Balamma Mele Kuzhivilakathu Veedu v. Majitha Sharaf and Others (Mat.Appeal Nos. 173/2011 & 282/2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** **Mat.Appeal.No.173 OF 2011** **AGAINST THE ORDER DATED 27.1.2011 IN EA 62/2009 IN EP.77/2005 IN OS 30/1995 OF FAMILY COURT,THIRUVANANTHAPURAM** ## **APPELLANT/1ST COUNTER PETITIONER/DECREE HOLDER:** **1 **BALAMMA MELE KUZHIVILAKATHU VEEDU, NEMOM P.O., THIRUVANANTHAPURAM. (DIED)** **2 *ADDL.A2 - UDAYAN S/O LATE APPUKKUTTAN, KALIYIKKAL MELE KUZHIVILA VEEDU, MERILAND STUDIO ROAD, PAPPANMCODE P.O., THIRUVANANTHAPURAM 695018** - **3 **ADDL. A3 - PREMACHANDRAN S/O LATE APPUKKUTTAN, KALIYIKKAL MELE KUZHIVILA VEEDU, MERILAND STUDIO ROAD, PAPPANMCODE P.O., THIRUVANANTHAPURAM** ***(RESPONDENTS 3 & 4 ARE TRANSPOSED AS ADDL.APPELLANTS 2 AND 3 BEING THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 21.06.2019 IN I.A.NO.1/2019 IN MA.173/2011)** **BY ADVS. SRI.S.BALACHANDRAN (KULASEKHARAM) SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER** ## **RESPONDENTS/OBSTRUCTER & JUDGMENT DEBTOR 2 TO 6:** - **1 MAJITHA SHARAF W/O.SHARAF,VILAYILVILAKATHU VEEDU, NEAR HOMOEOPATHY COLLEGE, KOLIYACODE,NEMOM, THIRUVANANTHAPURAM695020.** **2 P.BASHEER, S/O.PEER MOHAMMED HAJA MANZIL, PONNUMANGALATH, NEMOM P.O., THIRUVANANTHAPURAM - 695020.** 2 Mat.Appeal Nos.173/2011 & 282/2013 |***3**|**UDAYAN SO.LATE APPUKKUTTAN**| |---|---| ||**KALIYIKKAL MELE KUZHIVILA VEEDU,, MERILAND STUDIO**| ||**ROAD, PAPPANAMCODE P.O., THIRUVANANTHAPURAM -**| ||**695018.**| ||**(TRANSPOSED AS ADDL. A2)**| |***4**|**PREMACHANDRAN S/O.LATE APPUKKUTTAN**| ||**KALIYIKKAL MELE KUZHIVILA VEEDU, MERILAND STUDIO**| ||**ROAD, PAPPANAMCODE P.O., THIRUVANANTHAPURAM -**| ||**695018.**| ||**(TRANSPOSED AS ADDL. A3)**| |**5**|**REMLATH BEEVI D/O.BEEVIKUNJU**| ||**VADAKKEVILAKATHU VEEDU, NEAR SIVAN COIL, NEMOM**| ||**P.O., THIRUVANANTHAPURAM - 695020.**| **R1 BY ADV. SRI.D.KISHORE R3-4 BY ADV. SRI.S.BALACHANDRAN (KULASEKHARAM)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21.6.2019, ALONG WITH Mat.Appeal.282/2013, THE COURT ON 16.08.2019 DELIVERED THE FOLLOWING:** 3 Mat.Appeal Nos.173/2011 & 282/2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** **Mat.Appeal.No.282 OF 2013** **AGAINST THE JUDGMENT IN OS 30/1995 DATED 30-06-2003 OF FAMILY COURT,THIRUVANANTHAPURAM** ## **APPELLANT 3RD PARTY:** **MAJITHA SHARAF** **W/O.SHARAF, AGED 39 YEARS, VILAYIL VILAKATHU VEEDU, NEAR HOMOEOPATHY COLLEGE, KOLIYACODE, NEMOM VILLAGE, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.D.KISHORE** ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 2 AND 3:** - **1 BALAMMA D/O.CHELLAMMA,AGED 53 YEARS, KALIYIKKAL MELE KUZHIVILA VEEDU, NEMOM P.O., THIRUVANANTHAPURAM695020.** - **2 PEER MUHAMMED** - **S/O.KASIM PILLA, AGED 71 YEARS, PALLINADA VEEDU, NEMOM P.O., THIRUVANANTHAPURAM-695020.** - **3 P.BASHEER S/O.PEER MUHAMMED, AGED 43 YEARS, HAJA MANZIL, PONNUMANGALAM WARD, NEMOM P.O., THIRUVANANTHAPURAM695020.** - **4 UDAYAN** - **S/O.LATE APPUKKUTTAN, AGED 29 YEARS, KALIYIKKAL, MELEKUZHIYIL VEEDU, MERILAND STUDIO ROAD, PAPPANAMCODE, THIRUVANANTHAPURAM-695018.** 4 Mat.Appeal Nos.173/2011 & 282/2013 **5 PREMACHANDRAN S/O.LATE APPUKKUTTAN, AGED 25 YEARS, KALIYIKKAL, MELEKUZHIYIL VEEDU, MERILAND STUDIO ROAD, PAPPANAMCODE, THIRUVANANTHAPURAM-** **(THE 1ST DEFENDNAT DIED DURING THE PENDENCY OF THE SUIT AND RESPONDENTS 4 AND 5 ARE THE CHILDREN OF DECEASED 1ST DEFENDANT IMPLEADED DURING EXECUTION PROCEEDINGS) R1, R4-5 BY ADV. SRI.S.BALACHANDRAN (KULASEKHARAM) R1 BY ADV. SRI.S.BALACHANDRAN KULASEKHARAM R1 BY ADV. SRI.V.R.GOPU** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21.6.2019, ALONG WITH Mat.Appeal.173/2011, THE COURT ON 16.08.2019 DELIVERED THE FOLLOWING:** 5 Mat.Appeal Nos.173/2011 & 282/2013 ## **JUDGMENT** ## **Dated this the 16th day of August 2019** ## **SHAFFIQUE, J** Both these appeals arise out of a dispute relating to a property against which execution proceedings had been taken and hence heard and decided together. 2. Mat.A.No.282/2013 has been filed by a third party challenging the judgment in O.S.No.30/1995 of the Family Court, Thiruvananthapuram. 3. Mat.A.No.173/2011 is filed by the decree holder in O.S.No.30/1995 against the order dated 27.1.2011 in E.A.No.62/2009 in E.P.No.77/2005. 