Talakkottur R. David vs Cicily Joseph

Pius. C. Kuriakose, J.—The appellant is the petitioner before the court below and the respondent, his former wife is the respondent before the court below. The O.P. was filed by the appellant for a declaration that the appellant is the absolute owner of the plaint schedule property (property extending to 1 acre and 75 cents of land at Peechi in Thrissur District together the buildings and other improvements thereon) belongs to him absolutely and also for a prohibitory injunction restraining the respondent from interfering with his possession and enjoyment of the property. The original petition was resisted by the respondent, who filed a detailed counter statement, contending that the property belongs to the parties jointly by virtue of Ext. A1 sale deed. It was contended that the entire consideration of Rs. 10,000/- set out in Ext. A1 belonged to her, though paid through her father-in-law. She concedes that the property is the joint property of the parties. A counter claim was lodged by the respondent seeking partition of the plaint schedule property into two equal shares and allotment of one share, together with share of profits. The pleadings raised by the parties have been narrated by the court below in detail in the impugned order and hence we do not venture to narrate them over again in this judgment. The documentary evidence on the side of the appellant consisted of Exts. A1 to A16. The appellant got himself examined as PW1. The documentary evidence on the side of the respondent consisted of Exts. B1 to B4. The witness on the side of the respondent was her power of attorney holder and nephew, who was examined as RW1. The court below on the basis of the pleadings raised by the parties formulated the following points for trial in the O.P. as well as the counter claim.

(1) Whether the petitioner has exclusive title and possession over the petition schedule property?

(2) Whether the petition schedule property is available for partition as claimed in the counter claim?

(3) Whether the petitioner is entitled to the declaration as prayed for?

(4) Whether the petitioner is entitled to the prohibitory injunction prayed for?

(5) Whether the respondent is entitled to get share of profits as claimed in the counter claim?

(6) What reliefs?

The court below on evaluating the evidence would answer point numbers 1 and 2 in favour of the respondent. Point numbers 3 and 4 were also answered against the petitioner in view of the finding already entered in point numbers 1 and 2. Coming to point number 5, the court below found that the appellant is liable to pay future share of profits to the respondent and since there was no satisfactory evidence available regarding the actual income, relegated the issue of quantum of profits to be decided in final decree proceedings. On point number 6, it was found that the property belongs to the appellant and the respondent jointly having equal rights and accordingly, a preliminary decree for partition was passed in the following terms:

The petition schedule property shall be divided into two equal shares and one such share shall be allotted to the respondent.

The petitioner is entitled to get the other one share. AS he did not pay the required court fee, separate allotment is not made in his favour and his share will be allotted to him on payment of court fee.

The respondent is entitled to get share of profits from the petition schedule property from 3 years prior to filing of counter claim till the date of actual partition and the petitioner is liable for the same.

The quantum of profits is left open to be decided in the final decree proceedings.

Cost of the counter claim shall come out of the estate

Parties are at liberty to apply for a final decree

In this appeal, various grounds are raised challenging the findings entered by the court below. It is urged that the findings of the court below are the result of thoroughly erroneous appreciation of the pleadings and the evidence in the case and total non-application of mind by the court below to crucial issues such as res judicata, waiver, estoppel by laches etc. which operated against the respondent''s counter claim. It is prayed that the impugned orders be set aside and the Original Petition be allowed in full.

The appellant, Sri. Talakkottur R. David appeared before us in person. He addressed extensive submissions before us. We heard the learned counsel for the respondent also.

As desired by the appellant, we permitted him to submit written submissions with notice to the counsel for the respondent.

