Nishad vs Anjanaraj

Amit Rawal, J

For the reasons stated in the affidavit accompanying C.M.Appln.No.1 of 2023, filing delay of 211 days is condoned.

Present appeal is directed against the judgment and decree dated 28.02.2023 rendered in O.P.NO.1423/2013 filed by the appellant-husband claiming declaration in respect of scheduled property and the counter claim set up by the respondent-wife with identical claim.

Succinctly the facts as set by the appellant-husband in the aforementioned petition was that, after the marriage performed between the husband and wife one scheduled property was purchased for Rs.1.5 lakhs by funding money from his own earnings, in the name of himself and the wife. Wife also set up a counter claim stating that entire money was funded by her father as the husband was working as Accountant and did not have the ways and means to afford to buy the scheduled property. Husband in support of the aforementioned claim, examined himself as RW1, Saviraj as RW2, Anilkumar as RW3, and Shanmughan as RW4 whereas the wife examined as PWs.1 and 2, Anjanaraj and Rajan. Third party exhibits Exts.X1 to X4; extract copy of SB Ledger, and Loan A/c statements were produced. Sale deed bearing No.982/10 was brought on record as Ext.B1, Statement of bank account from January, 2010 to April 2016 and December, 2015 to September, 2018 was brought on record as Exts.B4, B5 and B6 respectively, much less Chitty pass book as Ext.B7 were produced on behalf of the husband whereas the wife placed on record copy of FIR No.891/13, sale deed and order in RP(FC)No.82/15. Disregarding the evidence placed on record by the husband, court allowed the petition and the counter claim in part by holding them owner to the extent of half share.

Mr.Navaneeth N.Nath, learned counsel appearing on behalf of the husband in support of the memorandum of appeal has raised the following submissions:

The court below has abdicated in not noticing the evidence on record which reflects that the entire money was funded by the husband. The loan documents Exts.X1 to X4 were placed on record to show that appellant had taken a loan amount of Rs.1 lakh during the period when the property was purchased vide document No.982/2010 for Rs.1.5.lakhs whereas respondent-wife, except for a payment of paltry amount, has not been able to prove her case set up in the counter claim. There is categoric admission but the court below failed to refer as well as examine the documentary evidence, thus there is an abdication.

We have heard the learned counsel for the parties and appraised the paper book.

In order to set up sole ownership in ‘A ‘scheduled property, onus heavily relies upon particularly benami transaction as per the exceptions carved out in Section 4 till 2016 to show whether the relationship between the husband and wife was fiduciary lies upon the person who asserts it. Exts.X1 to X4 are the third party exhibits to show that the loan amount of Rs.1 lakh was taken, but rightly discarded for the reason that it was for discharge of other liability ie., a short term agriculture loan for honouring the promising note and transaction details maintained by Nagaroor Service Co-operative Bank Limited. If it all there was some truthfulness in the assertion, nothing prevented the husband to place on record agreement to sale to show that the entire money was funded by him. Husband had been silent as to whether the aforementioned sources of fund purchased for the property was disclosed in the Income Tax returns. Property was purchased in 2010 but claim was filed in 2013, thus there could have been income tax returns for two assessment years. In the absence of evidence, we are of the view that the finding arrived at by the court below in declaring both the parties owners to the extent of half share is perfectly justified and correct approach. We do not find any abdication or error.

No ground for interference is made out. Appeal stands dismissed.