IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 RFA.No. 333 of 2003() --------------------- AGAINST THE ORDER DATED 07/03/2003 IN IA 2083/2002 IN OS.218/2002 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT: CLAIM PETITIONER ------------------------------------ SUDHAKARAN S/O. UPPORAN, KAILAS MANDIR, KUTHIRAVATTOM P.O., KOZHIKODE DISTRICT. BY ADV. SRI.PHILIP ANTONY CHACKO SMT.SHABNA AMEER RESPONDENT(S): RESPONDENTS/(PLAINTIFF AND DEFENDANT) ---------------------------------------------------- 1. SHRI K.GOPALAN NAIR, S/O. NARAYANAN NAIR, AGED 53 YEARS, RESIDING AT MODAYAPURATH HOUSE, "DEEPAM", P.O. MANKAVU, KOZHIKODE TALUK, KOZHIKODE DISTRICT 2. SHRI T.C.PADMANABHAN S/O. GOPALANKUTTY NAIR, AGED 54 YEARS, RESIDING AT PANOLI HOUSE, P.O.KUTHIRAVATTOM, KOZHIKODE TALUK AND DISTRICT ADV. SRI.R.SUDHISH FOR R1 SMT.MANJU SUDHISH FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2009, THE COURT ON 02/12/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No. 333 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the claim petitioner in I.A.No. 2083 of 2002 in O.S.No. 218 of 2002 on the file of the IIIrd Additional Sub Court, Kozhikode. Respondents 1 and 2 herein are respondents 1 and 2 in that petition, which was filed under Order 38 Rules 8 and 10 of C.P.C. 2. The claim petition has been filed on the allegation that the claim petitioner had purchased 1/6 portion of the property attached in O.S. 218/2002 vide order on I.A. 1529/2002. According to the claim petitioner, the petition schedule property originally belonged to one Gopalankutty Nair and others and as per the decree in O.S. 341 of 1968 of R.F.A.No. 333 of 2003 2 the Munsiff's Court-II, Kozhikode it was partitioned. The father of the second respondent obtained the purchase certificate also from the Land Tribunal. After his death, the property devolved upon his legal heirs. The 2nd respondent is one among the legal heirs of the late person and thereby he acquired 1/6th share in the petition schedule property. He had assigned the 1/6th undivided share in favour of the claim petitioner as per jenm assignment deed No.743/2002. The petitioner is jointly in possession of the undivided share of the property along with other legal heirs of deceased Gopalankutty Nair. 3. The 1st respondent filed a suit against the 2nd respondent for realisation of an amount of Rs.1,75,000/-. 1/6th share from the plaint schedule property was attached in the said suit. Hence, he prayed to pass an order lifting the attachment passed in I.A. 1529/2002 in O.S. 218/2002. R.F.A.No. 333 of 2003 3 4. The 1st respondent/plaintiff filed counter disputing the claim. It is contended that the petition has been filed in collusion with the defendant/2nd respondent. The defendant is residing in the said property with his family. The document has been fraudulently created to defeat the claim of the plaintiff. The value of the share of the property claimed by the petitioner would come to Rs.2,00,000/-. It cannot be believed that the said property was given to the petitioner for Rs.40,000/-. The document is a sham document. The defendant borrowed some amount on 11.9.1999 from the plaintiff. He sent a lawyer notice on 18.2.2002. On 2.3.2002 the defendant had undertaken in his own hand writing that the amount would be paid within 3 months. Thereafter the property was attached on 20.6.2002 in I.A. 1529/2002. The document relied by the petitioner was seen executed on 23.3.2002 without any consideration. 5. For the purpose of enquiry, the petitioner was examined as PW1 and Exts.A1 to A10 were marked. No evidence was adduced R.F.A.No. 333 of 2003 4 on the side of the respondents. The learned Sub Judge, on considering the matter, dismissed the petition on finding that the claimant had acted as a tool at the hands of the defendant to defeat the claim of the plaintiff. Against that order the claim petitioner filed this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 7. It is an admitted fact that 1/6th right of the defendant over the petition schedule property, having an extent of 17 cents, was attached before judgment as per order dt. 20.6.2002 in I.A.No. 1529 of 2002 in O.S.No. 218 of 2002 on the file of the Sub Court, Kozhikode. Ext.A7 is the Sale Deed No.743 of 2002 dt. 23.3.2002 executed by the defendant in favour of the claim petitioner in respect of 1/6th share of the defendant over that property. The petition schedule property along with other properties originally belonged to Gopalankutty Nair and others. As per the order in the R.F.A.No. 333 of 2003 5 final decree application, I.A.No. 169 of 1970 in O.S.No. 341 of 1968 the petition schedule property was allotted to the share of Gopalankutty Nair by the Munsiff Court-II, Kozhikode. After the death of Gopalankutty Nair the petition schedule property devolved upon his legal heirs, including the defendant, and the defendant was having 1/6 share over that property. 8. O.S.No. 218 of 2002 is a suit filed by the plaintiff against the defendant for realisation of an amount of Rs.1,75,000/-, which was alleged to have been borrowed by the defendant from the plaintiff on executing an agreement dt. 11.9.1999. On 18.2.2002, the plaintiff sent a lawyer notice to the defendant asking the defendant to pay back the amount, to which the defendant sent a reply notice on2.3.2002 seeking time to pay the amount. According to the claim petitioner, he purchased the 1/6th share of the defendant over the petition schedule property as per Ext.A7 Sale Deed dt. 23.3.2002 as a bonafide purchaser. R.F.A.No. 333 of 2003 6 9. PW1 deposed that he purchased 1/6th share of the defendant over the petition schedule property for a sale consideration of Rs.40,000/- Attachment was ordered in O.S.No. 218 of 2002 on 20.6.2002. Therefore, it is evident that on the date of Ext.A7 Sale Deed, there was no attachment before judgment. But Ext.A7 Sale Deed was executed by the defendant after receiving the lawyer notice dt. 18.2.2002. 