IN THE HIGH COURT OF KERALA AT ERNAKULAM

Pius C. Kuriakose and Babu Mathew P. Joseph, JJ.

Muhammed Basheer 

Vs. 

P. S. Jameela

Mat. A. No. 507, 580 of 2010

Dated this the 17th Day of September, 2012

Head Note:-

Limitation Act, 1963 - Article 58 - the right to sue for declaration accrues when there is a clear and unequivocal threat to infringe the right.

Family Courts Act, 1984 - Section 7 - Benami Transactions and Prohibition Act, 1988 - Section 4 -  When an agent purchased the property for and on behalf of his principal by utilising the funds of the principal, even if the property is conveyed or transferred in the name of the agent, such an agent holds the property only as a trustee for the principal. 

Held:- In the case on hand, it is proved that the respondent was acting as an agent of the appellant for purchasing property and for constructing buildings thereon. It is also proved that the property was purchased and the buildings were constructed by the respondent by spending the money of the appellant. It is further proved that the appellant had given specific direction to the respondent to purchase the property in his name. But, the respondent purchased the property and constructed the buildings, without the consent and knowledge of the appellant and ignoring the direction, in her own name. Thus, the respondent fraudulently purchased the property and constructed the buildings in her own name using the funds of the appellant. When an agent purchased the property for and on behalf of his principal by utilising the funds of the principal, even if the property is conveyed or transferred in the name of the agent, such an agent holds the property only as a trustee for the principal. It is the property of the principal even though it stands in the name of the agent or is held by him. In such a case, the agent acted in a fiduciary capacity for and on behalf of the principal and holds the property as a trustee for the principal. S.4 of the Act does not protect such an agent. The principal, who is the real owner of the property, is entitled to a declaration of his title to that property. Here, the respondent was only an agent and she was holding the property and the buildings only as a trustee for and on behalf of the appellant. Therefore, the contention based on S.4 of the Act raised by the learned counsel for the respondent is rejected.

For Appellant:-

• C.K. Vidyasagar
• P. Chandy Joseph
• T.I. Abdul Salam

For Respondent:-

• N. Neelakandhan Namboodiri
• T.K. Ajithkumar (Valath)
• P.K. Sajeevan
• P.S. Narayana Raja

COMMON JUDGMENT

Babu Mathew P. Joseph, J.

1. The respondent in O.P. No. 83 of 2007 on the files of the Family Court, Thodupuzha is the appellant in Mat. Appeal No. 507 of 2010. The petitioner in O.P. No. 83 of 2007 is the appellant in Mat. Appeal No. 580 of 2010. O.P. No. 83 of 2007 was filed by the petitioner / husband for declaring his title and possession over the petition A schedule property and buildings thereon and restraining the respondent / wife from creating any documents touching the said properties, for declaring the title of the petitioner over the petition B schedule movable articles and restraining the respondent from removing them and for other reliefs. The Court below declared that the petitioner has title and ownership over the petition A schedule property and the buildings thereon and the respondent was restrained by a permanent prohibitory injunction from creating any documents relating to the said properties. The other reliefs claimed by the petitioner in that original petition were rejected by the Court below. Aggrieved by the declaration of title and ownership over the petition A schedule property and the buildings thereon and the injunction granted in favour of the petitioner in the original petition, the respondent / appellant / wife has preferred Mat. Appeal No. 507 of 2010. Aggrieved by the rejection of the declaration of title and injunction prayed for in respect of petition B schedule movables, the petitioner / appellant / husband has preferred Mat. Appeal No. 580 of 2010.

2. Heard the learned counsel on both the sides. Since both these appeals arise out of the same judgment and also considering the parties involved in these cases, we have heard both these appeals together and they are being disposed of by a common judgment. For the sake of convenience, the husband is referred to as the appellant and the wife is referred to as the respondent in this judgment.

3. The appellant’s case is briefly stated as follows: The appellant and the respondent are husband and wife. Their marriage was solemnized on 09.03.1996 at Vengalloor in the residential house of the respondent’s father. The appellant hails from Vakayar in Pathanamthitta District. He has worked in Saudi Arabia for nearly 10 years. The landed property described in petition A schedule is 20.750 cents in Sy. No. 1235/1/5 of Kumaramangalam Village within Thodupuzha Municipal limits. There is a two storeyed building in that property bearing Door No. 2B / XXV. There is a kitchen annexed to that building bearing Door No. 2A / XXV. The petition schedule properties and the buildings thereon belong to the appellant. But, the sale deeds in respect of the property and the municipal records in respect of the buildings thereon stand in the name of the respondent.

