Alexander Thomas and Alice Cheriyan v L&T Housing Finance Ltd. and Others

``` 2025:KER:25882 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` TUESDAY, THE 25[TH] DAY OF MARCH 2025 / 4TH CHAITHRA, 1947 ``` ``` WP(C) NO. 17022 OF 2023 ``` ## **`PETITIONERS:`** - **`1 ALEXANDER THOMAS, AGED 45 YEARS, S/O. THOMAS, RESIDING AT TC.II/2166, MINI BHAVAN, ADARSH NAGAR, 33, PATTOM, THIRUVANANTHAPURAM, PIN – 695004.`** ``` 2ALICE CHERIYAN, AGED 43 YEARS, W/O. CHERIYAN, MULLAPPILLIL HOUSE, KANIYAMPARA, KAVIYOOR, THIRUVALLA – 689 582, REPRESENTED BY POWER OF ATTORNEY HOLDER, ALEXANDER THOMAS, S/O. THOMAS, RESIDING AT TC.II/2166, MINI BHAVAN, ADARSH NAGAR, 33, PATTOM, THIRUVANANTHAPURAM, PIN – 695004. ``` ## **`BY ADV MATHEW SEBASTIAN`** ## **`RESPONDENTS:`** - **`1 L AND T HOUSING FINANCE LTD., CORRECTED BHARATHI DIVAKAR, 1ST FLOOR, TC 20/898-C, NEAR QRS, KARAMANA, TRIVANDRUM, REPRESENTED BY AUTHORIZED OFFICER. L AND T HOUSING FINANCE LTD., PARAMESWARA TOWERS, 1ST FLOOR, T.C. 15/1948(4), VAZHUTHACAUD, THYCAD VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN 695014, REPRESENTED BY AUTHORIZED OFFICER. (ADDRESS OF 1ST RESPONDENT IS CORRECTED AS PER ORDER DATED 03.10.2023 IN I.A.1/2023 IN WP(C))., PIN – 695002.`** - **`2 MOHAN ZACHARIAH,`** ``` CORRECTED TC 11/1861(4), 'THEJAS', MULLASSERY LANE, YMR NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM, RINU’S COTTAGE, T.C.3/184, ``` ``` W.P.(C)No.17022 of 2023 2 2025:KER:25882 ``` **==> picture [57 x 57] intentionally omitted <==** ``` HOUSE NO.66, SANTHOSH NAGAR, MUTTADA.P.O., THIRUVANANTHAPURAM,PIN 695025, PIN – 695003. ``` ``` 3SOPHIA EASO, CORRECTED TC 11/1861(4), 'THEJAS', MULLASSERY LANE, YMR NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM,RINU’S COTTAGE, T.C.3/184, HOUSE NO.66, SANTHOSH NAGAR, MUTTADA.P.O., THIRUVANANTHAPURAM, PIN 695025, OFFICE ADDRESS – SOPHIA EASO, ADVOCATE, 2ND FLOOR, KERALA LAW CHAMBER, KAT ROAD, VANCHIYOOR.P.O., THIRUVANANTHAPURAM, PIN 695035. [ADDRESS OF RESPONDENTS 2 AND 3 IS CORRECTED AS PER ORDER DATED 02.11.2023 IN I.A.3/2023 IN WP(C)], PIN – 695003. ``` - **`4 VILLAGE OFFICER, PATTOM VILLAGE, PATTOM.P.O., THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, PIN – 695004.`** - **`5 EDELWEISS ASSET RE-CONSTRUCTION COMPANY, EDELWEISS HOUSE, OFF CST ROAD, KALINA, MUMBAI -400098. REPRESENTED BY ITS MANAGING DIRECTOR, (ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 27.02.2024 IN I.A.1/2024 IN WP(C)).`** ``` BY ADVS. SRI.MAITREYI SACHCHIDANANDA HEGDE HEGDE SMT.ANJALI ANIL A.(K/859/2021) SRI.ASHISH ANTONY FRANCIS(K/1337/2023) SRI.JACOB CHACKO ``` ## **`OTHER PRESENT:`** ## **`SRI.T JAYAN GP, SOURADH C VALSON FOR R5`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **==> picture [57 x 57] intentionally omitted <==** ``` W.P.(C)No.17022 of 2023 3 2025:KER:25882 ``` ## **JUDGMENT** The petitioners are stated to be the legal heirs of one deceased Omana Mathai. The petitioners contend that, one of their relatives - deceased Joseph Easo, on the basis of a forged agreement for sale filed a suit and obtained an exparte decree in his favour. The decree was also executed as seen from Ext.P1 sale deed by which the property was registered in the name of deceased Joseph Easo. Deceased Omana Mathai came to learn about the decree as well as Ext.P1 sale deed only later and she filed an application for setting aside the ex-parte decree. Originally the same was rejected. Ultimately, a Division Bench of this Court set aside the orders refusing to set aside the sale and remitted the matter back to the Civil Court. In the mean time, Joseph Easo as well as Omana Mathai passed away and their legal representatives got impleaded themselves before the Civil Court. The Civil Court issued Ext.P3 setting aside the sale and ordering delivery of the property in favour of the legal heirs of deceased Omana Mathai. However, the petitioners contend that, deceased Joseph Easo had already sold the **==> picture [57 x 57] intentionally omitted <==** ``` W.P.(C)No.17022 of 2023 4 2025:KER:25882 ``` properties in favour of the 2[nd] respondent herein who obtained some credit facilities from the 1[st] respondent and since the repayment to the credit facility were not punctual, the 1[st] respondent has taken coercive proceedings against the property. 2. It is in such circumstances, the petitioners have filed the captioned writ petition seeking the following reliefs:- i. A writ of mandamus or other appropriate writ, order or direction, directing the 1[st] respondent handover vacant possession of the plaint schedule property in O.S.No.78/2002 before the II Additional Sub Court, Thiruvananthapuram to the petitioners forthwith. ii. iii. A writ of mandamus or other appropriate writ, order or direction, directing the 4[th] respondent to effect mutation of plaint schedule property having an extent of 4.20 Ares of land comprised in Old Survey No.1773/2/1, ReSurvey No.125, Block No.57 of Pattom Village in the name of petitioners. Stay the operation of Exhibit -P3 recovery notice, till the disposal of the Writ Petition. - iv. Considering the exigencies and necessity for urgent consideration of the grievance voiced in this Writ petition. Production of English translations of documents in vernacular, may kindly be dispensed with for the time being - v. Issue such other Writ, order or direction as may be just and proper in the interest of justice.” **==> picture [57 x 57] intentionally omitted <==** ``` W.P.(C)No.17022 of 2023 5 2025:KER:25882 ``` 3. I have heard Sri.Mathew Sebastian, the learned counsel for the petitioners and Smt.Anjali Anil.A., the learned counsel for the 1[st] respondent and Sri.Souradh C.Valson, the learned counsel for the 5[th] respondent. 4. I notice that the contentions raised by the petitioners are essentially to the effect that, by virtue of the orders issued by the Civil Court, the sale deed at Ext.P1 was already set aside and hence the subsequent sale effected by deceased Joseph Easo would not be binding upon the petitioners-the legal heirs of deceased Omana Mathai. The learned counsel would also rely on provisions of Section 52 of the Transfer of Property Act, 1882, as well as the following judgments rendered with reference to the interpretation of the provisions of Section 52- **T.G.Ashok Kumar v. Govindammal and Another [(2010) 14 SCC 370]** , **Arshinoor Singh v. Harpal Kaur and Others [(2020) 14 SCC 436] and Padmaja v.** . **Sajeev [2006 (1) KLT 265]** 5. But, the fact remains that the 5[th] respondent has a contention that, he is in possession of the properties. The petitioners’ contention, as already noticed, is to the **==> picture [57 x 57] intentionally omitted <==** ``` W.P.(C)No.17022 of 2023 6 2025:KER:25882 ``` effect that the sale effected by deceased Joseph Easo subsequently cannot be sustained or held to be valid in the light of the Section 52 of the Transfer of Property Act, 1882. 6. Primafacie, I am of the opinion that the petitioners are before a wrong forum. It is for the petitioners to workout their remedies, in accordance with law, before the appropriate forum, insofar as the dispute, as already noticed, is essentially with respect to the right of the petitioners regarding the property in question over the right of the 5[th] respondent to hold the property on the basis of the sale effected by deceased Joseph Easo in the year 2011. 7. In the result, I am of the opinion that the petitioners may not be entitled for any of the reliefs as prayed for in this writ petition. Resultantly, this writ petition would stand dismissed, however without prejudice to the right of the petitioners to workout their remedies else where. **Sd/-** **HARISANKAR V. MENON JUDGE** ANA ``` W.P.(C)No.17022 of 2023 7 2025:KER:25882 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`APPENDIX OF WP(C) 17022/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` TRUE COPY OF THE SALE DEED NO.2971/2004 DATED 7.6.2004 OF S.R.O., PATTOM EXECUTED BY II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM IN FAVOUR OF JOSEPH EASO. ``` ``` Exhibit P2TRUE COPY OF THE JUDGMENT DATED 3.1.2014 IN R.F.A. NO.542/2008 OF THE HON’BLE HIGH COURT OF KERALA. ``` - **`Exhibit P3`** ``` TRUE COPY OF THE ORDER DATED 13.1.2016 IN I.A. NO.2879/2015 IN O.S. NO.78/2002 OF THE II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. ``` - **`Exhibit P4 TRUE COPY OF THE ORDER DATED 16.2.2016 IN I.A. NO.451/2016 IN O.S. NO.78/2002 OF THE II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM.`** - **`Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 9.2.2016 IN W.P.(C) NO.39576/2015 OF THE HON’BLE HIGH COURT OF KERALA.`** - **`Exhibit P6 TRUE COPY OF THE SALE DEED NO.1049/2011 DATED 5.4.2011 OF S.R.O., PATTOM EXECUTED IN FAVOUR OF THE 1ST RESPONDENT.`** ``` Exhibit P7TRUE COPY OF THE PETITION DATED 18.11.2020 FILED BY 1ST PETITIONER BEFORE THE 4TH RESPONDENT. ``` ``` Exhibit P8TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATED 3.8.2022. ``` ``` Exhibit P9TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 6.10.2022 FROM THE SUB REGISTRAR OFFICE, PATTOM, THIRUVANANTHAPURAM IN THE NAME OF 1ST PETITIONER. ``` **==> picture [57 x 57] intentionally omitted <==** ``` W.P.(C)No.17022 of 2023 8 2025:KER:25882 ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R1(A)A COPY OF THE LOAN APPLICATION DATED 19.11.2013 SUBMITTED BY THE 2ND AND 3RD RESPONDENTS. ``` ``` EXHIBIT R1(B)A COPY OF THE LEGAL OPINION DATED 29.11.2013 OBTAINED BY THE 1ST RESPONDENT FROM ADV JACOB CHACKO. ``` ## **`PETITIONER EXHIBITS`** ``` Exhibit P10TRUE COPY OF THE ‘B’ DIARY IN O.S. NO.78/2002 BEFORE THE SUB COURT, THIRUVANANTHAPURAM FOR THE PERIOD FROM 12.7.2002 TO 1.3.2016. ```