IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 AS.No. 821 of 1996() ------------------------------ OS.232/1994 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT(S): PLAINTIFF --------------------------------------- SHERLY SADANANDAN, PUTHENPURAYIL, KATTOOR MURI, KALAVOOR, ALAPPUZHA DIST. BY ADV. SRI AZAD BABU RESPONDENT(S): DEFENDANTS. ----------------------------------------------- 1. K.R.NARAYANAN, MALAPPURATHU, KOLAZHY VILLAGE, THRISSIVAPEROOR, THRISSRU. 2. SOUDAMINI, MALAPURATHU, KOLAZHY VILLAGE, THRISSIVAPEROOR, THRISSUR. 3. PADMAVATHY, VALAVANAD HOUSE, KALAVOOR, ALAPPUZHA DIST. *4. A.V.VISWANATHAN, ANCHUTHAICKAL HOUSE, KOVILVATTOM, ERNAKULAM (STRIKED OUT). *5. A.V.VENUGOPALAN, ANCHUTHAICKAL HOUSE. * RESPONDENTS 4 & 5 ARE STRIKED OUT FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DT. 19.7.04 IN IA. 2024/2004. BY ADV. SRI.M.RAJAGOPALAN SRI.RAJIT SRI.P.K.SASI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 821 OF 1996 = = = = = = = = = = = = = = = Dated this the 8th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Alappuzha in O.S.232/94. The suit was one for a declaration and injunction. It is the case of the plaintiff that she had purchased the plaint schedule property by virtue of a sale deed No.3960/93 of S.R.O. Mararikulam from Sumathi Amma and she is in actual possession and enjoyment of the property. This Sumathy Amma got the property by virtue of a partition deed No.4999/87. Item No.1 of the E schedule is the plaint schedule property. It is the case of the plaintiff that there was a prior agreement and by virtue of the same she was put in possession A.S. 821 OF 1996 -2- on 25.5.89. Defendants 1 and 2 are the decree holders in O.S.158/56. They had obtained a sale certificate with respect to this property alleging that it belonged to the 3rd defendant in the suit who is none other than the plaintiff's mother. Since the 3rd defendant did not have any right over the property, the sale effected by the Court is also not proper and therefore she has filed the suit for declaration of her title and for a consequential injunction. 2. On the other hand, defendants 1 and 2 who are decree holders in O.S.158/56 would contend that ever since from the date of decree continuous attempts were made one way or other by the present plaintiff and her father, mother and brothers of the father to delay the execution of the decree and in the process they have created fraudulent document and such one document is the partition deed wherein the A.S. 821 OF 1996 -3- property is allotted to Sumathy Amma. It is also contended that the plaintiff right from the inception also had been aware of all these transactions and therefore she is not a bonafide purchaser for valuable consideration and that the whole transaction is vitiated by fraud which is directly hit under S.53 of the Transfer of Property Act. 3. In the trial Court PW1 and DW1 were examined. Exts.A1 to A3 and B1 to B7 were marked. On an analysis the Court found in favour of a fraudulent transfer and dismissed the suit. It is against that decision the plaintiff has come up in appeal. 4. Heard the learned counsel for the appellant as well as the contesting respondents. 5. The point that arises for determination is regarding the title of the plaintiff over the plaint schedule property by virtue of the sale A.S. 821 OF 1996 -4- deed and also the question whether it is as a result of a fraudulent transfer. At the out set it is contended by the learned counsel for the appellant that there is no appropriate issue framed regarding the fraudulent transfer. I am in agreement with the same but a reading of the written statement would convincingly establish that the real contention of the defendants 1 and 2 is that of a fraudulent creation of a document and it has also to be held that the parties have proceeded with the trial on the basis and understanding of the same and therefore a mere non framing of an issue cannot militate against the contesting defendants. 6. Now on the facts. The defendants 1 and 2 who are decree holders in O.S.158/56 had obtained a decree and has been running from pillar to post for the purpose of executing the decree to realise the amount due to them. The A.S. 821 OF 1996 -5- defendants in the suit are the father of the plaintiff, the mother of the plaintiff and two brothers of the plaintiff's father. The person from whom the plaintiff had purchased the property is none other then the direct sister of plaintiff's mother namely 3rd defendant in the suit. The learned counsel for the appellant would contend before me that since the property belonged to Sumathy Amma and as she had exclusive title and possession over the property a subsequent sale by her in favour of the plaintiff would show that the defendants cannot get execution of the decree or sale of the property which does not belong to Padmavathy Amma, 3rd defendant in the suit. If these facts are clear and if it is not vitiated under the circumstances mentioned u/s 53 of the Transfer of Property Act, certainly the plaintiff is entitled for a declaration. But if it is hit by A.S. 821 OF 1996 -6- S.53 of the T.P.Act it has to be stated that it will not confer any right on the plaintiff at all. So it is in these circumstances the back ground of the case becomes very relevant. 