4. The appellant was working in Saudi Arabia from January, 1997 onwards. He was earning a good income. He used to send amounts from Saudi Arabia to the respondent. He wanted to marry a girl from a poor family. So, had given an advertisement in a paper and through the intervention of a marriage bureau at Muvattupuzha, the respondent’s proposal was processed which led to their marriage. At the time of marriage and even now, the respondent has been working as a Class IV employee under Thodupuzha Municipality. She was drawing only a meagre amount of around Rs. 2,500/- as salary at the time of marriage.

5. The respondent is the eldest among the five children born to her parents Sulaiman and lysha. Her father abandoned his wife and children when the children were in their tender years. As they had only 10 cents of property and a hut as assets, it was lysha, the mother, who had brought up the children by her hard work and toil. The respondent could secure the job of a part - time sweeper in Thodupuzha Municipality at her coming off age and it was with her income that the younger children could grow up. Two younger sisters of the respondent were already married when the appellant married the respondent

6. During the early years of marriage, the respondent persuaded the appellant to purchase a plot of land and to build a house so that he could settle down at Thodupuzha, even though his people were at Pathanamthitta side and he had no relatives at Thodupuzha or in Idukki District. As the appellant’s relationship with his family people was less than cordial, he had acceded to that suggestion. The appellant was sending money by demand draft to the account of the respondent with the State Bank of Travancore, Thodupuzha Branch and also to the NRE Account in his name with the same Bank. Utilising the amount supplied by the appellant from Saudi Arabia, 10 cents of land was purchased as per sale deed No. 2026 of 1998 at the rate of Rs. 20,000/- per cent on 03.08.1998. Another 10 3/4 cents of land adjacent to the above plot was also purchased on 28.12.1998 as per sale deed No. 3654 of 1998 paying Rs. 2,01,200/-. The entire consideration for both the purchases were provided by the appellant. The respondent had hardly any savings to spare. She had only acted as an agent for purchasing the property for the appellant. Except her meagre salary, she had absolutely no source of income. The respondent used to extent financial assistance to her brothers and sisters, utilising the funds provided by the appellant with his leave. The appellant used to leave signed blank cheques with the respondent enabling withdrawal from his account No. 2603 with the State Bank of Travancore.

7. The appellant used to come on leave from Saudi Arabia only once in two years. He used to spend lavishly for the happiness of his wife and her relations. The idea of purchasing the land was mooted over telephone and the appellant agreed to the suggestion as he thought of making Thodupuzha as his abode on his return. Since the appellant has full faith in his wife, he never knew that she had purchased the property in her name. The appellant specifically directed that the sale deed relating to the property should be taken in his name. It never occurred to the mind of the appellant that the wife would think of taking the sale deed in her name. It was only in the middle of February, 2006, the appellant realised that the sale deeds were taken in the name of the respondent. He wanted to advertise for the sale of the property and in order to gather the details of survey number etc., read through the sale deeds and he was surprised to see that the documents were in the name of his wife. The respondent explained that the sale deeds were taken in her name as that alone was convenient and expedient for securing plans, licenses and other clearances and since the appellant was bound to be away it was likely to occasion hitches and hence she had taken the sale deeds in her name. She also offered to transfer the same to the appellant’s name at any time. She suggested that it was better to wait for some more time to sell the property as the price of properties in and around Thodupuzha were showing upward trend. Hence the proposal to sell the property was deferred. The appellant had no reason to doubt the genuineness of the respondent’s explanation. The appellant who was in gulf countries from the age of 20 did not have much idea about the ground realities in the state. No pie was spent by the respondent for the purchase of the plaint schedule properties nor did she have the means to spare any portion of the sale consideration paid for the properties as is evident from the entries in the pass book in the name of the respondent relating to her account No. S.B. 2369. The entries in the pass books show the remittances of Rs. 5,70,000/- made by the petitioner by December, 1998. The respondent was only a trusted agent of the petitioner for purchasing the property for him using his funds.

