Ponnamma v. Akhila Gopinath and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY,THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940** **OP (FC).No. 85 of 2019** ## **AGAINST THE ORDER/JUDGMENT IN OP 2694/2018 OF THE FAMILY COURT,ERNAKULAM** ## **PETITIONER/PETITIONER:** **PONNAMMA, AGED 84 YEARS W/O NARAYANA PILLAI (LATE), SAYEES HOUSE, BEENA ANCHUMANA ROAD, EDAPPILLY P.O., EDAPPILLY SOUTH VILLAGE, KANAYANNOR TALUK, ERNAKULAM - 682 024.** ## **BY ADV. SMT.R.LEELA** ## **RESPONDENTS/RESPONDENTS:** |**1**|**AKHILA GOPINATH,AGED30 YEARS,**| |---|---| ||**W/O JITHIN NAIR,**| ||**SAYEES HOUSE, BEENA ANCHUMANA ROAD,**| ||**EDAPPILLY P.O., EDAPPILLY SOUTH VILLAGE,**| ||**KANAYANNOR TALUK, ERNAKULAM - 682 024.**| ||**NOW RESIDING AT KALARIKKAL HOUSE, MATHIRAPPILLY, M4**| ||**COLLEGE P.O.,**| ||**KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,**| ||**ERNAKULAM - 686 691.**| |**2**|**JITHIN NAIR,**| ||**AGED 33 YEARS**| ||**S/O LATE RAVINDRAN NAIR,**| ||**SAYEES HOUSE, BEENA ANCHUMANA ROAD,**| ||**EDAPPILLY P.O., EDAPPILLY SOUTH VILLAGE,**| ||**KANAYANNOR TALUK, ERNAKULAM - 682 024.**| |**3**|**SOBHA NAIR,**| ||**AGED 58 YEARS**| ||**W/O LATE RAVINDRAN NAIR,**| ||**SAYEES HOUSE, BEENA ANCHUMANA ROAD,**| ||**EDAPPILLY P.O., EDAPPILLY SOUTH VILLAGE,**| ||**KANAYANNOR TALUK, ERNAKULAM - 682 024.**| O.P.(FC) No.85/2019 2 **BY ADVS. SMT.V.SHYLAJA SRI.A.T.ANILKUMAR** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON, 25.2.2019 THE COURT ON 13.03.2019 PASSED THE FOLLOWING:** O.P.(FC) No.85/2019 3 ## **C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.** **--------------------------------O.P.(FC) No.85 of 2019 ---------------------------------Dated this the 13[th] day of March 2019** ## **JUDGMENT** ## **T.V.ANILKUMAR, J.** The petitioner before us is the petitioner in a claim petition filed as I.A. 5268/2018 before the Family Court, Ernakulam in O.P. No.2694/2018, seeking to set aside an order of conditional attachment passed by that court in I.A. No.5208/2018, in an application filed by the 1[st] respondent in the above Original Petition. I.A. 5268/2018, filed by the petitioner under Order XXXVIII Rule 9 of the CPC, was dismissed through the order impugned herein after rejecting her plea that 6.072 cents of land and the building situated therein, which is attached in the Original Petition, were exclusively owned by her and she had right to sell the property based on Ext.A6 agreement of sale O.P.(FC) No.85/2019 4 dated 6.12.2018 executed by her and the third respondent herein in favour of a third party. The above impugned order dismissing the claim petition is challenged by her in this Original Petition by invoking the jurisdiction vested on this court under Article 227 of the Constitution of India. 2. The petitioner is not a party to O.P. 2694/2018 pending before the Family Court, Ernakulam. The said Original Petition was filed by the 1[st] respondent in this O.P. against her husband, the 2[nd] respondent, and his mother (3[rd] respondent) seeking to recover gold ornaments and other assets worth `.38,12,500/- with interest thereon. The 3[rd] respondent in the O.P. is 2[nd] respondent's mother who is the daughter of the petitioner in the claim petition. 3. The 1[st] respondent in the O.P. obtained a conditional order of attachment before judgment, on the allegation that her mother-in-law, the 3[rd] respondent, has made all preparations to sell the land and building owned by the respondents before the court below, to third parties. The case of the petitioner herein is that, the property in question is in the possession and enjoyment of herself and none except her has got any right or interest in the land and building, which is attached by the court. O.P.