GEORGE O. THETTAYIL v. ROSILY P.P

2. The above mentioned Original Petition was filed by the appellant seeking declaration of title over the property covered by Ext.A1 Sale Deed, asserting that it was purchased by him with his own funds, but conceding that it was registered in the name of his wife. As per his case, the entire amount required for the purchase of the property covered by Ext.A1 came from his own sources, and that the respondent never had any income of her own at that point of time or thereafter. He contends that the respondent has no title, ownership or right over the property and hence that he is entitled to have the declarations sought for in the Original Petition granted to him.

3. The respondent, in refutation, asserts that she had Mat Appeal 601/22 3 purchased the property covered by Ext.A1, investing the consideration obtained by the sale of another extent - which had earlier been settled in her favour by her father through Ext.B2 Settlement Deed; and that the Sale Deed of that property, of the year 1984, is Ext.B3. She reiterates that the sale proceeds from Ext.B3 was invested to purchase the property involved, namely that covered by Ext.A1; and that, thereupon, she took a loan from a Bank - as evidenced by Ext.B9 - to cause construction thereon. She predicated that the renovation of the building was done with the assistance of her son; but that, when she was tortured by the appellant for transfer of the said property to him, she acceded in part, by executing Ext.B10 - which is a gift deed of the SRO, Angamaly - in his favour, involving an extent of 1.78 Ares. She thus prayed that this Original Petition be dismissed.

4. The learned Family Court allowed the parties to trial and the appellant produced Exts.A1 to A33 documents in his favour (many of the said documents relating to his plea for Mat Appeal 601/22 4 divorce, which was subsequently granted); while, the respondent produced Exts.B1 to B21 documents on her side and deposed as RW1, along with RW2 and RW3. The appellant testified as PW1; and the learned Family Court after analyzing the evidence on record, dismissed the Original Petition, holding, inter alia, that “proprietary transactions and conveyances effected between the spouses when they were living in connubium without much independent bargaining has to continue as such, though the marital consortium between them has been loss for ever” (sic).

5. We have examined the evidence available intently; and as is evident from it, the appellant’s specific case is that he purchased Ext.A1 with his own funds, but in the name of the respondent, on 07.11.1984. To prove his income, he has produced Ext.A13; while, to establish that he made construction on the property, he relies on Exts.A12 and A15 – which are copies of letter/certificate issued by a Bank, along with Ext.A14 Building Estimate, as also Ext.A16 Service Certificate issued by the KTS. Mat Appeal 601/22 5 To further prove that he had obtained a loan for the purpose of acquisition of the property and construction of the building on it, he relies on Ext.A17 and A18, namely the ‘Gehan’ registered in favour of a Co-operative Bank and a petition to the Labour Officer respectively; as also Ext.A27 and A28, which are certain quotations stated to be qua the construction in question.

6. However, in contravention of the above, the respondent relies on Ext.B2, which is the Settlement Deed in her favour, stated to have executed by her father with respect to another property; and testified that she sold it through Ext.B3, to purchase the property covered by Ext.A1. She contends that she made constructions on the property and has sought to prove it through Ext.B5 Sanction Letter; Ext.B6 Estimate and Plan; Ext.B7 Purchase Bills; Ext.B8 Building Tax Receipts; as also Ext.B9 which is a loan document – to establish that she availed a loan from a particular Bank. Pertinently, she also has a case that she was tortured by the appellant for transfer of the property in his name Mat Appeal 601/22 6 and that, to put a quietus to such, she executed Ext.B10 Gift Deed in his favour with respect to 1.78 Ares of property covered by Ext.A1 Sale Deed.

7. Before we proceed to analyse the evidence on record, there is an issue we must certainly first address.

8. Going by the pleadings on record, particularly the averments in the Original Petition filed by the appellant, he does not have a case that he purchased the property in his then wife’s name on account of a fiduciary arrangement, or on an assurance from her that she would return it to him whenever he wanted. He does not have a case that the acquisition was made for his exclusive benefit and that it was entrusted to the respondent on his behalf for such purpose. On the contrary, his case is that he spent money and purchased the property in his wife’s name, but without any explanation for having done so.

9. The question that, therefore, arises is, whether the transaction, as asserted by the appellant – even taking it to be Mat Appeal 601/22 7 true for the sake of argument – would amount to one intended for his benefit; and if so, whether he would be then eligible to seek a declaration of title, in the manner as he has prayed.

10. It is apodictic, going by the settled law that covers the field, that even assuming that an acquisition is made by one in favour of another, then cemented by the registration of a document in favour of the latter, there is an assumption of title in favour of such person, unless it is rebutted in a manner known to law. The well-established criteria for doing so is the presence of vitiating elements of misrepresentation/fraud/duress, which by express admission, the appellant does not even impute against the respondent. As we have said above, his only case is that he purchased the property in the name of his wife because they were married at that time.

11. In contra-distinction, it is the singular case of the wife that the sale consideration for the property covered by Ext.A1 came out of the sale of the property covered by Ext.B2, which Mat Appeal 601/22 8 was earlier settled in her favour by her father. She has also proved that she spent for its construction, relying on Ext.B9; and her case is further fortified because, admittedly, a portion of the property was subsequently gifted by her in favour of the appellant, through Ext.B10. When this Gift Deed is unequivocally admitted by the appellant, one fails to understand how he now says that he is the owner of the rest of the property because, had that been so, he would not have accepted the gift, but would have insisted that the entire property be transferred in his name. The very factum of the gift having been accepted by him – admittedly and without reservation even before us – would prove beyond all reasonable doubt that he was also fully aware that the title of the property in question is exclusively in the name of the respondent; and that it is only through a further action from her side, either through a gift deed or otherwise, can he obtain transfer of the same.

12. In fact, in Ext.B10 Gift Deed, there is a specific recital Mat Appeal 601/22 9 that the respondent is the exclusive owner of the property covered by Ext.A1 and that she is gifting an extent of 1.78 Ares in favour of the appellant.

13. Coming back to the initial proposition indited above, even a whisper fraud/misrepresentation/duress in the execution of Ext.A1 sale deed in the name of the respondent – even assuming ex arguendo that the entire proceeds came out of the income of the appellant – it would not be possible for him to seek a declaration, merely because the matrimonial union between the parties have broken down. As said above, the very factum of the registration of the property through Ext.A1 in favour of the respondent gives rise to a valid assumption in law that she has exclusive title to it and it is only if it is able to be rebutted by the appellant in the manner as is known to law, can he seek any relief.

14. In the case at hand, the evidence led by the Mat Appeal 601/22 10 respondent, through the documents and testimony above mentioned, certainly premises that she paid for the purchase of the property and financed the construction on it, through a bank loan and rental income; and we, therefore, cannot find the learned Family Court to have erred in any manner in the impugned judgment.

15. We are justified in our view as afore because, in Ext.A1, the specific recital is that the entire Sale Consideration has been paid by the respondent, without even a sotto voce mention that the appellant had financed it in any manner. In the afore circumstances, this Appeal is dismissed. Sd/- DEVAN RAMACHANDRAN JUDGE Sd/- M.B. SNEHALATHA JUDGE RR