8. The construction of the residential building was commenced in the second half of 1999. The foundation stone was laid by the appellant when he came on leave in July, 1999. The appellant had suggested that the cost of the house be limited within Rs.10 lakhs. He was sending money to meet the cost of construction of the building. The respondent was freely withdrawing amounts from both the accounts, in her own name and in the name of the appellant. She had made use of the blank signed cheque leaves entrusted by the petitioner for withdrawing amounts from his account.

9. The appellant came on leave in 2001 when the construction of the house was half way through. The appellant then found that the respondent had gone for a big house contrary to his suggestion. He did not demur as he was getting good salary by that time. He had sent more than Rs.15 lakhs between December, 1998 and December, 2000. The appellant was initially working as a salesman at Al - Rashid Food Company and later he was promoted as Area Supervisor in charge of a district. He was earning nearly Rs.75,000/- per month by way of salary and sales commission. Besides sending money through the above said Bank accounts, the appellant had also sent money through other sources to the respondent. During the period from 1999 to 2005 the amounts that the appellant entrusted with the respondent through the above mentioned two Bank accounts alone come to nearly Rs.20 lakhs as is evident from the entries in the pass books. By 2002-2003 the construction of the residential house was completed and costly pieces of furniture were made for the use in the house. The entire items of furniture and other household articles like fridge, T.V., etc., were purchased utilising the funds of the appellant and the respondent had no investment at all.

10. The appellant returned to home cancelling his visa in November, 2005. He had received Rs. 5 lakhs at that time from the Company. He had purchased household articles for Rs. 2 lakhs and entrusted Rs. 3 lakhs with the respondent. The respondent lent it to her brother Rashid for his business purposes. She had given Rs. 1 lakh to her sister’s husband Sri. Saidu Muhammed at Perumbavoor. Both the amounts were paid after taking permission from the appellant.

11. The appellant returned with the idea of starting some business and settling down at Thodupuzha. He had discussed this idea with the respondent. He knew that the respondent had not saved anything out of his remittances. He had suggested that the house would fetch an appreciable amount and they could sell the same and purchase a small house and commence the business with the surplus or purchase some income fetching property with rubber cultivation etc.

12. The above plans and dreams of the appellant were shattered. The respondent’s youngest sister’s husband, Sathar, resides in the adjacent plot. Under the influence of Sathar, the respondent had refused to co - operate to realise the cherished plans of the appellant. By August, 2006 prices of properties were soaring high and the appellant again suggested to go for the sale of the property. Then again the respondent and Sathar suggested that the prices would still go higher by waiting. In January, 2007 an intended purchaser had offered Rs.70 lakhs for the property and the appellant wanted to strike the bargain around that price if possible so that he could pursue his pet ideas for the future. But the respondent and Sathar did not agree and the appellant was forced to declare his decision that he was on to strike some deal for the sale. It was then that the respondent made clear her hidden agenda by saying that she was not willing to sell the property and go away from her relations as she had no children even. Soon the petitioner’s residence in the house became unhappy. The respondent was fully under the vicious and unwholesome influence of Sathar. The appellant understood that Sathar had also started construction of a house in his adjacent plot by the same time by siphoning off part of the amounts that the appellant had been sending over to the respondent. The relationship between the appellant and the respondent became strained considerably on account of the above issues. Under the influence of Sathar, the respondent flatly refused to accept the suggestions and plans of the appellant to sell the house.

13. While so, Sathar came to the appellant’s house on 20.02.2007 and had beaten up him threatening that unless he acted according to their ideas he would be done away with. The appellant had preferred a complaint to the Superintendent of Police, Idukki, touching the said incident. On 25.02.2007, Rashid, younger brother of the respondent, who is also residing nearby, came to the house of the appellant and threatened that he must quit the house or else he would be done away with. The appellant had complained to the Superintendent of Police touching this incident also. As directed by the Superintendent of Police, the Deputy Superintendent of Police had summoned the appellant and the respondent on 23.03.2007. The respondent flatly refused to accept every suggestion of the petitioner to sell the property and even proclaimed before the Deputy Superintendent of Police that the house and the plaint schedule property belonged to her and that it was all her money.