(FC) No.85/2019 5 4. Petitioner's contention is that her husband, before his death in the year 2015, conveyed the property by executing a registered gift deed constituting her to be the absolute owner of the property and she as owner there of continues to pay tax for the property. Since the 3[rd] respondent, one of her children was not inclined to take care of her affairs, as wished by the deceased husband, she decided to sell the property by entering into Ext.A6 agreement for sale with a third party and received advance amount also. The third respondent was made a formal party in Ext.A6 only to avoid future disputes. But the 3[rd] respondent being bent upon defeating the sale with ulterior motive caused O.P.2694/2018 to be filed at the instance of 1[st] respondent, her daughter in law and secured an order of attachment in respect of the property by suppressing petitioner's interest in the land. According to the petitioner, O.P.2694/2018 is a collusive proceeding brought into existence at the instance of the 3[rd] respondent and as a matter of fact there are no matrimonial issues between her son and daughter-in-law. She has a specific contention that the gold ornaments and assets alleged to have been misappropriated by the 2[nd] respondent are in fact with the original petitioner herself. 5. The claim petition was opposed by the 1[st] respondent, the O.P.(FC) No.85/2019 6 original petitioner in the O.P.2694/2018. None of the other respondents in the claim petition appeared and filed any counter, as if they are not aggrieved by the order of conditional attachment in force. The court below marked Exts. A1 to A6 in evidence on the side of the petitioner and Exts.B1 'thandapper register' on the side of the 1[st] respondent. 6. The court below held that Ext.A1 is not a gift but only a registered Will and the petitioner has not acquired any absolute right over the property, except life estate and the 2[nd] respondent is the absolute true owner. So also petitioner's contention that the proceedings are collusive and fraudulent was also rejected. Likewise her contention that she has right to be maintained out of the property bequeathed was also held as irrelevant to be considered in this proceeding. 7. We heard counsel for the petitioner and the 1[st] respondent. 8. The foremost and primary question is whether the claim petitioner has absolute right as claimed by her in the property attached by the Family Court as per order dated 30.11.2018. She claims under Ext.A1 Will, dated 30.3.2016, executed by her deceased husband, Narayana Pillai. The Will has indisputably come into effect O.P.(FC) No.85/2019 7 in 2015, following death of the testator. One of the relevant questions for inquiry in this claim petition is the nature and extent of the right conferred on the petitioner in terms of Ext.A1 Will. Ext.A1 provides that, the petitioner will acquire right over the property only if she survives the testator and after her death, the 3[rd] respondent, daughter will acquire possession and absolute right over the property. Neither the execution of Will nor the terms thereof are in dispute between the parties. 9. It is the basic principle of law relating to construction of a Will that the court shall give effect to the true intention of the testator. The intention of the testator as borne out from Ext.A1 Will appears to be that the testator wanted to constitute the 3[rd] respondent as the absolute owner of the property, after creating an intermediary estate in favour of his wife, the petitioner herein, in the event of her surviving him. It appears to us that what the testator wanted to confer on the petitioner was only a limited life estate terminable on her death. In short, the clear intention as manifest from the Will is that, the testator wanted to postpone the vesting of possession as well as ownership to his daughter, the 3[rd] respondent, till the death of his wife. That means so long as the petitioner is alive, she would hold only a life interest O.P.(FC) No.85/2019 8 terminable on her death and the daughter, the third respondent, on the other hand, hold the property as if she is a reversioner on whom the entire estate would devolve only on the termination of intermediary estate. 10. If Ext.A1 Will is construed in the manner indicated as above, it is clear that the petitioner would not have any transferrable interest as she claimed. In the absence of any transferable or dispositive interest in the property, she has no right oppose the attachment and seeks to get it lifted. 