4. The plaintiff in O.S.No.30/1995, Smt.Balamma claimed maintenance for herself and her children against her husband, the 1[st] defendant and also exclusive right in respect of the plaint schedule property. In the suit it was alleged that the 1[st] defendant deserted her in the year 1994. While they were living together 1[st] defendant had sold the property belonging to her for a sale consideration of Rs.6,300/- and utilising the said amount, the plaint schedule property having an extent of 4 cents of property comprised in Sy.No.59/2A of Nemom Village was purchased, as per sale deed No.1691/91 in the 6 Mat.Appeal Nos.173/2011 & 282/2013 name of the 1[st] defendant. The plaintiff and her children were in possession of the property. While claiming maintenance, she also sought for a declaration that she is the absolute owner of the plaint schedule property. Additional 2[nd] defendant was impleaded in the case, when plaintiff knew that immediately prior to the suit, 1[st] defendant sold the property to the 2[nd] defendant. Defendants in the case remained ex parte and an ex parte decree came to be passed. E.P.No. 77/2005 was filed by the decree holder seeking delivery of possession. 5. An application E.A.No.62/2009 in E.P.No.77/2005 was filed by a 3[rd] party claiming to be an obstructor under Order XXI Rule 99, seeking stay of delivery of the property of 4 cents in Sy.No.925/27 of Nemom Village and to adjudicate the title and interest in the property. It is inter alia contended that she is in possession of the property and the building thereon, involved in O.S.No.30/1995 as she had purchased the same as per sale deed No.313/2008 of Nemom SRO. She being a bonafide purchaser for valid consideration without notice of any adverse claim, she has the right to remain in possession. Her previous owner had obtained building permit and had constructed the existing building. The same has been assessed to property tax and she has been remitting tax to the Corporation. It is alleged that she had come to know about the case only on 13.4.2009, when there was a direction that the property should be taken over and delivered to the decree holder. Further enquiry revealed that there was a charge on the 7 Mat.Appeal Nos.173/2011 & 282/2013 property. It is stated that the charge was created after the sale of the property by the original owner, the 1[st] respondent and therefore the petitioner should not be dispossessed from the property. The respondent/decree holder contended that the petitioner being a purchaser pendente lite, she has no right over the property. The decree holder being the absolute owner of the property and a charge has been created over the property for realisation of the maintenance amount, the petition is only to be dismissed. 6. On the basis of the respective contentions, the Family Court found that the property was purchased by the petitioner from previous owner Ramlath Beevi. Ramlath Beevi had in fact mortgaged the property, obtained a building permit and had constructed a building in it. She was having an unencumbered title over the property. It was noticed that 1[st] defendant had purchased the property from one Jagadamma on 4.9.1991 as per registered sale deed of Nemom SRO. He sold the same to one Basheer as per sale deed registered as document No. 200/1995, 11 days prior to the filing of O.S.No.30/1995. Even at the time when the suit was filed, the decree holder was not in possession of the property and 1[st] defendant did not have any right. His rights had already been transferred prior to the filing of the suit. It was therefore found that when Basheer purchased the property, it was free from all encumbrances and there was no claim made by the petitioner at the relevant time. In so far as Basheer was not a 8 Mat.Appeal Nos.173/2011 & 282/2013 pendente lite purchaser, the subsequent transaction is not hit by lis pendens. It is noticed that the obstruction had come to the notice of the petitioner only when the property was about to be delivered to the decree holder. In so far as no encumbrance was noticed in the property, the claim is genuine and the obstructor was a bona fide purchaser of the petition schedule property. Since she got title, possession and right over the petition schedule property, the purchase is not hit by Section 39 of the Transfer of Property Act. Accordingly, the execution court stayed delivery of the property. Further, the right, title and interest of obstructor over the petition schedule property was declared and delivery of the property in favour of the decree holder was stayed. 7. The decree holder has preferred Mat.A.No.173/2011. During the pendency of the appeal she died and respondents 3 and 4 being her legal heirs are already on record. 