10. The learned counsel for the appellant invited our attention to the decision of the Apex Court reported in Hamda Ammal v. Avadiappa Pathar and ors. ((1991) 1 SCC 715), in which it was held: Rule 5 of Order 38 CPC would not apply where the sale deed has already been executed by the defendant in favour of a third person. A transaction of sale having already taken place even prior to the institution of a suit cannot be said to have been made R.F.A.No. 333 of 2003 7 with the intention to obstruct or delay the execution of any decree. Rule 10 of Order 38 also makes it clear that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit. It would, however, a different case altogether if a creditor wants to assail a pre-attachment transfer by sale under Section 53 of the Transfer of Property Act, 1882. Such suit would be decided on totally different considerations in accordance with the provisions of Section 53 of the Act. Neither in Section 64 CPC nor in the form prescribed for attachment there is any prohibition for submitting the sale deed for registration which has already been executed prior to an attachment. In view of Section 54 of the Transfer of Property Act after the execution of the sale deed with consideration all the ingredients of sale are fulfilled except that in case of tangible immovable property of the value of Rs. 100 and upwards it can be made only by registered instrument. Section 47 of the Registration Act makes it R.F.A.No. 333 of 2003 8 clear that after the registration it will relate back to the date of execution of the sale deed. The act of registration is to be performed by the registering authority. Thus the vendee gets rights which will be related back on registration from the date of the execution of the sale deed and such rights are protected under Order 38 Rule 10 CPC read together with Section 47 of the Registration Act. When the property belonged to the defendant- judgment debtors (vendors) and the sale deed had already been executed by them prior to the attachment before judgment and only its registration remains, then neither the attachment before judgment nor a subsequent attachment or court sale of the property would confer any title by preventing the relation back. The fact that the document of sale had not been registered until after the attachment makes no difference. Even an unregistered document can be received as evidence for purposes mentioned in the proviso to Section 49 of the Registration Act. The R.F.A.No. 333 of 2003 9 contention that till registration, the execution of the sale deed does not confer any rights whatsoever on the vendee cannot be accepted.” 11. In the decision reported in Ithakku Abraham v. Kesavan Damodaran (1987 (1) KLT 704), it was held: “A plea based on S.53 of the T.P. Act can be raised by way of defence, and if raised as a defence, there is no need to defend the suit in a representative capacity on behalf of all the creditors of the judgment debtor. R.58 as amended by the C.P.C. Amendment Act 104/1976 expressly provided that all question ( including questions relating to right, title and interest in the property attached) arising between the parties to a proceeding or their representatives under the rule and relevant to the adjudication of the claim or objection shall be determined by the court dealing with the claim or objection and not by a separate suit. An order made under sub-rule (3) shall have the same force and be subject to the same conditions as to appeal or otherwise R.F.A.No. 333 of 2003 10 as it were a decree. Since the claim is to be adjudicated on all questions relating to right, title and interest in the property attached, the claimant is in the position of a plaintiff and the decree-holder who opposes the claim is in the position of a defendant in a suit where the question relating to the right, title or interest in the property attached is to be determined. The decree holder is therefore entitled to defend the claim on grounds available to him under S.53 of the T.P. Act and such a defence need not be in a representative capacity, on behalf of all the creditors of the judgment debtor.” 12. While dealing with R.F.A.No. 110 of 2007, which is a connected matter, in which the claim petitioner/appellant is the same person with regard to the same property, it has come out in evidence that the defendant, who sold 1/6th share over the petition schedule property is having another property having an extent of 7.63 cents in Re-survey No.8/2 in Nileshwaram Village. When this fact was brought to the notice of the counsel for both sides, the R.F.A.No. 333 of 2003 11 counsel for the first respondent submitted that that property was sold by the defendant after attachment in O.S.No. 49 of 2002 on the file of the Sub Court, Quilandy and thereafter that property has undergone several assignments and as such that property is not available for sale in execution of the decree. 13. Under Section 53 of the Transfer of Property Act the burden is on the plaintiff, who alleged fraud to prove the same and mere suspicion is not sufficient to come to the conclusion that Ext.A7 sale deed is a fraudulent one in order to defeat the claim of the plaintiff. The first respondent has not adduced any evidence to prove that Ext.A7 sale deed is a fraudulent one. But it is pertinent to note that Ext.A7 sale deed was executed by the defendant after getting lawyer notice from the plaintiff. 14. On considering the evidence, we are of the view that the evidence is not sufficient to arrive at a conclusion that Ext.A7 is a bonafide sale or it is a fraudulent one. Therefore, we are of the view that in the interests of justice both sides should be given R.F.A.No. 333 of 2003 12 sufficient opportunity to adduce further evidence to substantiate their respective contentions and for that purpose the case has to be remanded back to the lower court for further evidence. 15. Accordingly this appeal is allowed. The order dismissing I.A.No. 2083 of 2002 in O.S.No. 218 of 2002 on the file of the III Additional Sub Court, Kozhikode is set aside and that petition is remanded back to that court for fresh disposal in accordance with law after giving sufficient opportunity to both sides to adduce further evidence. The parties are directed to appear before that Court on 15.1.2010. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm