NYSHA v. P. SURESH BABU & P. SATHEESAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** **Mat.Appeal.No. 119 of 2012** **AGAINST THE ORDER/JUDGMENT IN OP 1196/2010 of FAMILY COURT,KOZHIKODE DATED 22-12-2011** ## **APPELLANTS/PETITIONERS:** **1 NYSHA AGED 39 YEARS, S/O SEKHARAN, KUTTISSERY HOUSE, P.O. DEVAGIRI COLLEGE, NELLIKKODE AMSOM, DESOM, KOZHIKODE TALUK, PIN- 673008** **2 VISHNU, (MINOR) AGED 14 YEARS, KUTTISSERY HOUSE, P.O DEVAGIRI COLLEGE, NELLIKKODE AMSOM, DESOM, KOZHIKODE TALUK, PIN- 673008 3 ANANTHU, (MINOR) AGED 12 YEARS, KUTTISSERY HOUSE, P.O. DEVAGIRI COLLEGE, NELLIKODE AMSOM, DESOM, KOZHIKODE TALUK, PIN- 673008 4 NELLIMA, (MINOR) AGED 11 YEARS, KUTTISSERY HOUSE, P.O. DEVAGIRI COLLEGE, NELLIKKODE AMSOM, DESOM, KOZHIKODE TALUK, PIN- 673008** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.T.K.SANDEEP** _**Mat.Appeal.No. 119 of 2012**_ 2 ## **RESPONDENTS/RESPONDENTS:** |**1**|**P.SURESH BABU**| |---|---| ||**AGED 45 YEARS, S/O RAGHAVAN,**| ||**PORUTHIPAL VEEDU, P.O. POKKUNNU,**| ||**OLAVANNA AMSOM, IRINGALLUR DESOM,**| ||**KOZHIKODE- 676014**| |**2**|**P. SATHEESAN**| ||**AGED 43 YEARS, S/O RAGHAVAN,**| ||**PORUTHIPAL VEEDU, P.O. POKKUNNU,**| ||**OLAVANNA AMSOM, IRINGALLUR DESOM,**| ||**KOZHIKODE- 673014**| ||**BY ADVS.**| ||**SRI.P.A.HARISH**| ||**SRI.NIRMAL. S**| ||**SRI.V.V.SURENDRAN**| **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**Mat.Appeal.No. 119 of 2012**_ 3 ## **JUDGMENT** ## A.M.Shaffique, J. This appeal is filed by the petitioners in O.P.No.1196/2010 of the Family Court, Kozhikode. The Original Petition has been filed by the 1[st] petitioner wife and minor children against her husband, the 1[st] respondent and a third party purchaser alleging that the sale deed executed by the 1[st] respondent in favour of the 2[nd] respondent is null and void. According to the petitioners, maintenance has been ordered in their favour, but the arrears of maintenance has not been paid. When the arrear amount became pending, the property was transferred by the 1[st] respondent to 2[nd] respondent to defraud the payment and hence the petitioners sought for the reliefs. The respondents denied the allegations. According to them, the sale had been conducted to clear off a debt and the property was purchased by his brother, the 2[nd] respondent, after paying valuable consideration. The Family Court after considering the materials placed on record, especially _**Mat.Appeal.No. 119 of 2012**_ 4 the oral testimony of PW1 and PW2, RW1 and RW2, and the documents produced as Exts.A1 to A11 and Exts.B1 to A15, dismissed the petition. 2. The Family Court found that insofar as the property had been sold for valid consideration, it cannot be treated as a sham document. 3. When the above matter came up for hearing, we called upon the 1[st] respondent to file an affidavit to indicate as to whether he had paid off the entire arrears. The 1[st] respondent had filed an affidavit, _inter alia_ , stating that he had paid entire arrears, except for the period from 22.11.2007 to 20.07.2010 (wrongly recorded as 2019) and a further amount of Rs.14,000/- which is directed to be paid from 06.12.2017 to 05.08.2018. All other amounts have been paid and he is regularly paying the maintenance amount. 4. The learned Counsel for the appellants, however, submits that there is arrears since 2002 till 2010. Merely for the reason that he had undergone imprisonment does not mean that he has no obligation to pay the said amount. _**Mat.Appeal.No. 119 of 2012**_ 5 5. Apparently, as rightly pointed out by the Counsel for the respondents, even if he had suffered imprisonment for nonpayment of amount, it does not relieve him from the obligation to pay the maintenance as directed by the Court. 6. This is a case in which the only claim of the appellants is for maintenance. Section 39 of the Transfer of Property Act, 1882 (for brevity “the Act”) reads thus: “ _**39.Transfer where third person is entitled to maintenance.** —Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.”_ 7. In the light of Section 39 of the Act, if there is a claim for maintenance, it will be a charge on the property of the husband and the transferee, if he has notice. Apparently, this is a case where the claim is for arrears of maintenance and therefore even if there is a transfer, the transfer will not affect the right of the petitioners/appellants to recover the amount by _**Mat.Appeal.No. 119 of 2012**_ 6 seeking sale of the property in terms with the charge created thereon. Since the transfer of property is in favour of the 1[st] respondent's brother, he is deemed to have knowledge about the liability of the 1[st] respondent. It is a statutory charge, which will not extinguish, as long as the liability to pay maintenance exists. 8. The learned Counsel for the appellants placed before us the judgment in _**Sherikath & others v. Shamseena & another, 2017 (2) KHC 773**_ in order to contend that the case amounts to a fraudulent transaction to defeat the right of creditors, including the petitioners. In fact in _**Lakshmi v. Valliyammal &**_ _**others, 1993 Crl.LJ 1179**_ , it was held that when the wife is having right for maintenance and during the pendency of the same the husband gifted the property with intention to defeat her claim, the wife is entitled to charge on the said property. This principle squarely applies to the present case. 9. As far as the claim alleging fraudulent transfer is concerned, the Family Court observed that _**Mat.Appeal.No. 119 of 2012**_ 7 no materials were placed to indicate that it is a fraudulent transfer. The property has been sold admittedly for an amount of Rs.66,000/-. According to the 1[st] respondent he had other debts to be cleared off and therefore he has sold the property in favour of his brother, who had paid the requisite amount to discharge the said liability. In fact, except the oral testimony of PW1 and PW2, no other materials had been produced to prove the value of the property as on the date. That apart, though the petitioners were aware of the sale in the year 2007, the Original Petition is seen filed only in November, 2010, which according to the learned Counsel for the respondents is barred by limitation. At any rate, we need not go into such issues. Section 39 of the Act permits the petitioners to have a charge on the property as long as the right of maintenance exists. Though the contention of the appellants was that the sale is to be declared null and void being a fraudulent transfer, it is only appropriate to mould the relief taking into consideration the fact that admittedly the 1[st] respondent is under obligation to pay _**Mat.Appeal.No. 119 of 2012**_ 8 maintenance to the appellants and therefore, as of right, they are entitled to claim charge over the property of the 1[st] respondent. In the result, this appeal is allowed as under: - (1) the judgment in O.P.No.1196/2010 is set aside. The Original Petition is allowed. - (2) Despite the assignment of the property by the 1[st] respondent in favour of the 2[nd] respondent, there will be a charge on the said property for the amount of maintenance, which the petitioners/ appellants are entitled to receive from the 1[st] respondent. No order as to costs. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** ## **Sd/-** ## **ASHOK MENON** _dkr_ **JUDGE**