Mat.Appeal Nos.530 and 531 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945** ## **MAT.APPEAL NO. 530 OF 2021** ## **AGAINST THE COMMON ORDER DTD.18.6.2021 IN OP 756/2018 OF FAMILY COURT, TIRUR** ## **APPELLANTS/RESPONDENTS NO.1,2,3,5 & 6:** - **1 SHAREEFA K.M.,AGED 43 YEARS D/O.KALLUMURIKKAL MUHAMMED @ KUNHU, W/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552.** - **2 MUHAMMED ASIF, AGED 26 YEARS S/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552.** - **3 K.M.KUNJU, AGED 68 YEARS S/O.LALLU MURIKKAL HYDRU, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552.** - **4 LISNA,AGED 25 YEARS D/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552.** - **5 HASNA,AGED 12 YEARS (MINOR), D/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552, REPRESENTED BY (MOTHER) SHAREEFA.K.M., AGED 43 YEARS, D/O.KALLUMURIKKAL MUHAMMED @ KUNHU, W/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552.** - **BY ADVS.DEEPA NARAYANAN** - **K.SUJAI SATHIAN** - **ASHA MARIAM MATHEWS** **MARY LIYA SABU ADV.T.SETHUMADHAV (Sr.)** ## **RESPONDENTS/PETITIONER & RESPONDENT NO.4:** - **1 SAINUDHEEN,AGED 55 YEARS S/O.KUNHIPOCKER, THAYYIL HOUSE, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552, MALAPPURAM DISTRICT.** - **2 ABDUL HAKEEM, AGED 53 YEARS S/O.KOLAMBAN MUHAMMED @ BAVA, KOLAMBAN HOUSE, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN-676 552, MALAPPURAM DISTRICT.** **BY ADV B.BINDU** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 14/12/2023, ALONG WITH Mat.Appeal.531/2021, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING:** 2 **Mat.Appeal Nos.530 and 531 of 2021** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945** ## **MAT.APPEAL NO. 531 OF 2021 AGAINST THE COMMON ORDER DTD.18.6.2021 IN OP 85/2016 OF FAMILY COURT, TIRUR** ## **APPELLANTS/PETITIONERS:** - **1 SHAREEFA K M., AGED 43 YEARS, D/O.KALLUMURIKKAL MUHAMMED @ KUNHU, W/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN 676 552** - **2 MUHAMMED HASIF, AGED 26 YEARS,S/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN 676 552** - **3 LISNA, AGED 25 YEARS,D/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN 676 552** - **4 HASNA, AGED 12 YEARS (MINOR), D/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN 676 552, REP.BY NEXT FRIEND (MOTHER) SHAREEFA K.M., AGED 43 YEARS, D/O.KALLUMURIKKAL MUHAMMED @ KUNHU, W/O.ABDUL HAKEEM, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN 676 552** - **BY ADVS.DEEPA NARAYANAN K.SUJAI SATHIAN ASHA MARIAM MATHEWS MARY LIYA SABU ADV.T.SETHUMADHAV (Sr.)** ## **RESPONDENTS/RESPONDENTS:** - **1 ABDUL HAKEEM, AGED 53 YEARS, S/O.KOLAMBAN MUHAMMED @ BAVA, KOLAMBAN HOUSE, EDAYOOR AMSOM, POOVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN 676 552, MALAPPURAM DISTRICT** - **2 SAINUDHEEN, AGED 55 YEARS S/O.KUNHIPOCKER, THAYYIL HOUSE, EDAYOOR AMSOM, POOVVATHUMTHARA DESOM, POOKKATTRI, TIRUR TALUK, EDAYYOR VILLAGE, PIN 676 552, MALAPPURAM DISTRICT. BY ADVS.B.BINDU** - **K.RAKESH** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING, ALONG WITH Mat.Appeal.530/2021, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING:** 3 **Mat.Appeal Nos.530 and 531 of 2021** ## **AMIT RAWAL & C.S.SUDHA, JJ.** **----------------------------------------------------Mat.Appeal Nos.530 and 531 of 2021 ----------------------------------------------------Dated this the 20[th] day of December, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** These appeals under Section 19(1) of the Family Courts Act, 1984, have been filed against the common order in O.P.No.85/2016 and O.P.No.756/2018 on the file of the Family Court, Tirur. Mat.Appeal No.530/2021 has been filed against the order in O.P.No.756/2018 and Mat.Appeal No.531/2021, against the order in O.P.No.85/2016. The parties in these appeals will be referred to as described in O.P.No.85/2016. 2. O.P.No.85/2016 was filed by the petitioners alleging thus - the marriage between the first petitioner and the first respondent was solemnised on 17/09/1992 as per the rites and customs of the community to which they belong. Petitioners 2 to 4 are the children born in the wedlock. Till November 2012, the petitioners and the first respondent were residing in the tharavad house of the first respondent. After the birth of the first child, the first respondent and his family started harassing the petitioner. There were always problems in the family. Therefore, it was decided by the family members of both sides that the petitioner and the first respondent should 4 ## **Mat.Appeal Nos.530 and 531 of 2021** construct a house of their own and reside separately. At the time of marriage, the petitioner was given 35 sovereigns of gold ornaments, which she entrusted with the first respondent who was in possession of the same as a trustee. The gold ornaments of the first petitioner were sold and the petition schedule property purchased in the name of the first respondent. The purchase was made in the name of the first respondent as a trustee of his wife and children. The residential house in the property was constructed with the balance amount received from the sale of the gold ornaments of the first petitioner, therefore, the first respondent does not have absolute right over the property but holding the property as a trustee. 