Mat.Appeal No. 484 of 2013 & CO No. 31 of 2017 in Mat.Appeal No. 484/2013 (High Court of Kerala, Ernakulam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** **Mat.Appeal.No.484 OF 2013** **AGAINST THE JUDGMENT IN OP 983/2013 DATED 30-04-2013 OF FAMILY COURT, ATTINGAL** ## **APPELLANT/RESPONDENT:** **REMANI D/O.LALITHA,'SREENIVAYAKAM', VELLOORKONAM,KUDAVAYIL,ATTINGAL.P.O, CHERAYANKEEZHU TALUK,THIRUVANANTHAPURAM. PREVIOUS ADDRESS REMANI, D/O.LALITHA, THULASI NIVAS, NEAR RAILWAY STATION, KADAKKAVOOR, CHIRAYINKEEZHU, TRIVANDRUM** **BY ADV. SMT.S.A.SHERLY** ## **RESPONDENT/PETITIONER:** **1 MAJEDA AGED 44 YEARS NISHAMANZIL,VELLOORKONAM, KADUVAYIL CHITTATTINKARA DESOM, ATTINGAL VILLAGE, ATTINGAL.P.O, CHIRAYNKEEZHU TALUK, THIRUVANANTHAPURAM PIN – 695 304 2 NAJEEB AGED 58 YEARS S/O.IBRAHIM,FLAT NO.384, RAJAJI NAGAR, PULIMOODU.P.O, THIRUVANANTHAPURAM PIN – 695 001 R1 BY ADV. SRI.M.R.RAJESH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2020, ALONG WITH CO.31/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** **CO.No.31 OF 2017 IN Mat.Appeal. 484/2013** **AGAINST THE JUDGMENT DATED 30.04.2013 IN O.P NO.983/2013 ON THE FILE OF THE FAMILY COURT, ATTINGAL** ## **CROSS OBJECTOR/1ST RESPONDENT/PETITIONER:** **MAJEDA W/O. NAJEEB, NISHA MANZIL, VELLOORKONAM, KADUVAYIL CHITTATTINKARA DESOM, ATTINGAL VILLAGE,ATTINGAL P.O, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DIST.** **BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA** ## **RESPONDENTS/APPELLAN AND 2ND RESPONDENT/RESPONDENTS:** **1 REMANI D/O. LALITHA, THULASI NIVAS, NEAR RAILWAY STATION, KADAKKAVOOR P.O, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. 2 NAJEEB S/O. IBRAHIM, FLAT NO.384, RAJAJI NAGAR, PULIMOODU P.O, THIRUVANANTHAPURAM DIST.** **R1 BY ADV. SMT.S.A.SHERLY** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2020, ALONG WITH Mat.Appeal.484/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 ## **JUDGMENT** **[ Mat.Appeal.484/2013, CO.31/2017 ]** **Dated this the 20th day of February 2020** ## **Shaffique,J** This appeal is filed by the 2[nd] respondent in OP.No.983 of 2013 of the Family Court, Attingal. The Original Petition has been filed by the 1[st] respondent herein, _interalia_ seeking for a declaration that she is the owner of petition schedule property as per settlement deed No.1134 of 2009 of the Attingal SRO. She also sought for permanent prohibitory injunction to restrain the respondents from disturbing her possession in the property and to restrain them from evicting her from the said property and further to restrain the respondents from trespassing into the petition schedule property. She further sought for a declaration that sale deed No.1036 of 2010 of Attingal SRO, executed by the 1[st] respondent Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 4 herein in favour of the appellant is null and void. 2. The short facts of the case would disclose as under; The parties are described as shown in the Original Petition unless otherwise stated. The petitioner and the 1[st] respondent got married on 20.3.1987 and two children were born in the wedlock. Both of them had become major. Her contention was that her husband, 1[st] respondent was on inimical terms with her and her children and due to the undue influence of the 2[nd] respondent, he is residing separately effective from 25.12.2009. The petition schedule property was purchased by the 1[st] respondent as per sale deed No.3336/2002 of Attingal SRO. The property was mortgaged and the petitioner gave her money for settling the liabilities. 1[St] respondent therefore executed a settlement deed as 1134 of 2009 of Attingal SRO in her favor, which was accepted by her. She effected mutation and was Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 5 paying tax. Thereafter the 1[st] respondent deserted the petitioner and her children and subsequently in collusion with the 2[nd] respondent, executed sale deed No.1036/2010 of Attingal SRO. When the petitioner came to know about the fraud and attempt on the part of the respondents to trespass into the property, she filed the above suit seeking the aforesaid reliefs. The 1[st] respondent husband did not contest the matter. The 2[nd] respondent filed objections _interalia_ stating that there was no fraud in purchasing the property. Since the 1[st] respondent along with the petitioner had taken a loan from the Bank, there was a fabulous amount outstanding. The 1[st] respondent approached him through a broker for sale of the the schedule property. She cleared the liabilities towards the Bank and accordingly the property was assigned in her favour for a sum of Rs.4,35,000/-. According to her, she was not aware of any such settlement deed and there Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 6 is no such document. Further, it was contended that the settlement deed had not taken effect and therefore the document executed by 1[st] respondent in her favour is a valid document. 3. Evidence in the case consisted of oral testimony of the petitioner as PW1 and three witnesses were examined as PW2 to PW4. The 2[nd] respondent was examined as CPW1 and the broker was examined as CPW2. Exts. A1 to A10, B1 to B26, Exts.X1 series, C1 and C2 were the documents relied upon by either side. 4. The Family Court observed that the contention of the petitioner that she had discharged the liability with the bank and for that purpose the settlement deed was executed in her favour was not proved and was found to be a false contention. It is observed from Ext.B17 issued by State Bank of India, Attingal Branch that the Housing Loan Account was closed only on 9.4.2010, whereas Ext.A1 settlement deed was executed on 14.5.2009. It was also Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 7 found that mutation was effected in respect of the property after 9.4.2010 and therefore there was no acceptance of the gift. Merely for the reason that the petitioner was in possession of the property by itself will not be a ground to arrive at a finding that there was acceptance of the gift. Accordingly, it was found that Ext.A1 was not accepted and the settlement deed was not valid in so far as it is not accepted and consequently the sale deed executed by the 1[st] respondent in favor of the 2[nd] respondent was valid. However, proceeding further it was found that since the petitioner/wife was in possession of the property on the date of petition she was permitted to continue in possession until she is evicted by due process of law in a civil suit on the strength of the title deed in favour of the petitioner. 