14. The respondent has no title, interest or legal possession over the petition schedule property and the buildings thereon and the furniture inside the house, even though the property and the house stand in the name of the respondent in the revenue records and in the municipal records. The title deeds relating to the property are in the custody of the appellant. The source for acquiring the property and construction of the house has been the hard earned money of the appellant. The appellant has not made a gift or other dedication of the same to the respondent. The plaint schedule properties are the only acquisition of the appellant and he does not have any other property of his own. The respondent acting as a mere agent for purchasing the property has fraudulently taken the sale deeds in her name and has been cleverly concealing the fact from the appellant for long. The secret title that the respondent had secured fraudulently can only enure to the appellant and she cannot legally claim any right upon her fraud. The appellant is in absolute possession of the plaint schedule properties. The respondent is only a licensee in the property as the appellant’s wife. The cause of action for the petition has arisen continuously from 03.08.1998, 28.12.1998 and from the middle of February, 2006. Therefore, the appellant had preferred the original petition for the reliefs prayed for in it.

15. The respondent had contested the matter by filing her objections. Her averments are briefly stated as follows: The petition is not maintainable. It is barred by limitation. The contentions raised in paragraphs 1 and 2 of the petition are admitted. The averment that the petition schedule property and the building thereon belong to the appellant is false. The allegation that the respondent’s father abandoned his family is false. All the members of the respondent’s family are well to do. The averment that 20 3/4 cents of land was purchased by the respondent by utilising the money of the appellant is false. The statement that the respondent acted as an agent of the appellant is also false. The averment that in the middle of February, 2006 the appellant came to know that the property was purchased in the name of respondent is false. The said properties were purchased by the respondent by utilising her own savings. The respondent has been employed in the municipal service from 1978 onwards and she had good savings. The purchase of property by the respondent was known to the appellant in 1998 itself as it was informed to him by her. All the allegations against the respondent’s brother and co - brother are false. The averment that the respondent has no title, interest or legal possession over the petition schedule property and building is false. The petition schedule property was purchased and the building was constructed by the respondent by utilising her personal money. The appellant also gifted some amount to her during the period when he was working in gulf and she had received it and utilised. The averment that the source of purchase of the petition schedule property and the construction of the building are the hard earned money of the appellant is false. The respondent purchased the petition schedule property in the year 1998 with the knowledge of the appellant. At that time, the appellant was well aware that the property was purchased by her in her name. The appellant compelled the respondent to sell the petition schedule property and given him some amount for starting a business. But, she refused that demand. Thereafter, the appellant filed the petition with ulterior motive. The appellant and the respondent are still living together. The documents of the scheduled property were given to the appellant by the respondent for the purpose of paying land tax. Therefore, the respondent prayed for dismissing the petition.

16. The evidence in this case consists of the oral testimony of PWs 1 to 3 and RWs 1 and 2. Exts. A1 to A13 and B1 to B5 were marked. Exts. X1 to X3 series were also marked.