2.1. After the petitioners and the first respondent shifted their residence to the new house, marital disputes again arose between the first petitioner and the first respondent due to which she was constrained to institute proceedings against the first respondent before the Judicial First Class Magistrate and the Family Court, Tirur. The first respondent coming to know about the initiation of proceedings and with a view to defeat the rights of the petitioners herein colluded with the second respondent and created a document by which the property has been transferred in the name of the second respondent. The document created is a fraudulent and sham one, created for the purpose of defeating the rights of the petitioners. The 5 ## **Mat.Appeal Nos.530 and 531 of 2021** Judicial First Class Magistrate, Tirur, in M.C.No.315/2013 restrained the first respondent from alienating the petition schedule property or creating any liability thereon. However, to overcome the orders of the Court, the first respondent stealthily executed the sale deed in favour of the second respondent to defeat the rights of the petitioners. The sale deed is not supported by any consideration. It is a sham and void document. Hence the petitioners sought a decree for declaring sale deed No.2947/2013, SRO, Moorkkanad executed by the first respondent in favour of the second respondent to be null and void and also for a decree of prohibitory injunction against the respondents from disturbing the petitioners' peaceful possession and enjoyment of the petition schedule property and other incidental reliefs. 3. The respondents entered appearance and filed separate objections. According to the first respondent, the property was purchased using his own funds obtained from his employment abroad. The allegation that the property was purchased after selling the gold ornaments of the first petitioner is false. The first petitioner hailing from a very poor family never had 30 sovereigns of gold ornaments at the time of her marriage. None of the ornaments of the first petitioner was ever entrusted with the first respondent and therefore there was no occasion for the first respondent to misappropriate the gold ornaments or to sell it. The first petitioner at the time 6 ## **Mat.Appeal Nos.530 and 531 of 2021** of her marriage had about ten (10) sovereigns which were taken back by the first petitioner's father in connection with the marriage of her younger sister, which he has never returned. For the purchase of the petition schedule property, no amount had been paid by the first petitioner or her relatives. The house in the property was also constructed by the first respondent using his own savings. Till 1989, the first respondent was working abroad. The petition schedule property and the building therein were sold on the basis of an agreement dated 05/10/2013 executed between the first and the second respondent. The first respondent anticipating that he may have to leave India to join his employment before the registration of the sale deed and to prevent any delay in the execution of the document, executed a power of attorney in favour of his sister. It was on the basis of the said agreement for sale and power of attorney, the sale deed was executed for valuable consideration in favour of the second respondent. The petitioners had resided in the residential building in the property till 20/12/2013. While the petitioners were residing with the first respondent, at the instigation of the first petitioner's father, M.C.No.315/2013 was instituted under the Protection of Women from Domestic Violence Act, 2005. Before receiving notice from the Court in the said case, the first respondent assigned the property to the second respondent, for valid consideration. The sale has not been conducted 7 ## **Mat.Appeal Nos.530 and 531 of 2021** in violation or against any orders of the court. The second respondent has already instituted a suit before the Munsiff Court, Tirur against the petitioners herein seeking recovery of the petition schedule property and the building therein. The first respondent came to know about the pendency of M.C.No.315/2013 only on 03/02/2014, that is, much after the execution of the sale deed in favour of the first respondent. Neither the first respondent nor the second respondent had ever tried to evict the petitioners forcefully from the petition schedule property. The second respondent is a _bona fide_ purchaser for value. Therefore, the sale deed executed by the first respondent in favour of the second respondent is not liable to be set aside or declared invalid. 