A. Hariprasad, J.@mdashChallenging the order passed by the learned Judge, Family Court, Kottayam at Ettumanoor in a petition filed for declaration, injunction and recovery of money, the appellant/petitioner has come up in appeal. It is to be noted here that the respondent, though served, did not appear before the trial court. Grievance of the appellant is that in spite of the respondent did not contest the case, the learned trial Judge dismissed the petition in disregard to the evidence adduced by the appellant/petitioner and the legal principles.
2. We heard Advocate Shri Surin George Ipe, learned counsel appearing for the appellant. We carefully perused the records in the case.
3. Learned trial Judge found that there is no evidence adduced in the case to establish the case pleaded by the appellant. It is further observed that the affidavit filed in lieu of the examination-in-chief is highly insufficient to prove the claim raised in the petition. Learned counsel for the appellant submitted that this defect noted by the learned trial Judge could be rectified, if the appellant is afforded an opportunity to adduce sufficient evidence by way of a remand of the case. However, we are of the view for the following reasons that even a remand of the case will not salvage the appellant as the legal provisions applicable to the facts of the case are against the appellant.
4. The prayers made in the original petition are for return of money allegedly appropriated by the respondent and also for a declaration that the properties covered by Exts. A2 and A3 deeds were purchased by the appellant''s father in the name of the respondent for the beneficial enjoyment of the appellant. It is further contended that the consideration for the purchases was paid by the father of the appellant and the respondent was only a trustee for the welfare of the appellant. This contention is squarely hit by Section 3 of the Benami Transactions (Prohibition) Act, 1988. We also take note of the provisions in Section 7 of the said Act wherein Section 82 of the Indian Trusts Act has been specifically repealed. The contention now raised by the appellant cannot be countenanced in the light of Section 4 of the Benami Transactions (Prohibition) Act, 1988. We have gone through the proof affidavit dated 24.05.2004 filed by the appellant before the court below to prove her contentions. As observed by the learned trial Judge, it is completely bereft of details to substantiate the claim made in the petition. As we have already seen that the claim made in the petition is not legally sustainable, we are of the view that a remand of the matter to adduce further evidence will not salvage the situation.
In the result, the appeal is dismissed as there is no merit either in law or on facts warranting an interference.
