Lathika V. Menon v. Bindhu K.S., Valsalakumar K.V. and K. Ambujam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938 OP (FC).No. 168 of 2016 (R) ---------------------------- PETITIONER(S)/CLAIM PETITIONER: ------------------------------- LATHIKA V.MENON AGED 45 YEARS AGED 45 YEARS, W/O. ANIL KUMAR RESIDING AT KADEKUZHY HOUSE, MARADU P.O., KUNDANNUR COCHIN-682 040. BY ADV. SRI.RUBEN GEORGE ROCK RESPONDENT(S)/RESPONDENTS : --------------------------- 1. BINDHU K.S. AGED 36 YEARS, D/O. SETHUMADHAVAN, KIZHAKKEPOTTAYIL ELAMAKKARA, KOCHI-682 026. 2. VALSALAKUMAR K.V. AGED 47 YEARS, S/O. VISWANATHA MENON, KADEKKUZHI HOUSE MARADU P.O., KUNDANNOOR, COCHIN-682 040. 3. K.AMBUJAM AGED 60 YEARS, W/O. VISWANATHA MENON KEDDEKKUZHI HOUSE, MARADU P.O., KUNDANOOR PIN-682 040. R2,R3 BY ADV. SRI.PEEYUS A.KOTTAM THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 168 of 2016 (R) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1:COPY OF IA NO.3197/2014 DTD.25.8.2014 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. P2: A COPY OF THE ORDER DTD.26.8.2014 IN IA 3197/2014 BY THE HON'BLE FAMILY COURT, ERNAKULAM. P3: A COPY OF IA NO.1618/2015 ALONG WITH EXHIBITS FILED BY PETITIONER BEFORE HON'BLE FAMILY COURT, ERNAKULAM. P4: A COPY OF THE COUNTER AFFIDAVIT FILED BY 1ST RESPONDENT IN IA 1618/2015. P5: CERTIFIED COPY OF ORDER DTD.23.12.2015 OF HON'BLE FAMILY COURT, ERNAKULAM IN IA 1819/2015 INIA 3197/2014 IN OP 1618/2014. P6: A COPY OF THE PROPERTY TAX RECEIPT DTD.1.9.2014. A COPY OF THE PROPERTY TAX RECEIPT DTD.26.9.2015. P7: COPY OF POSSESSION AND NON-ATTACHMENT CERTIFICATE ISSUED BY EDAPPALLY VILLAGE OFFICE DTD.11.12.2014. P8: A COPY OF ENCUMBRANCE CERTIFICATE DTD.4.12.2014. RESPONDENT(S)' EXHIBITS ----------------------NIL /TRUE COPY/ PS TO JUDGE ## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ. ----------------------------------------------O.P(F.C).No. 168 of 2016 ----------------------------------------------Dated this the 7[th] February, 2017** ## **JUDGMENT** ## **Shaffique, J** . This original petition has been filed challenging the order dated 23.12.2015 in I.A.No.1819 of 2015 in I.A.No.3197 of 2014 in O.P.No.1618 of 2014, by which the petitioner's request for lifting the attachment of the property was rejected by the Family Court. The main contention urged by the petitioner was that she had acquired the property as per sale deed bearing No.3266/2014 dated 2.8.2014 of SRO, Edappally. She purchased the property from her brother for a total consideration of Rs.6,33,000/-, which she had raised after pledging fixed deposits of her husband and mother-in-law. According to her, after partition of the property, the same was mutated in her favour. Later, she had come to know that the property was under attachment as per order dated 26.8.2014 in I.A.No.3197 of 2014. Hence the application was filed seeking claim in respect of the property under Order XXI Rule 58 of the Code of Civil Procedure lifting the attachment. 2 _**OP(FC).168/16**_ 2. O.P.No.1618 of 2014 has been filed by the 1[st] respondent herein seeking for recovery of gold ornaments and also for recovery of money. It is inter alia alleged that the petitioner purchased three cents of property with a building therein having terraced roof bearing door No.4900/48/1998A of Cochin Corporation. The property was purchased on 25.7.2008. The husband and wife were residing together in the said building until March, 2014. Subsequently, there arose certain disputes. According to the 1[st] respondent, the property was purchased in the name of the 2[nd] respondent, though the entire sale consideration was contributed by the 1[st] respondent. Initially they were on very good terms, but later, she was ousted from the house on 14.5.2014. All her efforts for an amicable settlement went futile and she filed a complaint before the Police on 30.7.2014. Immediately thereafter, the property was assigned in the name of the claimant, who is the sister of the 2[nd] respondent. It is alleged that she was unaware of the transfer of the property at the relevant time and sought for dismissal of the application. The Family Court, after having considered the matter, found that though there is some material to indicate that the petitioner was in possession of Rs.4,50,000/-, which she had taken as loan on 17.5.2014 and _**OP(FC).168/16**_ 3 the evidence in the case discloses the fact that the property was assigned in the name of the petitioner in order to defraud the 1[st] respondent. It is further observed, based on the judgment in _**Satyamma v. Gayathri and others**_ [2013(3) KHC 322], that alienating the property by a husband in favour of his sister will not give absolute title to the transferee, since the property was alienated to the member of same family. On this basis, the application was dismissed. 3. Learned counsel for the petitioner places reliance on the judgment of the Apex Court in _**Hamda Ammal v. Avadiappa Pathar**_ [(1991)1 SCC 715] and also a judgment of this Court in _**Rajan alias Rajan Gopinathan v. Dr.D.Jayashree Nayar**_ [2010 (1) KLT 142] in order to contend that when a property had been attached under Order XXXVIII Rule 5 of the Code of Civil Procedure, what is to be considered is whether the property is in the name of the defendant or not. In so far as the property was in the name of another person at the time when the attachment was ordered, the attachment has to be vacated. 4. In _**Hamda Ammal's case**_ (supra), the question considered was whether the attachment before judgment after execution of sale deed and before registration will affect the 4 _**OP(FC).168/16**_ rights of the purchaser of the property. Apex Court observed that a transaction of sale having already taken place prior to the institution of the suit cannot be said to have been made with the intention to obstruct or delay the execution of any decree as contemplated under Order XXXVIII Rule 5 C.P.C. But it is observed that “it would be a different case altogether if a creditor wants to assail such transfer by sale under Section 53 of the Transfer of Property Act, 1882 on the ground of fraudulent transfer”. 5. In _**Rajan's case**_ (supra), the Division Bench was concerned with a question whether while disposing an application under Order XXXVIII Rule 8 read with Order XXI Rule 58 C.P.C, it is obligatory to determine the question whether the transfer made by the judgment debtor is a fraudulent act or not within the meaning of Section 53 of the Transfer of Property Act. The Division Bench also placed reliance upon the judgment of the Apex Court in _**Hamda Ammal's case**_ (supra) and it was held that the transfer under Section 53 of the Transfer of Property Act need not be considered in a claim made by a transferee under Rule 8 of Order XXXVIII C.P.C. Rule 5 of Order XXXVIII C.P.C would apply only when the Court is satisfied that the defendant with intent to delay the execution of any decree _**OP(FC).168/16**_ 5 that may be passed against him, is about to dispose of the whole or any part of his property. It is held that if the property had already been transferred by the defendant, Rule 5 would not apply. The question whether the transfer is fraudulent transfer attracting Section 53 has to be adjudicated upon at the appropriate stage or in appropriate proceedings. It is held that the said question would depend upon Rule 8 and Rule 10 of Order XXXVIII read with Rule 58 of Order XXI C.P.C. Therefore, when a claim is made to an attached property, necessarily, the Court below has to consider whether it was a fraudulent transfer or not. Hence, we do not think that the judgments aforesaid will render any assistance to the petitioner to contend that the attachment has to be lifted. 6. It is relevant to note that as per Section 53 of the Transfer of Property Act, every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Even in a case where the property is in the name of a third party, if the 1[st] respondent has a contention that the property was fraudulently transferred, nothing prevents the Court in considering the same and passing appropriate order. 6 _**OP(FC).168/16**_ 7. In this case, the 1[st] respondent had a contention that she had contributed amounts for the purpose of purchasing the property in the name of the 2[nd] respondent. At the time when she filed the application for attachment, she proceeded on the basis that the property was in the name of the 2[nd] respondent. It is only when the petitioner had come with the claim petition that it was noticed that there had been a transfer. Both the judgments cited by learned counsel for the petitioner do not exclude the operation of Section 53 of the Transfer of Property Act. In such circumstances, when the court below is of the view that the transfer is voidable in terms of Section 53 of the Transfer of Property Act, there is sufficient reason for not lifting the attachment. In the circumstances, we do not find any illegality in the order passed by the court below. Accordingly, the original petition is dismissed. ## **A.M.SHAFFIQUE JUDGE** **ANU SIVARAMAN JUDGE** _vgs8/2_