Mat.Appeal No. 101 of 2019 (SulaiKha Hameed v. Ibrahim and Hammed)

**'CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940 Mat.Appeal.No. 101 of 2019 AGAINST THE ORDER IN I.A. NO. 1331/2018 IN OP 519/2018 of FAMILY COURT, TIRUR DATED 19-09-2018 ## APPELLANTS/PETITIONERS/RESPONDENTS 1 & 3 IN I.A. NO. 1331/2018: - 1 SULAIKHA HAMEED, AGED 40 YEARS D/O. ABDULLA, CHERUVATTATH HOUSE, KOLALAMBUR P.O., EDAPPAL VILLAGE, PONNANI TALUK-679 576 - 2 HADI MIUHAMMED, AGED 14 YEARS (MINOR), S/O. SULAIKHA HAMEED, REPRESENTED BY MOTHER 1ST APPELLANT SULAIHA HAMMED, CHERUVATTATH HOUSE, KOLALAMBUR P.O., EDAPPAL VILLAGE, PONNANI TALUK-679 576 - 3 AJMAL MUHAMMED, AGED 7 YEARS (MINOR), S/O. SULAIKHA HAMEED, REPRESENTED BY MOTHER 1ST APPELLANT SULAIHA HAMMED, CHERUVATTATH HOUSE, KOLALAMBUR P.O., EDAPPAL VILLAGE, PONNANI TALUK-679 576 BY ADV. SMT.N.DEEPA ## RESPONDENT/S: 1 IBRAHIM, AGED 60 YEARS S/O. RAHIN ALI HAJI, MUDVVANGADAN HOUSE, KLARI AMSOM DESOM, EDARIKODE P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT-676 501 - 2 HAMMED AGED 46 YEARS S/O.MOHAMMADUNNI, PANDARATHIL HOUSE, KOLOLOMBA P.O., EDAPPAL,PONNANI TALUK-679 576 ## BY ADV. SRI.JAMSHEED HAFIZ THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2019, ALONG WITH OP (FC).77/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940 OP (FC).No. 77 of 2019 AGAINST THE ORDER/JUDGMENT IN OP 519/2018 of FAMILY COURT, TIRUR ## PETITIONER/S: 1 SULAIKHA HAMEED, AGED 40 YEARS D/O.ABDULLA, CHERUVATTATH HOUSE, KOLOLAMBA P.O., EDAPPAL VILLAGE, PONNANI TALUK-679576. 2 HADI MUHAMMED, AGED 14 YEARS (MINOR), S/O.SULAIKHA HAMEED, REPRESENTED BY MOTHER 1ST APPELLANT SULAIHA HAMEED, CHERUVATTATH HOUSE, KOLOLAMBA P.O., EDAPPAL VILLAGE, PONNANI TALUK-679576. 3 AJMAL MUHAMED, AGED 7 YEARS (MINOR), S/O.SULAIKHA HAMEED, REPRESENTED BY MOTHER 1ST APPELLANT SULAIHA HAMEED, CHERUVATTATH HOUSE, KOLOLAMBA P.O., EDAPPAL VILLAGE, PONNANI TALUK-679576. BY ADV. SMT.N.DEEPA ## RESPONDENT/S: 1 IBRAHIM, AGED 60 YEARS S/O.RAHIN ALI HAJI, MUDAVANGADAN HOUSE, KLARI AMSOM DESOM, EDARIKODE P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT-676501. 2 HAMEED, AGED 46 YEARS S/O.MOHAMMADUNNI, PANDARATHIL HOUSE, KOLOLAMBA P.O., EDAPPAL, PONNANI TALUK-679 576. BY ADV. SRI.JAMSHEED HAFIZ THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14.03.2019, ALONG WITH Mat.Appeal.101/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -3- ## **JUDGMENT** ## K. Harilal,J. Since the aforesaid Mat. Appeal and the OP(FC) are directed against the common order, both the appeal and the Original Petition are heard together and disposed of accordingly. 2. The appellants in Mat. Appeal No. 101 of 2019 are the petitioners in OP(C) No. 519 of 2018 on the files of the Family Court, Tirur. (The parties are referred to as in the Mat. Appeal.) The aforesaid OP was filed seeking a decree for recovery of gold ornaments and money, and for realization of maintenance allowance from the second respondent. Along with the said Original Petition, they had filed I.A. No. 1247 of 2018 under Order XXXVIII Rule 5 of the CPC for attachment before judgment. As per order dated 19.09.2018, the Family Court had passed a conditional order of attachment in favour of the appellants. Subsequently, the aforesaid conditional attachment was made absolute. While so, the first respondent in the Mat. Appeal had filed a claim petition as I.A. Nos. 1331 and 1247 of 2018 in the said OP to lift the attachment on the ground that he had purchased the property from the 2[nd] respondent as per document Nos. 1019 of 2018 and 1020 of 2018 executed in March, 2018. It is further stated that the remaining portion of the property was also purchased by him from the first appellant as per document No.1018 of 2011. The first respondent/claim petitioner further contended that a few other items Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -4- were also purchased, by virtue of the sale deed Nos. 1021 of 2018 and 1017 of 2018, executed by the 2[nd] respondent. All those 5 documents were prepared by the same document writer and the same were executed simultaneously, on the same day, and registered with consecutive numbers. The first appellant, who is the executant of one among the above-mentioned document, was very much aware about the purchase of the attached property by the first respondent/claim petitioner. But, she had clandestinely filed I.A. No. 1247 of 2018 to get an order of attachment, by defrauding the court. With the aforesaid averments, he prayed for lifting the attachment. 3. The appellants had filed a counter statement contending that the claim of the first respondent/claim petitioner that he purchased the property during March 2018 is false. According to the first appellant, it is a paper of transaction clandestinely made, by the first respondent/claim petitioner and the 2[nd] respondent, to defraud the appellants. The 2[nd] respondent obtained the signatures of the first appellant under the guise of submitting an application for encumbrance certificate. Document Nos. 1019 of 2018 and 1020 of 2018 are not valid documents and those are fraudulent transfers. For the maintenance of the minors, there was charge in the said property. The first appellant did not receive any consideration for executing document No. 1019 of 2018. The said document was also made fraudulently. The first appellant was not aware of the execution of the Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -5- said documents, and the allegation that the OP is the result of the collusion between the appellants and the 2[nd] respondent is absolutely false. That apart, they had filed a counter claim along with the counter statement, seeking a declaration that Exts.P1 and P2 sale deeds are hit by Section 53 of the Transfer of Property Act and thereby Exts.P1 and P2 are not binding on them. 4. On the aforesaid rival pleadings, the Family Court considered and allowed the claim petition on a finding that the claim petitioner, who purchased the schedule property, much before the attachment before judgment, as per Exts.P1 and P2, is entitled to an order lifting the attachment. The legality and correctness of the aforesaid findings are challenged in this appeal. 5. Heard Smt. N. Deepa, the learned counsel for the appellants/Original Petitioners and Shri. Jamsheed Hafiz, the learned counsel appearing for the first respondent/claim petitioner. 6. The sum and substance of the arguments advanced by the learned counsel for the appellants/Original Petitioners is that the court below had went wrong in relying on the decision in _**Rajan alias Rajan Gopinathan v. Dr. D. Jayasree Nayar and another**_ [2010 (1) KLT 142], which stands overruled by a decision of the Full Bench of this Court in _**Verizon Builders and Developers Ltd., v. Jyothi Susan John**_ [2019 (1) KLT 100(FB)]. Secondly, it is contended that though the appellants/Original Petitioners have filed a counter claim, seeking a Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -6- declaration that Exts.P1 and P2 sale deeds in favour of the 1[st] respondent/claim petitioner are vitiated by fraud as contemplated under Section 53 of the Transfer of Property Act and thereby not binding on them, the said counter claim has not been considered, while considering the claim petition filed by the first respondent/claim petitioner. The learned counsel further contends that an application filed under Order XXXVIII Rule 8 of the CPC shall be adjudicated upon in the manner as provided for the adjudication of the claim to the property attached in execution of a decree for payment of money, as contemplated under Order XXI Rule 58 of the CPC. A claim or objection filed under Order XXI Rule 58 of the CPC shall be determined by the Court dealing with the claim or objection, as a suit and not by a separate suit. Further, as per Order VIII Rule 6A of the CPC, a defendant in a suit may, in addition to his right of pleadings, set off under Rule 6, set up, by way of counter claim against the claim of the plaintiff. Therefore, an application filed under Order XXXVIII Rule 8 of the CPC also should have been treated as a plaint. It follows that the appellants/Original Petitioners in the suit, who stand transposed to defendants in the claim petition, have the right to file a counter claim also and they filed it; but the same was not considered. Therefore, it was incumbent upon the Family Court to dispose of the counter claim also, along with the claim petition, on merits, the learned counsel contends. Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -7- _7. Per contra_ , the learned counsel for the first respondent/claim petitioner opposed the said argument and contended that there cannot be a counter claim, within a claim petition. So, the counter claim could not be considered, on merits, in a claim petition, wherein the property was sold to the claim petitioner, much before the attachment. The learned counsel for the first respondent has placed reliance on the decision in _**Hamda Ammal v. Avadiappa Pathar and others**_ [(1991) 1 SCC 715] and contended that where the transfer of property had been effected before attachment, no further enquiry need be conducted in a claim petition, as nothing remains after sale in favour of the claim petitioner. 8. The questions that arise for consideration in this appeal and OP(FC) are as follows: 1. Is a counter claim maintainable, in a Claim Petition, filed under Order XXXVIII Rule 8 of the CPC by a third party. 2. Can all the questions, including the question relating to the title and interest in the property attached, arising between the parties in a claim petition and counter claim filed therein, be adjudicated in the claim petition, filed by a third party, under Order XXXVIII Rule 8 of the CPC. 9. A counter claim is seen filed in a claim petition filed under Order XXXVIII Rule 8 of the CPC. As rightly pointed out by the learned counsel for the appellants, as per Order XXXVIII Rule 8 of the CPC, a Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -8- claim petition filed under the said provision shall be adjudicated upon in the manner provided for adjudication of the claim to the property attached, in execution of a decree for payment of money, under Order XXI Rule 58 of the CPC. As per Order 21 Rule 58 of the CPC, all the questions, including the question relating to the right, title or interest in the property attached, arising between parties to a proceeding or their representatives under this Rule and relevant to the adjudication of the claim or objection shall be determined by the court dealing with the claim or objection and not by a separate suit. It means that a claim petition filed under Order XXXVIII Rule 8 shall be treated as that of a plaint in the suit. 10. Where the claim petitioner gets the status of a plaintiff in a suit, certainly, the appellants/original petitioners, who filed an application seeking attachment would get transposed as defendant in the claim petition. If that be so, the appellants/Original Petitioners would get a right to file a counter statement/objection to the claim petition. As per Order VIII Rule 6A of the CPC, a defendant in a suit may, in addition to his right of pleading, set off under Rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -9- the nature of a claim for damages or not. We have already found that in a claim petition filed under Order XXXVIII Rule 8, the Original Petitioner, who filed the attachment petition, would get the status of a defendant in a suit. Necessarily, it must follow that he will get a right to file a counter claim also, along with his counter statement, as contemplated under Order VIII Rule 6A of the CPC. Thus, we find that a counter claim is maintainable in a claim petition filed by a third party under Order XXXVIII Rule 8 of the CPC. 11. Thus, on a conjoint reading of Order XXVIII Rule 8 with Order XXI Rule 58 and Order VIII Rule 6A of the CPC, we find that all the questions, including the question relating to the right, title and interest in the property attached, arising between the parties, and relevant to the adjudication of the claim or objection or counter claim can be adjudicated in a claim petition filed under Order XXXVIII Rule 8 of the CPC, by a third party. 