JUDGMENT : SHAFFIQUE, J. 1. MA No.901/09 has been filed by the respondent in OP No.1591/2006 of the Family Court, Ernakulam. The OP was filed by the respondent/husband seeking for a declaration that he is the rightful owner in respect of the petition-schedule property and he is entitled to hold and possess the same. The Court below decreed the suit declaring that the petitioner/husband is the absolute owner in respect of property covered by document No.4794/2000 of the Sub Registry Office, Kochi and he is entitled to retain possession of the same. 2. The short facts of the case as reflected in the pleadings are as under and the parties are described as shown in the Original Petition unless otherwise stated. 3. The petitioner and the respondent got married on 17/9/1989 as per Christian religious rites and ceremonies. Two children were born in the wedlock. The contention urged by the petitioner was that he was employed abroad since 1984 until 2003. After the marriage, he executed a general power-of-attorney in favour of her and she was managing all his assets and properties. Even the NRE account maintained by him was operated by the respondent. More than Rs.40 lakhs was transacted by the respondent from his NRE account during the period 1996-2004. On 22/9/2000, an extent of 10 cents of land comprised in Sy.No.1151/7 of Palluruthy village was purchased as per document No.4794/2000 of SRO, Kochi. The entire consideration to purchase the property was expended by the petitioner at the relevant time. The property was however purchased in the name of the respondent. Respondent was treated as the custodian of the property. He further contended that the respondent with the help of her brother had misappropriated his money and property. On account of matrimonial issues, they are living separately and therefore he sought for a declaration that he is the rightful owner of the property. 4. Respondent denied the allegations. She denied the fact that she had transacted more than Rs.40 lakhs during 1996-2004. She also denied the fact that the property was purchased as per document No.4794/2000 with the funds of the petitioner. She stated that she was residing separately on account of the ill-treatment by the petitioner. 5. The above case was tried along with OP No.541/2006 and OP No.1138/2006. She also denied the fact that the property was purchased as per document No.4794/2000 with the funds of the petitioner. She stated that she was residing separately on account of the ill-treatment by the petitioner. 5. The above case was tried along with OP No.541/2006 and OP No.1138/2006. OP No.541/2006 was filed by the respondent and her minor children for return of money and gold ornaments and also for a direction to restrain the petitioner from disposing of the petition-schedule property (another item) till payment of amounts due to her. OP No.1138/2006 was filed by the petitioner himself seeking custody of the minor children. 6. Common evidence was taken in the case. On the respondent's side PW1 to PW3 were examined and petitioner examined himself as RW1. Exts.A1 to A4 were produced and marked by the respondent and Exts.B1 to B22 documents were relied upon by the petitioner. 7. The Family Court found that there is evidence to show that money was withdrawn from the NRE account of the petitioner at the time of purchasing the property covered by document no.4794/2000. That apart, respondent took up a contention that the property was purchased by utilizing her own funds, but there is no evidence to substantiate the same. Therefore, it was declared that the title over the property rests with the petitioner. 8. Mat.Appeal No.1294/15 has been filed challenging an order passed by the Family Court refusing to take prosecution proceedings against the petitioner in an application filed under O.XXXIX Rule 2A of the Code of Civil Procedure. Petitioners in that case are the wife and children. They filed IA Nos.4217/2007 and 4218/2007 in OP No.541/2016 inter alia contending that when a temporary injunction was in force as per order in IA No.1645/2006 in the said OP restraining the respondent/husband from alienating, transferring or otherwise encumbering the property, in violation of the said order, he had transferred the property in favour of Sri.K.J.Sebastian, the 2nd respondent herein. The Family Court having observed that the property was transferred while the order was in force did not think it necessary to take further action in the matter on a finding that the evidence adduced in the case indicates that the first petitioner/wife was squandering the entire savings of the first respondent/husband. The Family Court having observed that the property was transferred while the order was in force did not think it necessary to take further action in the matter on a finding that the evidence adduced in the case indicates that the first petitioner/wife was squandering the entire savings of the first respondent/husband. It was further found that there was absence of good faith and therefore there is no reason to take any action against the respondent in the said application. 