’ are<\/p>\n
         concerned and that he is bound to return<\/p>\n
         them as and when demanded by the wife.\n<\/p>\n
         After hearing counsel for both sides I am<\/p>\n
         satisfied that there is much force in the<\/p>\n
         contention raised by the counsel for the<\/p>\n
         appellant.    It is normal for the husband<\/p>\n
         and wife     to reside together after the<\/p>\n
         marriage and the wife normally is not<\/p>\n
         expected to keep her ornaments and other<\/p>\n
         valuable articles under a separate locker<\/p>\n
         and key. Normally any wife may entrust<\/p>\n
         her valuable things to the husband for safe<\/p>\n
         custody and by that it does not mean that<\/p>\n
         the husband is the owner thereof and that<\/p>\n
         he has having a hostile title thereto so as<\/p>\n
         to defeat the wife by claiming that it is<\/p>\n
         barred by limitation.     The husband in the<\/p>\n
MAT APPEAL NO.985\/2009       -19-<\/span><\/p>\n
         circumstances is certainly in the position<\/p>\n
         of a trustee who is bound to account to the<\/p>\n
         wife all her properties at any time when<\/p>\n
         she demands. The above position has been<\/p>\n
         accepted by the Lordships of the Supreme<\/p>\n
         Court also in Pratibha Rani v. Surajkumar<\/p>\n
         and another (AIR 1985 SC 628) which was<\/p>\n
         followed by this Court in Maniyamma v.\n<\/p>\n
         Abdul Rasaak (1989 (1) KLT 636). Though<\/p>\n
         both the cases arises out of a prosecution<\/p>\n
         for criminal breach of trust the principles<\/p>\n
         therein stated are applicable even in<\/p>\n
         respect of a suit pending before the Civil<\/p>\n
         Court.    Their Lordships have held that in<\/p>\n
         such circumstances the husband is in the<\/p>\n
         position of a trustee and he is bound to<\/p>\n
         return the ornaments and utensils as and<\/p>\n
         when the wife demands for the same.       If<\/p>\n
         the husband is the trustee and the wife is<\/p>\n
         entitled to follow the property in the<\/p>\n
         possession of the trustee, certainly S.10 of<\/p>\n
         the Indian Limitation Act will apply and in<\/p>\n
         such cases there shall not be any period of<\/p>\n
         limitation. In the facts of the case I have<\/p>\n
         no hesitation to hold that the husband is in<\/p>\n
         the position of a trustee so far as the<\/p>\n
         ornaments and utensils entrusted to him<\/p>\n
MAT APPEAL NO.985\/2009           -20-<\/span><\/p>\n
            by the wife are concerned and under S.10<\/p>\n
            of the Indian Limitation Act there shall not<\/p>\n
            be any limitation for such a suit by the wife<\/p>\n
            against husband.    In these circumstances<\/p>\n
            the view taken by the Appellate Court that<\/p>\n
            the  suit   is  barred   by   limitation   is<\/p>\n
            erroneous and I reverse the same.”\n<\/p>\n<\/p>\n
                                  (emphasis supplied)<\/p>\n
     27. We may immediately take note that the question came<\/p>\n
up before the learned single Judge to decide the play of Sec.10 of<\/p>\n
the Limitation Act and not in the context of proviso (c) to Sec.51<\/p>\n
of the CPC. But the decision shown unmistakably that in such a<\/p>\n
situation, the husband as a trustee is liable to account to the wife<\/p>\n
for such properties.    That is the substratum of the expression<\/p>\n
“bound to account in a fiduciary capacity” appearing in Sec.51(c)<\/p>\n
of the CPC. We are in complete agreement with the conclusion<\/p>\n
of the learned single Judge in paragraph-5 extracted above.<\/p>\n
     28. We note that an earlier Division Bench of this Court in<\/p>\n
Chacko v. Annamma<\/a> (1993 (1) KLT 675) had also taken a<\/p>\n
similar view though their Lordships in that case was concerned<\/p>\n
MAT APPEAL NO.985\/2009            -21-<\/span><\/p>\n
with properties of a Christian wife and the liability of a Christian<\/p>\n
husband to account for the same.       It remains that the question<\/p>\n
was considered under Sec.10 of the Limitation Act where also<\/p>\n
the crucial element to be established is whether the elements of<\/p>\n
trust exist in the relationship between the parties. That was also<\/p>\n
a transaction of entrustment of properties of the wife with the<\/p>\n
husband.\n<\/p>\n
      29. The above discussions lead us to the conclusion that<\/p>\n
husband and wife relationship can be held to be a fiduciary<\/p>\n
relationship.    It also follows that in respect of cash, ornaments<\/p>\n
and articles brought by the wife to her matrimonial home and<\/p>\n
entrusted to the husband, he is bound in a fiduciary capacity to<\/p>\n
account to the wife whenever she makes a demand. Elements of<\/p>\n
trust are involved in such relationship and in the entrustment of<\/p>\n
cash\/ornaments\/articles.      We do not, in these circumstances,<\/p>\n
