IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 SA.No. 257 of 1999(E) ------------------------------ AS.261/1994 of DISTRICT COURT, THRISSUR OS.59/1987 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): RESPONDENT/ CLAIM PETITIONER -------------------------------------------------------------------------- YASODHARA, W/O.ARAVEETTIL KRISHNAN, PERINJANAM DESOM, KODUNGALLUR TALUK. BY ADVS. SRI.P.VIJAYA BHANU SRI.T.A.UNNIKRISHNAN RESPONDENT(S): APPELLANTS/RESPONDENTS ---------------------------------------------------------------------- 1. JAYABHANU, W/O. BHANUJAN AND D/O. KANJIRAPARAMBIL RAGHAVAN, NATTIKA VILLAGE, CHAVAKKAD TALUK. 2. SHYNI, D/O. BHANUJAN, KANJIRAPARAMBIL HOUSE, NATTIKA VILLAGE, CHAVAKKAD TALUK. 3. SIJU, S/O.BHANUJAN, KANJIRAPARAMBIL HOUSE NATTIKA VILLAGE, CHAVAKKAD TALUK. R1 TO R3 BY ADV. SRI.P.V.CHANDRA MOHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NI.734/1999 IN SA. 257/1999 DISMISSED 21/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.257 of 1999 ------------------------------------- Dated this the 21st day of June 2011 Judgment The claimant in IA No.515/87 in OS No.59/87, who sought to get the attachment effected on the petition schedule property lifted and who lost before the lower appellate court, is the appellant before this court. The short facts necessary for the disposal of the appeal are as follows : 2. The brother of the claim petitioner had married the first respondent and they have two children in the wedlock, namely, respondents 2 and 3. In 1984, by Ext.A1, the husband of the first respondent had assigned 34 cents of land in favour of the claim petitioner. Subsequently, the 1st respondent instituted maintenance proceedings both under civil and criminal law and got orders in her favour. That was in the year 1987 and 1986. In the suit for maintenance, it seems that the property SA 257/1999 2 involved in the proceedings was attached before judgment. On coming to know of the order, the petitioner preferred the present claim, pointing out that she had no notice of the claim for maintenance and that her property cannot be proceeded against for the maintenance claim of the respondents since she is a bona fide purchaser with notice and for valuable consideration. 3. The respondents resisted the claim pointing out that the transaction, which took place between the husband of the first respondent and the claim petitioner was a collusive affair to defeat the claim of the respondents and that the petitioner was fully aware of the claim of the respondents. 4. On the above pleadings, necessary issues were raised and evidence was adduced. The claim petitioner examined herself as AW1 and had Exts.A1 and A2 marked. The respondents examined RW1 and had Exts.B1 and B2 marked. SA 257/1999 3 5. The trial court, before which the petition had been filed, considered the evidence on record and came to the conclusion that the petitioner before it was a bona fide purchaser without notice of the claim of maintenance of the respondents and that the transfer in her favour is liable to be protected. Accordingly, the claim petition was allowed. 6. The respondents took up the matter in appeal as AS No.26/94 before the District Court, Thrissur. The District Court differed from the view taken by the trial court and came to the conclusion that the transaction falls within the ambit of Section 39 of the Transfer of Property Act and it could not be said that the claimant was a bona fide purchaser for consideration. The lower appellate court came to the conclusion that the claimant purchased the property knowing the fact that maintenance proceedings were pending against the vendor of the property. Accordingly, the appeal was allowed by the lower appellate court. Hence the second appeal. SA 257/1999 4 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Is not the lower appellate court wrong in coming to the conclusion that the appellant had notice of the plaintiffs, at a time when no proceedings were initiated by them against the defendant for maintenance ? 2.When Exhibit A1 makes it clear that the transaction was for valid consideration, can a court of law enforce the right of the plaintiffs for maintenance against the property transferred as per Exhibit A1 ? 3.In order to attract the second part of Section 39 of the Transfer of Property Act, is it necessary that there be two requirements being that the transfer be one for consideration and that the transferee had no notice of the right of maintenance ? 