8. We heard the learned counsel appearing on either side. As far as Mat.Appeal No.173/2011 is concerned, _prima facie_ the impugned order cannot be sustained. A decree holder had sought to execute the decree passed in OS No.30/1995, by which the plaintiff's right in respect of the plaint-schedule property had been declared and a charge has been created in respect of the plaint schedule property in regard to the maintenance claim. It is during the pendency of the suit that Basheer, the 2[nd] defendant transferred the property to Ramlath 9 Mat.Appeal Nos.173/2011 & 282/2013 Beevi who in turn had sold the property in favour of the 1[st] respondent (Obstructor). It is settled law that a transferee pendente lite cannot obstruct the execution of a decree. The position of law has been well settled in the decision of the Apex Court in _**Usha Sinha v. Dina Ram [**_ (2008) 7 SCC 144], which reads thus: _**“23.** It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent court. The doctrine of “lis pendens” prohibits a party from dealing with the property which is the subjectmatter of suit. “Lis pendens” itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment-debtor, he cannot seek benefit of Rules 98 or 100 of Order 21._ _**24.** In Silverline Forum (P) Ltd. v. Rajiv Trust this Court held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the executing court must hold that he had no right to resist or obstruct and such person cannot seek protection from the executing court. The Court stated: (SCC pp. 727-28, para 10)_ _“10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions ‘arising between the parties to a proceeding on an application under Rule 97 or Rule 99’ shall be determined by the executing court, if such questions are ‘relevant to the adjudication of the application’. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if_ 10 Mat.Appeal Nos.173/2011 & 282/2013 _the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.”_ ## _(emphasis supplied)_ _(See also Sarvinder Singh v. Dalip Singh.)_ _**25.** We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment-debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment-debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated._ _**26.** For invoking Rule 102, it is enough for the decree-holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment-debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order 21”._ 9. The petitioner in EA No.62/2009 admittedly is a purchaser of the plaint-schedule property and she had acquired rights subsequent to the filing of the suit. Therefore, it is not open for the obstructor to obstruct execution of the decree passed in the case. Hence appeal filed by the decree-holder is only to be allowed. 11 Mat.Appeal Nos.173/2011 & 282/2013 10. The plaintiff in the case had sought for absolute right and interest in the property purchased in the name of her husband. The Court had decreed the suit declaring the plaintiff's right in respect of the plaint-schedule property and restraining the defendants from causing any obstruction to the peaceful possession and enjoyment of the plaintiff over the same. During the pendency of the suit, the 2[rd] defendant has also been impleaded. But it is relevant to note that though, it is an ex parte decree, the Court below did not consider any evidence in the case to grant such a declaratory decree. 11. Further, it is clear that the appellant is in possession of the property and she is residing in the said property in a building constructed by the previous owner which apparently means that the plaintiff was not in possession of the property at the time of filing the suit, as the property was transferred in the name of 2[nd] defendant prior to the suit. The decree was passed on 30/6/2003. The appellant acquired title in the year 2008 and her predecessor, Ramlath Beevi purchased the property on 4.8.1997 as per sale deed No. 1727/1997. She had even mortgaged the property, taken a loan and constructed a building. Before making a declaration that the plaintiff was the exclusive owner of the property, the Court below did not consider any evidence at all. When the property admittedly stood in the name of first defendant prior to the filing of the suit and it was transferred in favour of the 2[nd] defendant immediately before filing of suit, the 12 Mat.Appeal Nos.173/2011 & 282/2013 plaintiff did not have a case that the sale in favour of the 2[nd] defendant was fraudulent and to defeat her claim, nor is there such a finding by the court below. No relief was sought to recover possession of the plaint schedule property. Even otherwise, Family Court could have granted a declaratory decree only on the plaintiff adducing evidence to prove that the money belonging to her was utilized for purchasing the property in her husband's name and that he was holding the property as a trustee on behalf of his wife, or else the claim cannot be entertained under the Benami Transactions and Prohibitions, Act,1988. 