KESAVAN NAIR Vs. SALES OFFICER CO OP SOCIETIES

JUDGEMENT

(1.) Though normally I would have relegated the petitioner to his remedy by way of claim under R.90 of the Kerala Cooperative Societies Rules, 1969, I am refraining from doing so, and entertaining this original petition for more than one reason. First, the Sales Officer before whom the claim is to be made has himself effected the attachment, and foreclosed any claim or enquiry by his conclusion in the Mahazar Ext. P2 (prepared at the time of attachment) that he was satisfied on his own enquiry that the moveables attached belonged to the defaulter. Having arrived at such a categoric finding, based on his own alleged enquires, it is futile to expect the said Officer to hold otherwise in a claim petition. Secondly, the facts disclosed smack of mala fides as set up by the petitioner.

(2.) The award under execution is one passed against the petitioner's daughter Vijayakumari. The said daughter is unmarried, and she is admittedly living with the petitioner in the same house under his care and protection (vide the counter affidavits of the Sales Officer, and of the decree holder Cooperative Society). The buildings from which the articles were attached, both belong to the petitioner, one being his residential house and the other, the Padippura or outhouse. This fact is positively proved by Exts. P3, P4 and P5, apart from the fact that the averments about the petitioner's ownership of the buildings are not controverted ia either of the two counter affidavits. The movables attached are mostly old furniture-tables, benches and cots-such as are found in any ordinary household. The petitioner, in whose house, and under whose care and protection the defaulter daughter lives, claims these articles as his own, kept in his own house. The petitioner objected to the attachment on this score, but no heed was paid to it by the Sales Officer. This averment in the original petition is also not controverted by the respondents in their counter affidavits. The averment in reply, in the counter affidavits (which are practically identical), is that the attachment was effected from the residence of the defaulter, that the petitioner's claim that the movables belong to him, and that his daughter had no right or ownership over them, was not true, the averment was not bona fide, and that there was no evidence to support this contention. I am unable to understand these pleadings when the undisputed fact remains that the buildings from which the articles were attached belong to the petitioner and it is further admitted that the defaulter was residing with her father under his care and protection. The mere residence of the defaulter, as an inmate in her father's house, cannot make the movables in that house or in the outhouse, belong to her. Mere residence is not the criterion, nor is it relevant in itself. When the house and the outhouse belong to, and are in the possession of the petitioner father, and be reigns there as the paterfamilias, the presumption should be that the movables therein also belong to him and are in his possession. Cogent material or evidence is called for. before any such movables can be treated as belonging to the defaulter, liable to be attached as such. The articles attached are common place articles of everyday use in any household, and not special or personal items like jewellery or the like, which could be connected with the defaulter. The decree holder is entitled to attach only property belonging to the defaulter. The movables here were not attached from the possession of the defaulter, but from that of the petitioner, with whom the defaulter was residing. The onus in such cases to prove that the movables belonged to the defaulter is on the decree holder. If the movables are attached from the possession of the defaulter, prima facie it can be held that they belonged to the defaulter. But if the movables were not attached from the possession of the defaulter, no such presumption can arise. The decision of the Delhi High Court in Ramji Lal Mohinder Kumar v. Naresh Kumar (AIR 1984 Delhi 90) supports this conclusion.

(3.) Ext. P2 mahazzar prepared by the Sales Officer recites that the decree holder Society and the witness present (described as Thadassar) asserted that the movables belonged to the defaulter. I wonder on what material such assertions were made, for I cannot conceive of total strangers ordinarily having special inside knowledge of the ownership or possession of household articles and furniture in a residential house, to fasten the ownership on one of the inmates only, in preference to the bead of the family. Not that it is impossible, but then such assertion should be based on material. No such material is disclosed in the counter affidavits. Equally glib is the statement of the Sales Officer in Ext. P2 that his enquiries also confirmed this assertion. He has not however, chosen to take the court into confidence as to what were the enquiries made by him, with whom and when. Obviously this is one of those recitals made by him in a routine manner without any serious attempt to vouchsafe its correctness.