Drawing our attention to Ext. A10, copy of the final decision of dissolution of marriage passed by the circuit court of the 5th judicial circuit for Florida, Sri. Talakkottur submitted that it has been clearly provided in Ext. A10 "that the separation and Property Settlement Agreement entered into by and between the parties and Modification of Property Settlement Agreement hereto is incorporated into and made part of the Final Judgment of the Dissolution of marriage for all purposes" (the emphasis supplied by Sri. Talakkottur). He referred to page No. 2 of Ext. A10 and highlighted that under item No. 1 captioned "releases" it has been provided as follows:-

Each party releases the other from all claims (emphasis supplied by Sri. Talakkottur) including child support obligations. Sri. Talakkottur submitted that after expressly waiving child''s support claims and signing properties settlement agreements as recorded in Ext. A10 waiving all claims against him and after obtaining the marital home of the parties with all its furniture and furnishings, a latest model Ford Thunderbird Car and several hundred shares of various blue chip companies worth over dollars 1 lakh as detailed in Ext. A10, the respondent went to another Family Court in another county in Florida named Orange County and claimed child support which she had expressly waived in Ext. A10 and from that court she secured an award for a sum of 800 Dollars per mensem for herself and 200 Dollars per mensem for each child till the youngest child attains the age of 21. Sri. Talakkottur submitted that after the matrimony between himself and the respondent was dissolved under Ext. A10, the respondent contracted a second marriage with one Sri. George hailing from Palai in Kerala and took him and his two grown up children for living along with the appellants three teen aged daughters and son. It was pointed out that later respondent and Sri. George separated and the respondent approached the Orange County Family Court, Florida seeking relief against Sri. George without success. Sri. Talakkottur also submitted that at the end of her honeymoon with Sri. George the appellant had a very short married life with an octogenarian, a retired World War II Pilot who passed away. Sri. Talakkottur highlighted that it was 17 long years after Ext. A10 that the respondent instituted an action for partition OS. 799/98 before the Sub Court, Thrissur seeking partition of the property covered by Ext. A1, 1 acre and 79.5 cents of land with buildings therein. According to Sri. Talakkottur the entire consideration for the purchase of the property covered by Ext. A1 hereinafter referred to as the suit property was paid by the appellant''s father Sri. T.D. Raphael and respondent did not have any right or interest. In that suit the contention of the respondent was that the full consideration of Rs. 20,000/- was her money paid through her father-in-law to the vendor. Even though he had filed written statement inter alia contending that the suit claim was barred by limitation and laches, waiver etc. the Sub Court did not go into any of those contentions. The Sub Court found that it lacked in inherent jurisdiction to entertain the suit as the issue was covered by the Family Court''s Act. Accordingly the plaint was returned to the respondent for presentation before the Family Court. Sri. Talakkottur highlighted that after Ext. A14 order returning the plaint to her she did not do anything about OS 799/98. The plaint was never presented before the competent Family Court. According to Sri. Talakkottur respondent remained silent till the present OP. 561/07 was filed by him seeking a declaration and consequential injunction.

Sri. Talakkottur submitted that the impugned judgment has been passed finding that the subject property is partible at the instance of the respondents without any application of mind by the court below to the various issues which arose in the case. He submitted that the author of the impugned judgment came to consider the case only after the same was listed for trial and this has resulted in prejudice to the appellant. Referring to Section 3 of Indian Limitation Act and Ext. A10 Sri. Talakkottur submitted that the respondent has forfeited rights if any she had over the property by principles of waiver and estoppel. He submitted that the buildings situated on the subject property was constructed by his late father in 1983 after the marriage between him and the respondent was dissolved and before that what was available on the subject land was only a thatched hut. According to him, the respondent has never occupied the subject property and much less the building physically. Ext. A1 was actually purchased by the appellant''s father benami for himself in the name of the appellant and the respondent. He pointed out that Benami Prohibition Act was not in vogue when Ext. A1 came into existence and the parties were living together as husband and wife in England.

Expatiating his arguments further Sri. David Talakkottur submitted that the court below in its judgment has not made any mention even about the property settlement agreement entered into between the parties and filed before Florida court, a court of competent jurisdiction as early as in 1982. This omission on the part of the court below amounts to a grave and fatal error which vitiates the impugned judgment. According to Sri. David if Ext. A10 had been carefully perused by the court below it would have been found that the respondent is estopped from raising another property claim in respect of the matrimonial property in this case where the matrimony was dissolved decades before. Sri. David submitted that the failure on the part of the court below to despatch Ext. A16 a very crucial document along with the other documents in this case is very significant. Sri. David smelt a rat in this. Vital issues like limitation, laches, the implications of the property settlement agreement etc. were not considered by the court below and this has resulted in prejudice to the appellant.

