IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 WP(C).No. 23738 of 2009(R) -------------------------- AGAINST THE ORDER DATED 10/08/2009 IN IA.1865,2070/09 IN OP.564/2009 of FAMILY COURT, ALAPPUZHA .................... PETITIONER(S): --------------- SURUMI, AGED 20 YEARS,W/O.ISMAIL,SURUMI MANZIL, THURAVOOR P.O.,CHERTHALA. BY ADV. SRI.B.PRAMOD RESPONDENT(S): --------------- 1. ISAMAIL, AGED 32 YEARS,S/O.IBRAHIM,KAKKATTU HOUSE, ILLATHUPADI,EDAVANAKKADU VILLAGE, KOCHI TALUK,ERNAKULAM DISTRICT. 2. HAJIRA, AGED 50 YEARS,W/O.IBRAHIM,KAKKATTU HOUSE, ILLATHUPADI,EDAVANAKKADU VILLAGE, KOCHI TALUK,ERNAKULAM DISTRICT. 3. IBRAHIM, AGED ABOUT 56 YEARS,KAKKATTU HOUSE, ILLATHUPADI,EDAVANAKKADU VILLAGE, KOCHI TALUK,ERNAKULAM DISTRICT. 4. RIJAS, AGED 29 YEARS,S/O.IBRAHIM,KAKKATTU HOUSE, ILLATHUPADI,EDAVANAKKADU VILLAGE. REP.BY HIS POWER OF ATTORNEY HOLDER HAJIRA. ADV. SRI.K.A.JALEEL FOR R4 SRI.PMA.KALAM FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 23738 of 2009-R ------------------------------------------------- Dated this the 19th day of October, 2009 JUDGMENT Basant,J. The petitioner herein had filed a claim before the Family Court as O.P.No.564/09. There were four respondents therein. First respondent is her husband, respondents 2 and 3 are his parents and the 4th respondent is the brother of the 1st respondent. In the petition she claimed return of an amount of Rs.14 lakhs being the value of 90 sovereigns of gold ornaments and Rs.5 lakhs which was allegedly handed over to her husband and his parents at the time of marriage. There is, of course, an allegation against the 4th respondent appearing in para-1 of the petition and that is a sweeping general statement that “the 4th respondent has also taken part in the misappropriation of money and gold ornaments W.P.(C) No. 23738 of 2009-R -: 2 :- mentioned above.” What is “mentioned above” is that the petitioner/wife was taken to the place of employment of her husband/the 1st respondent and before she left, ornaments were handed over to respondents 2 and 3 - her parents-in-law. 2. Along with the petition an application was filed to attach two items of properties. The court below had granted interim attachment. Later, the 4th respondent applied for lifting of the attachment in respect of one item of property on the ground that that item of property belonged exclusively to him, the same having been transferred by his father/3rd respondent in his name long prior to the initiation of the proceedings. 3. The learned Judge of the Family Court considered the contentions of the 4th respondent and came to the conclusion that sufficient averments to mulct him with liability is not prima facie available in the petition filed. The petitioner had raised a further contention that the transfer was fraudulent and the document of transfer by the 3rd respondent in favour of the 4th respondent is sham. The court below found that there is no merit in the said contention and the transfer having taken place long prior to the filing of the present O.P., the attachment of the property belonging to the 4th respondent is not justified. Accordingly, the court below proceeded to pass the impugned W.P.(C) No. 23738 of 2009-R -: 3 :- order lifting the attachment in respect of that latter item. 4. Before us the learned counsel for the petitioner and the learned counsel for respondents 1 to 4 have advanced their arguments. The learned counsel for the petitioner assails the impugned order on two grounds. He contends, first of all, that sufficient averments are there against the 4th respondent to justify attachment of Item No.1 of the property attached, even assuming that it belongs to the 4th respondent exclusively. Secondly, it is contended that, at any rate, transfer by the 3rd respondent in favour of the 4th respondent anticipating the initiation of the present proceeding cannot avoid the liability of the property to be attached . 5. On both contentions, we find that the court below has correctly applied its mind. We have been taken through the averments in the O.P. We are not satisfied that there are sufficient averments to justify attachment of an item of property belonging exclusively to the 4th respondent. The exclusive rights of the 4th respondent over the property is challenged. But we find that the transfer from the 3rd respondent to the 4th respondent had taken place long prior to the initiation of the proceedings and on broad probabilities and on the available inputs there is nothing to assume that the property exclusively in W.P.(C) No. 23738 of 2009-R -: 4 :- the name of the 4th respondent i.e., Item No.1 attached, has been transferred fraudulently under a sham document. We are not, in these circumstances, satisfied that the impugned order warrants interference invoking our extraordinary constitutional jurisdiction under Art.227 of the Constitution. 6. This writ petition is accordingly dismissed. All interim orders are vacated. We make it clear that that we have taken a prima facie view in the light of the materials available and no observations/findings are intended to fetter the rights of the court below at later stages of the proceedings on the basis of the evidence that may be adduced later. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge W.P.(C) No. 23738 of 2009-R -: 5 :-