Kerala High Court
Alan Achenkunju Cherian vs The District Collector on 9 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
WP(C) NO. 26800 OF 2020
PETITIONERS:
1 ALAN ACHENKUNJU CHERIAN
AGED 40 YEARS
S/O.MAYALIL GEEVARGHESE ACHENKUNJU, MAYALIL HOUSE,
EDANADU P.O., PUTHENCAVU, CHENGANNAUR, ALAPPUZHA-
689123, REPRESENTED BY HIS POWER ATTORNEY HOLDER
SRI.CLINTON ACHENKUNJU VARGHESE, AGED 25 YEARS,
S/O.M.G.ACHENKUNJU, MALAYIL HOUSE, EDANADU POST-
689123, PUTHENCAVU, CHENGANNUR, KERALA.
2 ANN MARY GEORGE,
W/O.ALAN ACHENKUNJU CHERIAN, MAYALIL HOUSE, EDANADU
P.O., PUTHENCAVU, CHENGANNAUR, ALAPPUZHA-689123,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER
SRI.CLINTON ACHENKUNJU VARGHESE, AGED 25 YEARS,
S/O.M.G.ACHENKUNJU, MALAYIL HOUSE, EDANADU POST-
689123, PUTHENCAVU, CHENGANNUR, KERALA.
BY ADVS.
N.KRISHNA PRASAD
SRI.IMAM GRIGORIOS KARAT
SMT.YOGAMAYA M.G
RESPONDENTS:
1 THE DISTRICT COLLECTOR
COLLECTORATE, KOTTAYAM-686002.
2 THE TAHSILDAR,
KANJIRAPPALLY TALUK OFFICE, MINI CIVIL STATION,
KOKKAPPALLY, KANJIRAPPALLY-686555, KOTTAYAM
DISTRICT.
3 THE VILLAGE OFFICER,
MANIMALA VILLAGE, MANIMALA-686543, KOTTAYAM
DISTRICT.
*4 ADDL.R4. UDHAYABHANU
WP(C) NO. 26800 OF 2020
2
AGED 53 YEARS, S/O.MADHAVAN, PROPRIETOR - VISHAK
TRADERS, NAALUMUKKU, MANKAMKUZHY P.O. - 690 558,
VETTIYAAR VILLAGE, ALAPPUZHA DISTRICT, RESIDING AT
MAAVILA VADAKKETHIL, VETTIYAAR VILLAGE,
MAVELIKKARA TALUK.
*5 ADDL.R5. SHAJI SCARIA
S/O.V.K.SCARIA, AGED 53, VADAKKEMURIYIL (H),
VELLAVOOR P.O., - 686 541, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT.
*(ADDITIONAL R4 AND R5 ARE IMPLEADED AS PER ORDER
DATED 17/2/2021 IN I.A.1/2021 IN WP(C)26800/2020.)
BY ADVS.
GOVERNMENT PLEADER
SMT.A.SALINI LAL
SRI.ROY CHACKO
SRI.R.SUNIL KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 26800 OF 2020
3
JUDGMENT
The petitioners are stated to be the owners in
possession of certain extents of property comprised
of in Survey No.413/10 of Manimala Village and say
that they obtained title to it through Ext.P2
Settlement Deed, executed by the father of the 2nd
petitioner.
2. According to the petitioners, Ext.P2
Settlement Deed was executed by the original owner -
Shri.George Joseph, on 17.02.2020 and that they
consequently preferred Ext.P4 application for
Transfer of its Registry in their name on
22.09.2020. They say that, however, the Village
Officer, Manimala Village, refused to accede to
their request for Transfer of Registry for the
reason that, in the meanwhile, certain attachments
have been brought over the property by the 4th and
5th respondents.
3. The petitioners say that, as is evident from
WP(C) NO. 26800 OF 2020
the orders of attachments itself, they were all
issued much after Ext.P2 Settlement Deed had been
registered and even much after Ext.P4 application
for Transfer of Registry had been preferred before
the Village Officer. They thus pray that the 3rd
respondent - Village Officer be directed to act upon
Ext.P4, untrammeled by the orders of attachment over
the property, within a time frame to be fixed by
this Court.
