K.K. Mumthaz v. K. Tahira and M. Rafeeque

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 1ST DAY OF SEPTEMBER 2014/10TH BHADRA, 1936** ## **Ex.SA.No. 16 of 2014** ## **-------------------------------** ## **A.S.NO. 91/2013 OF DISTRICT COURT,THALASSERY** ## **E.A.NO.329/2012 IN E.P.NO.161/2012 IN R.C.P.NO.122/2011 OF MUNSIFF COURT, THALASSERY** ## **------------** ## **APPELLANT / APPELLANT / PETITIONER :** **--------------------------------------------------------------** **K.K.MUMTHAZ, AGED 43 YEARS, D/O.AHAMED, KADANKANDI HOUSE, BISMILLA MANZIL, EDAKKAD AMSOM, KADALAYI DESOM, P.O.KADALYI, KANNUR DISTRICT.** **BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH** ## **RESPONDENTS / RESPONDENTS / RESPONDENTS :** **----------------------------------------------------------------------------** ## **1. K.TAHIRA, AGED 41 YEARS,** **W/O.P.M.ABDUL NAZAR, H.NO.C.P.23/279, BISMILLA QUARTERS, P.O.KANNUR CITY, KANNUR DISTRICT - 670 003.** ## **2. M. RAFEEQUE, AGED 51 YEARS,** **S/O.MOIDEEN, KADANKANDI HOUSE, BISMILLA MANZIL, KADALAYI P.O., EDAKKAD AMSOM, KADALAYI DESOM, KANNUR DISTRICT.** **R1 BY SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) ADV. SMT.M.M.DEEPA R2 BY ADV. SMT.K.SHANTHI** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Ex.S.A. No. 16 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 01[st] day of September, 2014 ## **J U D G M E N T** A recalcitrant wife holds the purchaser of a property from her husband at bay under the guise of having to be provided for residence by the husband claiming that maintenance of wife includes residence also. 2. The facts absolutely necessary for the disposal of this appeal are as follows: The first respondent purchased property from the second respondent by sale deed dated 04.04.2011 and according to the first respondent, on request by the vendor, she allowed him to stay in the house for two months on the basis of the rent deed executed by her. After the expiry of the said period, neither rent was paid nor did he vacate. She instituted R.C.P. No. 122/2011. The second respondent, the vendor did not contest and eviction order was passed. The first respondent put it in execution. In execution, the ## **Ex.S.A. No. 16 of 2014** **-2-** amin went to delivery and then he was obstructed by the appellant herein. 3. She then filed E.A. No. 329/2012 in E.P. No. 161/2012 in R.C.P. No. 122/2011 order XX1 Rule 97 of C.P.C. claiming that she is entitled to remain in the house and the sale is not binding on her. She had approached the appropriate court under the Protection of Women from Domestic Violence Act (hereinafter referred to as 'DV Act') for necessary reliefs. It is also contended by her the sale and the consequent eviction are collusive transactions between her husband and the first respondent to see that she is evicted from the house. She therefore pointed out that she is not liable to be evicted in execution of the collusive decree in derogation of her rights. 4. Issues were raised by the court on the basis of the contentions raised by the first respondent. Parties went to trial. The claimant examined herself as PW1 and had Exts. A1 to A4 marked. The respondents examined RW1. ## **Ex.S.A. No. 16 of 2014** **-3-** 5. Both the courts below, on an analysis of the evidence in the case, came to the conclusion that the order of eviction was properly obtained and there was no collusion proved or established and that the execution has to proceed. Accordingly, her claim petition was dismissed which was confirmed in appeal. 6. Sri. Madhavanunni, the learned counsel appearing for the appellant contended that both the courts below have erred both on facts and in law in dismissing the claim petition of the appellant. She, being the wife of the second respondent, had a right of maintenance which according to the learned counsel going by Section 39 of the Transfer of Property Act takes in residence also and therefore she can reside in the house as long as the relationship subsists. It is also contended that by the various events read chronologically, it can be easily seen that the decree obtained was a collusive decree only to see that she is thrown out of the house. Relying on the decisions reported ## **Ex.S.A. No. 16 of 2014** **-4-** in **Achala Anand** v. **Appu Reddy** [2005 (1) KLT 904] and **Komalam Amma** v. **Kumara Pillai Raghavan Pillai and Others** [(2008) 14 Supreme Court Cases 345], it was contended that the word 'maintenance' takes in residence also and if that be so, the second respondent being a person bound to maintain the appellant, the appellant was entitled to continue the residence in the house until accommodation is provided or other suitable arrangements are made. She has a right of residence by the very status she holds. It is also pointed out that she had approached the court concerned under the DV Act and had obtained an order against forceful eviction. The issue as to whether the decree was a collusive decree, was not properly considered by the courts below and that has resulted in miscarriage of justice. The learned counsel went on contend that it is a fit case where this Court should interfere and protect the rights of the appellant. **Ex.S.A. No. 16 of 2014** **-5-** 7. The learned counsel appearing for the respondents pointed out that the sale was on 04.04.2011 and she obtained the property after paying good consideration and she had no information about any proceedings initiated by the claimant as against her husband or the property. According to her, on a request made by the second respondent, he was as a temporary measure allowed to remain in the house as a tenant for a period of two months. On the expiry of that period, when he did not surrender and he did not pay rent as undertaken by him, the first respondent instituted R.C.P.No.122/2011 for eviction under Section 11(2)(b) of the Act 2 of 1965. It is true according to the learned counsel that the second respondent did not contest and an order of eviction was passed and that was put in execution. The learned counsel went on to point out that the order obtained against forceful eviction by the appellant was long after the sale deed was executed in favour of the first respondent and therefore the order cannot **Ex.S.A. No. 16 of 2014** **-6-** bind her. Even otherwise, according to the learned counsel, the order was only to the effect that the appellant shall not be evicted forcefully from the premises. The premises was now sought to be delivered in accordance with law. It is therefore contended that no grounds are made out to interfere with the orders of the courts below. 