9. Heard the learned counsel appearing on either side. 10. Ext.B22 is the document under which the petition-schedule property was purchased in the name of the respondent. The extent of property is 10 cents in Sy.No.1151/7. The consideration covered by the document was Rs.1,15,000/-. Petitioner contended that he was abroad during the relevant time and money was being sent to his account in Federal Bank, Palluruthy. The purchase price for the aforesaid property was also sent by him through his bank account. The original title deed is with him. He had produced the same before the Court in MC No.117/2006 on 18/9/2006. The property is now in his possession and enjoyment. He further submitted that the property was purchased in the name of the respondent, since at the relevant time she was acting on his behalf in all matters relating to property for the benefit of the petitioner. He reiterated the fact that petition-schedule property was purchased for his benefit and with the money sent by him. The respondent had denied the aforesaid contention. According to her, the consideration was paid with her own funds and therefore she is the title-holder of the property. 11. In so far as the property was acquired in the year 2000, the provisions of Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as 'Benami Act') assumes relevance. Section 3(1) as it stood prohibited benami transactions and sub section (2) which was later deleted by Act No.43 of 2016 w.e.f. 1.11.2016 provided that nothing in subsection (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. Section 4 of the said Act imposed a prohibition on the right to recover the property which was held benami. Section 4 of the said Act imposed a prohibition on the right to recover the property which was held benami. However sub section (3) as it then was carved out an exception as per clause (b) exempting transactions where the person in whose name the property is held is a trustee; or other person standing in a fiduciary capacity; and the property is held for the benefit of another person, for whom he is a trustee, or towards whom he stands in such capacity. Sub Section (3) had been omitted from the statute book as per Act No.43/2016 w.e.f. 1.11.2016. 12. However, this case will have to be decided taking into account the principles and the statutory provision which existed prior to Act 43/2016. In other words, unless the petitioner is able to prove that the property is held by his wife as a trustee, he cannot seek for recovery of the property. Even as per section 3(2) as it then was, there is a presumption that the property purchased by any person in the name of his wife is purchased for her benefit, 13. Of course, in this case, the respondent had taken up a contention that the entire amount for purchasing the property had been expended by her. The Family Court on the available materials found that there is no such proof. That apart, petitioner had proved by producing his bank account statements especially Exts.B16 and B17 that substantial amounts were being sent by him and withdrawn by his wife over a period of time. 14. PW1 while examined before Court reiterated her contention that the petition-schedule property was purchased for an amount of Rs.1,15,000/-and she had purchased it with the help of her parents. She denied that the respondent had provided any funds for the same. However, during cross-examination, she deposed that she was doing money lending business for about 5 years while her husband was abroad as per instructions from her husband. Exts.B1, B3 and B4 are documents produced by the respondents which evidence the handling of money by the petitioner. Apparently these documents indicate that she was dealing with substantial amounts during the period 2000, 2001 and 2002. She had further admitted that the document relating to the petition-schedule property is with her husband. However, she denied the fact that Rs.1 lakh was taken from her husband's account five days before the property was purchased. Apparently these documents indicate that she was dealing with substantial amounts during the period 2000, 2001 and 2002. She had further admitted that the document relating to the petition-schedule property is with her husband. However, she denied the fact that Rs.1 lakh was taken from her husband's account five days before the property was purchased. She however stated that it was her father who purchased the property for her. She was confronted with her earlier statement in MC No.117/2006 which is marked as Ext.B2 wherein she had stated that her husband had given the money for various transactions dealt by her. Therefore, PW1 in the earlier deposition which was marked as Ext.B2 has admitted that in all the transactions which she was doing as a money lender, the funds were provided by her husband. 15. Petitioner's father has given evidence as PW2. He had only given evidence relating to the claim for money and ornaments made by the petitioner in OP No.541/2006. 