IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 Ex.FA.No. 40 of 2006() ---------------------- EA NO.88/2003 IN EP NO.279/2002 IN OPMV.233/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/DECREE HOLDER IN OP(MV): --------------------------------------------------- KESAVAN NAIR, S/O.VELAYUDHAN PILLAI, LAKSHMI VILASAM, KOLAKAM, P.O. KARYAVATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENTS: RESPONDENTS 1 TO 4 & CLAIMANT IN EA 88/2003 IN EP NO.279/2002 IN OP(MV): ----------------------------------------------------- 1. SUGATHAN, S/O. SANTHAN, KUNNIVILA VEEDU, CHOOTTAYUIL, KILIMANOOR, THIRUVANANTHAPURAM. 2. JAYASUDHA, KODITHARA VEEDU, POOVANPARA, ATTINGAL, THIRUVANANTHAPURAM DISTRICT. 3. K. VINAYAKAN, S/O. KUNJUKRISHNAN KARUVILA VEEDU, KUNJALUMMODU, KULATHOOR P.O., POUNDKADAVU WARD. 4. BIJUKUMAR, S/O. KUNJU KRISHNAN, KARIVILA VEEDU, -DO- -DO-. 5. KUMARI, W/O. VINAYAKAN, MANNEKKATTIL VEEDU, ATTIPPRA VILLAGE, KAZHAKKOOTTAM, THIRUVANANTHAPURAM. R5 BY ADV. SMT.K.KUSUMAM THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- Ex.F.A.No.40 of 2006 ------------------------------------------------- Dated, this the 28th day of February, 2008 JUDGMENT This appeal arises from an order passed by the Motor Accidents Claims Tribunal, Attingal allowing E.A.No.88/2003 in E.P.No.279/2002 in O.P.(MV) No.233/1997 filed by the fifth respondent herein. The matter arises from execution of an award passed in O.P.(MV) No.233/1997. Appellant filed O.P. (MV) No.233/1997 against the third respondent who was the third judgment debtor in E.P.No.279/2002 and against three others claiming compensation on account of the death of his wife. Tribunal passed an award on 20.8.2001 allowing the appellant to recover an amount of Rs.82,650/- with interest at the rate of 9% from 14.12.1997 till the date of realisation. Third respondent was directed to deposit the amount. As he did not deposit the amount the appellant/claimant filed E.P.No.279/2002 for realisation of the amount by sale of one half right of third judgment debtor in the property scheduled in the E.P. Properties were attached. Thereafter fifth respondent in this appeal filed E.A.No.88/2003 under Order XXI Rule 58 of Code of Civil Procedure claiming that the third judgment debtor in the E.P. has no saleable interest over the property attached and she is the absolute owner of the property. 2. The third respondent is the husband of the fifth respondent. The marriage was solemnised on 3.5.1990. In the affidavit filed in support of the Ex.F.A.No.40/2006 2 petition it was averred that the property attached having an extent of 14¼ cents in Sy.No.2446 of Attipra Village originally belonged to one Prabhakumari and Anilkumar who sold the same to respondents 3 and 5 as per sale deed No.3152/1993 dated 24.11.1993. It was also averred that the property attached was purchased using the funds obtained by sale of properties given to her by her father as her share and sale deed happened to be executed in the name of herself and her husband. It was further averred that third respondent deserted fifth respondent and their children on 16.6.1998 and thereafter he is living separately. Due to intervention of mediators third respondent transferred his one half right over the property to her favour on 22.1.2000 and she became the absolute owner of the entire property. It was also averred that even after execution of release deed third respondent husband created difficulties. Fifth respondent filed O.P.No.1036/2002 before the Family Court, Thiruvananthapuram for a declaration that she is the absolute owner of the property. Original Petition was allowed on 18.1.2003. It was averred that thereafter fifth respondent received a notice from the Tribunal regarding the attachment and E.P. It was also averred that third respondent does not have any right, title or interest over the attached property and she is the absolute owner. Third respondent was not having any saleable interest over the property on the date of attachment and hence she claimed that she may be declared as the real owner of the property and same is not liable to be attached. Appellant filed an objection contending that petition is not maintainable. It was Ex.F.A.No.40/2006 3 contended that fifth respondent has no locus standi to file such a petition. It was further contended that third respondent was in joint possession along with fifth respondent and on getting information regarding attachment he released one half right over the property attached in favour of fifth respondent who was none other than his wife as per Ext.A1 release deed. The averment that third respondent was not having any right or possession was denied. It was further averred that appellant reasonably believed that third respondent executed Ext.A1 release deed in favour of fifth respondent in order to defeat his interest as the applicant/decree holder in O.P.(MV) No.233/1997 and to prevent him from realising the award amount. So he prayed for dismissal of the claim petition. 3. On the side of fifth respondent she was examined as PW1. Exts.A1 to A10 proved and marked. Appellant did not adduce any evidence at all. Tribunal considered the application and found that fifth respondent succeeded in proving her right over the entire property and possession over the same. Hence the petition was allowed. Challenging that order this appeal is filed. 4. The main ground raised is that the Tribunal failed to apply its mind properly. Learned counsel for the appellant has argued that Tribunal failed to note that transaction is without any consideration and it was executed with the sole purpose of defeating the interest of the appellant who was a creditor of third respondent and hence the transaction is unsustainable. It is also argued that even though no award under Section 140 of the Motor Vehicles Act was passed Ex.F.A.No.40/2006 4 because it was a case of death, on the date of filing itself appellant had a right to claim an award under Section 140 of Motor Vehicles Act. Since it was a case of death it has to be assumed that an amount of Rs.50,000/- was due to the appellant even on the date of filing of the Original Petition and hence he must be deemed to be a creditor of the third respondent. 