IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 Mat.Appeal.No. 44 of 2003() --------------------------- AGAINST THE ORDER IN EA.35/2000 IN EP.NO.43/95 IN OS.39/1992 of FAMILY COURT,TRIVANDRUM .................... APPELLANTS/(RESPONDENTS 1 TO 4): -------------- 1. SASIKALA, W/O. REGHUTHAMAN, S.R.GIRI, AROOR DESOM, KILIMANOOR VILLAGE, THIRUVANANTHAPURAM. 2. RAJASIMHAN, S/O. REGHUTHAMAN, S.R.GIRI, AROOR DESOM, KILIMANOOR VILLAGE, THIRUVANANTHAPURAM (MINOR). 3. RANIMOL, D/O. SASIKALA, S.R. GIRI, AROOR DESOM, KILIMANOOR VILLAGE, THIRUVANANTHAPURAM (MINOR). 4. SREEJAMON, S/O. REGHUTHAMAN, S.R. GIRI, AROOR DESOM, KILIMANOOR VILLAGE, THIRUVANANTHAPURAM (MINOR). (APPELLANTS 2 TO 4 REPRESENTED BY THEIR GUARDIAN AND NEXT FRIEND SASIKALA). BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): (PETITIONER & 5TH RESPONDENT): --------------------------------------------- 1. VIMALA, D/O. GOPALAN, KOPPATHIL VEEDU, AROOR DESOM, KILIMANOOR VILLAGE, THIRUVANANTHAPURAM. 2. REGHUTHAMAN, H/O. SASIKALA, S.R.GIRI, AROOR DESOM, KILIMANOOR VILLAGE, THIRUVANANTHAPURAM. ADV. SMT.K.KUSUMAM FOR R1 SRI.SHAMMI VIJAYAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- Mat. Appeal No.44 of 2003 ------------------------------- Dated this the 16th February, 2009 J U D G M E N T Raman, J. O.S.No.39 of 1992, on the file of the Family Court, Thiruvananthapuram, was a maintenance case filed by the wife against the husband, which ultimately ended in a decree in her favour, with charge created on the property in question. That judgment was rendered on 15.12.1994. Thereafter, the decree passed thereon was sought to be executed by filing E.P.No.43 of 1995. Third party claims were filed by one Vimala claiming absolute right over the property. It may be incidentally noticed that in the execution proceedings, the property was put to sale and the decree holder purchased the same through court auction and took symbolic delivery of the same. The case of the claimant, Vimala, was that an extent of 18.5 cents of property comprised in Survey No.3488 of Kilimanoor Village was purchased by her as per sale deed No.2490 dated 28.9.1989 of MAT.Appeal No.44 of 2003 2 S.R.O. Kilimanoor. Mutation was also effected thereafter. She has been paying the land tax in respect of the same. On 3.11.1989, she happened to see a paper affixed on a conspicuous part of her property and from which she came to know that her property was under attachment of Sub Court, Attingal, in a Pauper Petition filed as O.P.No.72 of 1989, later converted into suit as O.S.No.39 of 1992. Thereafter, she moved the family court where the maintenance claim was pending by filing I.A.No.1162 of 1989 seeking to raise the order of attachment. Though the said I.A. was re-numbered by the Family Court as I.A.No.106/1992 and posted the case, no orders were passed thereon. While so, a decree was passed and it was sought to be executed. 2. The order of attachment before judgment was dated 30.10.1989, whereas the purchase by the claimant was on 28.9.1989, more than a month before the date of attachment. Thus, as on the date of attachment, the judgment debtor had no interest, what so ever in the property because of the prior sale in MAT.Appeal No.44 of 2003 3 favour of the claimant. As such, there cannot be any charge on the property, nor the property be proceeded with for any amount said to be due to the decree holder, by virtue of the decree passed in the suit. 3. After taking delivery of the property, the claimant filed E.A.No.73 of 2000 for re-delivery of the property, since there was a symbolic delivery in favour of the decree holder. Since the claimant has got right over the property, she prayed for re-delivery of the property with a compensation of Rs.50,000/= for unauthorisedly dispossessing her property. 4. The prayer made in the claim petition was seriously opposed by the decree holders, inter alia contending that the claimant is not a bonafide purchaser; that the property was sold in court auction on 22.1.1996; and thus the decree holders have got absolute right over the property. It was further stated that the sale deed was executed by the claimant in collusion with the judgment debtor and the claimant has no right to raise any dispute in respect of the same. MAT.Appeal No.44 of 2003 4 5. The court below framed two issues, viz., whether the claimant has got any title over the property and whether the claimant is entitled to get re-delivery of the scheduled property. 