Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941 Mat.Appeal.No.201 OF 2013 AGAINST THE JUDGMENT IN OP 245/2005 DATED 15-05-2012 OF FAMILY COURT, NEDUMANGADU APPELLANTS/RESPONDENTS 2 AND 3 : 1 SUSHAMA, D/O. VASUDEVAN, RESIDING AT “ANEESHA”, KADAKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM - 695 304. 2 SUNU, D/O. SARASWATHY, RESIDING AT REVATHY NIVAS, NILAKKAMUKKU, CHIRAYANKIZHU TALUK, THIRUVANANTHAPURAM - 695 304. BY ADVS. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G. RESPONDENTS/PETITIONERS 1 AND 2 AND 3RD RESPONDENT : 1 SANGEETHA SUSHI, D/O. CHITHRALEKHA, SARADA MANDIRAM, K.P 11/489, CHIRAMOOLA, KEEZHATTINGAL VILLAGE, CHIRAYANIKEEZHU TALUK, THIRUVANANTHAPURAM - 695 304. 2 SUBEESH, S/O. SANGEETH SUSHI, AGED 10 YEARS, RESIDING AT SARADA MANDIRAM, K.P 11/489, CHIRAMOOLA, KEEZHATTINGAL VILLAGE, CHIRAYANIKEEZHU TALUK, THIRUVANANTHAPURAM(MINOR) - 695 304, (REPRESENTED BY MOTHER AND GUARDIAN, THE IST RESPONDENT) 3 SUSHI V., S/O. VASUDEVAN, RESIDING AT SARADA MANDIRAM, KADAKKAVOOR, KEEZHATTINGAL VILLAGE, CHIRAYANIKEEZHU TALUK, THIRUVANANTHAPURAM - 695 304. DELETED. THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 25.9.2014 IN IA 2842/2014. R1 BY ADV. SRI.BASANT BALAJI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2019, ALONG WITH CO.214/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941 CO.No.214 OF 2014 IN Mat.Appeal. 201/2013 AGAINST THE JUDGMENT IN Mat.Appeal 201/2013 OF HIGH COURT OF KERALA CROSS OBJECTORS/RESPONDENTS : 1 SANGEETHA SUSHI, D/O.CHITRALEKHA, SARADA MANDIRAM, K.P.11/489, CHIRAMOOLA, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. 2 SUBEESH, S/O.SANGEETHA SUSHI SARADA MANDIRAM, K.P.11/489, CHIRAMOOLA, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.BASANT BALAJI RESPONDENTS/APPELLANTS : 1 SUSHI V, S/O.VASUDEVAN, SARADA MANDIRAM, KADAKKAVOOR, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK. 2 SUSHAMA, D/O.VASUDEVAN, ANEESHA, KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK. 3 SUNU, D/O.SARASWATHY, RAVATHY NIVAS, NILAKKAMUKKU, CHIRAYINKEEZHU TALUK. R1 BY ADV. SRI.G.P.SHINOD THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2019, ALONG WITH Mat.Appeal.201/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
[ Mat.Appeal.201/2013, CO.214/2014 ]
A.M.Shaffique,J.
The respondents 2 and 3 had preferred this appeal challenging the order passed by the Family Court in O.P.No.245 of 2005 to the extent that a charge has been created in respect of A and B schedule properties for an award of maintenance. The appellants contented that they are bonafide purchaser for value and they were not aware of the claim raised by the petitioners in the original petition, at the time when they purchased the property.
2. Cross objection has been filed by the petitioner seeking a declaration that the property absolutely belongs to
her. According to her, A and B schedule properties were purchased by her husband with the funds provided by her parents towards parental share and by sale of her gold ornaments. The Family Court rejected the prayer in the petition for declaration and awarded maintenance and created a charge in respect of A and B schedule properties.
3. As far as the creation of charge is concerned
apparently the wife has a right to be maintained by her husband. Her husband had sold the properties in favour of the appellants herein. One appellant is his sister and the other is his friend's wife. The evidence on record clearly suggests that the husband had executed power of attorney to enable the property to be transferred in the name of his sister and his friend's wife immediately after the matrimonial issues have developed between the parties. The matrimonial issues between the parties had arisen in the year 2002 and it is immediately thereafter that the sale deed has been executed.
4. Section 39 of the Transfer of Property Act reads as follows;
“39. Transfer where third person is entitled to maintenance.- Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice [thereof] or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.”
5. The learned counsel for the appellants would argue
that the appellants have no notice regarding the claim for maintenance. When the property had been transferred to persons who are very well known to the couple itself, would indicate that they had purchased the property in their names having known about the matrimonial issues. It is further contended that they have not paid valuable consideration for the property and they had no notice on the right of the petitioner. In any case involving matrimonial issues, claim for maintenance would be made by the wife, and to plead ignorance about the same, cannot be believed. Hence, we do not find any error being committed by the Family Court in creating a charge for the maintenance claim over plaint A and B schedule properties.
6. As far as the cross objection is concerned it is
contended that the property of the husband was purchased with the money and gold ornaments of the petitioner. It is relevant to note that the marriage between the couple was on 02.07.1997. The husband was employed abroad and the petitioner does not have a case that he did not have sufficient funds to purchase the property. B schedule property was
purchased as per the sale deed dated 20.02.2001 and 18.09.2002. The pleadings in regard to the purchase of property are not specific and the petitioner does not have a case that her husband was not in a financial position to purchase the said properties. Further, the court below after considering the entire evidence had arrived at a finding that the cross objector was unable to prove that the acquisition of the property was with the
funds received as parental share. In so far as there is no perversity in the said judgment warranting interference by exercising the appellate jurisdiction, the cross objection also deserves to be dismissed. Accordingly, the Matrimonial Appeal and Cross Objection are dismissed. No costs. Sd/- A.M.SHAFFIQUE JUDGE Sd/- T.V.ANILKUMAR rkj JUDGE