Ramachandran T.K. v. Balachandran K. and Jaya V. Menon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941** ## **OP(C).No.3407 OF 2017(O)** **AGAINST THE ORDER DATED 25.10.2017 IN E.A.NO.164/2017 IN E.P.NO.159/2013 IN OS NO.160/2010 OF PRINCIPAL SUB COURT, ERNAKULAM.** ## **PETITIONER/DECREE HOLDER:** **RAMACHANDRAN T.K., S/O. DAMODARA MENON, AGED 49, SUDARSANA, 2ND FLOOR, LAYAM SQUARE, LAYAM ROAD, ERNAKULAM, KOCHI-682 011, RESIDING AT SUDARSANA, ELAMANA ROAD, TRIPUNITHURA-682 301.** **BY ADVS. SRI.T.K.RADHAKRISHNAN SMT.CHITHRA R.SHENOY SRI.T.R.HARI KRISHNAN** ## **RESPONDENTS/JUDGMENT DEBTORS:** **1 BALACHANDRAN K., AGED 62, S/O. SRI. RAMANKUTTY PANICKER, PROPRIETOR, GEE BEE TRAVELS, GURUVAYOORAPPAN BUILDINGS, KALATHIL PARAMBIL ROAD, ERNAKULAM SOUTH, ERNAKULAM, RESIDING AT MANGAYIL HOUSE, KARIKKAMURI, ERNAKULAM, KOCHI-682 011.** **2 JAYA V. MENON, AGED ABOUT 58 YEARS, W/O. BALACHANDRAN K, MANGAYIL HOUSE, KARAKKAT ROAD, NEAR VITA SCAN CENTRE, ERNAKULAM, KOCHI-682 011.** **R1 BY ADV. SRI.DENNY JOSEPH R2 BY ADV. SRI.K.JAGADEESH R2 BY ADV. SRI.P.B.SAHASRANAMAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) No.3407 of 2017 2 ## **C.R.** ## **JUDGMENT** This original petition under Article 227 of the Constitution of India is filed by the petitioner challenging Ext.P11 order passed by the Principal Subordinate Judge's Court, Ernakulam in E.A.No.164/2017 in E.P.No.159/2013 in O.S.No.160/2010 dated 25.10.2017, declining to sell the property belonging to the 2[nd] respondent, i.e., the wife of the judgment debtor-1[st] respondent, holding that the property was transferred by the judgment debtor to his wife, prior to the filing of the suit. Brief material facts for the disposal of the original petition are as follows: 2. Petitioner is the decree holder in O.S.No.160/2010 on the files of the Principal Subordinate Judge's Court, Ernakulam. The 1[st] respondent is the defendant in the suit and judgment debtor in the Execution Petition. The 2[nd] respondent is the wife of the 1[st] respondent, in whose favour a settlement deed is executed by the 1[st] respondent, bearing No.39/2008 of Office of the Sub Registrar, Maradu, Ernakulam District. Petitioner instituted the suit for recovery of an amount of Rs.1,25,000/- on the basis of Ext.A1 promissory note executed by the 1[st] O.P.(C) No.3407 of 2017 3 respondent. Though the 1[st] respondent entered appearance and filed written statement, thereafter absented himself, and accordingly, the suit was decreed _ex parte_ on 20.12.2012, allowing the petitioner to realize a sum of RS.1,28,750/- with interest at the rate of 6% per annum for the principal amount along with cost of Rs.15,743/-, evident from Exts.P1 and P2 judgment and decree. 3. Immediately after the suit was instituted, petitioner filed I.A.No.2016/2010 for attachment of the property of the 1[st] respondent, which was effected on 19.03.2010, evident from Ext.P3 report of the Amin and Ext.P4 schedule attached to the same. Later, E.P.No.159/2013 was filed before the court below, evident from Ext.P5 and sought for sale of the property under attachment as per the order in I.A.No.2016/2010, evident from Ext.P6. While steps were taken to sell off the property, the decree holder came to know that the property was settled by the judgment debtor fraudulently in favour of his wife, in order to avoid execution of the decree, evident from Ext.P7 Settlement Deed. Thereupon, the decree holder filed an application as E.A.No.163/2017 in the Execution Petition for impleading the wife of original judgment debtor as O.P.(C) No.3407 of 2017 4 additional respondent, evident from Ext.P8. So also, E.A.No.164/2017 was filed for the sale of attached property, evident from Ext.P9. The 2[nd] respondent entered appearance and filed Ext.P10 objection. The court below heard the petition E.A.No.164/2017 and dismissed the same as per Ext.P11 order. 4. The paramount contention advanced by the petitioner is that, the transfer effected by the judgment debtor in favour of his wife as per the Settlement Deed, consequent to the execution of the promissory note is with the intention of defeating the creditor and thereupon, liable to be proceeded against the property as per Sec.53 of the Transfer of Property Act, 1882 (for brevity, the Act, 1882'). Since the action was fraudulent, there is nothing wrong in proceeding against the property. It is also submitted that, though the property is fraudulently transferred in favour of his wife by the judgment debtor, the possession continues with the judgment debtor and the court below went wrong in holding that the property was transferred prior to the institution of the suit, and therefore, it cannot be proceeded with. 5. I have heard learned counsel for the petitioner and the respective counsel appearing for O.P.(C) No.3407 of 2017 5 respondents 1 and 2, and perused the pleadings and the documents on record. 6. Learned counsel for the petitioner addressed arguments basically relying upon Sec.53 of the Transfer of Property Act. It is also submitted that, the execution court was carried away thinking that if the property was transferred prior to the institution of the suit, it cannot be proceeded with. It is only appropriate that Sec.53 of the Transfer of Property Act is discussed, which read thus: _“_ _**53. Fraudulent transfer** .