17. The Court below, after considering the matter, entered the following findings: The respondent admitted that she had received Rs. 30 lakhs from the appellant from 1997 onwards. Ext. A3 pass book, in respect of the account of the respondent commenced in 1986, shows that she had only meagre deposits upto 1996. The marriage between the appellant and the respondent was on 09.03.1996. After the marriage, the respondent had good savings as the appellant started depositing good amounts in her name from 1997 onwards. She was getting deposits ranging from Rs. 10,000/- to Rs. 50,000/- per month. The respondent has no other source of income. She has no accounts in any other banks. She is admittedly a Sweeper in the Thodupuzha Municipality and was drawing a meagre amount as salary. Ext. A7 information furnished to the appellant from the Municipality shows that she was drawing a net salary of Rs. 915/- in 1985, the net salary drawn in December, 1998 was Rs. 2525/- and the net salary drawn in January, 2003 was Rs. 5112/-. That the property was purchased in the year 1998 and the construction of the building was completed in the year 2002 stand admitted. The appellant was admittedly working in Saudi Arabia from 1997 to 2005. It is evident from Exts. A3, A4, A5 series, A6 series, X1, X2 and X3 series that the appellant was sending huge amounts in every month to the accounts of the appellant as well as the respondent and the respondent was withdrawing the entire amounts from those accounts. The respondent admitted that the entire amounts shown in Ext. A3 account were sent by the appellant. Even though the respondent had withdrawn all the amounts sent by the appellant, she had asserted in her objections that she had utilised her own money received by way of salary for purchasing the property and constructing the building. Ext. A3 itself proves that she was having only meagre savings in her name. Therefore, her case in her objections that she had good source of income for purchasing the property and for constructing the building and she had utilised the same is false. The evidence shows that the building is about 2500 sq. ft. The respondent had miserably failed to prove that she had utilised her own savings and received financial support from her brother for purchasing the property and constructing the building. The respondent had no case in her objections that her brothers had helped her for purchasing the property and constructing the building. She had admitted that the appellant had sent money from the gulf country from 1997 to 2005. More than Rs.30 lakhs had been sent by the appellant to his account as well as the account of the respondent. The respondent had admitted that she had received Rs.30 lakhs from the appellant. She had also admitted that she had utilised Rs. 50,000/- for purchasing property. She had stated that Rs.14-15 lakhs had been spent for the construction of the building. The respondent has no consistent case. She had stated in her objections that she had utilised her self earned money for purchasing the property and constructing the building. But, in cross - examination she had admitted that she had received Rs.30 lakhs from the appellant and she had utilised part of it for purchasing the property and for constructing the building. Therefore, her contention that she had utilised her own money for purchasing the property and for constructing the building is utter falsehood. The case of the appellant that he never had an occasion to see Exts. A1 and A2 upto 1996 was proved. The case of the respondent that the property was purchased and the building was constructed by utilising her own funds proved to be untrue by her own evidence. Therefore, definitely, the appellant who had spent all the amounts for purchasing the property and constructing the building is the owner of the said property and the building, even though they stand in the name of the respondent. The respondent had played fraud on the appellant and secured the title over the petition schedule property and the building. Therefore, the petition for declaration of appellant’s title and possession over the property is maintainable. Being the wife, the respondent should have been loyal to her husband but, it was proved that she was untrustworthy. The case of the appellant that he came to know about the registration of property in the name of the respondent in the year 2006 is correct. The evidence shows that the respondent received the required amounts from the appellant and fraudulently purchased the property and constructed the building in her name. Therefore, the appellant, who had spent all the amounts for purchasing the property and for constructing the building, is entitled to the declaration that he is the real owner of the property and the building.

18. Learned counsel for the respondent submitted that the O.P. filed by the appellant before the Family Court was barred by limitation. He has relied on the statement made by the appellant in Paragraph 9 of his O.P. that the foundation stone, for constructing the residential building, was laid by him when he came on leave in July, 1999 and the statement made by the appellant in his proof affidavit that his wife had already got the plan for constructing the house prepared by the time he had reached here on leave in 1999. The appellant had seen that plan in 1999 when he came to know the fact that the building plan was in the name of his wife and hence, even if fraud is alleged on the part of his wife, that fraud came to his knowledge in 1999 and hence, the period of limitation for filing the O.P. commenced from that time. Therefore, according to the learned counsel, the O.P. was barred by limitation. The appellant deposed before the Court that he had seen the building plan before laying the foundation stone in 1999. But, he was not aware whether it was an approved plan or not. He also stated that he had seen that plan only on the previous day of his going abroad. There is absolutely no evidence to show that the appellant then came to know that the building plan was prepared in the name of his wife. Not even a suggestion to that effect was made to the appellant while he was in the witness box. Moreover, even if the appellant had understood that the building plan was in the name of his wife, that is not sufficient to find that the period of limitation commenced from that time because, the evidence available on record shows that there was no occasion for the appellant at that time to doubt any threat to or infringement of his right in the property by the respondent.

19. Article 58 of the Limitation Act prescribes a limitation of three years for a declaration of the nature sought for in this case. As per this Article, the period of limitation begins to run when the right to sue first accrues. The Honourable Supreme Court in Daya Singh Vs. Gurdev Singh, (2010) 2 SCC 194 held that the right to sue for declaration accrues when there is a clear and unequivocal threat to infringe the right. Therefore, the real test is not to ascertain when the factum of purchasing the property or constructing the buildings in the name of the respondent came to the knowledge of the appellant for reckoning the commencement of the period of limitation. But, such commencement of the period of limitation depends on the fact when was the clear and unequivocal threat to or infringement of the right of the appellant had taken place. The fact that the property and the buildings stand in the name of the respondent came to the knowledge of the appellant on a previous occasion ipso facto will not determine the commencement of the period of limitation from that occasion so long as the respondent has not denied the title of the appellant in the properties or she has not asserted her title in them.