4. I have heard Shri.N.Krishna Prasad, learned
counsel appearing for the petitioner; Smt.Salini
Lal, learned counsel appearing for respondents 4 and
5 and the learned Senior Government Pleader,
Shri.Aswin Sethumadhavan appearing for the official
respondents.
5. The learned Senior Government Pleader
submitted that 3rd respondent is unable to effect
Transfer of Registry of the property as requested by
the petitioners, on account of the pendancy of civil
cases over it and also because of the attachment
WP(C) NO. 26800 OF 2020
orders issued by a competent Civil Court. He
submitted that, therefore, unless the petitioners
are able to vacate the said orders, 3rd respondent
will not be in a position to accede to the request
as made in Ext.P4.
6. Smt.Salini Lal, learned counsel appearing
for respondents 4 and 5, submitted that Ext.P2 is a
fraudulent document, which is evident from the fact
that it has been settled by Shri.George Joseph in
favour of his own daughter and son-in-law. She
alleged that this document has been executed solely
to frustrate a debt which Shri.George Joseph owes to
her clients and that, therefore, they were left
without any other remedy, but to approach the
competent Civil Court and obtain orders of
attachment over the property in question. She added
that the clear attempt of the original owner -
Shri.George Joseph, is to collaboratively act with
the petitioners, thus to defraud all his creditors,
including her clients. She, therefore, prayed that
this writ petition be dismissed.
WP(C) NO. 26800 OF 2020
7. Even if I am to find favour with the afore
submissions of Smt.Salini Lal, the fact remains
that, concededly, the orders of attachments were
made after 23.6.2020, while the Settlement Deed was
executed in February, 2020. Pertinently,
applications were made by the petitioners for
Transfer of Registry in their names on 22.09.2020;
and obviously, therefore, if respondents 4 and 5 or
any other creditor seek to proceed against the
property, they will have to invoke appropriate
remedies under the Code of Civil Procedure,
impelling the allegation that the transaction is
void and fraudulent in order to avoid payment of the
debts owed by its original owner.
8. Until such time as respondents 4 and 5 are
able to obtain such orders from a competent Civil
Court, I fail to understand how mere pendancy of
orders of attachments, effected much after Ext.P2
Settlement Deed had been executed and much after
Ext.P4 request for Transfer of Registry has been
made, can stand in the right of the petitioners to
WP(C) NO. 26800 OF 2020
have their request granted by the 3rd respondent.
In the afore circumstances, without entering
into the merits of any other contentions of
respondents 4 and 5, I order this writ petition and
direct the 3rd respondent to take up Ext.P4
application of the petitioners and issue appropriate
orders thereon, after affording necessary
opportunity of being heard to them, as also
respondents 4 and 5; thus culminating in an
appropriate order thereon, as expeditiously as is
possible, but not later than one month from the date
of receipt of a copy of this judgment.
Needless to say, respondents 4 and 5 are at
full liberty to invoke all their remedies against
the property in question, including under the
provisions of the applicable Civil Laws; and for
such purpose, all their contentions, including that
Ext.P2 Settlement Deed has been executed by the
predecessor-in-interest of the petitioners,
Shri.George Joseph, solely with the intent of
WP(C) NO. 26800 OF 2020
frustrating the rights of his creditors - are left
open to be pursued appropriately.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
MC/22.9
WP(C) NO. 26800 OF 2020
APPENDIX OF WP(C) 26800/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY DATED
18.10.2020.
EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO.220/2020
DATED 17.02.2020 DULY REGISTERED IN BOOK
NO.III OF THE ERUMELI SUB REGISTRAR
OFFICE.
EXHIBIT P3 TRUE COPY OF THE VERIFICATION DETAILS
PURSUANT TO THE ENQUIRY CONDUCTED BY THE
PETITIONERS ON 17.5.2020.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION BEFORE
THE THIRD DATED 22.09.2020.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY
THIRD RESPONDENT DATED 12.10.2020.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION BEFORE
THE SECOND DATED 22.10.2020.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED
03.11.2020 ISSUED BY THE THIRD
RESPONDENT.
