Rasiya v. Muhammed Navas & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE C.S. SUDHA`** ``` TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 ``` ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN OP(OTHERS) 501/2016 OF FAMILY COURT, ``` ## **`ALAPPUZHA`** ## **`APPELLANT/PETITIONER:`** ``` RASIYA AGED 45 YEARS, W/O. MUHAMMED NAVAS, PALLIVEEDU HOUSE, SOUTH ARYAD, AVALOOKKUNNU P.O., ALAPPUZHA., PIN – 688006 ``` ``` BY ADVS. GOKUL DAS V.V.H. E.RAFEEK ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MUHAMMED NAVAS AGED 52 YEARS, S/O. HAMEED, SOUDA MANZIL, CIVIL STATION WARD, ALAPPUZHA DISTRICT., PIN – 688012 ``` ``` 2SHAHIDA AGED 46 YEARS, W/O. MITHILAJ, VAILITHARA, NORTH OF VELLAKINAR JUNCTION, ALAPPUZHA DISTRICT., PIN – 688001 ``` ``` 3SOUDA BEEVI AGED 69 YEARS, W/O. HAMEED, SOUDA MANZIL, CIVIL STATION WARD, ALAPPUZHA DISTRICT., PIN – 688012 ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Amit Rawal, J.** 1. The present petition is directed against the order dated 30.03.2023 rendered in O.P.(others)No.501/2016 whereby the claim laid by the wife for return of gold ornaments to the extent of 50 sovereigns and cash of Rs.2 lakhs have been rejected on the ground that in a previous litigation ie., M.C.No.18/2013, same issue was adjudicated which has subsequently been set aside by the Appellate Court. 2. Facts leading to the filing of the O.P. before the Family Court are as under: Appellant-Rasiya and respondent-Muhammed Navas had entered into a betrothal on 03.11.1996 as per the Muslim religious rites. According to the averments in the petition, at the time of marriage, parents of the appellant entrusted Rs.1,00,000/- besides 50 sovereigns of gold which have been misappropriated by the husband and family for their own use. Two children were born in the wedlock. Husband borrowed gold ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 3 ``` ornaments from the sister of the appellant and also from her aunt which were pledged for sum of Rs.71,000/- (Rupees seventy one thousand only). A sum of Rs.2,10,000/- (Rupees two lakhs ten thousand only) was also obtained from the brother-in-law of the appellant which was invested in the business. Husband developed some illicit relationship, as a result thereof the parties started living separately. Appellant preferred a petition bearing number M.C.No.18/2013 under the provisions of Protection of Women from Domestic Violence Act. Besides the maintenance, appellant had also set up a claim for restraining the husband on alienation of the property to the extent of 3 cents comprised in Survey No.523/26B of Alappuzha West Village, Ambalappuzha Taluk in Alappuzha District (Resurvey No.18/5 (VI No.93). Notice was ordered in the petition, husband appeared through counsel and he later transferred the property to the 2[nd] respondent ie., sister by way of settlement deed No.2974/2013 dated 30.07.2013. Magistrate granted maintenance of Rs.5,000/- (Rupees five thousand only) and also awarded compensation of Rs.15,00,000/-(Rupees Fifteen Lakh ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 4 ``` Only). 3. Noticing the evidence brought on record and the interim order passed by the Magistrate on 25.09.2013 and communication to the SRO, it was found that the 3 cents of land was transferred much before the attachment order 30.07.2011 whereas the interim maintenance was allowed on 10.12.2014. As regards the transfer of other land on 30.07.2013 the Court did not agree with same. The order in M.C. was assailed by the husband as well as wife before the Additional Sessions Judge vide Criminal Appeals Nos.232/2016 and 234/2016. During the pendency of the aforementioned appeals, appellant/wife instituted the present O.P.No.501/2016 on 29.07.2016 and claimed the following reliefs: - “1. To declare that the sale effected by the 1[st] respondent to the 2[nd] respondent herein when the proceedings in MC 18/2013 and the attachment petition were pending by virtue of a settlement deed 2974/2013 on 30.07.2013 of Alappuzha SRO without any consideration is void and to annul the settlement deed and declare that it is not concerning the petitioner. - 2. To return an amount of Rs. 1,00,000/- with interest at the rate of 12% from 03.01.96 till date as well as the ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 5 ``` 50 sovereigns of gold ornaments or its present market value and the amount of Rs 2,10,000/- borrowed from the sister of the petitioner and its interest at the rate of 12% till date and the amount of Rs 71,000/borrowed from the maternal sister of the petitioner and its interest at the rate of 12% till date. 3. To realise an amount of Rs. 1,77,000/- entitled by the petitioner and her minor daughters as maintenance by the Hon'ble Judicial First Class Magistrate Court, Alappuzha which is due from the 1st respondent till date through attachment of the respondents properties. 