AYISHUMMA Vs. KALAPAKASSERY MOTHI MUSALIYAR

JUDGEMENT

(1.) This appeal has been filed by the wife and children challenging the order of the Family Court, Malappuram by which the suit for setting aside the assignment deed executed by the 1st respondent in favour of the 2nd respondent has been rejected by the Family Court.

(2.) The main contention urged by the 1st petitioner/1st appellant is that, she has been separated from her husband and has been living separately. The other petitioners/appellants are the children of the 1st appellant in the wedlock with the 1st respondent. At a stage when the 1st respondent attempted to sell his property, a suit was filed for injunction, for restraining him from alienating the property. During the pendency of the original petition it was understood that the property has already been transferred to the second respondent and the 2nd respondent again transferred it to additional respondents 3 and 4. Therefore the petitioners amended the petition incorporating the prayer for setting aside the assignment deed executed by the 1st respondent in favour of the 2nd respondent. The respondents appeared and filed objection stating that the property had been sold for valid consideration and the petitioners cannot seek for an injunction or to set aside the assignment deeds. Respondents 2 to 4 contended that they were bonafide purchasers for value and the property cannot be made liable for any debt between husband and wife.

(3.) Before the Family Court no oral evidence was adduced by either parties. Documents were marked as Exts.A1 to A12 and Exts.B1 to B4. The Family Court found that no decree can be passed in favour of the petitioners, in so far as they have no independent right over the property in question. Though it was contented by the petitioners that the 1st petitioner had a right for maintenance and therefore she can exercise lien in respect of the property owned by her husband, the Family Court observed that it shall always be open for the petitioners to proceed against the property if the 1st petitioner is entitled to exercise the said lien.