--(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed._ _Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration._ _Nothing in this sub-section shall affect any law for the time being in force relating to insolvency._ _A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors._ _(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee._ _For the purposes of this sub-section, no transfer made without consideration shall be_ O.P.(C) No.3407 of 2017 6 _deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made”._ 7. On the other hand, learned counsel appearing for the 1[st] respondent submitted that, since the settlement deed was executed prior to the institution of the suit on 03.01.2008, the property cannot be proceeded with and the stand adopted by the execution court is perfectly justified. It is also pointed out that, the promissory note alleged to be executed by the judgment debtor is on 06.12.2007, and therefore, it cannot be said that there was any intention on the part of the judgment debtor to defeat the creditor. Fact remains, the judgment and decree passed by the court below has become final, and therefore, the execution court will have to take into account the execution of the decree in accordance with law. 8. I have evaluated the rival submissions made across the Bar, and I am of the considered opinion that, Sec.53 of the Act, 1882 dealing with fraudulent transfer stipulates that every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed, which thus means, Sec.53 do not impose any restriction in 7 ## O.P.(C) No.3407 of 2017 arriving at a conclusion that the transfer was made to defeat the creditor, irrespective of the fact, whether the transfer was made prior to the institution of the suit. It is also clear that, if the transfer was effected in good faith and for consideration, the same will not impair the rights of the transferee. But one will have to bear in mind, Ext.P7 Settlement Deed is executed by the judgment debtor in favour of his wife immediately after execution of the promissory note. It was on the basis of the promissory note, the trial court has decreed the suit, and therefore, the judgment debtor cannot be heard to say that there was no execution of the promissory note by the judgment debtor in favour of the decree holder, since the judgment and decree has become final and conclusive. 9. In my considered opinion, the execution court was carried away by Sec.52 of the Transfer of Property Act, dealing with transfer of property pending suit relating thereto, which stipulates that, transfer of properties in relation to the suit proceedings during the pendency of the proceedings cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be O.P.(C) No.3407 of 2017 8 made therein, except under the authority of the Court and on such terms that may impose. Here is a case where the property in question was attached by the court below during the trial proceedings itself, however, during the execution stage alone, the decree holder came to know that the property was settled by the judgment debtor in favour of his wife. The court below, after appreciating the facts and circumstances, has arrived at a conclusion that, mere fact that the judgment debtor had executed a settlement deed in favour of his wife, much prior to the filing of the suit, does not lead to any conclusion that it is a fraudulent transfer, and there can be no assumption or presumption that it is a fraudulent transfer, which is a matter to be proved and established by the decree holder. It is also held that, there is nothing to convince the court that it is a fraudulent transfer. Therefore, the property is not liable to be sold. I do not think the said findings rendered by the court below are legal and correct. 10. In that regard, I have come across a Division Bench judgment of this Court in ' _**Sherikath and Others v. Shamseena and Another**_ ' [I.L.R 2017 (3) Kerala 185], wherein it is held that, once it is proved or if an 9 O.P.(C) No.3407 of 2017 inference can be drawn that the transfer of property is a fraudulent transfer under Sec.53 of the Act, then the burden is heavy on the objector to prove that he is a _bona fide_ purchaser for valid consideration in good faith, and the execution court can go into the question of validity of the transfer under Sec.53 of the Act. 11. The Division Bench has arrived at such a conclusion taking into account the judgment of the apex court in ' _**Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan and Another**_ ' [(1990) 3 SCC 291], wherein it was held that, while considering the claim of the claimant, the antecedent contractual obligation entered into between the transferor and the transferee regarding the sale of the property has to be taken into consideration and that will prevail over the attachment. 12. Therefore, assimilating the facts and circumstances of the case, there are convincing reasons to infer _prima facie_ that the transfer made by the judgment debtor in favour of his wife, the 2[nd] respondent herein, on 03.01.2008, immediately after the execution of the promissory note on 06.12.2007, is to defeat the creditor. During the course of arguments, I am also informed that during the year 2010, the 2[nd] O.P.