5. The case of the fifth respondent is very simple. According to her she was married to third respondent on 3.5.1990 and even before marriage her father executed Ext.A7 gift deed on 28.4.1990 in her favour by way of sreedhanam and that was a sreedhana property. Her further case was that she sold that property on 20.9.1993 under Ext.A8 sale deed to one Abdul Kharim and deposited the entire sale consideration in Thiruvananthapuram District Co- operative Bank. She withdrew the entire amount on that day itself and purchased the property covered by Ext.A2 sale deed on 24.11.1993. Her further case was that since third respondent happened to be her husband his name was also written as one of the vendees but the entire sale consideration was paid by her and that sale consideration paid was the sale consideration which she received by sale of property gifted to her and hence the property purchased as per Ext.A2 sale deed must also be treated as sreedhana property. It is argued that though the name of her husband was also shown in Ext.A2 sale deed his position was only as a trustee and he will not get any right over the property. Her further case was that from 1998 onwards her relationship with third respondent became strained and due Ex.F.A.No.40/2006 5 to intervention of mediators third respondent husband executed Ext.A1 release deed releasing all his rights over the property to fifth respondent. She has also got a case that because of the continued harassment she filed O.P.No.1036/2002 before the Family Court, Thiruvananthapuram on 2.8.2002 for a declaration that she is the absolute owner of property scheduled in the claim petition and that was decreed on 18.1.2003. I do not propose to place any reliance on Exts.A4 and A5. But a reading of Ext.A7 gift deed shows that on 28.4.1990 father of the fifth respondent executed a gift deed in her favour and she sold the same on 20.9.1993 to one Abdul Kharim. Ext.A3 bank pass book shows that she deposited the amount in the bank on 22.11.1993 and withdrew the entire amount on that day itself. Ext.A2 sale deed was executed on 24.11.1993. That was two days after withdrawal of the amount. Ext.A2 stands in the name of respondents 3 and 5. It is true that there was no specific recital in Ext.A2 to the effect that sale consideration paid to the vendor was the amount which the fifth respondent withdrew from the bank. But she gave oral evidence to that effect. The court below believed the evidence given by the fifth respondent. Further on 22.1.2000 itself third respondent executed a release deed releasing whatever right he had over the property to fifth respondent. 6. O.P.(MV) was filed in the year 1997 but it was allowed only on 20.8.2001. The question arising for consideration was whether the appellant can be said to be a creditor of third judgment debtor on that date, i.e. 22.1.2000. Ex.F.A.No.40/2006 6 Section 53 of the Transfer of Properties Act provides as follows: 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 deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made. It is settled position of law that right under Section 53 can be used as defence and it is not necessary that in such contingency the creditor shall file the petition in a representative capacity. But he must be a creditor. The term creditor co- related to that as a liquidator for specified some of money due. In its ordinary meaning the term include a person who has lent money or sold goods to another which was Ex.F.A.No.40/2006 7 remained unpaid. It is true that the word creditor includes not only those who have proved their claim and obtained a decree and as designated as creditors but also ordinary creditors who have still a claim over the property. In this case, in O.P.(MV) No.233/1997 the claim was only for an unliquidated sum of damages for a tort committed by driver of the vehicle which according to the appellant was owned by the third respondent. So on the date of Ext.A1 there was no debtor- creditor relationship between the appellant and third respondent. So the provisions contained in Section 53 of the Transfer of Properties Act have no application to the facts of this case. 7. Learned counsel for the appellant has strenuously argued before me that the claim in O.P.(MV) NO.233/1997 before the Tribunal arose on account of death of wife of the appellant/decree holder and as such under Section 140 of the Motor Vehicles Act a statutory liability was cast upon the owner of the vehicle to pay an amount of Rs.50,000/-. In this case no interim award was sought for and hence no such award under Section 140 was passed. Merely because the appellant had a remedy under the Statute to claim Rs.50,000/- as compensation it is not possible to hold that third respondent became a debtor to the appellant to the extent of Rs.50,000/-. So there is no merit in the argument that in view of the provisions of Section 140 of the Motor Vehicles Act at least an amount of Rs.50,000/- must be found as a debt on the date of execution of Ext.A1 release deed. Further there was no such claim in O.P.(MV). Entire evidence was only Ex.F.A.No.40/2006 8 one way. Fifth respondent gave evidence to the effect that the amount utilised for purchasing the property attached was raised by the sale of the property gifted to her by her father as sreedhana property and hence the third respondent husband was only a trustee so far as that property was concerned. There was no contra evidence adduced by the appellant. Fifth respondent produced the gift deed executed by her father in her favour, sale deed executed by her and also the bank pass book to show that she withdrew Rs.75,000/- two days prior to the purchase of the property attached. So it is not possible to hold that third respondent husband had any saleable interest over the property on the date of attachment. Court below considered all these aspects and allowed the claim petition. There is no merit in the appeal and the same is only to be dismissed. In the result, appeal is dismissed. K. PADMANABHAN NAIR, JUDGE. cks