4. The second respondent is the petitioner in O.P.No.756/2018. The second respondent initially had filed O.S.No.119/2014 before the Munsiff Court, Tirur which was later on transferred to the Family Court and numbered as O.P.No.756/2018. The contentions contained in the objection of the second respondent to O.P.No.85/2016 and in O.P.No.756/2018 are one and the same. According to the second respondent, the petition schedule property exclusively belonged to the first respondent as per a registered deed of the year 2004. After purchasing the property, the first respondent constructed a building therein and had been residing therein with his family. 8 ## **Mat.Appeal Nos.530 and 531 of 2021** The first respondent was conducting some business which ran into loss. In order to clear the liabilities he owed to several persons, the first respondent decided to sell his property and accordingly a sale agreement was executed between the first respondent and the second respondent. On the basis of the sale agreement, sale deed No.2947/2013 was executed by the first respondent in his favour on payment of valid consideration. The second respondent actually wanted to occupy the residential building in the property immediately after the purchase. However before he could do so, the petitioners trespassed and started residence in the property. He immediately informed the first respondent about the trespass by the petitioners. He was then told by the first respondent that the latter had already divorced the petitioner and therefore the petitioners have no right to remain in the building or property. Thereafter, mediation had taken place between the petitioner and the first respondent and in the mediation conducted before the Mosque committee, the parties were unable to arrive at any settlement, There are several litigations between the petitioners and the first respondent. Hence no settlement could be arrived at between the parties. The first respondent during the mediation talks had offered to provide the petitioners an alternate accommodation, to which the petitioners were not amenable. It was only because of the adamant attitude of the petitioners, a settlement could not be 9 ## **Mat.Appeal Nos.530 and 531 of 2021** arrived at. As the property has been purchased by the second respondent for valuable consideration, the petitioners are not entitled to the reliefs prayed for. In O.P.No.756/2018, the second respondent sought recovery of the petition schedule property from the petitioners. The respondents in O.P.No.756/2018 are the petitioners in O.P.No.85/2016. The father of the first petitioner is the third respondent in O.P.No.756/2018. 5. On completion of pleadings, the parties went to trial. Joint trial of the cases was conducted. O.P.No.85/2016 was taken as the main case in which evidence was recorded. PWs.1 and 2 were examined and Exts.P1 to P44 were marked on the side of the petitioners. RWs.1 to 3 were examined and Exts.R1 to R22 were marked on the side of the first respondent. The second respondent was examined as RW4 and Exts.B1 to B8 were marked on his side. The report and plan of the Advocate Commissioner were marked as Exts.C1 and C1(a). Exts.X1(a) to X2 were also marked at the instance of the first respondent. The family court on an appreciation of the oral and documentary evidence and after hearing both sides, dismissed O.P.No.85/2016 and allowed O.P.No.756/2018 by which the petitioners in O.P.No.85/2016, who are the respondents in O.P.No.756/2018, have been directed to surrender vacant possession of the petition schedule building to the second respondent in O.P.No.85/2016, the petitioner in 10 ## **Mat.Appeal Nos.530 and 531 of 2021** O.P.No.756/2018. Aggrieved, the petitioners in O.P.No.85/2016 have come up in appeal. 6. The only point that arises for consideration is whether there is any infirmity in the findings of the family court calling for an interference by this Court. 7. Heard both sides. 