12. Before granting a declaratory decree in respect of her property, which is in the name of another person, the court below was expected to consider all these aspects which apparently has not been considered. Unless there is a finding by the Court below that the property was held by the husband of the plaintiff (1[st] defendant) as a trustee in a fiduciary capacity, and it is further proved that the amount was paid out of the funds derived by sale of the plaintiff's property, granting of a declaratory decree was absolutely erroneous. 13. This is a case in which third party rights had been created by the original owner, i.e., the 1[st] defendant in O.S.No.30/1995 even prior to the filing of the suit. First defendant had transferred the property in favour of the 3[rd] defendant (Basheer). Appellant also has a case that no steps had been taken to set aside the said document or to declare 13 Mat.Appeal Nos.173/2011 & 282/2013 the said document as void. 14. The money claim in the suit was only for future maintenance. Therefore at the time when the 1[st] defendant sold the property, there was no claim for maintenance. It is settled law that the Section 39 of the Transfer of Property Act, is not intended to create a charge over the property. Of course the claimant need not prove that the transfer was made with the intention of defeating her right, but it does not create any interest in the property. It only indicates that if a third person has a right to receive maintenance from the profits of immovable property and when such property is transferred, the right can be enforced against the transferee, provided he had notice that a claim is subsisting. But, if the transfer is for consideration and without notice of the right, no such claim can be enforced. Apparently when the property was sold by the first defendant, there was no claim for maintenance and for that reason itself, the 2[nd] defendant may not know that there was such a claim to be enforced. Consequently, Section 39 of the Transfer of Property will not get attracted as the 1[st] defendant was not in possession of the property even at that time as he had already sold the property to Basheer as per a registered document. 15. The fact that the decree holder had sought for delivery of possession of the decree schedule property, further indicates that 14 Mat.Appeal Nos.173/2011 & 282/2013 neither the 1[st] defendant nor the decree holder was in possession of the property. 16. The court below had passed an ex-pare decree when the defendants did not appear and contest the matter. But even while passing an exparte decree the Family Court was expected to consider whether sufficient pleading and proof is available to grant a decree, and whether the decree is legally sustainable, even on non denial of facts. This is a case in which third party rights were created prior to the suit and during the lis. Taking into account all these facts, we are of the view that the matter requires fresh consideration. It shall be open for the legal heirs of the plaintiff to amend the plaint suitably. The appellant in Mat.A.No.282/2013 is permitted to file an application to implead herself as an additional defendant and contest the suit on all available contentions in accordance with law. But it is made clear that we are not setting aside the direction of the Family Court granting maintenance in favour of the plaintiff. 17. In the result, the appeals are disposed of as under: - (i) Mat.A.No.173/2011 is allowed, and order dated 27.1.2011 in E.A.No.62/09 in E.P.No.77/2005 is set aside. - (ii) Mat.A.No.282/2013 is allowed and the judgment in O.S.No.30/1995 is set aside. The matter is remitted back to the trial Court for fresh disposal. The parties shall appear 15 Mat.Appeal Nos.173/2011 & 282/2013 before Family Court, Thiruvananthapuram on 23.9.2019. In so far as the plaintiff is no more, her legal heirs as well as appellant in Mat.A.No.282/2013 shall file necessary application to implead themselves as additional plaintiffs/ additional defendant respectively on the date of appearance itself. The legal heirs of the plaintiff shall be given an opportunity to amend their pleadings and the appellant an opportunity to file written objection, and the Family Court shall endeavour to consider the suit in accordance with law, after giving an opportunity to either side to adduce evidence. The Family Court shall endeavour to dispose of the matter within a period of 6 months from the date of appearance of the parties. The presence of defendants 1 and 2 can be dispensed with. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** ## **Sd/-** ## **N.ANIL KUMAR** kp True copy P.A. To Judge. **JUDGE**