SMITHA SHAJAN Vs. SREEDEVI

JUDGEMENT

(1.) The claim petitioner in E.P.No.14 of 2011 in O.P.No.398 of 2006 before the Family Court, Thrissur, is the appellant herein. E.A.No.242 of 2011 filed by her under Order XXI Rule 58 of Code of Civil Procedure, seeking to declare her to be the absolute owner of petition schedule property of 80 cents of Re-survey No.254/2003 and consequently to lift the existing attachment over the same was dismissed by impugned order dated 10.4.2017. This order is under challenge in this appeal.

(2.) E.P.No.14 of 2011 was filed by respondents 1 and 2 claiming maintenance as well as recovery of value of 150 sovereigns of gold ornaments from the 3 rd and 4th respondents. Respondents 1 and 2 are mother and minor child. The 3rd respondent is the husband and father of respondents 1 and 2 respectively. The 4th respondent is the mother of the 3rd respondent. Earlier, the Family Court, Thrissur had passed an ex parte decree on 23.09.2010 against the respondents 3 and 4 which they got set aside in Mat.Appeal No.466 of 2011 filed by them before this Court. After remand, the Family Court on 25.4.2013 granted an order allowing maintenance as well as recovery of value of gold ornaments. In Mat. Appeal No.466 of 2011 this Court while remitting the matter back, had passed orders making clear that attachment made in respect of schedule property shall continue in force. As a matter of fact, there is no dispute between parties that the attachment is still in existence. The order dated 4.5.2013 challenged in Mat.Appeal No.557 of 2013 before this Court by the 3rd respondent was confirmed today by a separate order.

(3.) When respondents 1 and 2 took out execution with a view to proceed against the schedule property, the appellant filed the claim petition claiming that scheduled 80 cents absolutely belonged to her by virtue of Ext.A7 registered Will dated 02.02.2008 executed in her sole name by father Ramachandran, who was the previous owner. According to her, respondents 3 and 4 have no right or interest over the property since the father had voluntarily bequeathed under the Will all his properties. She claimed to be in possession of the same as absolute owner.