have any hesitation to agree that proviso (c) to Sec.51 of the<\/p>\n
CPC squarely applies and the pleas which may be available<\/p>\n
under Clauses (a) and (b) of Sec.51 of the CPC shall not be<\/p>\n
available to a judgment-debtor, if the case falls within Clause (c).<\/p>\n
      30. It follows from the above discussions that the impugned<\/p>\n
MAT APPEAL NO.985\/2009         -22-<\/span><\/p>\n
order by which the relief of execution by arrest and detention of<\/p>\n
the respondent was denied to the appellant is unjustified and<\/p>\n
does warrant interference.\n<\/p>\n
     31. One more incidental question remains. Does the entire<\/p>\n
decree relate to amounts payable for breach of obligation on the<\/p>\n
part of the judgment-debtor bound in a fiduciary capacity to<\/p>\n
account?    We have already noted that what is crucial is not<\/p>\n
merely the existence of fiduciary relationship between the<\/p>\n
judgment-debtor and the decree-holder.       What is relevant is<\/p>\n
whether the decree is for a sum which the judgment-debtor is<\/p>\n
bound in a fiduciary capacity to account to the decree-holder.<\/p>\n
We therefore must consider the entire claim and ascertain<\/p>\n
whether any part of the claim is there to which proviso (c) to<\/p>\n
Sec.51 of the CPC will not apply.\n<\/p>\n<\/p>\n
     The claim is under the following heads:<\/p>\n
\n\n\n     (1) Currency brought as share in\n         parental property                -     Rs.1,50,000\/-\n     (2) Value of 22 sovereigns of\n         gold ornaments (22 x Rs.4,000\/-) -     Rs. 88,000\/-\n\n     (3) Value of the articles other than\n        gold ornaments entrusted.         -     Rs. 17,500\/-\n\nMAT APPEAL NO.985\/2009         -23-<\/span>\n\n\n\n\n      (4) Amounts received subsequently\n          for various purposes            -     Rs. 70,000\/-\n                                                --------------------\n                       Total              -     Rs.3,25,500\/-\n                                                ========\n\n<\/pre>\n
      32. We have no hesitation to agree that claims under heads<\/p>\n
(1), (2) and (3) referred above which were brought by the young<\/p>\n
wife when she came from the parental home to the matrimonial<\/p>\n
home squarely fall within the sweep of proviso (c) to Sec.51 of<\/p>\n
the CPC. But so far as the 4th item of claim is concerned, that<\/p>\n
represents even admittedly only amounts obtained by the<\/p>\n
husband from the wife\/her parents from time to time during the<\/p>\n
currency of the marriage for various purposes. We are of the<\/p>\n
opinion that in the absence of better materials, it is not possible<\/p>\n
to come to a conclusion that the husband was bound in fiduciary<\/p>\n
capacity to account for the said amount of Rs.70,000\/-. In so far<\/p>\n
as the said amount, the proportionate costs and interest due on<\/p>\n
the said amount, proviso (c) to Sec.51 of the CPC cannot have<\/p>\n
any application.\n<\/p>\n
MAT APPEAL NO.985\/2009         -24-<\/span><\/p>\n
      33. We are, in these circumstances, satisfied that this<\/p>\n
appeal deserves to be allowed in part.      We held that in the<\/p>\n
proceedings for execution of the decree amount of Rs.2,55,500\/-<\/p>\n
(i.e., Rs.3,25,500\/- minus Rs.70,000\/- as shown earlier) along<\/p>\n
with interest and proportionate costs, the respondent is not<\/p>\n
entitled to take up the plea of no means.\n<\/p>\n
      34. This appeal is allowed to the above extent.  The court<\/p>\n
below shall proceed with the execution petition and pass<\/p>\n
appropriate orders.     Parties\/counsel shall appear before the<\/p>\n
Family Court on 30\/8\/10 to continue the proceedings.<\/p>\n
      34. The Registry shall forthwith forward the records to the<\/p>\n
Family Court.\n<\/p>\n
      35. We place on record our appreciation for the worthy<\/p>\n
assistance rendered to this Court by the Advocates for the<\/p>\n
contestants and by Advocate Sri.C.S.Dias who assisted us as<\/p>\n
amicus curiae.\n<\/p>\n
                                                Sd\/-\n<\/p>\n
                                          R. BASANT
\n                                             (Judge)<\/p>\n
                                                Sd\/-<\/p>\n
\n                                         M.C. HARI RANI\nks.         TRUE COPY                        (Judge)\n\nMAT APPEAL NO.985\/2009    -25-<\/span>\n\n\n\n\n                               R. BASANT, JUDGE\n\n\n\n                              M.C. HARI RANI,JUDGE\n\n\n\nks.\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sunitha K.K. vs A.S.Ramesh on 23 July, 2010 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 […]<\/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-72224","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSunitha K.K. vs A.S.Ramesh on 23 July, 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\/sunitha-k-k-vs-a-s-ramesh-on-23-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunitha K.K. vs A.S.Ramesh on 23 July, 2010 - 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