16. In the affidavit filed by the respondent in lieu of chief examination, he reiterated the fact that the amount required for purchasing the petition-schedule property was his money. At the relevant time, she was acting as his Power-of-Attorney holder and was handling all his activities on his behalf and for the benefit of his family. He also stated that the money was sent by him on 22/9/2000 for the benefit of the family. Ext.B17 is an extract from the statement of account of Federal Bank, Palluruthy branch in the name of the respondent relating to the accounts from 1/1/1993 to 31/3/2004. Apparently documents show that several amounts were withdrawn by the petitioner. It also indicates that an amount of Rs.1 lakh is shown as a deposit on 16/9/2000, which is also shown as a withdrawal. That apart, though the respondent has a specific case that the petition-schedule property was purchased with his funds and for the benefit of himself and for the family, there is absolutely no cross-examination from the side of the petitioner. 17. From the aforesaid factual circumstances, it is rather clear that the money sent by the respondent from abroad was being handled by his wife, the petitioner, and she was also involved in money lending business. This probabilises his contention that the property was purchased with his funds. 17. From the aforesaid factual circumstances, it is rather clear that the money sent by the respondent from abroad was being handled by his wife, the petitioner, and she was also involved in money lending business. This probabilises his contention that the property was purchased with his funds. That apart, there is no evidence to prove that the respondent's parents had given her any amount for purchasing the property as pleaded by her. 18. Therefore, the contention of the respondent/wife that the property was purchased by utilizing her funds is belied and there is evidence to prove that the petitioner was providing sufficient funds and the property was purchased by the petitioner with those funds. 19. But still the question to be considered is whether respondent was acting as a trustee and holding the property for his benefit. Of course, in his pleading, he had specifically stated that she was holding the property for his benefit which itself amounts to a trust. He had also stated that since he was abroad, the entire transaction was being done by his wife and it is for his benefit that the property was purchased in the name of his wife. He also has a case that the title-deed of the property is still with him which was produced before Court in another case. 20. In the case on hand, petitioner contended that the property was purchased with her own funds, and as the evidence indicates otherwise, it has to be presumed that the intention of the respondent was to purchase the property for his own benefit and not for the benefit of his wife. It is admitted that he had entrusted with her all his money and even a Power-of-Attorney was executed in her favour. She was managing his money all along. He knew that the property was purchased in her name, but there is no evidence to prove that the property was purchased for the benefit of his wife. That apart, the title deed of the property was retained by the respondent. All these facts clearly indicate that she was only a trustee in the management of the property of the respondent/husband. The respondent also has a case that he was in possession of the property and the evidence indicates that the said contention is true and correct. That apart, the title deed of the property was retained by the respondent. All these facts clearly indicate that she was only a trustee in the management of the property of the respondent/husband. The respondent also has a case that he was in possession of the property and the evidence indicates that the said contention is true and correct. PW1 in her deposition took up a contention that the petition-schedule property was a water-logged area and there is no income, whereas, RW1 in his deposition states that there are coconut trees in the said property and he is taking the improvements from the same. PW1 while being cross-examined, when she was asked whether the petition-schedule property was purchased at a time while she was looking after the family affairs on behalf of her husband, her answer was that the property was purchased in the year 2000. Apparently, during the time when the property was purchased, there was no dispute between the couple and she was looking after all the affairs of the family and money was being sent by her husband, which was utilized for the benefit of the family and also for business purposes. 21. There is no doubt about the proposition that the presumption u/s 3(2) of the Benami Act is a rebuttable presumption. In the case on hand, the following factors clearly proves that the presumption stands rebutted:- (i) The contention of the petitioner that the petition-schedule property was purchased by the funds given by her father is not proved. (ii) Evidence indicates that respondent was sending money for all purposes of the family including the business of money lending and the petitioner was handling all such transactions. (iii) That the respondent's evidence that the property was purchased with his funds had not been controverted in cross-examination. 