IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 RSA.No. 407 of 2010() -------------------------------- AS.NO.7/2006 of SUB COURT,KATTAPPANA OS.273/2001 of MUNSIFF COURT, PEERMEDU .................... APPELLANT/DEFENDANT (2,3, & 4) -------------------------------------------------- 1. DHANAPAL, AGED 60 YEARS, S/O. MARIYA DAS, AMBEDKAR COLONY,CHENKARA KARA,KUMILI VILLAGE, IDUKKI DISTRICT. 2. KURISAMMA, W/O.DHANAPAL AMBEDKAR COLONY,CHENKARA KARA,KUMILI VILLAGE, IDUKKI DISTRICT. 3. MOHAN, S/O. DHANAPAL, AMBEDKAR COLONY,CHENKARA KARA,KUMILI VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.A.C.DEVASIA RESPONDENT(S): PLAINTIFFS ( 1 & 2) ------------------------------------------------------- 1. R.MARUTHUPANDI, S/O.RAMAYYA THEVAR, CHENKARA PUTHUVAYAL,CHENKARA KARA, KUMILI VILLAGE. 2. MAHESWAR, S/O. BALAMURUGAN, CHENKARA PUTHUVAYAL,CHENKARA KARA, KUMILI VILLAGE. 3. MARIYAPPAN, S/O.MARIYADAS, AMBEDKAR COLONY, CHENKARA PUTHUVAYAL,CHENKARA KARA, KUMILI VILLAGE. R1 & R2 BY ADV. SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- R.S.A.NO.407/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE:1 COPY OF THE 'B' DAIRY IN O.S.NO.276/1993. ANNEXURE:1(A) COPY OF THE 'B' DAIRY IN O.S.NO.278/1993. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.407 OF 2010 --------------------------------------------- Dated 14th June, 2011 JUDGMENT Defendants 2, 3 and 4 in O.S.273/2001 on the file of Munsiff court, Peermade are the appellants. Respondents 1 and 2 are the plaintiffs. Third respondent is the first defendant. Respondents instituted the suit for a declaration that registered sale deed No.999/94 of SRO, Peermade executed by the third respondent in favour of the appellant is void under Section 53 of Transfer of Property Act. It was contended that money was due to respondents 1 and 2 and O.S.Nos.276/1993 and 278/1993 were instituted before Munsiff court, Idikki for realisation of the amount and during the pendency of the suits, the properties of the first respondent, the debtor RSA 407/10 2 was fraudulently transferred in favour of the appellants to shield the properties from proceeding in execution of the decree and in the suits the properties were attached before judgment under Rule 5 Order XXXVIII of Code of Civil Procedure and both the suits were decreed and for E.P.5/1998 and 7/1998, the encumbrance certificate was taken for effecting sale of the attached properties, and then it was revealed that fraudulent transaction was entered into by the third respondent in favour of the appellants and hence it is liable to be set aside as it was created with an intention to shield the properties from the creditors. 2. Third respondent, who is none other than the brother of the first appellant, did not contest the suits. Second appellant is the wife of the first appellant and third appellant is their son. They would contend that plaint RSA 407/10 3 schedule property was purchased for valuable consideration and the sale was not to defeat the creditors and it was a bonafide purchase and there was no intention to defeat the creditors and the appellants were unaware of the suits and in such circumstances, the sale deed is not liable to be set aside. 3. Learned Munsiff on the evidence of Pws.1 and 2, DW.1 and Exts.A1 to A9, granted a decree declaring that transfer of plaint schedule property, by the third respondent in favour of the appellants under document No.999/2004 is a fraudulent transaction within the meaning under Section 53 of Transfer of Property Act. It was also declared that respondents are entitled to proceed against the property in execution of the decree in O.S.276/1993 and 278/1993. The appellants challenged judgment before Sub court, RSA 407/10 4 Kattappana in A.S.7/2006. Learned Sub Judge on re-appreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants was heard. 5. Argument of the learned counsel is that appellants are bonafide purchasers for valuable consideration and they did not purchase the property to aid the third respondent to shield the property and instead after paying more than adequate consideration the property was purchased and being bonafide purchasers, respondents are not entitled to proceed against the plaint schedule property. Learned counsel would argue that in any case, courts below should have found that the suit is barred by limitation. Learned counsel would RSA 407/10 5 also argue that the order of attachment in both the suits were subsequent to the assignment deed in favour of the appellants and when the property was purchased there was no order of attachment and appellants were unaware of the pendency of the suits and as the suit was instituted only in 2001, it should have been held that the suit is barred by limitation. 6. The fact that first appellant is brother of the third respondent judgment debtor in O.S.276/1993 and 278/1993, is not disputed. Second appellant is none other than the wife and third appellant is their son. It needs no further explanation to hold that appellants are close relatives of the third respondent. Both the suits, O.S.276/1993 and O.S.278/1993 were instituted prior to the alienation of the plaint schedule property by the third respondent, the defendant in the suits, in RSA 407/10 6 favour of the appellants. The only question is whether the appellants are bonafide purchasers without the knowledge of the liability of the third respondent and whether they paid adequate consideration and purchased the property and never intended to shield the property on behalf of third respondent. It is a finding of fact. Learned Munsiff and learned Sub Judge on proper appreciation of the evidence found that third respondent executed the assignment deed in favour of his brother and his wife and son, to shield the property from proceeding against in execution of the decree to be passed in the suits. On going through the judgments of the courts below, I find no reason to interfere with the findings of the facts. Though the learned counsel argued that the suit is barred by limitation, I find that such a contention was not taken before the trial court. More RSA 407/10 7 over, it is the case of the appellant that they were unaware of the existence of the transfer by third respondent in favour of the appellants and they came to know about the alienation only when the encumbrance certificate was taken for the purpose of executing the decree and if so, period would start only from that day. As the suit is filed within the period, it is not barred by limitation. I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.