Asif vs Suharabi

Amit Rawal, J.

The present appeal is directed against the judgment and decree dated 18.02.2020 rendered in O.P.No.375 of 2015 whereby claim of the respondent/wife for declaration of exclusive title of the petition schedule property has been disallowed and a decree for partition has been granted by ordering a preliminary decree.

Succinctly, the facts in brief are as under:

The marriage was solemnized on 05/03/2006 as per the Islamic rites and two children were born in the wedlock. Respondent/wife is alleged to have been given 65 sovereigns of gold at the time of marriage, and appellant/husband, out of the aforementioned 65 sovereigns, sold 40 sovereigns and gone abroad. He came back in 2008 and used to cause physical harassments and ultimately on 02/04/2013 she was thrown out of the house. It was alleged that the respondent's father by using his funds purchased 15¾ cents of property in the joint names of the parties i.e. the husband and wife at Karingamannu Poyil and they started residing in the house. The aforementioned transaction was effected on 06.08.2010 before the respondent/wife was thrown out. On the basis of the alleged agreement the transaction was settled on May, 2013. On that count, the respondent/wife set up a claim of exclusive ownership.

Appellant challenged the aforementioned claim and stated that the property was purchased from the funds provided by him in the month of December 2009. The property in the name of his mother was sold and the consideration received in lieu thereof was utilized for entering into the agreement dated 28.05.2010 for purchase of property on 06.08.2010 and admitted that he purchased the property in the name of his wife. The trial court, on the basis of the evidence brought on record, concluded that the respondent/wife failed to place on record funding from her father regarding the purchase of the property jointly in the name of husband and wife on 06/08/2010 which was admitted by the appellant and granted half share each by passing the preliminary decree of partition.

Learned counsel appearing on behalf of the appellant submitted that the court below failed in arriving at a conclusion that the respondent/wife had a probable case. The court ought to have found that the respondent/wife set up an exclusive ownership of the property without any proof of the document. In fact appellant/husband has been working abroad at the time of the purchase of the petition scheduled property. Taking into consideration the aforementioned explanation, the respondent/wife was only a name lender but actual owner is the appellant/respondent.

Though the notice was sent service is not complete. We have heard counsel for the appellant and appraised the paper book and of the view that there is no force on merits. Solemnization of the marriage in March 2006 and birth of two children out of the wedlock are not in dispute. The sole question before the trial court in O.P.NO.375/2015 was as to whether the petition schedule property was purchased out of the funds provided by the father of the respondent/wife or by the appellant with whom the respondent/wife was in fiduciary capacity. Appellant/husband had not set up any counter claim claiming the exclusive right. Therefore, there cannot be any force in the argument claiming exclusive right in the absence of any counter claim. As regards the claim of the respondent/wife, the court rightly discarded the same on the ground that there was no direct and cogent evidence with regard to the provision of the funds for purchasing the property in the name of husband and wife. Noticing the fact that the property stood in the name of the parties, to the extent of half share each, in our considered view, the court has rightly passed preliminary decree granting the partition of the property. The parties will be at liberty to seek final decree in accordance with law.

We do not find any merit in the appeal challenging the judgment in O.P.No.375/2015 rendered on 18.02.2020. Accordingly appeal stands dismissed.