IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 SA.No. 1014 of 1996(D) ---------------------- AS.69/1989 of I ADDL.SUB COURT,TRIVANDRUM OS.833/1983 of PRL.MUNSIFF'S COURT,TRIVANDRUM .................... APPELLANT/APPELANT/CLAIMANT: ------------------ NALINI AMMA, T.C. 11/1506, MOHANAVILASAM, CHARACHIRA, VALLUVEETTUMURI, MADATHUVILAKAN VILLAGE, TRIVANDRUM. (DIED) ADDL. 2. V.S. PEETHAMBARAN, T.C.NO.11/1758, NEW T.C.NO.20/0444, CHARACHIRA, TRIVANDRUM. (DIED) '' 3. P. SREEJA, -DO- -DO- '' 4. P. SREEJITH, -DO- -DO- '' 5. P. SREEKALA, -DO- -DO- '' 6. P. JAYASREE, -DO- -DO- ADDL. APPELANTS 2 TO 6 ARE IMPLEADED AS THE L.RS. OF THE DECEASED SOLE APPELLANT AS PER ORDER DTD. 7/7/04 IN CMP.1589/00. IT IS RECORDED THAT ADDITIONAL APPELLANTS 3 TO 6 ARE THE LEGAL HEIRS OF DECEASED ADDL. 2ND APPELLANT AS PER ORDER DTD. 16/6/09 IN I.A.944/09 IN SA. BY ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANT: ---------------------- 1. KUMARI SOBHANA, NADIYAVILA VEDU, MANANAK, KADAKAVOOR VILLAGE, TRIVANDRUM. 2. VIPIN, S/O.JAYAMOHAN, NADIYAVILA VEEDU, -DO- -DO- 3. JAYAMOHAN, MOHANAVILASAM, CHARACHIRA, VALLUVEETTUMURI, MADATHUVILAKOM VILLAGE, TRIVANDRUM. ADV. SRI P.C. HARIDAS FOR R1-2 SRI.G.S.REGHUNATH FOR R3 SRI.M.RAMASWAMY FOR R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.1014 OF 1996 ------------------------------- DATED THIS THE 29TH DAY OF JUNE, 2010 JUDGMENT Appellant is the claimant in O.S.No.833/83 on the file of the Principal Munsiff's Court, Trivandrum. The lst plaintiff is the wife of the sole defendant and the 2nd plaintiff is the child born to the lst plaintiff and defendant. At the time of filing the suit, the 2nd plaintiff was aged 7 years and he was studying in 3rd standard. The suit was filed alleging that the defendant has deserted the plaintiffs and that he is not maintaining them, though he has got sufficient means. It is claimed that the lst plaintiff required an amount of Rs.90/- per month for her future maintenance and Rs.60/- per month for the 2nd plaintiff. The trial court granted a decree allowing recovery of Rs.1080/- as arrears of maintenance and Rs.60/- per month as future maintenance for the 2nd defendant from the date of suit from the defendant and his assets. The claim petition, -2- S.A.1014/1996 I.A.No.4393/83 filed by the appellant was dismissed by the trial court holding that Ext.C1 is a sham document and it is a benami transaction and therefore the interim attachment ordered is made absolute. It was held that if the defendant is not paying the amount ordered by the trial court as maintenance, the property under attachment will be the first charge for the decree amount. Aggrieved by the dismissal of the claim petition, the claimant preferred A.S.No.69/89. The Appellate court dismissed the appeal confirming the findings of the trial court. The parties hereinafter are referred to as the plaintiffs, defendant and claimant as arrayed in the suit. 2. The plaintiffs filed I.A.No.3858/83 along with the suit for attachment before judgment of 20 cents of land comprised in Sy.No.2320-B. The appellant claimed right over 15 cents as per Ext.C1 gift deed dated 9/9/1981. The trial court made absolute the interim attachment order and dismissed I.A.No.4393/83 preferred by the appellant herein. The learned -3- S.A.1014/1996 Munsiff, after examining the pleadings, oral and documentary evidence, held that the defendant has no normal intelligence to execute Ext.C1 document, that Ext.C1 executed by the defendant is invalid and concluded that it is sham and benami document. On reaching the said conclusions, the trial court dismissed I.A.No.4393/83. 3. Learned counsel for the appellant referred to Section 53 of the T.P. Act and submitted that the said section is attracted only in a case where transfer of immovable property made with the intention to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. It is brought to this Court's notice that the 3rd respondent executed the gift deed on 9/9/1981, that the suit for maintenance was instituted on 24/6/1983, and so it is clear that there was no mala fide intention to defeat the claim of the lst and 2nd respondent for maintenance. The learned counsel also submitted that apart from 15 cents of land gifted to the appellant, -4- S.A.1014/1996 the defendant is owning and holding other items of properties including the balance 5 cents out of 20 cents, another 30 cents etc. According to the claimant, if there is an intention