IMPORTANT POINT
Section 39 of the Transfer of Property Act protects maintenance rights against gratuitous transfers, applicable to all, irrespective of religion.

JUDGMENT :

M.B.Snehalatha, J

The challenge in this appeal is to the order of dismissal of E.A.No.52/2023 in E.P.No.18/2020 in O.P. No.896/2018 of Family Court, Thalassery. E.A.No.52/2023 was a petition filed by the appellants under Order XXI Rule 58 r/w Section 151 of the Code of Civil Procedure to release the petition schedule property from attachment and sale.

2. Appellants' case is that the property put in auction for the realisation of decree debt belongs to them; that they obtained the same by virtue of Ext.A1 sale deed bearing No.2035/2021 of SRO, Chokli and after the execution of Ext.A1, they are paying tax in respect of the said property. According to them, their father/ judgment debtor who is the 2^nd respondent herein, has no right over the said property and therefore, the petition schedule property is to be excluded from the attachment and sale in the execution proceedings.

3. 2^nd respondent/judgment debtor did not file any counter to the claim petition.

4. 1^st respondent/decree holder filed counter denying the title, interest and ownership of the appellants and also stating that she obtained a decree against the 2^nd respondent/judgment debtor who is her former husband for realization of ₹10,38,687/- towards the marriage expenses of her daughter born to her in the wedlock with the judgment debtor/2nd respondent and since the judgment debtor failed to pay the decree debt, petition schedule property belonging to the judgment debtor/2nd respondent was put to sale. Her contention is that in order to evade the liability, 2^nd respondent/judgment debtor executed a gift deed in respect of the petition schedule property in favour of his sister Fauziya. Subsequently, on 19.11.2021, said Fauziya had filed a claim petition as E.A. No.69/2021, which was dismissed by the Family Court on 2.9.2022. Meanwhile, Fauziya created a sham document in favour of the appellants, who are the children of judgment debtor born to him in his second marriage. Evenafter, creating Ext.A1 document, Fauziya filed Mat.A.No.10/2022, claiming ownership over the property. Appellants who are the children of the judgment debtor/2nd respondent in his second marriage have filed the claim petition with a view to delay and defeat the execution proceedings and to harass the decree holder. Ext.A1 document bearing No.2035/2021 is a sham document fraudulently executed in favour of appellants and therefore the petition is liable to be dismissed.

5. After conducting enquiry, the learned Family Court dismissed E.A.No.52/2023 with a finding that the documents created by the judgment debtor/R2 in collusion with his sister Fauziya in respect of the petition schedule property are sham documents in order to defeat the decree and therefore the appellants who are the minor children of Judgment debtor are not entitled to the reliefs sought therein.

6. Both sides were heard.

7. The point for consideration in this appeal is whether the impugned order needs any interference by this Court.

8. Admittedly, 2nd respondent-Azeez/judgment debtor is the former husband of the 1^st respondent/decree holder. The 1^st respondent/decree holder obtained the decree against the 2^nd respondent/judgment debtor for realisation of the marriage expenses of her daughter born to her in her wedlock with the 2^nd respondent/judgment debtor. It is also not in dispute that the appellants herein are the children of 2^nd respondent/judgment debtor born to him in his second marriage.

9. It is an admitted case that the marriage between the 1^st respondent/decree holder and 2^nd respondent/judgment debtor was dissolved in the year 2005. 1^st respondent/decree holder filed original petition for realisation of the marriage expenses of their daughter and she obtained a decree in her favour. Admittedly, prior to the institution of O.P.No.896/2018, 2^nd respondent, who is the former husband of the decree holder , transferred his property to his sister Fauziya by way of a gift deed bearing document No.2125/2016 of SRO Chokli. Admitte