Back
2025 Supreme(Online)(Ker) 33394
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.M. MANOJ, J
BEEVI UMMA, AGED 70 YEARS W/O MUHAMMED HAJI – Appellant
Versus
THE STATE OF KERALA REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT – Respondent
WA NO. 293 OF 2025 | WP(C) NO.30477 OF 2023
For the Appellants/Petitioners: SRI.JAMSHEED HAFIZ, SMT.T.S.SREEKUTTY, SMT.FATHIMA NASREEN S.
For the Respondents: Not mentioned
The court affirmed that an attachment order under Section 64 CPC prohibits any alienation of property, rendering attempts to register a gift deed void.
Headnote:(A) Civil Procedure Code, 1908 - Section 64 - Registration Act, 1908 - Sections 71 and 72 - Writ of mandamus sought for registration of a gift deed despite an existing attachment order - Court held that Section 64 prohibits alienation of attached property, rendering any private transfer void - The Sub-Registrar's refusal to register the gift deed was lawful given the attachment order. (Paras 5, 9, 12, 13, 16)
(B) Attachment of Property - Legal implications of an attachment on property ownership and transfer - Court clarified that an attachment does not create an encumbrance but restricts the owner's ability to alienate the property. (Paras 14, 65)
Facts of the case:
The appellants sought to register a gift deed for property subject to a civil court attachment, which was contested by the respondents. The learned single judge denied their request, leading to this appeal.
Findings of Court:
The court affirmed the prohibition against registering the gift deed due to the existing attachment order, emphasizing the legal framework surrounding property transfers.
Issues: Whether the writ of mandamus could compel registration of a gift deed despite an attachment order.
Ratio Decidendi: The court ruled that the prohibition under Section 64 CPC against alienation of attached property is absolute, and the Sub-Registrar's actions were justified.
Result: Writ appeal dismissed.
| Table of Content |
|---|
| 1. writ appeal dismissed. (Para 1 , 11) |
| 2. grievance over non-registration of gift deed. (Para 2 , 3 , 4) |
| 3. prohibition on registration due to attachment. (Para 5 , 9 , 12) |
| 4. legal implications of attachment on property rights. (Para 10 , 15 , 16) |
JUDGMENT
P.M. Manoj, J:
The above writ appeal is preferred by the petitioners in writ petition No.30477 of 2023 being aggrieved by the judgment dated 12.02.2024 therein.
2. The primary grievance voiced in the writ petition was the non-registration by the 2nd respondent, of a gift deed that was executed between the petitioners on 25.05.2023, and seeking for a direction to the 2nd respondent to register the same.
3. The short facts relevant for consideration of this appeal are as follows:
The 1st appellant is the owner of 11 Ares 73 Sq. Meters of land in Survey No.15/1-1, 2 Ares 42.1 Sq. Meter of land in Survey No.15/2-2 and 9 Ares 31.1 Sq. Meters of land in Survey No.15/3-2 of Valavannur Village in Tirur Taluk, Malappuram District which was obtained as per document No.373/1967 of SRO Kalpakancheri. The 1st appellant was remitting tax from 1967 onwards. An issue arose when the additional 3rd respondent filed a Suit as OS No.96 of 2022 before the Sub Court, Tirur for specific performance in relation to the agreement between the 1st appellant and the 3rd additional respondent. A conditional attachment order was issued by the Sub Court, Tirur on 18.10.2022. It is contended that the additional 3rd respondent secured such order by relying on a document fraudulently obtained by him, against which the 1st appellant had preferred a complaint before the police and an FIR was registered. The 1st appellant is issueless and her husband died. The 1st appellant wanted to register a gift deed in favour of the 2nd appellant, who is the sister of the 1st appellant. For that, the 1st appellant approached the 2nd respondent to register Ext.P4 gift deed. However, the registering authority declined to register the gift deed on the ground that there is an order of attachment by civil court over the property in question. According to the 1st appellant, an attachment of the civil court may not be a ground to decline the registration of a gift deed. Hence, she approached this court by preferring the writ petition.
4. The learned single judge declined her prayer considering the counter contentions raised by the additional 3rd respondent as well as the contentions by the official respondents. Being aggrieved by the judgment of the learned single judge, this writ appeal is preferred.
5. The primary question to be decided in this appeal is, whether the writ of mandamus as sought for could have been issued to the 2nd respondent to register the gift deed, by ignoring the attachment order dated 18.10.2022 issued by the civil court in OS No.96 of 2022?
The answer to that would be a 'No' on the following premises.
6. Section 64 of the Civil Procedure Code (CPC) creates a prohibition on alienation of property after an attachment. For the purpose of clarity is reproduced hereunder:
“64. Private alienation of property after attachment to be void (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment -debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.
(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.
Explanation: For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.”
7. The operation of Section 64 is envisaged under Order XXI Rule 54, which contemplates the application of attachment on an immovable property which is as follows:
Order XXI Rule 54 CPC.
“54. Attachm
