High Court of KeralaDivision Bench2012-09-11Appeal dismissed; direction issued regarding at...

MANOJ KUMAR v. R. NIRMALA, V. K. PADMAKUMAR and UDAYAKUMAR

Case / Petition Number:Mat.Appeal No. 9 of 2008 (A); OP.614/2002

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. Kuriakose
Babu Mathew P. Joseph
Judgment Date: 2012-09-11
Court Decision / Holding: Appeal dismissed. However, in deference to the respondents' submissions that the second respondent is capable of paying the maintenance, the Court directs that the B schedule property belonging to the appellant will be proceeded against only after the first respondent has exhausted all steps for recovering the amounts from the second respondent i.e., from the person and properties of the second respondent.
Final Disposition: Appeal dismissed; direction issued regarding attachment sequence of B schedule property.

Parties to the Case

Appellants / Petitioners

Manoj Kumar

Respondents

R. Nirmala
V. K. Padmakumar
Udayakumar

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. P. Shinod
• Sri Ram Mohan G.
• Sri Manu V.

Counsels for Respondents

• Sri M. Ramaswamy Pillai
• Sri P. Govind

Case Synopsis & Summary

The case arises from OP.614/2002 before the Family Court, Thiruvananthapuram, which was the subject of a Matrimonial Appeal (Mat.Appeal No. 9 of 2008) decided by a Division Bench of the Kerala High Court on 11 September 2012. The first respondent-wife obtained a maintenance order of ₹1,500 per month against her husband (the second respondent) and a charge was created over the Appellant’s B schedule property to secure the maintenance. The appellant contends that the B schedule property is his absolute property by virtue of Ext.B1 (sale deed) and that the sale was executed by the mother in favour of the appellant and his brother, allegedly to raise funds for creditors. He argues Ext.B1 is a bona fide transfer and not intended to defeat the wife’s rights; thus the court below erred in creating a charge against his property and in adopting Section 39 of the Transfer of Property Act, which he contends is inapplicable since there was no prayer for invalidation of Ext.B1. The respondents argue that Ext.B1 was executed to defeat the abandoned wife’s maintenance rights and that the family court rightly proceeded to attach the property to secure the maintenance. The High Court emphasizes that maintenance liability is statutory and crystallized by a prior maintenance order; it agrees with the Family Court that Ext.B1 appears to be motivated to defeat the wife’s rights, and thus finds no warrant to interfere with the impugned judgment. It, however, directs that the B schedule property should be proceed against only after recovery from the second respondent’s estate has been exhausted. The decision underscores the statutory duty of a husband to maintain his wife and the admissibility of equitable relief where applicable, while upholding the lower court’s assessment of the facts and the sequence of recovery.”

Provisions of Law Cited

Section 39, Transfer of Property ActSection 53, Transfer of Property Act

Legal Doctrines & Maxims

Bona fide purchaser
Fraudulent transfers
Equitable relief

Submissions & Arguments

Contentions of Appellants / Petitioners

Manoj Kumar, represented by Sri G. P. Shinod, Sri Ram Mohan G. and Sri Manu V., contends Ext. B1 (sale deed) was executed by the mother in favour of Manoj Kumar and his brothers long before the maintenance order; the B schedule property is the absolute property of Manoj Kumar and his brother, with no impediment from the second respondent's liability. The appellant asserts Ext. B1 is a bona fide transaction to raise money for creditors and not a transfer to defeat the first respondent's rights; Section 39 of the Transfer of Property Act cannot be invoked since no prayer for invalidation of Ext. B1 is made, and Section 53 deals with fraudulent transfers, not a void ab initio transfer. Therefore, the learned Family Court erred in creating a charge on the B schedule property for maintenance, encumbering property belonging to the appellant. The appeal contends that the maintenance obligation is statutory but that it cannot be realized by attaching a non-owned property; hence the order should be set aside.