20. It is the definite case of the appellant supported by evidence that a threat to infringe his right by the respondent occurred only in January, 2007 and not before that. The evidence so given by the appellant could not be discredited. We find no reason to disbelieve the evidence so given by the appellant. Therefore, even if it is true that the appellant came to know the fact that the building plan was in the name of the respondent in 1999, the period of limitation cannot commence from that time as the respondent had not denied the title of the appellant and she had not asserted her title at that time. In other words, the appellant’s right to sue for declaration did not accrue then and it accrued only in January, 2007 and not before that. There was a clear and unequivocal threat to or infringement of the right of the appellant in the properties by the respondent in January, 2007 by denying the title of the appellant and asserting her title in those properties. Therefore, the period of limitation prescribed under S.58 of the Limitation Act commenced only from that time. The appellant has filed O.P. before the Family Court on 26.03.2007. Therefore, the argument of the learned counsel for the respondent that the O.P. was not maintainable as it was filed beyond the period of limitation is rejected. It is the admitted case of the appellant that he came to know in the middle of February, 2006 that the sale deeds in respect of the properties were taken in the name of the respondent. This case of the appellant is also supported by his evidence. Even if the right to sue accrued in February, 2006, the O.P. filed by the appellant before the Court below was within the period of limitation prescribed.

21. Learned counsel for the respondent submitted that as the property and the buildings in question are held benami by the respondent, the O.P. filed by the appellant was hit by S.4 of the Benami Transactions (Prohibition) Act, 1988 (for short, the Act). The respondent had no such case in her objections filed before the Court below. It is the specific case of the appellant that the property had been purchased by the respondent and the buildings had been constructed by her as his agent spending his money. The evidence available in this case is clinching to show that the property had been purchased and the buildings had been constructed by the respondent by spending the hard earned money of the appellant. The definite case of the respondent is that the property had been purchased and the buildings had been constructed by spending her own money. But, the respondent has miserably failed to prove that the property had been purchased and the buildings had been constructed by spending her own money. On the other hand, the evidence shows that the property had been purchased and the buildings had been constructed by spending the money sent and given by the appellant. The evidence clearly shows that the respondent fraudulently purchased the property and constructed the buildings in her name without the consent or knowledge of the appellant and against his specific direction. Therefore, the argument of the learned counsel for the respondent that the O.P. filed by the appellant for declaration of his title over the property and the buildings is hit by S.4 of the Act is totally untenable.

22. The Honourable Supreme Court in P.V. Sankara Kurup Vs. Leelavathy Nambiar, AIR 1994 SC 2694 held as follows:

“..........When an agent was employed to purchase the property on behalf of his principal and does so in his own name, then, upon conveyance or transfer of the property to the agent, he stands as a trustee for the principal. The property in the hands of the agent is for the principal and the agent stands in the fiduciary capacity for the beneficial interest he had in the property as a trustee...........”

In this decision, the petitioner as an agent and power - of - attorney had purchased the property but ostensibly had his name entered in the sale certificate fraudulently and without the consent of the respondent. Again held in this decision as follows:

“........the petitioner is an agent and trustee acted in the fiduciary capacity on behalf of the respondent - plaintiff as General power - of - attorney. He held the property in cestui que trust for and on behalf of the respondent though he fraudulently got inserted his name in the sale - certificate issued by the Court without the respondent’s knowledge and consent. S.4 of the Benami Transactions (Prohibition) Act does not stand in the way for the declaration of title and possession of the plaint schedule property..........”