8. The case of the petitioners that the petition schedule property had been purchased in the name of the first respondent using the proceeds received from the sale of the gold ornaments of the first petitioner has been disbelieved by the family court as no consistent pleadings or evidence has been adduced by the petitioners to substantiate the case. In the petition, the case is that the first petitioner had been given 35 sovereigns of gold ornaments at the time of the marriage. There is no specific pleadings regarding the date of the entrustment or the approximate period during which the gold ornaments had been entrusted to the first respondent. No evidence was adduced by the petitioners to substantiate the case that the first petitioner had 35 sovereigns of gold ornaments at the time of marriage. The first respondent had denied the case of the petitioners and contended that the first petitioner never had 35 sovereigns of gold ornaments. According to him, whatever few gold ornaments the first petitioner had at the time of the 11 ## **Mat.Appeal Nos.530 and 531 of 2021** marriage, had been taken back by her father in the year 2008 in connection with the marriage of her sister and that the same have never been returned. The first petitioner initially had a case that the gold ornaments had been purchased from Thrissur. Thereafter she changed her version and stated that 30 sovereigns of gold ornaments were made by a local goldsmith and that the remaining items had been given by her relatives. Her specific case in the petition is that she had 30 sovereigns of gold ornaments but when she was examined, her version was that she only had 22 sovereigns of gold ornaments that had been made by a local goldsmith and that the remaining items had been gifted by her relatives. To establish her case that the gold ornaments had been made by a goldsmith, the petitioners relied on Ext.P38. However it was noticed by the family court that the details of the ornaments referred to in Ext.P38 did not tally with the gold ornaments seen worn by the first petitioner at the time of her marriage as evidenced by Ext.P39 photograph. The petitioner had also no case that any old gold ornaments had been given to the goldsmith from which new ornaments had been made. The petitioners also did not bring in clear pleadings or evidence to show the amount for which the gold ornaments had been sold or the price at which the petition schedule property had been purchased. No satisfactory evidence was adduced to show that the first petitioner had 30 sovereigns of gold 12 ## **Mat.Appeal Nos.530 and 531 of 2021** ornaments at the time of the marriage or that the said ornaments had been entrusted to the first respondent or that the said ornaments had been sold by the first respondent for the purchase of the petition schedule property. Hence we do not find any reasons to disagree with the finding of the family court that the petitioners have failed to prove their case of entrustment of gold ornaments or sale of the same by the first respondent for the purchase of the petition schedule property or for the construction of the building therein. 9. In the petition, the petitioners have a definite case that the first respondent sold the petition schedule property without any valid consideration to the second respondent with the intention to defeat their claim and hence the sale deed in favour of the second respondent is a sham and fraudulent document which is liable to be set aside. This case of the petitioners is denied by the respondents who contended that the second respondent is a _bona fide_ purchaser of the property for valuable consideration. As held by the Apex Court in **V.M.Salim v. Fathima Muhammed** , **(2011)15 SCC 756,** a document will be "sham" if it ostensibly creates rights/obligations, which are not intended to be acted upon by the parties to the deed, and is executed in pursuance of a secret arrangement, with the ulterior motive of securing an undisclosed advantage to the owner or the executant as the case may be. It involves collusion between the 13 ## **Mat.Appeal Nos.530 and 531 of 2021** parties to the document to achieve an illegal objective. Therefore, if anyone wants to establish that a sale transaction is sham and collusive, he must plead and prove a secret arrangement between the vendor and the purchaser, that the sale consideration was nominal and that no right, title or interest passed or intended to pass to the purchaser under the sale, and the deed was executed with the sole intention of defeating their rights. Where direct evidence of such secret arrangement is not available, it may be possible to establish the sham nature of a document by some clinching circumstantial evidence. This can be done by showing that no sale consideration was paid to the vendor though shown to have been paid and that the expenses relating to stamp duty and registration of the sale deed were incurred by the vendor himself. It may also be established by proving that even after the sale, the vendor himself was exercising all rights of an owner. 