(C) No.3407 of 2017 10 respondent has filed a divorce petition against the judgment debtor and secured an _ex parte_ decree, and therefore, it is contended that, there can be no proceeding against the property held by the 2[nd] respondent. However, the assimilation of fact situation picturises that these are all significant matters which should have been taken note of by the execution court while considering E.A.No.164/2017 filed by the petitioner/decree holder. 13. A synonymous situation is discernible from Sec.44 of the Kerala Revenue Recovery Act, 1968, dealing with effect of engagements and transfers by the defaulter, so as to defeat the claim of the Government. Sub-section (3) thereunder is relevant, which read thus: _“(3) Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may, subject to the order of a competent Court, proceed to recover such arrear of public revenue by attachment and sale of the property so transferred, as if such transfer has not taken place:_ _Provided that, before proceeding to attach such property, the Collector or the authorised officer shall--_ _(i) give the defaulter an opportunity of_ O.P.(C) No.3407 of 2017 11 _being heard; and_ _(ii) record his reasons therefor in writing._ _**Explanation** .--For the purpose of this section, “near relative” includes husband, wife, father, mother, brother, sister, son, daughter, step son, step daughter, uncle, aunt, son-in-law, daughter-in-law, brother-in-law, nephew or niece of the transferor.”_ Therefore, in my considered opinion, the facts and circumstances discussed above would make it clear that the subject matter of the issue raised by the decreeholder requires deeper adjudication by the execution court. 14. So also, the execution court has overlooked Sections 110 and 111 of the Indian Evidence Act, 1872, dealing with burden of proof as to ownership and proof of good faith in transactions where one party is in relation of active confidence, respectively, which read thus: _“ --_ _**110. Burden of proof as to ownership.** When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner._ _**111. Proof of good faith in transactions where one party is in relation of active confidence** .--Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence”._ O.P.(C) No.3407 of 2017 12 15. Therefore, I am of the opinion that, definitely, the court below ought to have found that, when there is clear proof of transaction produced by the petitioner immediately after the execution of the promissory note, a burden is cast upon the respondents to lead evidence and prove otherwise. No such exercise is undertaken by the court below while considering the matter. One will have to bear in mind that, Sec.53 is incorporated into the Act, 1882, with the avowed intention and object of ensuring that the creditors are not defeated by effecting fraudulent transfer of properties. Therefore, an execution court considering execution of a decree, should have thought of serious adjudication of the issue, when the question of fraudulent transfer was brought to its notice. These are all convincing circumstances to arrive at a conclusion that the intention behind Sec.53 to protect the interest of the creditors, was not adverted to at all by the court below, and considered the matter only bearing in mind that the transfer was effected prior to the filing of the suit. 16. I do not think the stand adopted by the court below is a legalistic approach to the issue in question. There is clear jurisdictional error and O.P.(C) No.3407 of 2017 13 illegality, susceptible to be interfered with by this court, exercising the power of supervisory jurisdiction under Article 227 of the Constitution of India. Therefore, I quash Ext.P11 and direct the execution court to re-consider the application submitted by the petitioner in accordance with law, and providing sufficient opportunity to adduce evidence to the parties, and attain finality at the earliest possible, and at any rate, within two months from the date of receipt of a copy of this judgment. The original petition is allowed accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/26.09.2019 O.P.(C) No.3407 of 2017 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE COPY OF THE JUDGMENT IN O.S. 160/2010 OF PRINCIPAL SUB JUDGE, ERNAKULAM DATED 20.12.2012.** **EXHIBIT P2 THE COPY OF THE DECREE IN O.S 160/2010 IN PRINCIPAL SUB JUDGE, ERNAKULAM DATED 20.12.2012. EXHIBIT P3 A COPY OF THE AMIN'S REPORT. EXHIBIT P4 A COPY OF THE SCHEDULE. EXHIBIT P5 THE COPY OF THE E.P.NO.159/2013 BEFORE THE SUB COURT, ERNAKULAM. EXHIBIT P6 THE COPY OF THE SCHEDULE OF SALE OF THE PROPERTY. EXHIBIT P7 THE COPY OF SETTLEMENT DEED NO.39/2008 SRO ERNAKULAM. EXHIBIT P8 THE COPY OF APPLICATION AS E.A.163/2017 IN E.P.159/2013 FOR IMPLEADING THE WIFE OF ORIGINAL JUDGMENT DEBTOR AS ADDITIONAL RESPONDENT.** **EXHIBIT P9 THE COPY OF APPLICATION FOR THE SALE OF THE ATTACHED PROPERTY AS E.A.164/2017. EXHIBIT P10 THE COPY OF OBJECTION. EXHIBIT P11 THE COPY OF ORDER OF LEARNED SUB JUDGE IN E.A 164/17 IN E.P.159/13 IN O.S 160/2010 DATED 25.10.2017.** **EXHIBIT P12 PROMISSORY NOTE EXECUTED BY THE SECOND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL** ## **//TRUE COPY//** **P.S. TO JUDGE** **St/-**