Contentions of Respondents

R. Nirmala and others, represented by M. Ramaswamy Pillai and P. Govind, argue Ext. B1 was the product of a scheme to defeat the maintenance rights of the abandoned wife; the second respondent's obligation to maintain crystallized by the 1997 order; the property belonged to tarwad and the transfer to the appellant and his brother was with oblique motives; the Family Court rightly held that such an instrument cannot defeat the statutory obligation and that the charge over the B schedule property is justified; the court below's reliance on decision precedents Ramankutty and Divakaran is appropriate; the maintenance liability, being statutory, should be realized against the charged property.”},

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Vijayan v. Sobhana and others	2007(2) KHC 178	Mentioned Only	Cited by appellant to support submissions; the judgment does not discuss or rely on it to decide the appeal.
Devu v. Preetha	2012(1) KLT 617	Mentioned Only	Cited by appellant; not discussed in the High Court judgment.
Muthuperumal Pillai v. Pechi Amma	1955 KHC 49	Mentioned Only	Cited by appellant; not discussed in the High Court judgment.
Lakshmi v. Valliyammal	1992(2) KLT 873	Mentioned Only	Cited by appellant; not discussed in the High Court judgment.
Ramankutty v. Amminikutty	1997(1) KLT 559	Positive	Decisions relied on by the Family Court and held applicable by the High Court in this matter.
Divakaran v. Chellamma	1985 KLT 1001	Positive	Decisions relied on by the Family Court and held applicable by the High Court in this matter.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 Mat.Appeal.No. 9 of 2008 (A) ----------------------------------OP.614/2002 of FAMILY COURT,TRIVANDRUM ------------- ## APPELLANT/SECOND COUNTER PETITIONER: ------------------------------------------------- MANOJ KUMAR, S/O KRISHNAN NAIR, AGED ABOUT 30 YEARS, RESIDING AT, DEVI VILASOM VEEDU ATTIPRA VILLAGE, KARIMAL, KUZHIVILA P.O. THIRUVANANTHAPURAM. BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS/PETITIONER AND COUNTER PETITIONERS 1 AND 3: --------------------------------------------------------------------------- 1. R.NIRMALA, D/O RAJAMMA, AGED 34, KUZHIVILA PUTHEN VEEDU, KARIMAL KUZHIVIALA P.O., THIRUVANANTHAPURAM. 2. V.K.PADMAKUMAR, S/O KRISHNAN NAIR, AGED 36, DEVI VILASOM VEEDU, ATTIPRA VILLAGE KARIMAL, KUZHIVILA P.O., THIRUVANANTHAPURAM. 3. UDAYAKUMAR, S/O KRISHNAN NAIR, AGED ABOUT 28, DEVI VILASOM VEEDU, ATTIPRA VILLAGE KARIMAL, KUZHIVILA P.O., THIRUVANANTHAPURAM. R1 BY ADV. SRI.M.RAMASWAMY PILLAI R3 BY ADV. SRI.P.GOVIND THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ. -----------------------------------------------Mat. Appeal No.9 of 2008 -----------------------------------------------Dated this the 11[th] day of September, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ The second respondent in O.P.614/2002 instituted by the first respondent before the Family Court, Thiruvananthapuram challenges in this appeal the judgment of the Family Court to the extent the same creates a charge over the appellant's property (the property described in 'B' schedule to the original petition before the Family Court) for recovery of monthly maintenance of ` 1,500/- ordered by the Family Court in favour of the first respondent against her husband, the second respondent. Even though various grounds have been raised in the memorandum of appeal Sri.G.Ram Mohan, the learned counsel for the appellant submitted at the very outset that the appellant is aggrieved not by the order of maintenance passed in favour of the first Mat. Appeal No.9 of 2008 -2- respondent who is the wife of the second respondent but he is aggrieved by the charge created by the maintenance amount over the 'B' schedule property. The 'B' schedule property belongs to the appellant absolutely by way of Ext.B1 Sale Deed. According to Sri.Ram Mohan, 'B' schedule belongs absolutely to the appellant and his brother, the third respondent herein who are brothers of the second respondent, the husband of the first respondent. According to the learned counsel, the property in question belonged to the mother of the appellant and respondents 2 and 3 under a settlement deed of the year 1984. The mother settled the property in favour of her three sons by virtue of document No.2542/97. As the second respondent had to pay off some of the creditors immediately, the second respondent was in urgent and indispensable need for money. For raising the money the second respondent executed Ext.B1 sale deed. The appellant, according to the learned counsel, is a bona fide purchaser. The finding of the court below was that Ext.B1 deed was brought into existence for defeating the Mat. Appeal No.9 of 2008 -3- interest of the first respondent is contrary to the evidence oral, documentary and circumstantial. The first respondent had no legal right to be maintained out of the properties covered by Ext.B1. The entire property covered by Ext.B1 was under the absolute ownership, possession and enjoyment of the mother till she executed settlement deed No.2542/97. Ext.B1 is a bona fide transaction and the appellant and his brother, the third respondent are the bona fide purchasers. Sri.Ram Mohan submitted that Section 39 of the T.P Act which is resorted to by the court below cannot have any application in the present case. Counsel pointed out that the first respondent has not so far sought for invalidation of Ext.B1 deed. Counsel referred to Section 53 of the T.P Act dealing with fraudulent transfers. A transfer which is a fraudulent transfer for the purpose of Section 53 of the T.P Act is not ab initio void. The said transfer is only voidable at the option of the creditor to defeat whom the transfer is made. Therefore, according to the learned counsel in the absence of a prayer for invalidation of the Mat. Appeal No.9 of 2008 -4- document the Ext.B1 settlement deed executed by the mother is a valid document. Ext.B1 has to be found to be a valid document. The appellant and his brother, the third respondent took possession actually from the mother and not from the second respondent. Sri.Ram Mohan would place reliance on the judgment of this Court in Vijayan v. Sobhana and others (2007(2) KHC 178), Devu v. Preetha (2012(1) KLT 617), Muthuperumal Pillai v. Pechi Amma (1955 KHC 49), Lakshmi v. Valliyammal (1992(2) KLT 873) in support of his submissions. 2. All the submissions of Sri.Ram Mohan were resisted by Sri.M.Ramaswamy Pillai, the learned counsel for the first respondent. According to Sri.Ramaswamy Pillai the decision cited by Sri.Ram Mohan except the decision in Lakshmi v. Valliyammal (1992(2) KLT 873) will not have any application to the facts which obtain in this case. It is the decisions in Ramankutty v. Amminikutty (1997(1) KLT 559) and Divakaran v. Chellamma (1985 KLT 1001) which were relied on by the court below which are actually applicable. Mat. Appeal No.9 of 2008 -5- Sri.Ramaswamy Pillai submitted that at the time when Ext.B1 Sale Deed was executed the Family Court has already passed the order of maintenance in favour of the first respondent. The liability of the second respondent, husband herein to maintain his wife, the first respondent had already become crystallized by the passage of the maintenance order. The very execution of the settlement deed by the mother and the contemporaneous execution of Ext.B1 in favour of the two sons were made with the objective of defeating the interest of the first respondent, the abandoned wife of the second respondent who has not been able to realise a single rupee from the second respondent notwithstanding the maintenance order passed by the Family Court way back in 1997. There is no warrant for interfering with the impugned order, so submitted Sri.Ramaswamy Pillai. 3. We have given our anxious considerations to the rival submissions addressed at the Bar. We have analysed the relevant statutory provisions as well as the ratio Mat. Appeal No.9 of 2008 -6- emerging from the decisions cited at the Bar and the decisions relied on by the Family Court. The liability of every husband to maintain his wife who is incapable of maintaining herself is statutory. The liability of the second respondent to maintain the first respondent became crystallized by the order of maintenance passed by the Family Court in 1997. Our scrutiny of the documents reveal that even without execution of the settlement deed by the mother/the appellant, the other sons of the mother namely the second and third respondents herein were having interest in the property as the parties were Nairs and the property was tarwad property. The inference drawn by the court below that Ext.B1 was got executed with oblique motives is justified by the circumstances attending on such execution. The appellant is not entitled for equitable relief also. In short we do not find any warrant for interfering with the impugned judgment. We dismiss the appeal. 4. However, in deference to the submissions of Sri.Ram Mohan that the second respondent is quite capable of Mat. Appeal No.9 of 2008 -7- paying the maintenance amount we issue a direction that 'B' schedule property belonging to the appellant will be proceeded against only after the first respondent has exhausted all steps for recovering the amounts from the second respondent i.e from the person and properties of the second respondent. Sd/PIUS C. KURIAKOSE JUDGE Sd/BABU MATHEW P. JOSEPH JUDGE kns/- //TRUE COPY// P.A. TO JUDGE