8. After having heard the learned counsel on both sides and perused the records and orders of the courts below, there seems to be considerable force in the submissions made by the learned counsel for the first respondent. 9. It is true that the appellant seems to have filed MC 10/2011 before the court concerned under the DV Act on 14.03.2011. She did nothing thereafter. The sale by the first respondent in favour of the second respondent was on 04.04.2011 and after that the lease deed had been executed by the second respondent in favour of the first respondent undertaking to vacate premises after the expiry of two **Ex.S.A. No. 16 of 2014** **-7-** months and also to pay the rent. When that was not done as per the records, R.C.P. was filed on 09.10.2011 and eviction order was obtained on 10.04.2012. It is seen from the records that Ext.A1 order from the Judicial First Class Magistrate-II, Kannur under the DV Act was obtained on 09.10.2012. That is long after the sale was effected and order of eviction was passed. 10. Nowhere in this proceedings, it is contended that the sale deed executed is a sham document nor that no consideration has been paid for the sale by the second respondent in favour of the first respondent. The only complaint appears to be that the transactions were gone through with the intention of evicting her from the premises. 11. The learned counsel appearing for the second respondent submitted that time without number an alternate accommodation was offered to the appellant and she was not willing to accept the same. **Ex.S.A. No. 16 of 2014** **-8-** 12. It is significant to notice here that in her claim, she had a case that the property was purchased with utilizing her funds also and also that she had contributed for the construction of the house therein. This claim made by her in the petition was given a go bye at the time of evidence. She then came forward with a story that her brother had given money to the second respondent while he was in the Middle East. Therefore, it could be seen that there was no consistency as far as the claimant was concerned. It is also significant to notice that the order under the DV Act was obtained long after the order of eviction was passed in RCP. It is under the above circumstances, both the courts below held that on facts and on the basis of the evidence in the case, it is difficult to come to the conclusion the proceedings in which the eviction was obtained by the first respondent herein is as a result of collusion. 13. The contentions based on Section 39 of the Transfer of property Act is misconceived. A reading of the **Ex.S.A. No. 16 of 2014** **-9-** provision clearly shows that the application of that provision arises only when there is a right to receive maintenance. Of course, there is one view that if there is a contract between the husband and wife, that may be enforceable against the third party also. But as far as the provision is concerned, it is clear that it only creates a charge for the amount of maintenance due to the wife from the husband. 14. Relying on the decisions reported in **Achala Anand** v. **Appu Reddy** [2005 (1) KLT 904] and **Komalam Amma** v. **Kumara Pillai Raghavan Pillai and Others** [(2008) 14 Supreme Court Cases 345], it is contended that maintenance includes residence and if that be so, Section 39 of Transfer of Property Act should be deemed to include residence also. 15. The two decisions relied on by the learned counsel for the appellant was on the basis of construing the provision under the personal law, to be more precise in the Hindu Adoption and Maintenance Act. It is no doubt true ## **Ex.S.A. No. 16 of 2014** **-10-** that in the decision reported in **Achala Anand** v. **Appu Reddy** [2005 (1) KLT 904], the Apex Court had occasion to hold that the wife has a right of residence and if an order of eviction is suffered by her husband collusively, she can agitate her claim before the Rent Control Board. 16. It must be remembered that the said decision was rendered at the time when the DV Act had not come into force. The right of women are sufficiently protected by the DV Act and in fact the appellant before this Court has taken recourses the said Act also. 17. True, the interest of wife needs to be protected. But so also the interest of a bonafide purchaser. The bonafide purchaser who purchases the property so long, there is no contention in these proceedings that it is a sham transaction, he is entitled to the rights which accrues to him or her as a result of sale. If rights of a bonafide purchaser is to be defeated by such proceedings, it would be the travesty of justice. ## **Ex.S.A. No. 16 of 2014** **-11-** For the above reason, this Court finds no reason to interfere with the orders of the courts below. This appeal is without merits and is accordingly dismissed. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge