IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 Mat.Appeal.No. 115 of 2011() ---------------------------- AGAINST THE ORDER DATED 23/10/2010 IN EA.99/10 IN EP 137/2009 IN OP.162/2008 of FAMILY COURT, KOTTAYAM .................... APPLICANT/CLAIM PETITIONER: --------------- SIJU THOMAS, EDATHUMPARAMBIL, NEELAMPEROOR, KURICHY. BY ADV. SRI.V.P.MOHAMMED NIYAZ RESPONDENT(S): --------------- 1. SHERLY MATHEW, KARIYIL HOUSE, KURICHY. 2. SABU THOMAS, KARIYIL HOUSE, KURICHY. R1 BY ADV.SRI.R.T.PRADEEP SRI.V.VIJULAL R2 BY ADV.SMT.T.S.MAYA (THIYADIL) SRI.M.S.NARAYANAN (AMICUS CURIAE) SMT.PRINCY XAVIER THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2011, ALONG WITH MAT.A.116 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ----------------------------------- Mat.A.Nos.115 & 116 OF 2011 ------------------------------------ Dated this the 1st day of February, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.We have heard the parties on the merits of the matter and considered the rival submissions. These appeals arise from a common order dismissing two claim petitions filed in the course of execution. 2.The family court proceedings are essentially between Sherly Mathew and Sabu Thomas who are the respondents in these appeals. The wife Sherly Mathew has a decree against the husband Sabu Thomas. That decree for recovery of money is sought to be enforced. However, the claim petitions were filed when orders of attachment were issued in the course of execution. Mat.A.115/11 & 116/11 2 3.The claim petitioners viz., Jineev K.K. And Siju Thomas and the afore-referred Sabu Thomas-the judgment debtor are partners of a firm governed by the terms of Ext.A1. They had also made acquisition of an item of land as per Ext.A2. It is that item which is brought under attachment. Though Ext.A1 was prior to Ext.A2 in point of time, there is nothing in Ext.A2 to indicate that the acquisition under that transaction was in favour of the firm or for the purpose of the firm. The ratio of share in partnership in terms of Ext.A1 partnership deed is, therefore, irrelevant to decide the ratio of shares that would inure to the transferees under Ext.A2. Ext.A2 does not contain anything regarding distribution of shares. Therefore, the law requires it to be presumed that Ext.A2 property is held by Sabu Thomas and the claim petitioners Jineev and Siju Thomas in equal shares. There is no reliable legal evidence to the contrary. The finding in the impugned common order proceeds on the basis that the share of the transferees under Ext.A2 is in parity with their share in the partnership evidenced by Mat.A.115/11 & 116/11 3 Ext.A1. There is no room for such view. The impugned common order is, therefore, unsustainable. 4.For the aforesaid reasons, we allow these appeals and declare that the attachable share of Sabu Thomas, the judgment debtor, is 1/3 of Ext.A2 property. The appeals are ordered accordingly and the impugned order of the court below will stand modified to that extent. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.5/2.