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IN

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

and

THE HONOURABLE MR. JUSTICE GOPINATH P.

THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942

Mat.Appeal.No.358 OF 2019

AGAINST THE ORDER IN OP 2199/2017 DATED 11-01-2019 OF FAMILY

COURT,THRISSUR

APPELLANT/2nd PETITIONER:

SHEELA.K.K.,
AGED 52 YEARS
D/O. K.A. KUMARAN, KURUMBOOR (H) 3721/A, 10TH CROSS
13B MAIN, H.A.L., II STAGE, BANGLORE - 560 008

BY ADV. SRI.S.K.BALACHANDRAN

RESPONDENT/RESPONDENT:

N.G.SURESH,
AGED 58 YEARS
S/O. N.S.GANGADHARAN, NANDIYIL HOUSE, SNEHA
KARIYAM, SREEKARYAM P.O., THIRUVANANTHAPURAM, NOW
TAKING REST AT KARUNA SAI, VELLANAD P.O.,
THIRUVANANTHAPURAM - 695 043

THIS MATRIMONIAL APPEAL HAVING COME UP FOR ORDERS ON

16.09.2020, THE COURT ON 24.09.2020 PASSED THE FOLLOWING:
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“C.R.”

A.M. SHAFFIQUE, SUNIL THOMAS & GOPINATH P., JJ.

====================================
Mat.Appeal No.358 of 2019
====================
Dated this, the 24th day of September, 2020
Shaffique, J.

By reference order dated 13/11/2019, the above matter has

been referred for the consideration by the Full Bench. The

question involved is whether trust created by a wife entrusting

her property to her husband gets extinguished after the

dissolution of marriage and whether she can initiate proceedings

invoking section 10 of the Limitation Act, 1963, without any

limitation of time. Reference is also made to the judgment of

another Division Bench in Bindu K.P. v. Surendran C.K. [2018

(2) KHC 1] wherein it was held that the claim of the wife or ex-

wife for a dowry is not barred by any length of time.

2. In Bindu K.P's case (supra), this Court held at

paragraph 12 as under:-

“12.There is another reason to state that the family court

did go wrong. Sec.6(1) of the Dowry Prohibition Act
specifically states that pending transfer of the dowry to the
woman, the person holding it shall hold it in trust for the
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benefit of the woman. Thus, a statutory trust is created

under Sec.6(1) of the Dowry Prohibition Act. In view of the
creation of the statutory trust, Sec.10 of the Limitation Act
applies. Therefore the claim of the wife or ex-wife for her
dowry is not barred by any length of time. Even if it is
accepted for the sake of argument that the wife should
return the 'tali' or any other property presented to her by
her husband, no such statutory trust is created. Therefore
Sec.10 of the Limitation Act has no application. The
marriage was in 1996. The suit came in 2004. Therefore
the claim, if at all maintainable, was hopelessly barred by
the law of limitation."
3. The learned counsel Sri.S.K.Balachandran appearing on

behalf of the appellant has placed before us the following

judgments:-

(i) Swapna v. Thankavelu (1990 (2) KLT 604):- In the

above case, a learned Single Judge of this Court held that when

valuable articles are entrusted by the wife to the husband for

safe custody, the husband remains in the position as a trustee

who is bound to account to the wife all her properties at any time

when she demands. The aforesaid judgment was delivered

following the Apex Court judgment in Pratibha Rani v.

Surajkumar and another (AIR 1985 SC 628). It was further held

that if the husband is a trustee, the wife is entitled to follow the

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property in the possession of the trustee, and S.10 of the Indian

Limitation Act would apply.

(ii) Chacko v. Annamma (1993 (1) KLT 675):- In this

case, the Division Bench of this Court approved Swapna's case

(supra). In the above case, on a detailed analysis of the relevant

provisions including S.10 of the Limitation Act and the provisions

of the Trusts Act, overruling an earlier judgment in Annamma v.

Thressiamma (AIR 1972 Ker. 170), it was held that there is a

creation of trust in respect of stridhanam property and therefore

S.10 applies. Paragraphs 28 to 30 are relevant, which reads as

under:-

“28. It is profitable to note that the trusts are divided into

two broad classifications, viz., simple trust and special trust,
according to the nature of the duty imposed on the trustee.
A simple trust is a trust in which the trustee is a mere
repository of the trust property, with no active duties to
perform. Such a trustee is called a passive or, more
frequently, a bare trustee see Underbill’s Law of Trusts and
Trustees. In a case where A devised property to B in trust for
C there is a simple trust, as the only duty which B has to
perform is to convey the legal estate to C if so requested.
Here B is a passive or bare trustee. This trust is also an
express trust. We are of opinion that in the case of payment
by a father of a girl to the prospective father in law or the
prospective husband is a simple trust. The only duty of the
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husband to convey the legal estate of the property to the

girl. Though it is a simple trust, it is an express trust and we
are of opinion that the specific purpose denoted in S.10 of
the Limitation Act can be understood in a meaningful way
that the only duty of the husband or the father in law is to
convey the legal estate of the trust property to the
beneficiary, the girl (wife), if so requested. So the
conditionality of the specific purpose specified in the Act is
satisfied. It cannot be said that the confluent of
circumstances would negative the idea that the trust created
in the matter of payment of stridhanam is not in an express
trust, but only an implied or resulting trust.
29. It is difficult for us to agree the observations contained in
AIR 1972 Ker. 170 that S. 10 of the Limitation Act is not
applicable in the case of recovery of the amount paid as
stridhanam
30. In 1990 (2) KLT 604 (Swapna v. Thankavelu), Justice
Krishnamoorthy, following the decisions reported in AIR 1985
SC 628 (Pratibha Rani v. Suraj kumar and another) and 1989
(1) KLT 636 (Maniyamma v. Abdul Rassak), held that the
husband is in the position of a trustee so far as the
ornaments and utensils entrusted to him by the wife are
concerned and under S.10 of the Indian Limitation Act there
shall not be any limitation for such a suit by the wife against
husband. Of course, His Lordship Justice Krishnamoorthy did
not discuss the question whether an express trust is
necessary to attract S.10 of the Limitation Act. But the
learned Judge has followed AIR 1985 SC 628 and 1989 (1)
KLT 636. In AIR 1985 SC 628, the learned Judges were
considering a question under Ss. 405 & 406 of the Indian
Penal Code in regard to stridhanam property of a wife. The
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court found that all the ingredients of the offences under

