MOLANHIPILAN LAILA v. ABDUL HAMMED and MANJAMMATTIL ABOOBACKER SIDDIQUE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 O.P.(FC) NO. 70 OF 2023** **AGAINST THE ORDER DATED 01.11.2022 IN I.A.NO.3 OF 2022 IN I.A.NO.2 OF 2021 IN O.P.NO.631 OF 2021 ON THE FILE OF THE FAMILY COURT, TIRUR** ## **PETITIONER:** ## **MOLANHIPILAN LAILA,** **AGED 43 YEARS, W/O MANJAMMATTIL SIDDIQU @ ABOOBACKER SIDDIQUE, D/O MOIDEENKUTTY, MANJAMMATTIL (HOUSE), A.R. NAGAR AMSOM, A.R. NAGAR DESOM, THAZHE KULAPPURAM, A.R. NAGAR P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN – 676305.** **BY ADVS.** **R.T.PRADEEP M.BINDUDAS** **K.C.HARISH** ## **RESPONDENTS:** **1 ABDUL HAMMED AGED 63 YEARS, S/O ALAVI, ALAKKAPARAMBIL (HOUSE), MOONNIYOOR AMSOM, MOONNIYOOR DESOM, P.O. MOONNIYOOR, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN – 676311.** 2 ## O.P.(FC) No.70 of 2023 **2 MANJAMMATTIL ABOOBACKER SIDDIQUE, AGED 59 YEARS, S/O MOHAMMEDKUTTY, A.R. NAGAR AMSOM, A.R. NAGAR DESOM, A.R. NAGAR P.O., TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN – 676305.** **BY ADV MOHAMED JAMEEL P.K** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 10.03.2023, THE COURT ON 22.03.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.70 of 2023 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner in O.P.No.631 of 2021 on the file of the Family Court, Tirur has filed this Original Petition under Article 227 of the Constitution of India. She seeks to set aside Ext.P5 order dated 01.11.2022 of the Family Court in I.A.No.3 of 2022 in I.A.No.2 of 2021 in O.P.No.631 of 2021. 2. On 08.02.2023, notice was directed to the served on the respondents. Pursuant to notice, the 1[st] respondent entered appearance through his learned counsel. The 2[nd] respondent did not choose to appear before this Court. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1[st] respondent. 4. O.P.No.631 of 2021 was filed by the petitioner seeking a decree for recovery of 40 sovereigns of gold ornaments and Rs.1,00,000/- from the respondents. The marriage of the petitioner and the 2[nd] respondent was solemnised on 24.11.1996. The petitioner alleges that gold 4 O.P.(FC) No.70 of 2023 ornaments given to her at the time of marriage and Rs.1,00,000/- paid by her father were misappropriated by the respondents. It was further alleged that the 2[nd] respondent utilising 25 sovereigns of gold ornaments and Rs.1,00,000/had constructed a house in 19 cents of property comprised in re-survey No.300/6 of Malil Parambu Village. 5. The petitioner and the 2[nd] respondent have three children. Their matrimonial relationship became estranged eventually and the petitioner and the children were ousted from the matrimonial home. There were mediations and settlement of the disputes. However, she could not continue long in her matrimonial company. In such circumstances, the petitioner had filed O.P.No.631 of 2021 for the aforementioned reliefs on 31.08.2021. In that original petition she had filed I.A.No.2 of 2021 seeking to attach the aforesaid 19 cents of land and the building thereon, which was allowed. 6. The 1[st] respondent filed I.A.No.3 of 2022 seeking to remove the attachment claiming that he purchased 3.412 Ares of land (8.5 cents) out of the 19 cents as per a sale deed 5 O.P.(FC) No.70 of 2023 dated 24.07.2019. The Family Court after considering the claim of the 1[st] respondent and also the objections raised by the petitioner allowed I.A.No.3 of 2022 as per the order dated 01.11.2022. Ext.P5 is the order. The petitioner would contend that the document in favour of the 1[st] respondent was executed with an oblique motive of defrauding the petitioner and therefore the claim based on the said sale deed, document No.1918/2019 of S.R.O., Vengara, is unsustainable in law. It is alleged that the Family Court did not consider the matter in its proper perspective and mechanically had allowed the claim. 7. The learned counsel appearing for the petitioner would submit that the 1[st] respondent is the brother-in-law of the 2[nd] respondent and he was fully aware of the dispute between the petitioner and the 2[nd] respondent. It is submitted that the 1[st] respondent often intervened in the marital dispute and as such he knew well that the ornaments of the petitioner were misappropriated by the 2[nd] respondent. With that knowledge he purchased the property vide sale deed 6 O.P.