6. The evidence consists of oral testimony of Pws.1 and 2, and Exts.A1 to A5 on the side of the claimant, and CPW.1 and Exts.B1 and B2 on the side of the respondents-decree holders. Considering both the oral and documentary evidence adduced in the case, the court below found that I.A.No.1162 of 1989 seeking to raise the order of attachment, filed before the Family Court, was admittedly not adjudicated on merits, during the pendency of the trial. The evidence of PW.1, claimant, shows that the petitioner and Reghuthaman- the judgment debtor-5th respondent, were residing in the same house even at present; that Ext.A1 document was executed for a valid consideration and it cannot be said that the same was executed in collusion with the judgment debtor who was arrayed as 5th respondent in E.A.No.35 of 2000. As on the date of attachment, MAT.Appeal No.44 of 2003 5 there was no title to the judgment debtor over the property, in view of Ext.A1 document in favour of the claimant. Accordingly, the claim petitions, E.A.No.73 of 2000 and E.A.No.35/2000, were allowed holding that the claimant has got absolute title over the property in question. The amount in deposit was permitted to be withdrawn by the decree holders. Further, it was clarified that the sale certificate issued in favour of the decree holders will not create any title to the decree holders and the same has to be ignored in toto. It is challenging the said decree and judgment that the present appeal is preferred. 7. The learned counsel appearing for the appellants-decree holders strenuously contended that once the Family Court has passed a decree in favour of them, creating a charge on the property in question, by operation of Section 39 of the Transfer of Property Act, it will relate back to the date on which the amount became due. It is also contended that Ext.A1 sale in favour of the claimant is a sham transaction and is executed in collusion with the claimant, who is not a bonafide MAT.Appeal No.44 of 2003 6 purchaser for valid consideration; that the claimant is none other then the daughter of the uncle of the judgment debtor, and, therefore, she had notice of the pendency of the maintenance case; and placing reliance on the decision of this Court in Ramankutty v. Amminikutty (1997 (1) KLT 559), contended that in such circumstances, the appellants right to claim maintenance and to proceed against the property, in no way is affected by Ext.A1 sale deed. 8. The learned counsel appearing for the respondents, on the other hand, contend that when there was an order of attachment before judgment and the claimant has preferred an application for lifting the attachment, pointing out the fact that the property has been purchased by the claimant long prior to the attachment, the Family Court ought to have considered and pass orders on the said petition, before final judgment was rendered in the main case. Since a petition was already moved by the claimant, claiming title over the property and contending that there is no valid attachment on the property, MAT.Appeal No.44 of 2003 7 the fact that the court below, without passing any orders on the claim petition, seeking to lift the attachment, in no way can defeat the right of the claimant. In such circumstances, no valid charge is created on the property. Further, the right of the appellants to prove that they are the bonafide purchasers having been considered by the court below and based on the appreciation of the evidence on record, there is no reason to reverse the said finding by this Court. It is also contended that claimant had no legal notice about the pendency of the proceedings before Ext.A1 sale deed. 9. We have perused the judgment of the court below and have anxiously considered the evidence on record, as also the rival contentions submitted by the parties. An extent of 18.5 cents of paddy field comprised in Survey No.3488 of Kilimannoor Village is the subject matter of the dispute. That property admittedly belongs to the husband of the first appellant, the appellants 2 to 4 being the children. The appellants obtained a decree for maintenance, as per the judgment in MAT.Appeal No.44 of 2003 8 O.S.No.39 of 1992 rendered by the Family Court, Thiruvananthapuram, on 15.12.1994. A copy of the judgment was made available to us by the counsel appearing for the appellants. The operative portion of the judgment reads as follows:- “ In the result, the suit is decreed on the following terms. The plaintiffs are allowed to realise Rs.1000/- per mensem (Rs.250/- each per mensem) from the date of the suit. They are also allowed to realise arrears of maintenance from 19th July, 1987 onwards from the defendant and his assets. In the circumstances of this case, parties are directed to suffer their costs.” 10. From the above, it can be seen that the suit for maintenance was decreed against the husband allowing to realise the arrears of maintenance from the defendant and his assets. There is no particular charge created on any property, and it contains a general order enabling the plaintiffs to realise the amount by proceeding against the defendant personally as also against his properties. MAT.Appeal No.44 of 2003 9 11. Ext.A1 is the sale deed executed in favour of the claimant. That is dated 28.9.1989. The date of attachment is on 30.10.1989. Therefore, if Ext.A1 sale deed is valid, necessarily, the claimant will become the absolute owner of the property; where as the attachment made subsequent on the property in favour of the plaintiffs will not in any way defeat the right of the claimant. Therefore, the point that arise for consideration is as to whether the claimant is a bonafide purchaser for consideration and whether, as contended by the decree holders, there is any collusion between the claimant and the judgment debtor. 