S.405 of the Indian Penal Code have been proved in the
case. In the majority judgment, Fazal Ali, J. speaking for
himself and Sabyasachi Mukherji, J. observed that it cannot
be said that upon a woman entering the matrimonial home
the ownership of stridhanam property becomes joint with
her husband or his relations. Even if the stridhanam property
of a married woman, is placed in the custody of her husband
or in laws they would be deemed to be trustees and bound
to return the same if and when demanded by her. The
Supreme Court overruled the decision reported in AIR 1982
Punjab & Haryana 372 (Vinod Kumar v. State of Punjab &
Haryana and another). The above decision, of course, has
laid down very clearly that the stridhanam property in the
hands of the husband or in laws, should be deemed to be
trust property in the hands of the husband or in laws.
Whether it is an express trust or not was not a question
which came up for consideration before the Supreme Court
in this case."
(iii) In Belcita Vincent Gomez v. Vincent Gomez (2013

(4) KLT 890), yet another Division Bench of this Court followed

the law laid down in Chacko's case (supra).

(iv) In Bhatacharjee v. Sarathi Choudhury [2015 (4) KLT

999 (SC)], while considering the impact of S.12 of the Protection

of Women from Domestic Violence Act, 2005, the Apex Court held

that as long as the status of the aggrieved person remains, and

the stridhanam remains in the custody of the husband, the wife

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can put forth a claim u/s 12 of the Act.

4. The question involved in the above reference is that,

when there is a change in circumstances between the spouses,

especially when there is a dissolution of marriage and substantial

time had elapsed, whether the trust created between them would

be extinguished.

5. S.10 of the Limitation Act reads as under:

“10. Suits against trustees and their representatives.—

Notwithstanding anything contained in the foregoing
provisions of this Act, no suit against a person in whom
property has become vested in trust for any specific
purpose, or against his legal representatives or assigns (not
being assigns for valuable consideration), for the purpose of
following in his or their hands such property, or the proceeds
thereof, or for an account of such property or proceeds, shall
be barred by any length of time.
Explanation.—For the purposes of this section any property
comprised in a Hindu, Muslim or Buddhist religious or
charitable endowment shall be deemed to be property
vested in trust for a specific purpose and the manager of the
property shall be deemed to be the trustee thereof. ”
6. It is settled law and as laid down in the judgments

aforesaid, when the wife entrusts with the husband any property

belonging to her, a trust is created and the husband is bound to

return the same to his wife. If the same is not returned, the wife
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has a right to demand the same by filing a suit or as in the

present case, file an application before the Family Court or take

other necessary steps under the relevant statutes in force. When

S.10 of the Limitation Act indicates that there is no limitation for

initiating any such action, in the absence of any other statute

providing for a limitation, the trustee cannot take a contention

that he shall not return the trust property on account of any

period of limitation. The question posed is, when the relationship

between the parties gets deranged and results in divorce,

whether the trust gets extinguished and the divorced wife would

be entitled to invoke S.10 of the Limitation Act and file a suit at

her will and pleasure at any point in time. In such an event, the

questions to be considered are (i) whether a trust had been

created at any point of time, (ii) if a trust has been created and

the husband remains in the position of a trustee, whether it gets

extinguished on the dissolution of marriage or under any other

circumstances.

7. U/s 77 of the Indian Trusts Act, 1882, a trust gets

extinguished only under certain circumstances. S.77 reads as

under:
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“77.Trust how extinguished.-- A trust is extinguished--

(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
(c) when the fulfilment of its purpose becomes impossible by
destruction of the trust-property or otherwise; or
(d) when the trust, being revocable, is expressly revoked."
8. Therefore, unless any of the eventualities as

mentioned u/s 77 takes place, which of course is a question of

fact to be decided on a case to case basis and once a trust is

created, it continues to operate, even though there is a

dissolution of marriage. However, in an instance where there is

an agreement between the parties settling the obligations arising

from the trust, it gets fulfilled in terms of S.77(a). We do not think

that we should narrate various circumstances which may come

u/s 77 of the Indian Trusts Act as it has to be decided on a case to

case basis. Therefore, a trust does not get extinguished unless

any such eventuality in terms of S.77 arises.

9. As per S.6 of the Dowry Prohibition Act, 1961, when a

statutory trust is created in respect of dowry, the principle

aforestated shall apply.

10. In the case of ornaments which are given in the form of

dowry, definitely, a statutory trust is created. Even otherwise, if

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the ornaments owned by the wife do not form part of the dowry

and if there is an entrustment of gold ornaments by the wife to

the husband or his parents, a trust gets created, in which event,

the trustee or trustees, as the case may be, are liable to return

the same and there is no limitation for claiming the same by the

wife/divorced wife.

In the light of the aforesaid discussion, we are in full

agreement with the law laid down in Chacko's case (supra) and

we uphold the view expressed in Bindu K.P.'s case (supra). The

Registry shall place the appeal for hearing before the appropriate

court.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

SUNIL THOMAS

JUDGE

Sd/-

GOPINATH P.

Rp True Copy JUDGE

PS to Judge