4. To restrain the respondents from alienating, encrumbrancing, pledging etc the property scheduled in the petition. 5. Such other reliefs that this Hon'ble Court may deem fit and proper in the interest of justice.” 4. The aforementioned petition was contested by the husband. It was also brought to the notice that the Additional Sessions Judge vide judgment dated 26.02.2022 had partly modified the order of the Magistrate dated 06.10.2016 in M.C. No.18/2013 whereby husband and mother-in-law were restrained from committing any act of domestic violence against the wife. Husband was directed to pay an amount of Rs.5,000/- (Rupees five thousand only) each to the children and the wife from ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 6 ``` October, 2016 apart from the arrears of maintenance with liberty to the wife to claim maintenance on and behalf of the minor children. Compensation relief of Rs.15 lakhs was denied on the ground that the wife failed to place on record any material in support of the allegations with regard to return of Rs.2 lakhs or claim of Rs.71,000/- (Rupees seventy one thousand only) or 50 sovereigns of gold. Noticing the aforementioned facts, learned Family Court vide judgment and decree dated 30.03.2023 dismissed the petition. It is in that background the present appeal has been filed. 5. Sri.Gokul Das.V.V.H, learned counsel appearing for the appellant in support of the memorandum of appeal has raised the following submissions: 1). Principles of res judicata do not apply vis-à-vis the claim set up in the M.C.No.18/2013 ie., adjudicated by the Criminal Court vis-à-vis the claim set up in a Family Court as per the provisions Section 7B of the Family Courts Act. Family Court is empowered to adjudicate the issue of settlement or declaration with regard to the title in case it ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 7 ``` is a matrimonial dispute. Alienation by the husband in favour of his sister was after receipt of notice in M.C.No.18/2013, with regard to the 3 cents of land it was alienated in 2011 whereas the restrained order was passed in 2013. 2). Even though the principles of lis-pendens would not apply but the husband cannot be permitted to deal with the property noticing the fact that there is likelihood of decree passed against him. 6. Learned Criminal Court noticing the fact that the alienation of the property on 30.07.2013 was pending adjudication before the Family Court, did not consider the issue. Therefore, would not be hit by doctrine akin to res judicata. In support of the contention, relied upon the judgment of the Division Bench of this Court in **Sherikath and Others** v. **Shamseena and Another** [2017 (2) KHC 773]. It was contended that in a case set up by the wife, husband had released the undivided fraction interest in the property on 11.04.2012 whereas the petition for return of gold ornaments of Rs.14,92,480/- (Rupees fourteen lakhs ninety two ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 8 ``` thousand four hundred eighty only) was filed on 19.12.2011 and notice was issued to the husband. In the present case also the husband was aware of pendency of M.C.No.18/2013. Judgment relied upon by the Family Court in paragraph 9 of the impugned judgment is not applicable to the facts and circumstances of the case. In fact, alienation was hit by Section 53 of Transfer of Property Act. 7. We have heard the learned counsel for the appellant and appraised the paper book. 8. On perusal of the relief clause extracted in the M.C.No.18/2013, it is evident that stake/claim laid before the Magistrate was identical to the one as sought in the present petition much less even the pleadings qua entrustment of 50 sovereigns of gold, payment of Rs.1 lakh, Rs.2 lakhs from the family member of the wife and Rs.71,000/- (Rupees seventy one thousand only) from the sister are identical. For the sake of brevity, the facts as noticed by the Family Court in O.P.No.501/2016 in paragraph 2. The same reads as under: 2. Brief facts in the petition are as follows. First respondent is the husband of petitioner. Second respondent is the sister of ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 9 ``` the first respondent. Third respondent is the mother of first respondent. The marriage between petitioner and first respondent was solemnized on 03-11-1996 at Thekkanaryad in accordance with Muslim religious