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KERALA HIGH COURT
Anil K. Narendran and P.G. Ajithkumar, JJ.
Akza Rajan and Anr. – Petitioners
versus
Rajan M.S. – Respondent
O.P.(FC) Nos.704 and 721 of 2022
Decided on 12.4.2023
(A) Transfer of Property Act, 1882 – Section 100 – Charge on immovable property – There must be a provision of law that enables petitioners to claim charge on petition schedule property, if to succeed in their claim for creation of charge – Court can only recognize and declare a charge which pre-exists – Court cannot create a charge a new – Petitioners have no claim over petition schedule property except plea for creation of a charge for amount claimed towards their marriage expenses – If petitioners are entitled to get a charge in property, there is a reason for claiming injunction against alienation and commission of acts of waste. (Paras 17 and 18)
(B) Transfer of Property Act, 1882 – Section 39 – Hindu Adoptions and Maintenance Act, 1956 – Section 20 – Right of unmarried daughter to claim maintenance – Right of an unmarried daughter to get marriage expenses from her father is now a legal right – By taking analogy from Hindu Adoptions and Maintenance Act that right, irrespective of religion can be enforced against profits from immovable property of father – When petitioners are entitled to claim a charge on immovable property of respondent who is their father relief of creation of a charge on petition schedule property which belongs to respondent, is tenable – As such, application for a temporary injunction against alienation is legally sustainable – However, when petitioners already have filed a petition for attachment of same property of respondent, there is no justification for petitioner to claim equitable relief of injunction prohibiting respondent from alienating property or committing acts of waste. (Paras 25, )
Result: Original Petitions Partly dismissed.
JUDGMENT
P.G. Ajithkumar, J.—The petitioners in O.P.No.87 of 2022 before the Family Court, Palakkad have filed these Original Petitions under Article 227 of the Constitution of India.
2. In O.P.(FC) No.704 of 2022 the petitioners challenge the order of the Family Court dated 23.11.2022 in I.A.No.11 of 2022 in O.P.No.87 of 2022. That interlocutory application was filed by the petitioners seeking an order of attachment before judgment. The Family Court allowed that application in part and ordered attachment of the property to secure an amount of Rs.7,50,000/-.
3. In O.P.(FC) No.721 of 2022 the petitioners challenge the common order of the Family Court dated 23.11.2022 in I.A.Nos.2 and 9 of 2022 in O.P.No.87 of 2022. The petitioners filed I.A.No.2 of 2022 seeking an order of temporary injunction restraining the respondent from alienating or committing any act of waste in the petition schedule property. The Family Court on 2.3.2022 passed an interim injunction. The respondent filed I.A.No.9 of 2022 seeking to vacate the order of injunction. The Family Court as per the impugned common order dismissed I.A.No.2 of 2022 and allowed I.A.No.9 of 2022.
4. On 22.12.2022, notice on admission was directed to be served on the respondent in O.P.(FC) No.704 of 2022. An interim order to retain the petition schedule property under the attachment was granted for one month. The interim order has been extended from time to time.
5. On 04.01.2023, notice on admission was directed to be served on O.P.(FC) No.721 of 2022 and directed to list this Original Petition along with O.P.(FC) No.704 of 2022.
6. The respondent entered appearance and filed counter affidavits in both cases.
7. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent.
8. The petitioners are the daughters of the respondent. Petitioners No.1 and 2 are now aged 26 years and 21 years respectively. From the rival pleadings, it appears that there was total estrangement in the marital relationship between the mother of the petitioners and the respondent, and there were litigations between them. As a consequence, the petitioners have been residing with their mother separated from the respondent.
9. The petitioners have filed O.P.No.87 of 2022 before the Family Court, Palakkad, seeking realisation of Rs.45,92,600/- towards their marriage expenses. They also seek a decree creating charge for the said amount on the petition schedule property. The petitioners filed I.A.No.2 of 2022 to get an order of temporary injunction restraining the respondent from alienating or committing any act of waste in the petition schedule property. The petitioners contended that the respondent purchased the petition schedule property utilising the fund raised by selling the gold ornaments of their mother and other financial help obtained from their mother and her family members. A residential house was constructed on that property. Going by the pleadings of the petitioners, the respondent has been residing in that house. The petitioners would contend that if the property is alienated or some acts of mischief are committed thereon, their right to realise the amount claimed in the original petition would be hampered. They, therefore, sought an order of temporary injunction.
10. In I.A.No.11 of 2022, the petitioners contended that the respondent has been trying to alienate the petition schedule property along with the building thereon, and in such an event the petitioners would not be able to realise the amount due under the decree that may be passed in O.P.No.87 of 2022. Accordingly, they sought an order of attachment.
11. The respondent resisted both those applications by contending that the property and the building thereon absolutely belong to him and he was not liable to pay any amount to the petitioners. He claimed that all the educational expenses of the petitioners were met by him and his wife had been maintaining a hostile attitude towards him. He has poin
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