12. Admittedly, Exts.P1 and P2 sale deeds were executed before attachment of the property on the application of the appellants. But, the appellants filed a counter claim along with the counter statement against the claim petition contending that Exts.P1 and P2 sale deeds in favour of the first respondent/claim petitioner is hit by Section 53 of the Transfer of Property Act as the same was effected fraudulently and there was no collusion between the 2[nd] respondent and the appellants. According to the appellants, Exts.P1 and P2 are paper transactions Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -10- only and the sale was effected to take away the property, from being attached in the suit. But, it is seen that the Family Court has discarded the aforesaid contention relying on the decision in _Rajan alias Rajan Gopinathan_ (2010 (1) KLT 142), wherein the Division Bench of this Court held that the questions, including the question relating to the right, title and interest in the property attached, should not be determined, irrespective of whether it is relevant to the adjudication of claim or objection. According to this decision, the question whether the transfer is hit by Section 53 of the Transfer of Property Act need not be considered in a claim petition made by the transferee, under Rule 8 Order XXXVIII of the CPC. The objection, if any, to the attachment before judgment would be determined under Order XXXVIII Rule 8 itself and not by recourse to Rule 58 of Order 21 of the CPC. 13. But, going by the decision in _**Verizon Builders and Developers Ltd. v. Jyothi Susan John**_ 2019(1) KLT 100 (FB), it could be seen that the Full Bench has elaborately considered the legality and correctness of the proposition laid down in Rajan's case and held that the judgment in Rajan's case does not lay down the correct law. Further, the Full Bench of this Court held as follows: “When the legislature deemed it fit that “any claim” to attach property is to be considered under O.XXXVIII R.8, there is no reason why the power of the Court should be curtailed and should stop short of a plea under S.53 of TP Act. The procedural difficulties in considering a claim u/S. 53 should not be a reason to deprive the Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -11- Court from considering a claim and the defence. Civil Courts are enjoined to consider the disputes between the parties and when substantive rights are created and such rights are being flouted, it is for the civil court to consider the respective contentions and arrive at a proper decision. That the consideration of such matters would be comprehensive should never be a reason to take away the jurisdiction of a civil court. Civil Court is bound to consider all suits of a civil nature except, suits of which their cognizance is expressly or impliedly barred. In the light of the above discussion, we are of the view that judgment in Rajan's case (2010 (1) KLT 142) does not lay down the correct law. While considering the application under O. XXXVIII R.8, the Court is enjoined with the power to consider whether the transfer is fraudulent in terms of S.53 of the T.P Act.” 14. The proposition laid down by the Full Bench is that while considering an application under Order XXXVIII Rule 8 of the CPC, the court is enjoined with power to consider the question whether the transfer is fraudulent in terms of Section 53 of the TP Act. In the instant case, the Family Court has omitted to consider the aforesaid question, relying on the Rajan's case, which stands overruled in _Verizon Builders and Developers_ ' case by the Full Bench. Thus, the findings of this Court, on the questions raised above, are supported by the aforesaid decision of the Full Bench. 15. In the above analysis, we find that it was incumbent upon the Family Court to consider the counter claim filed by the appellants, in I.A. No. 1331 of 2018, along with the counter statement filed by them, to the claim petition filed by the first respondent/claim petitioner. Consequently, the impugned order under challenge is set aside and the claim Petition and counter claim filed therein are remanded to the court below for fresh disposal of the same, after Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -12- affording sufficient opportunity, to both the parties, to adduce further evidence, if any. If the first respondent/claim petitioner has not filed a written statement to the counter claim, he shall be given an opportunity to file a written statement also. The Family Court shall pass an order afresh at the earliest, at any rate, within a period of three months from the date of appearance. The parties shall appear before the court below on 10.06.2019. Accordingly, the Mat. Appeal and the Original Petition are allowed as above. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** sd/- _Rv_ Mat. Appeal No. 101/2019 & OP(FC) No. 77/2019 -13-