Sri. David would endeavour to analyse the law relating to limitation by referring us to Section 3 of the Limitation Act. In this context he relied on AIR 1930 228 (Rangoon) and Joseph Carlos, Xavier Louis Anthony Benedict Aldo Costa Vs. Stanislaus Costa and Others, . According to Sri. David since the respondent knew that the title deed stands in her name also from 1973 onwards and as she did not have any possession or enjoyment, action should have been commenced by her at least within six years of the date of dissolution of marriage. It is submitted that the statute of limitation is a statute of repose and peace and should be honoured by this Court in public interest. According to him, the finding of the court below that consideration was paid by the respondent also is erroneous and contrary to the terms of the express recitals in the document. Relying on the judgment of this Court in Vasanthakumary Vs. Omanakuttan Nair, he submitted that on the pleadings raised by the parties, the burden is heavy on the respondent to prove that it was she who paid the consideration. She never bothered to adduce any evidence for discharging that burden. The counter evidence adduced on her side is not at all responsible counter evidence. RW1 her witness has given hearsay evidence only. He also submitted that the respondent was adopting various tactics to protract the proceedings before the Family Court and before this Court. He submitted that for an expeditious disposal of this case he has been doing whatever he could and had moved even the former Chief Justice of India and the Former Chief Justice of this Court. He referred to the 193rd report of the Law Commission of India and submitted that law of limitation should be given substantive effect keeping in mind the expansion of international trade and liberalization in economic policies. The verdict of the Florida court should not be ignored, he would submit. He would lastly appeal to us that the impugned judgment be interfered with and the counter claim be dismissed.

All the submissions of Sri. David Talakkottur were resisted by Sri. Saji Isaacs, the learned counsel for the respondent. He would support the impugned judgment on the various reasons stated by the court below therein. According to him Ext. A1 title deed stands in the joint names of the appellant and the respondent. It is in evidence that at the time of execution of Ext. A1 it is the respondent alone who was employed. Therefore, according to him, it has to be found that the consideration of 20,000 set out in Ext. A1 was paid by the respondent only through Sri. T.D. Raphael who was not only the father of the appellant but also the father-in-law of the respondent. Parties at that time were on cordial terms. Regarding the property settlement agreement entered into before the Florida court and the terms given under the caption "releases" Sri. Saji Isaacs submitted that the subject property cannot be treated as a matrimonial property. It was a separate acquisition of the parties in their joint names. The subject property was a piece of land within the exclusive domain of the Sub Court, Trichur. The Florida Court lacked in territorial jurisdiction to deal with the Subject Property even if the subject property is treated as a matrimonial property. Sri. Saji Isaacs argued that if the clause given under the caption "releases" is strictly given effect to it will have to be found that there is a mutual release which means that release of mutual interest in the subject property. If the respondent''s interest is found to be released in favour of the appellant, it will also have to be found that the appellant''s interest in the subject property is released in favour of the respondent. Principle of limitation will not have any application in the present case, according to Sri. Saji Isaacs. It is submitted that there is no limitation. He also added that the non inclusion of the subject property in the proceedings before the Florida Court is binding on both sides. Regarding limitation Sri. Saji Issac submitted that for partition suit there is no period of limitation. The cause of action for a suit for partition is a recurring or continuing one. The principles of estoppel or waiver will not have any application in the present case where the respondent is seeking separation of her share in the subject property hitherto remaining joint with the share of the appellant. Being a co-owner the respondent is in joint possession and that at any rate, in view of the express terms of the document Ext. A1 which shows that title over the property is conveyed jointly in favour of the appellant and the respondent, the respondent is entitled to demand partition at any point of time.

Repelling the argument of Sri. David that Ext. A16 order would operate as res judicata for the reason that the plaint was never re-presented before the Family Court, the learned counsel for the respondent submitted that res judicata will arise only when there is an adjudication and decision. Here there has been no adjudication and much less decision. What was done under Ext. A16 was only to return the plaint. There is no direction even to present the same before the proper court. Therefore, no blame can be placed on the respondent for not having presented the plaint before the Family Court.

