SHERIKATH AND OTHERS Vs. SHAMSEENA AND ANOTHER

JUDGEMENT

(1.) Claimant in E.A. No.289/2016 in E.P. No.29/2013 in O.P. No.2492/2011 on the file of the Family Court, Thrissur are the appellants herein. The first respondent herein is the wife of the 2nd respondent and appellants 1 to 4 are the siblings and 5th respondent is the mother of the 2nd respondent. The first respondent filed O.P.2492/2011 before the Family Court, Thrissur against the second respondent for return of gold ornaments or its value, claiming an amount of Rs.14,92,480.00. The original petition was filed on 19.12.2011 and it was posted to 14.06.2012 for return of notice. When the first respondent came to know about the intention of the second respondent to assign his properties, she filed an application to advance hearing and also filed I.A.No.1757/2012 on 18.05.2012 for attachment before judgment and the petition schedule property was attached as per order dated 18.05.2012. The case was decided in favour of the first respondent and thereafter she filed E.P.No.29/2013 for realisation of the amount by sale of the property, share of the second respondent in the property. When sale notice was published, the appellants filed E.A.No.289/2016 for lifting the attachment under Order 21, Rule 58 of the Code of Civil Procedure. It is alleged in the claim petition that the property having a total extent of 11 cents with a building therein originally belong to late Kunjumon, who is the husband of 5th claim petitioner and father of petitioners 1 to 4 and the second respondent. He obtained the property as per partition deed No.1476/84 of S.R.O. Chavakkad. On the death of Kunjumon, the property devolved on the claim petitioners and the second respondent. The second respondent as per release deed No.850/2012 dated 11.09.2012 released his share in the property in favour of the claim petitioners for an amount of Rs.2,27,000.00. So they became the owners of the property. The second respondent has no attachable interest in the property as on the date of attachment as the property was sold prior to the attachment. He was having lot of financial commitments and creditors were after him. So in order to discharge those liabilities, he had sold his right in the property in favour of the claim petitioners and this fact was known to the first respondent and knowing that the second respondent has no right in the property, she got it attached with malafide intentions. The petitioners are bona fide purchasers for valid consideration and without notice of pendency of any proceedings. So they prayed for releasing the attachment.

(2.) The second respondent remained absent. First respondent filed counter contending that the petition is not maintainable. The allegation that the share of the second respondent was sold for a consideration of Rs.2,27,000.00 and the claim petitioners are the bona fide purchasers for value etc., is not correct and denied. The allegation that they made enquiries as to whether there was any encumbrance to the property before purchase is also not correct. The second respondent had released his share with fraudulent intention to defeat the right of the first respondent to pay the value of the gold ornaments claimed by her in the proceedings. In fact no consideration was passed and he is still in possession of the property and the claim petitioners were not bona fide purchasers for consideration without notice of the proceedings as claimed. The second respondent had received notice in the proceedings on 09.04.2012 and immediately he had created this document in favour of the claim petitioners with malafide intention knowing that there was no attachment, but there is possibility of attachment. Further even during 2011 itself, a crime was registered by Chavakkad police as Crime No.640/2011. So it cannot be said that the claim petitioners were not aware of the proceedings pending and this was created to defeat the right of the first respondent to recover the amount with fraudulent intention in collusion with the claim petitioners by the second respondent. So she prayed for dismissal of the application.

(3.) The first claim petitioner was examined as PW1 and Exts.A1 to A6 were marked on their side. First respondent was examined as RW1. After considering the evidence on record, the court below came to the conclusion that, it is a fraudulent transfer and it is hit by Sec. 39 of the Transfer of Property Act as well and dismissed the application. Aggrieved by the same, the present appeal has been filed by the appellants/claim petitioners before the court below.