10. **V.M.Salim** ( _Supra_ ) was a case in which the landlord/owner moved for eviction of the tenants from the property. The tenants objected to the plea for eviction and contended that the sale deed relied on by the landlord was a sham document and that the same had been executed by the prior owner with the intention to evict the tenants by hook or crook. The contention taken up by the tenants was that since the erstwhile owner could not evict them as he was having other buildings in the city, the first proviso 14 ## **Mat.Appeal Nos.530 and 531 of 2021** to Section 11(3) of the Kerala Buildings (Lease and Rent control) Act, 1965 being attracted, the tenanted premises was sold to the appellant who did not own any other building under a sham document so as to evict the tenants for the benefit of the previous owner. The tenants relied on three circumstances in support of their contention that the transaction was sham and collusive - ( _a_ ) the premises sold is a portion of a larger building; ( _b_ ) that the price was meagre; and ( _c_ ) the previous owner had earlier failed in his attempt to evict the respondents. Referring to these circumstances the Apex Court held that the circumstances relied on by the tenants to contend that the transaction was sham, can actually be valid reasons for an owner to sell the premises. If the rental income from a property is very low, and the owner is not in a position either to get vacant possession or increase the rents, he may out of frustration or absence of an alternative, decide to dispose of such property at whatever price it may fetch, and use the sale price for some other useful purpose. Therefore, if an owner sells a property for a modest price, on account of the meagre returns therefrom and inability to either evict the tenant or increase the income therefrom, that by itself cannot lead to a presumption that the sale transaction is sham. 11. As held in **V.M.Salim** ( _Supra_ ), it is true that merely because the sale consideration is meager or low, that alone cannot be a ground for 15 ## **Mat.Appeal Nos.530 and 531 of 2021** holding that a document is sham. It is true that the petitioners have not been able to bring in direct evidence regarding any secrete arrangement between the first respondent and the second respondent. However, the petitioners have been able to bring in circumstantial evidence pointing out that the transaction between the first and second respondents was in fact sham and collusive. M.C.No.315/2013 was filed by the petitioner before the Judicial First Class Magistrate, Tirur on 25/10/2013 under Section 12 of the Protection of Women from Domestic Violence Act, 2005. By order dated 25/11/2013, the first respondent/husband was restrained from alienating the property and a residence order protecting the right of the petitioners to reside in the property was given. According to the first respondent, he entered into Ext.B4 sale agreement on 05/10/2013, on which date advance amount of ₹1,50,000/- was received by him. The total sale consideration was fixed at ₹3,88,000/-. On 02/12/2013, Ext.B1 sale deed was executed in favour of the second respondent by which the property was transferred in favour of the second respondent. The first respondent received the injunction order in M.C.No.315/2013 only on 03/02/2014. He was never aware of such an order. There was no order(s) pending when Ext.B1 was executed by the first respondent. The sale has been for valid consideration and therefore it is not a sham or fraudulent document as alleged by the petitioner. This claim can 16 ## **Mat.Appeal Nos.530 and 531 of 2021** be seen to be false from the evidence on record. 12. Admittedly, the first respondent has no residential building of his own other than the petition schedule property. According to the first respondent, after executing Ext.B4 sale agreement dated 05/10/2013, he had executed a power of attorney in favour of his sister and it was on the basis of the said power of attorney, Ext.B1 sale deed dated 02/12/2013 was executed in favour of the second respondent. According to him, he had executed the power of attorney to prevent any delay in execution of the sale deed. What was the tearing hurry for the first respondent to sell the property to the second respondent has not been made clear. During the course of arguments, it was submitted that the sale was effected as the first respondent had huge financial liabilities which required to be cleared off and also for meeting his treatment expenses. However, no such circumstance(s) or case is seen pleaded in the counter by the first respondent. There is also no evidence to substantiate the same. Therefore no reason(s) has been shown which compelled the first respondent to sell his only piece of property in his name. 13. Moreover, the property has got an extent of about 24.5 cents in which a residential building having a plinth area of about 1,400 sq.ft. is situated. The construction of the house has not been fully completed. It has been brought in evidence that the property has road-frontage and that 17 ## **Mat.Appeal Nos.530 and 531 of 2021** institutions of public importance are situated nearby. Therefore it is difficult to believe that 24.5 cents of property along with a building was agreed to be sold for a paltry sum of ₹3,88,000/-. Though as per Ext.B4 agreement, the sale consideration was fixed at ₹3,88,000/-, the first respondent examined as RW1 deposed that actually the sale consideration was ₹38 lakhs. But it is highly doubtful whether this ₹38 lakhs was actually paid to the first respondent. The second respondent when examined as RW2, when asked about the value per cent of the property in the locality, pleaded ignorance. Even at the time of the sale, the petitioners were residing in the property. However the second respondent does not seem to have been aware of the same. The second respondent has a case that after construction of the building in the property, the first respondent along with his family were residing therein. He also has a case that the petitioners trespassed into the property and started residence therein. However, he does not make it clear as to when the petitioners ceased residence or shifted residence and thereafter trespassed into the property. He admitted that he had not given any application for dismantling the electric connection in the property. He also deposed that he does not know whether the first respondent had given any such application. He also does not know whether the house in the property has been plastered. If he was a _bona fide_ purchasee for value, this 18 **Mat.Appeal Nos.530 and 531 of 2021** would not be the course of conduct he would have followed. 14. The first respondent examined as RW1 is also not sure about the amount that he had received as sale consideration. RW1 does not know the value of the stamp paper purchased. He has no explanation as to why the power of attorney was not executed in favour of the first petitioner or their major son, because at the time of execution of Ext.B1 sale deed, even according to him the marital relationship was subsisting. He admits that when O.P.No.85/2016 was filed, the petitioners were residing in the property. To a further question as to the present residence of the petitioners, he pleaded ignorance. He also deposed that he cannot say whether the property was sold when dispute relating to the same was pending. The first respondent has also not produced any evidence to disprove the allegation of the petitioners that Ext.B1 is not supported by any valid consideration. If he had actually received the sale consideration, there would definitely be documents to substantiate the same because he does not have a case that the purported sale consideration of ₹38 lakhs had been given in cash. All these factors would probabilise the case of the petitioners that Ext.B1 was created solely for the purpose of defeating the right of the petitioners. It is true that the property was sold before the injunction order was passed in M.C.No.315/2013. However it is clear from the sequence of events referred 19 ## **Mat.Appeal Nos.530 and 531 of 2021** to hereinabove that the first respondent sold the property to the second respondent with the sole intention of defeating the rights of the petitioners. The document also does not seem to be supported by any valid consideration. These facts have been omitted to be noticed by the family court. In these circumstances the petitioners in O.P.No.85/2016 are entitled to succeed. 15. Hence Mat.Appeal No.531/2021 is allowed by which the order in O.P.No.85/2016 is set aside. O.P.No.85/2016 is allowed and a decree granted in favour of the petitioners declaring that Ext.B1 sale deed in favour of the second respondent being a sham document, is null and void. Mat.Appeal No.530/2021 is also allowed and the order in O.P.No.756/2018 is set aside. Interlocutory applications, if any pending, shall stand closed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/