12. PW.1 is the claimant. He has deposed in favour of the claim statement. The property was purchased for a sale consideration of Rs.1000/= per cent. Her evidence, as discussed by the court below, shows that at the time when the sale deed was executed, there was no dispute between the decree holders and the judgment debtor. She came into possession of the same pursuant to the sale. Later, on coming to MAT.Appeal No.44 of 2003 10 know of the attachment before judgment, she filed I.A.No.1162 of 1989 seeking to lift the attachment before the Sub Court, Attingal, and it is nobody's case that the petition seeking to lift the attachment was adjudicated on merits and disposed of the same, in accordance with law. Therefore, the claim of the claimant has never been adjudicated and her present claim raised at the execution stage is in no way barred by any law. According to the decree holders, on the very same day on which Ext.A1 is executed, two other documents, Exts.A4 and A5 were also executed. It is not the case of the decree holders that the property sold, Exts.A4 and A5, were to the near relatives. Therefore, other properties have also been sold on the very same day in favour of the third parties. Hence, the mere fact that the claimant happened to be a distant relative, even if assuming to be true, cannot be said to be a ground to hold that the sale in favour of the claimant, as per Ext.A1, is in any way invalid, or for want of consideration or a colluded transaction. The court below also found that the consideration shown in the document is to save stamp duty which is probablised by the version of PW.1. MAT.Appeal No.44 of 2003 11 13. Admittedly, the property was sold in 1996 in execution of the decree for a total consideration of Rs.91,000/=. Therefore, the centage value comes to Rs.5000/=. Ext.A1 sale is executed seven years prior to the court auction. In the absence of any contra evidence, it cannot be said that the value of the property, at the time of execution of Ext.A1, at the rate of Rs.1000/= per cent, is in any way too low. Admittedly, claimant's petition for lifting the attachment was not adjudicated upon and no finding is entered. As such, the present claim is maintainable and on the face of the evidence on record, there is hardly anything to suggest that there was any collusion between the judgment debtor and the claimant. As a matter of fact, PW.2 is the husband of PW.1. He had deposed that the property in question was in the possession of the claimant, after paying an amount of Rs.17,000/=, and that amount was withdrawn from his account, and Ext.A3 passbook was produced in evidence thereof. Therefore, the finding of the court below cannot be said to be perverse. On the other hand, even after carefully considering all the evidence on record, we are in complete MAT.Appeal No.44 of 2003 12 agreement with the finding of the court below that Ext.A1 transaction cannot be said to be one executed as a result of any collusion between the transferor and the transferee. Even though the first decree holder, the first appellant herein, was examined as CPW.1, she did not have a case that Ext.A1 was a colluded transaction. All that she states is that Ext.A1 sale deed was executed in favour of daughter of the uncle of her husband. Merely because the claimant happened to be a distant relative, we cannot presume that she had notice about the pendency of the case or that the very transaction was with a view to help the judgment debtor or that there was a colluded transaction. There is evidence in the case, as we have already discussed, that claimant has purchased the property for a consideration of Rs.17,000/=, the source for which had been explained by PW.2, the husband of the claimant. Further, on the very same day, two other transactions have also taken placed in favour of third parties, and there is also evidence to that effect by PW.1. This evidence on the part of the claimant could not be assailed on any MAT.Appeal No.44 of 2003 13 valid ground, on the strength of the evidenced adduced by the defendant in this case. 14. Though it is contended that by virtue of Section 39 of the Transfer of Property Act, there is a charge created in the property and it relate back to the date on which the amount became due, and therefore, the appellants are entitled to proceed against the property, we are not persuaded to accept such contention. As per section 39 of the Transfer of Property Act, “where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands”. We have already found that the appellants could not prove that the transferee had any notice. The appellants themselves have no case that they have given any notice to the transferee. Secondly, the claimant has purchased MAT.Appeal No.44 of 2003 14 the property for a valid consideration, and, therefore Section 39 of the Transfer of Property Act can have no application on the facts and circumstances of this case. Therefore, the appellant's case is not advanced by the dictum laid down in Ramankutty's case, supra. In the result, we find no merit in this appeal. Accordingly, the appeal is dismissed with costs. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.