(FC) No.70 of 2023 No.1918/2019, which was marked before the Family Court as Ext.C1. Therefore, it is a voidable document under the provisions of Section 53 of the Transfer of Property Act, 1882. It is further submitted that despite execution of Ext.C1 sale deed, 19 cents of property continues to lie contiguous and possession of the property mentioned in that document was not taken over by the 1[st] respondent. The petitioner continues to be in possession of entire 19 cents of property, which itself is enough to decline the claim of the 1[st] respondent. It is alleged that the Family Court did not consider any such aspects. Only for the reason that the sale deed was registered prior to the institution of O.P.No.631 of 2021, I.A.No.3 of 2022 was allowed, which is wrong. 8. Going by the pleadings in O.P.No.631 of 2021, a copy of which is Ext.P1, it can be seen that there were disputes between the petitioner and the 2[nd] respondent and all such disputes were resolved. The last episode of such torture mentioned in the original petition was on 02.12.2019 and perhaps that would have pre-empted the petitioner to file the 7 O.P.(FC) No.70 of 2023 petition. The further averment is that on 25.06.2021 the petitioner and the children were ousted from the matrimonial home. Soon, she filed O.P.No.631 of 2021 on 31.08.2021. Along with the said original petition, she filed I.A.No.2 of 2021 and obtained an order of attachment. 9. Ext.C1 was executed on 24.07.2019. Although there might be disputes between the petitioner and the 2[nd] respondent prior to that, they mended such issues. Hence it cannot be inferred that the petitioner was in contemplation of filing a petition for getting back her gold ornaments or for realisation of money ever before the incident on 02.12.2019. Therefore, it is not able to say that the 2[nd] respondent in anticipation of a litigation against him, he had executed Ext.C1 sale deed. 10. If a person transferred his property with a view to defraud his creditors, such alienation can be avoided by invoking the provisions of Section 53 of the Transfer of Property Act. If the purchaser got the property with _bona fides_ and for consideration, his right would be protected. A 8 O.P.(FC) No.70 of 2023 Full Bench of this Court in **Virizon Builders and Developers Limited and another v. Jyothi Susan John and others [2019 (1) KLT 100]** held that the technical requirements for initiating proceedings invoking the provisions of Section 53 of the Transfer of Property Act for challenging alienation would not disable a person to defend his right in a claim petition. Therefore, the petitioner could well raise a contention based on Section 53 of the Transfer of Property Act in I.A.No.3 of 2022. However, it is not enough to raise a vague contention. She should be able to establish that the alienation was done with an intention to defraud the creditors of the 2[nd] respondent. When she attempts to protect her right as a creditor under Section 53 of the Transfer of Property Act, it is her obligation to establish that the 2[nd] respondent was fully cognizant of a prospective claim by the petitioner while executing Ext.C1 sale deed. Materials on record are not enough to establish such a fact. About two years prior to filing of O.P.No.621 of 2021, the 2[nd] respondent had executed Ext.C1 in favour of the 1[st] respondent. As regards the 9 O.P.(FC) No.70 of 2023 contention that the property covered by Ext.C1 has not been demarcated and taken possession by the 1[st] respondent, there is no evidence in that respect. In such circumstances, we find no reason to interfere with Ext.P5 order dated 01.11.2022 of the Family Court in I.A.No.3 of 2022 in I.A.No.2 of 2021 in O.P.No.631 of 2021. This Original Petition therefore fails and it is accordingly dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.70 of 2023 ## **APPENDIX OF OP (FC) 70/2023** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF PETITION DATED 31.8.2021 IN O.P. NO.631/2021 BEFORE FAMILY COURT, TIRUR EXHIBIT P2 TRUE COPY OF I.A. NO.2/2021 IN O.P. NO.631/2021 BEFORE FAMILY COURT, TIRUR DATED 31.8.2021** **EXHIBIT P3 TRUE COPY OF I.A. NO.3/2022 IN I.A. NO.2/2021 IN O.P. NO.631/2021 BEFORE FAMILY COURT, TIRUR DATED 2.8.2022** **EXHIBIT P4 TRUE COPY OF OBJECTION DATED 1.10.2022 IN I.A. NO.3/2022 IN I.A. NO.2/2021 IN O.P. NO.631/2021 ON THE FILE OF FAMILY COURT, TIRUR** **EXHIBIT P5 TRUE COPY OF ORDER DATED 1.11.2022 IN I.A. NO.3/2022 IN I.A. NO.2/2021 IN O.P. NO.631/2021 OF THE FAMILY COURT, TIRUR**