to defeat the claim of the lst and 2nd respondent, the third respondent should have parted with his entire property including the items referred above and in these circumstances, the finding that there is an intention to defeat the claim of the lst and 2nd respondents is not by proper appreciation of facts and circumstances. The learned counsel also submitted that both courts misunderstood the scope of the enquiry. According to the learned counsel, there is no basis for arriving at a finding that Ext.C1 is a sham document and that the transaction is a benami one and that it is hit by Section 53 of the T.P. Act. It is pointed by the learned counsel for the appellant that Ext.C1 document was executed long before the filing of the suit and therefore the finding of the trial court that Ext.C1 is a sham document and is a benami transaction is unsustainable in law. The counsel submitted that -5- S.A.1014/1996 the other conclusion arrived at by the trial court that the 3rd respondent has no normal intelligence to execute Ext.C1 gift deed also cannot stand. It has come out in evidence of the plaintiff as well as DW2, who is the paternal uncle of the defendant, that the lst defendant is in enjoyment of the properties other than Ext.C1 property. The Appellate Court upheld the findings of the trial court that Ext.C1 is not a bona fide transaction. The Appellate Court also upheld the view taken by the trial court and held that Ext.C1 is executed to defeat the right of the 2nd respondent to get maintenance. I do not think that the findings arrived at by the trial court as well as the Appellate Court stand on the basis of the pleadings, facts and evidence. The finding that Ext.C1 is a sham document, is based on the reasonings which this Court cannot be agreed. 4. The third respondent executed Ext.C1 gift deed on 9-9-1984. Suit for maintenance was instituted on 24-6-1983. From the above said dates it is clear that there cannot be any mala -6- S.A.1014/1996 fide intention to defeat the claim of respondents 1 and 2 for maintenance. The evidence reveals that 15 cents of land gifted to the appellant is not the only property owned by the lst defendant. The evidence shows that the lst defendant owns other items of properties. If the 3rd respondent gifted the property to the appellant is with an intention to defeat the claim of respondents 1 and 2, the 3rd respondent could have parted with other items also and ought not have restricted conveyance to part of his properties. 5. The claimant led evidence which shows that the 3rd respondent's father and mother adopted her as a daughter after the death of their only daughter. It is stated that the third respondent's father had an idea to gift an item of property in favour of the claimant. It is said that the father could not execute the gift deed during his life time. Therefore, after his death, the 3rd respondent fulfilled the ambition of his father and there is no mala fide intention to defeat the claim of respondents 1 and 2. -7- S.A.1014/1996 Taking into account the aforesaid facts and circumstances, the finding of the courts below that the gift deed is a sham document and it is a benami transaction is unsustainable in law. 6. From the facts and circumstances, it is clear that there is valid conveyance in favour of the claimant/appellant and therefore the finding that it is a sham document is unsustainable in law. The finding that the third respondent has no normal intelligence to execute Ext.C1 gift deed is also wrong. The 3rd respondent is conducting the present case in his individual capacity. There is no request to the court to appoint a next friend to conduct the case. No petition was filed by anybody under Order XXXII Rule 15 of the Code of Civil Procedure stating that the 3rd respondent is a person of unsound mind or is incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued and therefore a next friend may be appointed. The 3rd respondent himself has conducted the case by filing written statement and filed counter -8- S.A.1014/1996 affidavits resisting the interlocutory applications. The finding of the court below that the 3rd respondent has no normal intelligence to execute Ext.C1 gift deed also cannot be upheld. In the result, the appeal stands allowed. The dismissal of the claim petition is set aside. The attachment of the property covered by the claim petition is released. No order as to costs. Sd/- HARUN-UL-RASHID JUDGE. kcv