rites. At the time of marriage, One Lakh rupees and 50 sovereigns of gold ornaments were given by petitioner's parents. The said gold and cash were entrusted with the respondents but they misappropriated the same and utilized for their own use. Two children were born in this wedlock aged 7 years and 14 years respectively. The first respondent utilized the gold ornaments for the purpose of going abroad and thereafter he obtained 2 Lakhs rupees also from petitioners family and invested in the business. The first respondent borrowed gold ornaments from petitioner's sister and an aunt which was pledged for 71,000/-rupees and thereafter the gold was disposed of by him. A chitty in the name of the petitioner was prized and this chitty amount also was misappropriated by first respondent. The first respondent obtained 2,10,000/- rupees from the brother-in-law of the petitioner and the same was invested in his business. The first respondent developed some illicit relations and when the petitioner questioned the same, first respondent mentally and physically harassed the petitioner. He questioned the paternity of younger child. The petitioner filed M.C.18/2013 under provisions of Protection of Women from Domestic Violence Act before the Magistrate Court. An interim petition was filed therein to restrain alienation of immovable property of the first respondent. Notice was ordered in that petition and the respondents appeared through a counsel and participated in the proceedings including mediation. While pendency of the above petition to restrain alienation, the first respondent ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 10 ``` transferred the property to 2[nd] respondent by way of a settlement deed No.2974/2013 dated 30-07-2013, with a view to delay or defeat a probable decree in favour of the petitioner. It is only a name sake document without any consideration. The Magistrate Court granted 5,000/- rupees as maintenance and towards the same only 18,000/- rupees was paid so far and 1,77,000/- rupees is the dues. While a petition to restrain alienation was pending in that M.C.18/2013, the first respondent transferred property to 2nd respondent with an intention to cheat the petitioner by conspiring with the respondents. It is a sham document and is to be set aside. The fact of this settlement deed was revealed only when they filed a claim petition in M.C.18/2013. Hence this petition.” 10. We would be failing in our duty in not extracting the findings rendered by the Magistrate while allowing M.C.No.18/2013 to the extent mentioned herein. Para 11 of the order dated 6.10.2016 reads as under: 11. The evidence, oral as well as documentary adduced by the petitioners had proved the case of the petitioners. The petitioners have succeeded in proving the case against Ist counter petitioner and the petitioners are entitled to get an order as prayed for against 1st counter petitioner. Now the next questions to be considered whether the petitioners are entitled to an order against 3rd counter petitioner. The only relief sought for by the petitioners against 3rd counter petitioner is the 8th relief in the MC which is for an order to ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 11 ``` restrain the counter petitioners from alienating the property having an extent of 3 cents comprised in Sy. No. 523/26 B of Alappuzha West village, Ambalappuzha Taluk in Alappuzha District (re-Sy No. 18/5(V1.No.93). 3rd counter petitioner, the sister of 1st counter petitioner had vehemently contested the case and examined herself is DW1 in respect of the property in which the petitioners have sought for a restrain order. 3rd counter petitioner adduced evidence to show that the said property was transferred in her name by 1st counter petitioner vide Ext. D1. Ext.D1 to D3, the settlement deed, the property tax receipt and the property tax receipt issued by the Municipality concerned were marked.. The Ld. Counsel for the petitioners submitted that the property in respect of 8th relief claimed in the MC was transferred during the pendency of the lis. The Ld. Counsel for counter petitioners had vehemently argued that Ext.D1document is not hit by the doctrine of Lis pendens, fraudulent transfer or charge as contemplated in the transfer of property Act and the same is a valid transfer. The Ld. Counsel for the petitioners has submitted that the OP filed by the petitioners before the Hon'ble Family Court to declare Ext. D1 document as null void is pending adjudication. Since this court is not having jurisdiction to adjudicate the right title and interest in respect of the property the subject matter of Ext.DI