22. In G.Mahalingappa v. G.M.Savitha [ (2005) 6 SCC 441 ], the Apex Court held that, though a property is purchased in the name of an unmarried daughter for her benefit, that would only be a presumption, but the presumption can be rebutted by the person who is alleging to be the real owner of the property by production of evidence or other materials before the Court. 23. 23. It is settled law that a trust is created by a confidence reposed in respect of the property with the avowed object that the property is to be held by the other for the benefit of another. The Apex Court in W.O. Holdsworth v. State of U.P. ( AIR 1957 SC 887 ) had occasion to consider the difference between the expressions “for the benefit of” and “on behalf of'. In K.Bashar v. Thannu Lal ( AIR 1957 All 553 ), a Division Bench of Allahabad High Court had occasion to hold that a trustee is the person to whom the property is transferred in confidence that he would allow the usufruct of the property to be reaped by another according to the directions in the instrument of trust, or the proposed holding of the property for the benefit of another as bound by law. In W.O Holdsworth (supra), the Supreme Court held that the position of a trustee is similar to that of an owner. He is usually the legal owner of the trust property or the trust estate and holds it for the benefit of cestui que trust. In M.V.Ramasubbiah v. M.Narasimhachari ( AIR 1979 SC 671 ), while considering the provision of S.51 of the Indian Trusts Act, 1882, it was held that a trustee is in a fiduciary position and he is not entitled to make profit for himself or for a member of his family. It was further observed that when two persons stand in such a relation that while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence enables the other in whom the confidence is reposed to exert influence or dominion over the confiding party to his own benefit and advantage at the expense of the person trusting him, the relation existing between them is of fiduciary character and it means and includes various kinds of relations in which one holds the position of influence and dominion over the other. 24. The Apex Court in Marcel Martins v. M. Printer [ (2012) 5 SCC 342 ] had occasion to consider as to what would amount to fiduciary capacity which appears in the Benami Act. 24. The Apex Court in Marcel Martins v. M. Printer [ (2012) 5 SCC 342 ] had occasion to consider as to what would amount to fiduciary capacity which appears in the Benami Act. The Apex Court found favour with the view expressed in CBSE v. Aditya Bandopadhyay [ (2011) 8 SCC 497 ] and held that though the expression “fiduciary capacity” may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. It is further held that the expression “fiduciary capacity” is of wider import as it extends to all such situations and place the parties in positions that are founded on confidence and trust on the one part and good faith on the other. It is further held that in determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the Court will have to take into consideration the factual context in which the question arises. In Muhammed Basheer v. Jameela ( 2013 (1) KLT 1 ) a Division Bench of this Court while considering a matrimonial issue held that when an 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 Benami Act does not protect such an agent and the principal who is the real owner of the property is entitled to a declaration for title to the property. Similarly in Belcita Vincent Gomez v. Vincent Gomez ( 2013 (4) KLT 890 ), another Division Bench had occasion to hold that when a christian husband is liable to maintain his wife and children, and to fulfil that obligation, he had entrusted his entire earnings to his wife as a trustee, the utilization of the earnings of the husband by the wife is for the benefit of the family and is in a fiduciary capacity. In this case, as we have already narrated, we have no hesitation to hold that the petitioner/wife had purchased the property in her name on behalf of her husband and was holding it for the benefit of her husband in trust, in a fiduciary character. 25. In this case, as we have already narrated, we have no hesitation to hold that the petitioner/wife had purchased the property in her name on behalf of her husband and was holding it for the benefit of her husband in trust, in a fiduciary character. 