5. The contention urged by the counsel for the appellant is that, though it was found that Ext.B1 was a valid sale deed, the Trial Court Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 8 went wrong in coming to a finding that the property is in possession of the petitioner. It is contended that, at the time when the property was purchased, petitioner was not in possession of the property and therefore the decree granting processory interest until she is evicted is valid. 6. Cross Objection had been filed by the respondents challenging the judgment of the Family Court to the extent that a declaration was not granted based on the settlement deed and on the finding that Ext.B1 was a valid document. Further it is contended that the petitioner is not in possession of the property as she was ousted after filing of the suit, which is evident from the documents produced in the case. Though an application was filed to amend the pleadings as I.A.No.251 of 2015, no orders were passed and therefore petitioner was unable to seek for recovery of possession of the petition schedule property. Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 9 7. Learned counsel for the appellant further submits that in addition to the appeal, the appellant had also filed a criminal case against the husband and wife for cheating and creating fraudulent documents and the case is pending before the Judicial First Class Magistrate Court, Attingal as CC No.937 of 2013. It is therefore argued that even assuming that this is a case wherein the settlement deed is accepted, it was a fraudulent document which should not have been taken into consideration at all. However, there is no pleading to the effect that the settlement deed was fraudulent, whereas the contention was that there was no such settlement deed and if at all there is a document it was not accepted. According to the appellant, there is clear collusion between the petitioner and the 1[st] respondent and the appellant had been defrauded in the matter. 8. On the other hand, the argument of the learned counsel for the petitioner is that, as Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 10 on the date when the sale deed was executed, the 1[st] respondent had no title or interest in the property as he had already executed the gift deed. That the petitioner had failed to prove that she had discharged the liabilities towards the bank as contended by her should not have been a reason to reject the gift deed. The consideration for a gift deed is love and affection and therefore payment of any money or discharging of any liability cannot be a consideration for executing the settlement deed. The Family Court therefore erred in arriving at such a finding. Consequently, it should have held that Ext.B1 sale deed was void. Reference is also made to the judgment of a learned Single Judge of this Court in **Pathu Muthummal v. Asuma Beevi [(1986) KLT 1177],** judgment in **Narayani Bhanumathi v. Lalitha Bhai [(1973) KLT 961],** Privy Council judgment in **T.V.Kalyanasundaram Pillai v. Karuppa Mooppanar and others [AIR (1927) Privy Council 42]** and Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 11 judgment of the Patna High Court in **Mst.Samrathi Devi v. Parasuram Pandey and** **others [AIR (1975) PATNA 140].** There cannot be any dispute about the fact that, if the gift was valid, consequently the sale deed becomes invalid. The finding of the Court below is that the gift was not accepted by the wife as her contention that she had discharged the liability has not been proved. We are of the view that certain issues which had cropped up during the pendency of the suit could not be brought to the notice of the Court in so far as the petition was not permitted to be amended, when an application was filed as IA No.251 of 2013. Further learned counsel for the appellant has also sought for necessary permission to amend the pleadings, as it is brought to our notice that a criminal case is pending before the Magistrate Court and if at all there was a gift in favor of the petitioner, it was a fraudulent transfer on Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 **==> picture [13 x 7] intentionally omitted <==** account of the fact that, at the relevant time, there was a huge liability due to the bank. Appellant also requires an opportunity to adduce evidence to prove the amount paid to the bank to discharge the liability. Taking into account all these facts, especially since the petitioner is not in possession of the property and to avoid another litigation in this respect, it is appropriate to remit the matter back to the Trial Court for fresh consideration. In the result, this appeal and cross objection are allowed as under; i) The judgment of the Family court is set aside. ii) The matter is remitted back to the Family Court for fresh consideration. iii)Parties are permitted to amend their pleadings taking into consideration the factual circumstances involved in the matter. Mat.Appeal.No.484 OF 2013 & CO.No.31 OF 2017 IN Mat.Appeal. 484/2013 13 iv) Necessary application shall be filed within one month from the date of appearance of the parties. v) The parties shall appear before the Family Court, Attingal on 23.3.2020. vi) The Family Court shall endeavour to dispose of the matter as expeditiously as possible. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** ## **Sd/** **MARY JOSEPH JUDGE** **Sn** **//TRUE COPY// PA TO JUDGE**