Jeny Mathew vs Jeny Mathew
2021 Latest Caselaw 4206 Ker

OP (FC).No.529 OF 2020                 1




             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                   &

                THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                         OP (FC).No.529 OF 2020

    IN I.A NO.488/2019 AND 1441/2019 IN OP 256/2019 OF FAMILY
                        COURT, ALAPPUZHA


PETITIONER/RESPONDENT:

              JENY MATHEW, AGED 41 YEARS
              D/O MATHEW, CHENDRAYIL HOUSE,
              OPPOSITE OF ST. ANNS SCHOOL, CMC-25,
              CHERTHALA, ALAPPUZHA DISTRICT.

              BY ADVS.
              SRI.RAAJESH S.SUBRAHMANIAN
              SRI.JOSEPH RONY JOSE

RESPONDENT/PETITIONER:

              YESUDAS C.J
              AGED 42 YEARS
              S/O C.T.JACOB, CHAKKAMPARAMBU VEEDU,
              VADACKAL MURI, ALAPPUZHA WEST VILLAGE,
              VADACKAL P.O, ALAPPUZHA MUNICIPALITY,
              ALAPPUZHA-688 003.

              R1 BY ADV. SMT.MEREENA.J.JOSEPH

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (FC).No.529 OF 2020                2




                                   JUDGMENT

Dated this the 4th day of February 2021

A.Muhamed Mustaque, J

O.P.No.256/2019 was filed by the husband before the

Family Court, Alappuzha for declaration of title and ownership

over the petition schedule property. An interim injunction was

passed against the wife from alienation. Thereafter, the

husband filed an application for interim injunction to handover

the key of the house as well as the original RC book of the car.

The Original Petition has been allowed on the premise that

earlier order passed by the Family Court against alienation is

not under challenge. This order along with the earlier order

passed by the Family Court are under challenge in this Original

Petition filed by the wife.

2. It is to be noted that the property stands in the name

of wife. The suit is yet to be tried. The wife has no intention to

alienate the property. That is the reason, the earlier order was

not challenged by her. The Family Court noted that there is no

electricity connection and therefore it cannot be believed that

the wife is residing in the house. Noting this, the Family

Court directed the wife to hand over the key of the house.

3. We are of the view that the order passed by the

Family Court is legally perverse and unsustainable. The

Family Court had not gone into the elements required under

Order XXXIX of the Code of Civil Procedure, 1908 to pass

such an order. Admittedly, the petition schedule property

stands in the name of wife. Prima facie in such a situation no

interim order can be passed against a person in whose name

property stands. The respondent has to establish title and

ownership over the property by adducing evidence.

4. Though the petitioner challenged Ext.P5 order, the

petitioner has no intention to alienate the property. That

submission is recorded. Therefore, Ext.P5 would stand as it is

till the disposal of the Original Petition before the Family

Court. With regard to the RC Book of the car, it is submitted

by the petitioner that, the car is with the respondent husband

and the petitioner is not in possession of the RC Book or key.

That being so, the petitioner shall file an affidavit in this

regard before the Family Court within a period of two weeks.

In the light of the above, this Original Petition is allowed

by setting aside Ext.P8 order, subject to the observation as

above.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

ab

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE NEWSPAPER REPORT DATED 16.1.2019 PUBLISHED IN MALAYALA MANORAMA DAILY

EXHIBIT P1 (A) PHOTOCOPY OF THE NEWSPAPER REPORT PUBLISHED IN TIMES OF INDIA ONLINE EDITION DATED 15.1.2019

EXHIBIT P2 PHOTOCOPY OF THE LAND TAX RECEIPT DATED 24.1.2019 BERING NO 1296978 EVIDENCING THE PROPERTY IN THE NAME OF THE PETITIONER HEREIN

EXHIBIT P2 (A) PHOTOCOPY OF THE OWNERSHIP CERTIFICATE ISSUED IN THE NAME OF THE PETITIONER IN RESPECT OF THE RESIDENTIAL HOUSE HELD BY HER ISSUED BY THE CHERTHALA MUNICIPALITY DATED 12.11.2018 BEARING NO R5-12964/18

EXHIBIT P3 TRUE PHOTOCOPY OF THE OP NO 256/2019 OF FAMILY COURT, ALAPPUZHA DATED 16.3.2019

EXHIBIT P4 PHOTOCOPY OF THE OBJECTION DATED 18.5.2019 FILED IA NO 488/2019

EXHIBIT P5 TRUE PHOTOCOPY OF THE ORDER DATED 24.7.2019 IN IA NO 488/2019 IN OP NO 256/2019OF FAMILY COURT ALAPPUZHA

EXHIBIT P6 TRUE PHOTOCOPY OF THE IA NO 1441/2019 DATED 7.9.2019 IN OP NO 256/2019 OF FAMILY COURT, ALAPPUZHA

EXHIBIT P7 TRUE PHOTOCOPY OF THE OBJECTION DATED 30.9.2019 FILED BY THE PETITIONER HEREIN TO EXHIBIT P6 IA

EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER DATED

23..7.20020 IN IA NO 1441/2019 IN OP NO 256/2019 OF FAMILY COURT, ALAPPUZHA

RESPONDENT'S EXHIBITS: NIL