8. The learned counsel for the appellant contended that the lower appellate court has erred both on facts and in law in allowing the appeal. According to him, the reasons given by the lower appellate court to allow the SA 257/1999 5 appeal are unsustainable. The first ground taken by the lower appellate court is that in 1984, there was a claim for maintenance by the wife and children and the claim petitioner was fully aware of the same. That conclusion is without any foundation and basis. It is pointed out that the claim for maintenance before the civil court was filed in 1987 and so also, the proceedings before the Munsiff Magistrate's court for maintenance was in 1986. At the point of time of execution of Ext.A1, there was no proceedings pending and there was no reasonable possibility of the claimant coming to know of the claim of the respondents. The other ground relied on by the lower appellate court is that the claimant has not been able to show that there are other properties from which the claim of maintenance could be satisfied, according to the learned counsel, is equally faulted. According to the learned counsel, the claimant has no burden to show that there are other properties available for proceeding to realise the maintenance ordered by the courts below. The interest of SA 257/1999 6 the claimant is only to protect the property purchased by her. 9. Per contra, the learned counsel for the respondents pointed out that a close scrutiny of the evidence in the case would clearly reveal that Ext.A1 is a collusive transaction intended to defeat their claim of maintenance. On a reading of Ext.A1, it would be clear that actually, no consideration has been paid and looking at the facts and circumstances of the case, it is clear that the payment made mention of in Ext.A1 is without any basis and that would show that the purpose of the sale was only to defeat the rights of the respondents. It is also pointed out that the recital regarding prior document of title is also patently false and these are sufficient to show that it was a camouflage to defeat the claim of the respondents. 10. It is true that the claimant is none other than the sister of the husband of the first respondent. Going by the evidence on record, it seems that the respondents took up separate residence in the first respondent's paternal SA 257/1999 7 house in 1980. The reasons are not very clear. However, the evidence disclose that eversince then, the husband of the first respondent has not been maintaining or taking care of his wife and children. The transaction involved in this case is in the year 1984 as evidenced by Ext.A1 document. It is true that the recital regarding consideration made mention of is a debt incurred by the husband of the first respondent from the claim petitioner in respect of which a promissory note is said to have been executed in her favour. The amount and interest covered by the promissory note is treated as part of the sale consideration and the balance is paid in cash. 11. The trial court was of the view that there is nothing to show that at the relevant time, the petitioner before the said court was aware of the maintenance proceedings nor did she have notice of the claim. Therefore, the liability covered by Section 39 is not attracted since going by Ext.A1, it can be seen that the petitioner is a bona fide transferee for valuable SA 257/1999 8 consideration. The lower appellate court, on the other hand, was persuaded to take a different view on the ground that it was given to understand that there was maintenance proceedings in 1984. It was this fact that has considerably weighed with by the lower appellate court. It is true that AW1 when examined before court does say that there was maintenance proceedings before the JFCM Court in 1984 against her brother. Probably, this would have weighed with by the lower appellate court. However, the records would indicate that maintenance proceedings was initiated in 1986 and 1987 both in the Magistrate's court and the Sub Court. Therefore, factually, the observation of the lower appellate court that there were maintenance proceedings in 1984, cannot be correct. 12. Equally unsustainable is the finding that since the claimant has not shown that the husband of the first respondent has other properties from which maintenance ordered could be realised, the claimant is not entitled to protection, cannot be sustained. It is not for the SA 257/1999 9 claimant to show that there are other properties from which maintenance as ordered could be satisfied. The interest of the claim petitioner is only to protect her property and she has no burden to show that there are other properties available for proceeding against the maintenance claim by the respondents. It would thus be seen that the reasons given by the lower appellate court are unsustainable. Therefore, it is felt that a reconsideration of all the issues by the lower appellate court is necessary in the light of what has been stated above. In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court. The parties shall appear before the lower appellate court on 27.07.2011. The lower appellate court shall dispose of the appeal in accordance with law and in the light of what has been stated above. The lower appellate court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within three months SA 257/1999 10 from the date of appearance of parties before it. There will be no order as to costs. P.Bhavadasan, Judge sta SA 257/1999 11