When the attention of Sri. Saji was drawn by us to the unsatisfactory nature of the counter evidence adduced by RW1 Sri. Saji Isaacs submitted that during the pendency of this appeal the respondent came down to India on several occasions. In one occasion or two she appeared before the learned Judges in their chambers and became amenable for a mediated settlement and co-operated with the chamber mediation conducted by the learned Judges.

In reply Sri. David would reiterate all that he submitted earlier.

We have given our anxious consideration to the rival submissions addressed at the Bar. We have made a reappraisal of the evidence. We have carefully read through the impugned judgment.

Even though Sri. David Talakkottur, the appellant was in persuasive in his submissions, based on the principles of limitation, laches, waiver and res judicata, we are unable to accept those submissions. Principles of res judicata which include principles of constructive res judicata also cannot have any application with reference to Ext. A10 proceedings before the circuit Court of 5th judicial circuit for Florida. It cannot be stated by any stretch of imagination that the Florida Court was competent to try the present suit before the Family Court or for that matter a suit before the Sub Court, Thrissur in respect of the subject immovable properties which are situated within the territorial limits of Sub Court, Thrissur or Family Court, Thrissur. Principles of res judicata as recognized in Section 11 of C.P.C. can apply only if the former suit was contested between the parties in a court competent to try the subsequent suit.

The implications of Ext. A14 judgment of the Sub Court, Thrissur in O.S. 799/1998 should now be considered. The submission of Mr. David was that Ext. A14 is an order passed under Rule 10 Order VII CPC and that non filing or non presentation of Ext. A14 suit within the time stipulated or within the reasonable time by the respondent before the competent Court; the Family Court, should entail rejection of Ext. A14 suit. Therefore, non filing of the plaint relating to Ext. A14 within the reasonable time of Ext. A14, is of great consequence. Above submissions have only superficial attractiveness. One thing, Ext. A14 cannot be treated as regular order for return of plaint under Order VII Rule 10. Even though Ext. A14 contains an order to return plaint to the plaintiff, significantly there is no further direction that the same should be represented before any other Court. The order of "return" was passed only in the interest of convenience of the plaintiff. The Court found that it lacked in inherent jurisdiction to entertain and try the above case as the regular civil Courts stood divested of the jurisdiction to deal with matrimonial properties in view of Section 7 Explanation (c) of Family Courts Act. In fact, in Ext. A14 the learned Sub Judge has referred to and relied on the judgment in K.A. Abdul Jaleel Vs. T.A. Sahida, and held "Court does not have jurisdiction", meaning not territorial jurisdiction but inherent jurisdiction. Even in such a situation non filing or non initiating of fresh original proceeding could have been of consequence. Limitation also would have operated, if before fresh proceeding is instituted in the Court of competent jurisdiction, the period of limitation prescribed by law runs out. In the instance case, Ext. A14 is passed on 3rd January, 2002. The counter claim in which the issue relating to partition arose was instituted in 2009. If the nature of the suit is one for which a period of less than seven years is provided, perhaps the non filing or non initiation of a fresh suit could have caused difficulty to the respondent. We notice that going by Section 3(2)(b)(ii) of the Limitation Act, counter claim is to be treated as filed or submitted before the Court the day the written statement raising the counter claim is filed. What is the period of limitation for constituting a suit for partition. In S.D. Mithra''s Classic work on law relating to the partition, it has been stated on the basis of binding authorities that cause of action for a suit for partition is a recurring or continuing one. In other words, once it is found that the property in respect of which the parties claimed partition is partible, then there is no period prescribed for limitation. Going by Ext. A1 document the subject property belongs in common to the parties. The question of limitation is to be considered primarily on the basis of the pleadings. Going by the pleadings also, the counter claim is not barred by limitation. This means that the court was justified in adjudicating the counter claim.