23. In the case on hand, it is proved that the respondent was acting as an agent of the appellant for purchasing property and for constructing buildings thereon. It is also proved that the property was purchased and the buildings were constructed by the respondent by spending the money of the appellant. It is further proved that the appellant had given specific direction to the respondent to purchase the property in his name. But, the respondent purchased the property and constructed the buildings, without the consent and knowledge of the appellant and ignoring the direction, in her own name. Thus, the respondent fraudulently purchased the property and constructed the buildings in her own name using the funds of the appellant. When an agent purchased the property for and on behalf of his principal by utilising the funds of the principal, even if the property is conveyed or transferred in the name of the agent, such an agent holds the property only as a trustee for the principal. It is the property of the principal even though it stands in the name of the agent or is held by him. In such a case, the agent acted in a fiduciary capacity for and on behalf of the principal and holds the property as a trustee for the principal. S.4 of the Act does not protect such an agent. The principal, who is the real owner of the property, is entitled to a declaration of his title to that property. Here, the respondent was only an agent and she was holding the property and the buildings only as a trustee for and on behalf of the appellant. Therefore, the contention based on S.4 of the Act raised by the learned counsel for the respondent is rejected.

24. The respondent made an attempt to prove that Rs.10 lakhs given by the appellant was given to his family by herself and through her brothers. She had also claimed that her brothers had given substantial amounts for purchasing the property. RW 2, her brother, was examined for proving these facts. But, the attempt so made by the respondent did not succeed. The inconsistent and contradictory evidence tendered by the respondent and RW 2 does not substantiate these facts claimed by the respondent. Their evidence is not believable. The evidence tendered by the appellant disproves the claims so made by the respondent. In fact, the evidence available on record would go to show that RW 2, an autorickshaw driver, had purchased the autorickshaw with the funds made available by the appellant and he (RW 2) was not in a position to give any financial assistance to his sister. Moreover, the respondent has not pleaded such claims in her written objections. Therefore, such claims are also liable to be rejected.

25. The appellant has specifically pleaded in his petition that the movable articles in petition B schedule were purchased by him by spending his own money and hence, prayed for declaring his title over those articles and injunction. But, the Court below has not considered that prayer of the appellant and rejected the same without assigning any reason. Therefore, the judgment rendered by the Court below is defective in that respect. The Court below ought to have considered that prayer made by the appellant in the light of the pleadings and the evidence on record. But, that was not done. Therefore, the judgment of the Court below to the extent it rejects the prayer of the appellant for declaring his title over the petition B schedule movable articles and for restraining the respondent from removing them from the petition schedule buildings is liable to be set aside. That matter has to be considered afresh by the Court below in the light of the pleadings and evidence already on record. Therefore, Mat. Appeal No. 580 of 2010 is liable to be allowed to that extent.

26. Learned counsel on both the sides have advanced detailed arguments before us. We have been taken through the evidence. We have also carefully gone through the judgment rendered by the Court below. We have re - appraised the evidence on record. The Court below entered the findings and arrived at the conclusions in respect of title to the petition A schedule property and the buildings thereon on the basis of sound reasoning supported by cogent evidence. We find no reason to interfere with the declaration that the appellant has title and ownership over the petition A schedule property and the buildings thereon and the permanent prohibitory injunction granted in his favour in the impugned judgment. Therefore, Mat. Appeal No. 507 of 2010 is liable to be dismissed.

27. We may record here that the learned counsel for the appellant made an offer of Rs.10 lakhs to be given to the respondent provided the entire properties and the buildings including the movable articles scheduled in O.P. No. 83 of 2007 are vacated by her within a stipulated period. He also made clear that such an offer was made not because of the entitlement of the respondent to such an amount but for the sake of peace and quietus. Learned counsel for the respondent has rejected that offer as unacceptable.

In the result, Mat. Appeal No. 507 of 2010 is dismissed. The judgment of the Court below to the extent it rejects the prayer of the appellant for declaring his title over the petition B schedule movable articles and for restraining the respondent from removing them from the petition schedule buildings is set aside. The prayer of the appellant for declaring his title over the petition B schedule movable articles and for restraining the respondent from removing them from the petition schedule buildings made in O.P. No. 83 of 2007 on the files of the Family Court, Thodupuzha, is remanded to that Court with a direction to consider the same afresh in the light of the pleadings and evidence already on record. Mat. Appeal No. 580 of 2010 is thus disposed of. In the circumstances, the parties are directed to suffer their respective costs. The learned Judge of the Family Court is also directed, notwithstanding this judgment, to explore the possibilities of arriving at a settlement of disputes between the appellant and the respondent.