25. In the case on hand, it is quite apparent that when the respondent was employed abroad, and he was sending all his money to his wife for their own day-to-day needs as well as for business purposes and when the wife admits that she was even given a Power-of-Attorney to carry on various activities as attorned to her, he does it in full confidence that his wife will take care of all such matters on his behalf which itself indicates a fiduciary relationship between the husband and wife and in this case, the wife had the control and dominion over the money entrusted to her. In the light of the aforesaid factual situation, we are of the view that the Family Court did not commit any error in decreeing the suit. 26. Yet another question that requires to be considered is when the document is in the name of the respondent, whether a mere declaration would be enough? The relief sought for by the petitioner is as under:- “It is therefore, most humbly prayed that this Honourable Court may be pleased to pass orders declaring the petitioner as the true and absolute owner of the petition schedule property with all the rights to hold, possess and transfer according to his will and pleasure in the interest of justice.” 27. Section 34 of the Specific Relief Act, 1963 reads thus:- “34. Discretion of Courts as to declaration of status or right-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do.” 28. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do.” 28. Of course, the proviso to S.34 indicates that no declaration shall be made by the Court in favour of the plaintiff if the plaintiff is able to seek further relief than a mere declaration of title and omits to do so. 29. Apparently, this is a case in which the property was purchased in the name of the respondent/wife. He had sought for a declaration that he is the true and absolute owner of the petition-schedule property. He had also sought for the right to hold, possess and transfer the property according to his will and trust. Therefore, the petition cannot be thrown out for the reason that the petitioner had not sought for any further relief. The word “further relief” mentioned in the proviso to S.34 should be a relief in relation to the legal character or right to any property to which the plaintiff is entitled and whose title to such character or right, the defendant denies or his interest in denial and it must be the relief appropriate to and consequent on the right to title which is asserted. The plaintiff's ability to seek further relief than a mere declaration of title depends upon the circumstance of each case. In this case, as against the defendant, no other relief could be claimed other than a declaration. The proviso clearly indicates that the 'further relief' should be against the party to the lis and not against any other person. In the above factual background of the case, it is rather clear that the petition of the plaintiff cannot be thrown out on the ground that further relief had not been sought for as the relief sought for by the petitioner is sufficient enough to grant a decree. 30. Learned counsel for the appellant had relied upon the judgments in Muni Lal v. The Oriental Fire and General Insurance Company Ltd. and Another [ (1996) 1 SCC 90 ]. That was a case in which a trucker sought for a declaration that he is entitled to the payment for the loss of truck. He did not however seek for payment of the quantified amount. That was a case in which a trucker sought for a declaration that he is entitled to the payment for the loss of truck. He did not however seek for payment of the quantified amount. When he sought for permission to amend the plaint, it was held that the amendment cannot be permitted as the suit was barred by limitation during the pendency of the proceeding before the appellate Court. While deciding so, it was observed that the Court was justified in refusing to grant a declaratory relief without seeking for a consequential direction for payment of the quantified amount. This judgment will not apply to the facts of the case. 31. She also placed reliance on another judgment in Venkataraja and Others v. Vidyane Doureradjaperumal (D) Thr. Lrs. And Others [ (2014) 14 SCC 502 ]. This is also a judgment which indicates that a mere declaratory decree remains non-executable. This was a case in which Apex Court had occasion to consider the scope of S.34 of the Specific Relief Act. In the aforesaid case, it was found that respondents 3 and 10 were in possession of the suit property. But still the plaintiffs did not make any attempt to amend the plaint and therefore a mere declaration was not in the nature of a relief which could be granted in the matter. This case also cannot be applied to the facts of the case. 32. In the light of the aforesaid discussion, we are of the view that the Family Court had not committed any error in decreeing the petition and granting the declaration as sought for. 33. As far as the appeal against the order refusing to take action for violation of injunction is concerned, learned counsel for the appellant placed reliance upon a judgment in T.M.Bagasarwalla v. H.R.Industries [ (1997) 3 SCC 443 ], wherein the Apex Court held that a person who disobeys an interim injunction made by a Civil Court has to be punished under O.XXXIX R.2A even if it is ultimately found that the Civil Court had no jurisdiction to entertain and try the suit. In Samee Khan v. Bindu Khan [ (1998) 7 SCC 59 ], the Apex Court while considering the scope of O.XXXIX R.2A held at paragraphs 12 and 15 