Sri. David had also argued that rights if any of the respondent is lost to her by adverse possession and limitation. The submission was that the respondent has never resided in the building on the subject property and that she never has physical possession of the property. The response of Sri. Saji Isaacs was that neither the appellant nor the respondent have physical possession of the property. We do not find proper pleadings raised by the appellant regarding acquisition of the respondent''s title by adverse possession. The plea of adverse possession itself presupposes an admission regarding the adversary''s title. The express tenor of the title document is that the parties are co-owners. When a co-owner claims title by adverse possession mere adverse possession with a hostile animus during the statutory period of twelve years will not be sufficient. The law presumes that a co-owner in possession possesses on behalf of the co-owner not in possession also. In order that a co-owner is divested a title by adverse possession there should be adverse possession amounting to ouster. No pleading and much less the evidence regarding the ouster is available in this case. We repel the above argument of the appellant.

Now, the question which survives is whether the finding by the court below that the subject property is partible equally between the appellant and the respondent is justified on the evidence adduced by the parties. The contention raised by the appellant was that the entire consideration for purchasing the subject property was paid by him only through his father and that no portion of this consideration shown in the document belonged to the respondent his former wife. The further contention is that the property was transacted by his father on his behalf as he was not in India at that time. The name of the respondent was also shown in the document as the respondent was, at that time, his wife cordially residing along with him. The contra contention of the respondent is that the entire consideration was her''s and her husband''s name was shown in the document as the transaction was brought into effect by the husband''s father in her absence. Interestingly, neither party has a case that payment of consideration was made by the parties jointly as is indicated in the document. In other words, both the parties are setting up a case of consideration, being not as is indicated in Ext. A1. Here again we must note and what is stated in the document is that the consideration is paid on behalf of vendees by the father of the appellant. Whether the consideration amount belonged to the vendees or to anyone of them, what if any, was the proportion in which consideration was paid by the vendees, are all matters on which Ext. A1 document seems to be silent. In other words, in terms of the provisos 2 and 6 of Section 92 there is scope for adduction of oral evidence on the question as to whose money was paid by the appellant''s father. It is here that we have to re-appreciate the evidence on record adduced by the parties carefully.

It is only the appellant who had adduced oral evidence as PW1. His evidence conforms to his pleadings. As against the oral evidence of PW1, there is no responsible counter evidence on the side of the respondent. RW1/the respondent''s Power of Attorney, has certainly given oral evidence. Having gone through RW1''s evidence, there is no difficulty for us to accept the case of the appellant that RW1''s testimony is not responsible counter evidence to the evidence of PW1. He was just 10 years old at the time when Ext. A1 document was executed. He had no direct knowledge regarding the payment of consideration. No document showing the transmission of the consideration by the respondent to her father-in-law is produced. In other words, this is a case where the evidence of PW1 that he only paid the consideration amount through his father stands unchallenged. We are however not inclined to decree the suit and dismiss the counter claim straight away. We find some force in the submission of Sri. Saji Issac that the appellant''s father would not have shown the respondent''s name also in the document unless at least a portion of the consideration in some form was paid by his daughter-in law also. We feel that this is a case where the respondent should be given opportunity to adduce responsible counter evidence to the oral evidence adduced by PW1. Such opportunity we are inclined to give to the respondent only on terms. The result of the above discussion is therefore as follows;

i). The impugned judgment and decree are set aside. The original petition and the counter claim are remitted back to the Family Court, Thrissur for a fresh decision.

ii). The Family Court is directed to take a fresh decision on the various issues and particularly the issue as to the partibility of the property giving focus to the question as to who paid the consideration. The respondent cross objector is given liberty to adduce fresh evidence subject to the following conditions:

She pays a sum of Rs. 10,000/- as costs to the appellant within two months from today either by making direct payment against receipt or deposit the amount in the Family Court for payment to the appellant or by sending the amount over to the appellant by Registered Post in the form of an instrument encashable by the appellant. The court below need permit the Cross Objector to adduce evidence only if there is compliance with the above condition. In the event of the respondent not complying with the above condition the Cross Objector forfeits the benefits of this judgment in the matter of adduction of further evidence. In that event also if the appellant is so desirous, the court below can permit the appellant to adduce further evidence in addition to the evidence already on record on his part.

The parties are directed to enter appearance before the Family Court on 20/05/2013. The Family Court is directed to complete the entire exercise in response to this judgment as expeditiously as possible and pass revised judgment early and at any rate within six weeks of parties entering appearance. Appeal is allowed by way of remand.