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HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
FAIZAL KHAN – Appellant
Versus
N.HASEENA BEEVI – Respondent
MA (EXE.) 1 2015
Transfer - Property - Transfer of Property Act, 1882 Section 39 - The court elucidated that a transfer made to defeat a maintenance decree can be contested, provided the transferee had notice of the decree or if the transfer was gratuitous.
Fact of the Case:
The appellant sought to lift an attachment over property he purchased from the 6th respondent, claiming to be an innocent purchaser, unaware of an existing maintenance decree against the 6th respondent.
Finding of the Court:
The court found no evidence that the appellant was a bona fide purchaser without notice of the maintenance decree and concluded that the transfer was meant to evade the enforcement of the decree.
Issues: Whether the appellant could assert his claim over the property despite it being attached for enforcement of a maintenance decree against the prior owner.
Ratio Decidendi: The court held that a maintenance right can be enforced against a transferee if the transferor had notice of the decree or if the transfer was made to defeat that right.
Final Decision: The appeal is dismissed.
J U D G M E N T
Sophy Thomas, J.
The claim petitioner in EA No.63 of 2013 in EP No.120 of
2009 in OP No.1191 of 2006 on the file of Family Court, Thiruvananthapuram is the appellant herein, impugning the order dated 16.02.2015.
2. The appellant filed EA No.63 of 2013 for lifting the attachment over five cents of property comprised in Survey No.2659/3 of Muttathara village, which he had purchased as per sale deed No.2011/11, from the 6th respondent, who is the husband of the 1st respondent. He had made due enquiries before purchasing that property, and finding no encumbrance, he purchased the same, paying full consideration. But, when he approached the village office for remitting basic tax, he came to know that the said property was attached through court proceedings on 06.09.2011. On enquiry, he came to know that the 1st respondent and her children filed OP No.1191 of 2006 against the 6th respondent-husband for monetary reliefs including maintenance. A decree was passed in their favour on 05.01.2009, and the liability under the decree was around Rs.11.45 lakhs. The decree holders filed EP No.120 of 2009 for executing the decree, and attachment was sought over the five cents of property owned by the 6th respondent. Attachment was ordered on 01.09.2011 and it was effected on 06.09.2011.
3. According to the appellant, he was a bonafide purchaser and he paid the entire consideration. He had no knowledge about the OP filed by the wife and children of the 6th respondent, and he was unaware of the decree passed in that OP. So, according to him, the transfer of property in his favour is not hit by Section 39 of the Transfer of Property Act, 1882 . That property was attached only on 06.09.2011, whereas he had purchased that property for valid consideration on 02.06.2011. Hence he filed EA No.63 of
2013 for lifting the attachment.
4. The 1st respondent/decree holder contended that, the appellant is a relative of the 6th respondent, and he is a real estate dealer also. Only to evade the decree, the 6th respondent executed a fake document in favour of the appellant, without any bonafides, and that document is not supported by any consideration. According to her, the appellant is only a benami of the 6th respondent.
5. The 6th respondent did not file any objection to the claim petition before the Family Court.
6. After hearing both sides, and on verifying Exts.A1 to A3 documents, the learned Family Court Judge dismissed EA No.63 of 2013, against which this appeal has been preferred by the claim petitioner.
7. Now let us see whether any illegality, irregularity or impropriety is there in the impugned order warranting interference by this Court.
8. Admittedly, the decree in OP No.1191 of 2006 was passed as early as on 05.01.2009. The decree holders filed execution petition in the year 2009 itself. In that E.P, E.A No.155 of 2009 was filed for attachment of an LIC policy and also the five cents of land owned by the 6th respondent. That I.A was partly allowed ordering attachment over the LIC policy alone. Thereafter they filed EA No.48 of 2011 for attaching the five cents of land owned by the 6th respondent. That application was filed on 24.02.2011. Attachment was ordered on 01.09.2011 and it was effected on 06.09.2011.
9. As per the decree in OP No.1191 of 2006, the 6th respondent had to pay maintenance @ Rs.3,000/- per month to the 1st respondent and Rs.2,000/- each to respondents 2 to 5 along with other monetary reliefs for gold ornaments, delivery expenses etc, amounting to Rs.11.45 lakhs in total. As on the date of decree, the 6th respondent was the owner of the attachment schedule property. He was well aware of the liability fastened on him, as per the decree. EA No.48 of 2011 was filed on 24.02.2011, for attaching the schedule property. The 6th respondent executed sale deed No.2011/11 on 02.06.2011 i.e. after three months of filing that application. So, obviously, the 6th respondent executed that sale deed, to defeat the decree holder. Accor
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