7. The present plaintiff who is pretending to be an innocent purchaser, right from 1971 had been knocking at the doors of the Court to prevent the sale of the property and execution of the decree in O.S.158/56. She along with others filed an application E.A.2172/71 and it has been dismissed. So her attempt to declare the some right over the property at that point of time was negatived by the Court. Then we find the present plaintiff moving an application as E.A.306/94 for setting aside the sale. The sale was conducted on 2.4.94 and the execution application filed by the plaintiff was dismissed on 13.6.94 and the sale was confirmed on 21.6.94. Therefore the approach of the plaintiff A.S. 821 OF 1996 -7- to make the Court feel that she is an innocent purchaser for bonafide consideration cannot be accepted without a pinch of salt. 8. Now the larger legal question that the Court has to find out is regarding the partition deed entered into between the members of the family, a registered copy of which is produced as Ext.A2. As per Ext.A2 partition deed the present plaint schedule property is shown as item No.1 in E schedule and that had been set apart to the share of the assignor of the plaintiff namely Sumathy Amma, sister of Padmavathy Amma. So it may apparently appear that the mother does not have any right over the property and if a decree holder proceed against such a judgment debtor's property, it was not available. Now as stated by me earlier the decree was obtained, execution petition was filed right from 1966, 1974 onwards and the A.S. 821 OF 1996 -8- partition deed has come into effect only in the year 1987 and in the partition deed there is a recital that since the plaintiff's mother had taken money from Sumathy Amma for the purpose of conducting the marriage of the plaintiff she does not require a share and therefore Sumathy Amma is given that share also. Therefore there was a concerted attempt even at the time of execution of Ext.A2 to shift the property from sale which had been hanging on their head for a considerable number of years. 9. Then the question is whether the partition is a transfer. Ordinarily a partition is not a transfer. It is only a severance of interest. But so far as S.53 of the T.P.Act is concerned it has to be held that partition is a transfer. In the decision reported in Panchali v. Manni (1963 KLT 168(FB) it has been held that partition amounts to a transfer. A.S. 821 OF 1996 -9- 10. The book of law on Transfer of Property Act by C.G.V.Subbaroa, 4th Edition page 59 also deals with the case of partition u/s 53 of the Transfer of Property Act. It has been held that, “Partition is a transfer for the purpose of Sec.53 of the Transfer of Property Act, instrument of partition relating to joint family properties brought about with intent to defeat or delay the creditors of the family or of any of its members may be impugned under Sec.53. In Firm Schwebo v Subbaiah, the principles applicable to such cases have been succinctly stated by Mr. Justice Patanjali Sastri as follows. Where the partition is unequal and the father has been allotted a smaller share than would be his due with intent to defeat his creditors, the latter can avoid the A.S. 821 OF 1996 -10- partition under Sec.53 and proceed against what would be his proper share in the family properties in execution of the decree obtained against him, ignoring the allotment of the properties at the partition.” 11. So the authorities are to the effect that even when there is an unequal partition it can be made use of by the creditors if they are able to establish that it is intended for the purpose of defeating or delaying the creditors. Now, here is a case, admittedly the mother of the plaintiff namely Padmavathi Amma had existing right in the property. When she executes Ext.A2 in the year 1987, there was a proceeding against her for execution of the decree obtained in 1956. It has also to be remembered father against whom also a decree was passed moved an application before Court to A.S. 821 OF 1996 -11- declare him as insolvent and the said insolvency petition was also dismissed. So it is very clear that repeated attempts were made to see that the decree holder never enjoys or realise the fruits of the decree. It is in this back ground Ext.A2 comes into being and the very recital that the mother had taken some amount for the daughter's marriage and therefore the property is allotted to another sister is only with a sole intention to defeat and delay the creditors. Therefore I have absolutely no hesitation to hold that Ext.A2 partition deed itself is void on the ground of fraudulent transfer. When it is void on the ground of a fraudulent transfer thereafter any title obtained by the plaintiff on the basis of that document cannot improve the situation. It has also to be stated that fraud is a matter which cannot be proved by direct evidence. It is A.S. 821 OF 1996 -12- always to be gathered from the surrounding circumstances. At the same time fraud cannot be arrived at on the basis of mere conjectures and surmises. On the totality of the materials it can be seen that a decree has been obtained in the year 1956 and it had been put into execution. The present plaintiff has also attempted to block the sale of the property by claiming right over the property, got it lost thereafter the father moved an application to declare him as insolvent, that also was lost and in these circumstances they executed a partition deed depriving the 3rd judgment debtor from getting any property and ultimately these documents are created as if it confers title on the plaintiff. The plaintiff again made an attempt by filing an application to set aside the sale and most probably knowing the non maintainability of the same did not prosecute it A.S. 821 OF 1996 -13- and had come forward with the present suit. Learned counsel for the contesting respondents would also submit before me the proper course would have been to contest the matter in the execution stage. I am afraid whether a Court can compel to do a particular act to a particular person especially when he is not concerned directly with the case in dispute. Therefore I am not going in detail to answer that question but suffice to say the materials are sufficient and clear to establish that Ext.A2 document and the subsequent creation whereby the plaintiff has obtained alleged title to the property are of fraudulent creation with the sole purpose of defeating the decree which the decree holders in O.S.158/56 had obtained. Therefore the finding of the learned Subordinate Judge that it is a fraudulent transfer is perfectly correct and it does not call for any A.S. 821 OF 1996 -14- interference. When it is so the plaintiff is not entitled to any relief and therefore the judgment and decree of the trial Court are confirmed and the appeal is dismissed but under the circumstances without any orders as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 821 OF 1996 -15- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 821 OF 1996 = = = = = = = = = = = J U D G M E N T 8th October, 2010.