BEEVI UMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) The above writ petition is filed seeking the issuance of a writ of mandamus directing the 2nd respondent to register the gift deed executed by the 1st petitioner dtd. 25/5/2023 within a time limit to be prescribed by this Court.

(2.) As per the averment in the writ petition, the 1st petitioner is the owner of 11 Ares 73 sq. metres of land in survey no. 15/1-1, 2 Ares 42.1 sq. metres of land in survey no.15/2-2 and 9 Ares 31.1 sq. metres of land in survey no.15/3-2 of Valavannur Village in Tirur Taluk, Malappuram District, obtained as per document no.373/1967 of SRO, Kalpakancheri. The 1st petitioner is in possession of the property and is remitting tax from 1967 onwards. While so, the additional 3rd respondent filed a suit as O.S.No.96 of 2022 before the Sub Court, Tirur seeking specific performance of a contract and Ext.P2 conditional attachment order was ordered on 18/10/2022. It is the contention of the petitioners that the agreement, the 3rd respondent is relying on, is a fabricated document by forging the signature of the 1st petitioner and thereupon the 1st petitioner has filed a complaint before the police and Ext.P3 FIR in Crime No.88 of 2023 was registered against him. It is further contended that the 1st petitioner is issueless, and her husband died and the 2nd petitioner is the sister of the 1st petitioner. 1st petitioner wanted to register Ext.P4 gift deed in favour of the 2nd petitioner and the 1st petitioner approached the 2nd respondent for registering Ext.P4 gift deed in favour of the 2nd petitioner. The registering authority declined to register the gift deed stating that there is an order of attachment by a civil court over the property. The contention of the petitioners is that the 2nd respondent ought not to have declined registration of Ext.P4 gift deed merely for the reason that there is an order of attachment passed by a civil court and that the same cannot be a ground to refuse registration of the document. It is in the said circumstance that the petitioners have approached this Court by filing the above writ petition.

(3.) The additional 3rd respondent has filed a counter affidavit wherein it is contended that the 1st petitioner has agreed to sell the disputed property to him by fixing an amount of Rs.1,15,000.00 per cent and an agreement for sale was also entered between the parties on 5/1/2022 and an advance consideration of Rs.15,00,000.00 was paid by him. Thereafter on 15/3/2022, Rs.3,00,000.00 was also paid towards the balance consideration. When there was laches on the part of the 1st petitioner in executing the agreement, O.S. No .96 of 2022 was filed before the Sub Court, Tirur and the court as per order dtd. 18/10/2022 ordered conditional attachment of the property under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred as "CPC"). It is subsequent to that on 25/5/2023, the 1st petitioner has executed a gift deed in favour of the 2nd petitioner and the 3rd respondent would contend the said attempt is only to delay and defeat his rights and to obstruct execution of any decree that may be passed in O.S.No.96 of 2022. The 3rd respondent relies on Sec. 64 of the CPC which prohibits private alienation of property after an attachment order has been issued by a competent civil court. It is further contended that the 1st petitioner cannot subsequently assign the property to another party when an order of attachment of a competent civil court is pending and subsequent transfer of property even if carried out subject to the attachment and the outcome of O.S.No.96 of 2022 pending before the Sub Court, Tirur, this being a suit for specific performance of a contract, if the same is decreed in favour of the 3rd respondent, registration of the property in the name of a third person would cause much difficulties in the future. It is also submitted that when once an order of a competent court comes to the notice of the registering authority where restriction has been imposed on the registration of a document concerning the plaint schedule property, the registering authority cannot entertain any deed of conveyance or any other transaction on such property.