and appropriate proceedings is pending before the Hon'ble Family Court for the same, the same is not considered. But considering the 8th relief sought for by the petitioner the facts transpired before this court in connection with origin of Ext.DI document assumes significance for extraction. Admittedly, the MC was filed on 7-2-13. The 3rd counter petitioner along with other counter petitioners had filed vakkalath on 23-2-13 ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 12 ``` as evidenced by Ext. A2 which was marked through PW1 (3rd.CP) 3rd counter petitioner in her cross examination had deposed that she received the copy of the MC and the attachment application on 23-2-13 itself and she gave details to the counsel for filing her objection. My Ld. Predecessor vide order in CMP 696/13 dated 25-9-13 has restrained the counter petitioners from alienating the property and directed to communicate the order to the SRO concerned. The case of the 3rd counter petitioner is that vide Ex.D1. the 1st counter petitioner has transferred the property in question in favour of her on 30-7-11. The interim maintenance to the petitioners were allowed on 10-12-14. The Ld. Counsel for 3rd counter petitioner has argued that prior to the restrain order of this court dated 25-9-13, the 1st counter petitioner has transferred the property in favour of 3rd counter petitioner vide Ext.D1 on 30-7-13 and hence the order of this court restraining the counter petitioners for alienating the property in question will not effect the transfer of property, I do not find much force in the said argument. Considering the evidence available on record, I am of the view that the petitioners are entitled to the relief sought for.” 11. No doubt M.C.No.18/13 did not ponder upon the alienation factor owing to the fact that the claim with regard to the said property was already pending adjudication in O.P.No.501/2016. 12. Alienation in our considered view would not be ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 13 ``` effected for, there is no decree in favour of wife in view of the modification of the original decree passed by the Judicial Magistrate dated 06.10.2016 by virtue of judgment of Additional Sessions Judge dated 26.02.2022. Operative part of the judgment in the Appeal read as under: 18. In the result, the Crl.Appeal.234/2016 stands dismissed. Crl.Appeal.232/2016 allowed. The impugned order stands set aside and modified as follows: 1. 1st and 3rd counter petitioners are restrained from committing any act of domestic violence against the 1[st] petitioner. 2. The 1st counter petitioner is directed to pay an amount of 5,000/- each to the petitioners as monthly maintenance from the month of October, 2016 apart from the interim maintenance which is in arrears. The 1st petitioner is entitled to receive the amount for and on behalf of the 2nd and 3rd petitioners. The reliefs Nos.2, 3 and 5 granted by the trial court are hereby set aside. 13. The compensation awarded to extent of Rs.15 lakhs by the Magistrate has been set aside on the premise that wife failed to lead any proof or evidence of entrustment in the manner and mode as mentioned in the Evidence Act. ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 14 ``` 14. Party cannot be permitted to improvise the case by staking a same claim in subsequent proceedings as has been done in the present case. For the sake of repetition, there was no interim order in O.P.No.501/2016. Thus the alienation so effected cannot be said to be hit by provisions of Section 52 of the Transfer of Properties Act much less ratio decidendi culled out in the judgment cited supra. Even otherwise, for a claim of return of gold ornaments or for compensation property having a value of lakhs of rupees or crores of rupees cannot be attached before the decree. Though there was no such attachment in the present case. In the present case also wife has not been able to lead any other evidence than the one lead before the Magistrate for the purpose of improvisation was staking the claim of return of gold ornaments. 15. Parties cannot be permitted to indulge into forum shopping, and repeatedly stake the claim as has been done in the present case. In our view, the Family Court has rightly rejected the claim. ``` MAT.APPEAL NO. 668 OF 2023 ``` ``` 15 ``` 16. For the reason aforementioned, we do not find any merits in the submission of learned counsel appearing for the appellant regarding illegality or perversity in the judgment and decree under challenge. No ground for interference is made out, Appeal is accordingly dismissed. **Sd/-** **AMIT RAWAL JUDGE** **Sd/C.S. SUDHA JUDGE** nak