as under:- “12. But the position under Rule 2-A of Order 39 is different. In Samee Khan v. Bindu Khan [ (1998) 7 SCC 59 ], the Apex Court while considering the scope of O.XXXIX R.2A held at paragraphs 12 and 15 as under:- “12. But the position under Rule 2-A of Order 39 is different. Even if the injunction order was subsequently set aside, the disobedience does not get erased. It may be a different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. For what purpose is the property to be attached in the case of disobedience of the order of injunction? Sub-rule (2) provides that if the disobedience or breach continues beyond one year from the date of attachment, the court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of a one-year period. If the disobedience ceases to continue in the meanwhile, the attachment also would cease. Thus even under Order 39 Rule 2-A, the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience.” “15. Hence the words “and may also” in Rule 2-A cannot be interpreted in the context as denoting a step which is permissible only as additional to attachment of property of the opposite party. If those words are interpreted like that, it may lead to an anomalous situation. If the person who defies the injunction order has no property at all, the court becomes totally powerless to deal with such a disobedient party. He would be immuned from all consequences even for any open defiance of a court order. No interpretation shall be allowed to bring about such a sterile or anomalous situation (vide Constitution Bench in Vidyacharan Shukla v. Khubchand Baghel). The pragmatic interpretation, therefore, must be this: it is open to the court to attach the property of the disobeying party and at the same time the court can order him to be detained in civil prison also if the court deems it necessary. Similarly the court which orders the person to be detained in civil prison can also attach the property of that person. Similarly the court which orders the person to be detained in civil prison can also attach the property of that person. Both steps can be resorted to or one of them alone need be chosen. It is left to the court to decide on consideration of the fact situation in each case.” 34. Learned Single Judge of this Court in C.Aravindaksha Menon v. Raghava Menon ( 2007 (2) KLT 427 ), after referring to various judgments of the Apex Court, held that the fact that the suit was dismissed after trial is not a ground to hold that the party who has violated the interim order should not be proceeded with under O.XXXIX R.2A. 35. Factually, there is no dispute about the fact that there is violation of the interim injunction order passed by the Court below. Under O.XXXIX R.2A, if it is found that there is disobedience of any interim order of injunction, the Court “may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in civil prison for a term not exceeding six months, unless in the meantime, the Court directs his release.” There is no dispute about the fact that any action by which the process of the Court is attempted to be thwarted has to be viewed seriously. In the case on hand, the Court below did not exercise the jurisdiction to pass any order against the respondent taking into account his plight. It was observed that the hard earned money of the respondent was entrusted with his wife and he was driven out of his house and was forced to beg before his friends and relatives even for medical expenses. That apart, the respondent could convince the Court that there was absolute want of good faith on the part of the petitioner in securing an ex parte order of injunction. Therefore, the Family Court felt that it is not necessary to take any further action. 36. In order to take an action against a person violating an order of injunction, it is settled law that even if the suit is finally dismissed, violation of an order of Court has to be viewed very seriously. But whether any action is to be taken against the said person for disobedience will depend upon the facts and circumstances of each case. But whether any action is to be taken against the said person for disobedience will depend upon the facts and circumstances of each case. In the case on hand, the Family Court did not feel it necessary to take action against the respondent for certain reasons. This is a case where there is a matrimonial dispute between the petitioner and the respondent. Several allegations and counter allegations are made. The parties have already gone through several litigations. Major part of their lifetime has been spent in fighting cases between each other. Though majesty of the courts is to be ensured, still, some grace has to be shown in matters where substantial rights of the parties are not affected on account of such disobedience. Therefore, we do not think that the order passed by the Family Court refusing to take action against the respondent in a petition under O.XXXIX R.2A requires interference. In the light of the aforesaid facts, both the appeals are dismissed. Parties shall bear their own costs.