11. It is also one of the contentions of the petitioner that OP 2694/2018 itself is the result of a collusion between the Original Petitioner and the respondents. This contention, as rightly held by the court below, is irrelevant so long as the petitioner has failed to establish that she has absolute right and transferable interest in the property. A few decisions brought to our notice by the learned counsel for the petitioner, in _**M/s. S.J.S.Business Enterprises (P) Ltd. Vs. State of Bihar And Ors. [(2004) 7 SCC 166**_ ], _**Indian Bank v. Satyam Fibres (India) Pvt. Ltd., [(1996) 5 SCC 550], Prestige Lights Ltd. v. State Bank of India [(2007) 8 SCC 449], K.D.Sharma v. Steel Authority of India Ltd. and Ors. [(2008) 12 SCC 481] ,**_ O.P.(FC) No.85/2019 9 ## _**G.Jayashree and Ors. v. Bhagwandas S.Patel and Ors. [(2009) 3**_ _**SCC 141]**_ holding that fraud and collusion will not create legal interests on the parties, have no relevance so far as the facts of this case are concerned, especially because the petitioner has not been able to substantiate that she acquired any absolute right in the property in terms of Ext.A1 Will other than a limited interest not capable of surviving her. Whether she has right to be maintained out of the property is also totally a different question which is outside the scope of the present proceeding and therefore we do not proceed to consider the same in this proceeding before us. 12. In any view of the matter, we do not find any ground to interfere with the impugned order and to set it aside. But we want to make it clear that, as provided by the terms of Ext.A1 Will, the petitioner has right to be in possession of the property and enjoy it till her death. What she lacks is transferable interest in the property, which law seeks to vest absolutely in the 3[rd] respondent daughter, after the petitioner's death. In the result, O.P.(FC) 85/2019 is hereby dismissed by confirming the impugned order dated 5.2.2019 in IA 5268/2017 in OP 2694/2018 on the files of Family Court, Ernakulam. However, we O.P.(FC) No.85/2019 10 make it clear that, this order will not stand in the way of petitioner holding possession and enjoying the property and dealing with the same as a holder of limited estate terminable on her death. Sd/- **C.K.ABDUL REHIM,** **JUDGE** Sd/- **T.V.ANILKUMAR, JUDGE** al/- O.P.(FC) No.85/2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORIGINAL PETITION NO.2694/2018 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT ERNAKULAM.** - **EXHIBIT P2 THE TRUE COPY OF THE IA NO.5208/2018 IN OP NO.2694/2018 FILED BY THE 1ST RESPONDENT BEFORE THE FAMILY COURT ERNAKULAM.** - **EXHIBIT P3 THE TRUE COPY OF THE WILL EXECUTED BY THE HUSBAND (V.K.NARAYANAPILLAI) OF THE PETITIONER HEREIN DATED 17.02.2006.** - **EXHIBIT P4 THE TRUE COPY OF THE AGREEMENT DATED 06.08.2018 BETWEEN THE PETITIONER, 3RD RESPONDENT AND ONE BINU PAUL.** - **EXHIBIT P5 THE TYPED COPY OF THE ORDER OF ATTACHMENT DATED 30.11.2018 PASSED BY THE FAMILY COURT ERNAKULAM.** - **EXHIBIT P6 THE TRUE COPY OF THE IA NO.5268/2018 IN OP NO.2964/2018 FILED BY THE PETITIONER BEFORE THE FAMILY COURT ERNAKULAM.** - **EXHIBIT P7 THE TRUE COPY OF THE TR.P.C.NO. 760/2018 ALONG WITH EXHIBITS FILED BY THE 1ST RESPONDENT BEFORE THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P8 THE TRUE COPY OF THE IA NO. 1/2019 IN TR.P.C.NO. 760/2018 FILED BY THE PETITIONER BEFORE THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P9 THE TRUE COPY OF THE IA NO. 2/2019 IN TR.P.C. NO. 760/2018 FILED BY THE PETITIONER BEFORE THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P10 THE TRUE COPY OF THE ORDER IN IA NO.1/2019 IN TR.P.C NO. 760/2018 DATED 10.01.2019 PASSED BY THE HON'BLE HIGH COURT OF KERALA.** O.P.(FC) No.85/2019 12 **EXHIBIT P11 THE TRUE COPY OF THE ORDER IN IA NO.5268/2018 IN OP NO.2694/2018 DATED 05.02.2019 OF THE FAMILY COURT ERNAKULAM.** RESPONDENTS EXHIBITS : NIL TRUE COPY AL/- P.S TO JUDGE