SMITHA Vs. P.C.VARGHESE

JUDGEMENT

(1.) Challenge in this original petition filed under Article 227 of the Constitution of India is against Exts.P10 and P12 orders passed by the Family court, Thodupuzha in IA No.183/2015 in OP No.22/2015, on 11 -09 -2015 and on 30 -09 -2015, respectively. The petitioner herein had instituted OP No.22/2015 before the Family court against the respondents seeking return of money of Rs.20,00,000/ - along with interest and also for return of 60 sovereigns of gold ornaments or its value of Rs.12,72,000/ -. The petitioner is the wife of the 2nd respondent, their marriage being solemnized on 17 -06 -2006. It is the case of the petitioner that, after the betrothal ceremony the father of the petitioner had entrusted a sum of Rs.20,00,000/ - with the 1st respondent at the residence of the petitioner, in the presence of friends and relatives of both the families. As agreed upon, 70 sovereigns of gold ornaments were purchased for the marriage of the petitioner from 'Bhima Jewellery', Kottayam and those ornaments were worn by the petitioner at the time of the marriage. After the marriage the petitioner was residing in the family of the respondents. During the year 2007, marriage of the younger sister of the

(2.) nd respondent was fixed. It was decided to give 60 sovereigns of gold ornaments and a sum of Rs.15,00,000/ - as her share. For raising funds, the 1st respondent suggested to utilize the cash and ornaments of the petitioner, on the promise that an extent of 1.99 Acres of land would be transferred into her name. The said property is described in the original petition as A -schedule. The proposal was agreed upon and it was decided to register necessary documents with respect to the transfer of A -schedule property into the name of the petitioner, after the marriage of the sister of the 2nd respondent. Accordingly the petitioner gave 60 sovereigns of gold ornaments to the 1st respondent. But A -schedule property was not transferred into the name of the petitioner, as promised. The 1st respondent was not willing to execute necessary documents with respect to plaint A -schedule property, nor was he ready to return the value of 60 sovereigns of gold ornaments or the sum of Rs.20,00,000/ -. Therefore the original petition was filed before the court below claiming reliefs as mentioned above. 2. Along with the original petition the petitioner had filed IA No.19/2015 seeking attachment before judgment of the petition schedule property. The court below passed an ad -interim order of conditional attachment, as evidenced from Ext.P3, on 24 -01 -2015. The 1st respondent filed a counter affidavit in IA No.19/2015. He has also filed another interim application as IA No.183/2015, seeking withdrawal of the attachment on accepting the security furnished. In the affidavit filed in support of the said application it is mentioned that the 1st respondent was holding a total extent of 2 Acre 99 Cents of property, out of which 1 Acre was gifted to the 2nd respondent, who is his son, in the year 2007. It is stated that the wife of the 1st respondent is undergoing treatment for Cancer and the 1st respondent himself is a chronic patient undergoing treatment for various diseases since the last so many years. According to the 1st respondent, since there is no other income to meet the expenses for their treatment to be undergone, he had entered into an agreement with one Sri.V.M.Abbas for sale of 70 Cents of property situated on the northern side of the remaining extent of 1 Acre 99 Cents. On getting information about this, the 2nd respondent herein had filed a suit as OS No.369/2014 before the Munsiff Court, Thodupuzha, seeking fixation of the boundary between the property gifted to him and the property proposed to be sold to Sri. V.M. Abbas, raising an allegation that the latter property includes a portion of the property gifted to the 2nd respondent also. In fact, both properties are situated on the northern and southern ends of the family property, which are about 50 feet apart. According to the 1st respondent the only intention behind institution of such a suit was to restrain him from selling 70 cents of the property from the total extent of property to the above said person. In OS No.369/2014, the properties were surveyed and identified at the instance of the 1st respondent. The Munsiff's Court found that the property agreed for sale does not take in any property belonging to the 2nd respondent. Accordingly the Munsiff's Court vacated the order of temporary injunction granted to restrain the 1st respondent from conducting the sale. Having met with such a situation, the 2nd respondent instigated the petitioner herein to file the original petition before the court below. It is contended that at no stretch of imagination it can be believed that the parents of the petitioner have offered to pay such a hefty amount at the time of her marriage. The claim was frivolous and the above original petition was filed only with an intention to obtain an order of attachment of the entire extent of property, solely to restrain the proposed sale of 70 Cents to Sri.V.M.Abbas. It is contended that money and gold ornaments, if any, if at all given to the petitioner from her family, was only kept by her, and that the claim is totally baseless. In the circumstances it is contended that, lifting of the order of attachment with respect to 70 cents is highly necessary and therefore the 1st respondent prayed for the same subject to the acceptance of the remaining property under attachment as security.

(3.) The petitioner had filed detailed objection to IA No.183/2015, contending that sufficient reason is not there for lifting the order of attachment and if the 70 Cents out of the entire extent of property under attachment, is permitted to be sold, the petitioner will be deprived of enjoying the fruits of any decree which may be passed in her favour. The petitioner had also filed IA No.229/2015 seeking direction to the 1st respondent to produce the alleged agreement for sale executed with Sri. V.M. Abbas. The 1st respondent had filed counter affidavit in IA No.229/2015 contending that production of the agreement for sale executed with Sri. V.M. Abbas is unwarranted.