Kerala High Court
Shalini vs Surendran on 14 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
OP (FC) NO. 495 OF 2020
AGAINST THE ORDER DATED 20.11.2020 IN IA 2/2020 IN OP
223/2020 OF FAMILY COURT, TIRUR
PETITIONER/PETITIONER/PETITIONER:
SHALINI, AGED 44 YEARS, W/O.SURENDRAN, MELAYIL
HOUSE, ARIYALLUR POST, ARIYALLUR AMSOM DESOM,
TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN 676
312
BY ADV K.RAKESH
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 SURENDRAN, AGED 57 YEARS, S/O.VELUKUTTY, MELAYIL
HOUSE, ARIYALLUR POST, ARIYALLUR AMSOM DESOM,
TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN 676
312
2 RANJITH, S/O.VALAPPIL PURUSHOTHAMAN, AGED 32
YEARS, NEDUVA, CHETTIPPADI POST, MALAPPURAM
DISTRICT, PIN 676 319
BY ADVS.SRI.K.P.SUDHEER, SRI.C.M.MOHAMMED IQUABAL
SRI.J.RAMKUMAR
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC).No.495/2020
-:2:-
JUDGMENT
Dated this the 14th day of September, 2021
A.Muhamed Mustaque,J.
The petitioner in this original petition is the petitioner in
O.P.No.223/2020 on the files of the Family Court, Tirur. That Original
Petition was filed seeking a relief to declare that document No. 2309/1/19
of SRO Parappangadi, is a sham document on the premise that the transfer
is fraudulent and was intended to defeat the right of the petitioner, who is
the wife of the 1st respondent. The petitioner also seeks an injunction
against the forcible eviction. The interim application filed for injunction
has been dismissed and challenging the same, the petitioner has
approached this Court.
O.P.(FC).No.495/2020
2. The petitioner and the 1st respondent are husband and wife.
The subject matter of the property is consisted of the residential building.
The petitioner claims that she is residing in that house. The 1 st respondent
executed the document in favour of the 2 nd respondent as referred above.
This was sought to be declared as fraudulent transfer and a sham
document.
3. The Family Court declined to grant interim relief stating that
the petitioner's remedy is to move the Court under the Protection of
Women from Domestic Violence Act, 2005 (for short 'the Act') and to
protect the right to remain in the house can only be sought before
appropriate forum under the Act. The Family Court also found that
injunction cannot be granted against the true owner of the property.
4. This Court at the admission stage has passed the following
order on 22.12.2020:-
O.P.(FC).No.495/2020
"Admit. Issue notice to the respondents by
speed post.
If the petitioner is in possession, she shall
not be forcibly evicted from the scheduled
premises until further orders in the Original
Petition. There shall also be a direction to
respondents 1 and 2 not to further alienate or
encumber the property, scheduled in Ext.P1
Original Petition. The schedule as seen in the
Original Petition shall be affixed to the interim
order."
Thereafter another interim order was passed on 05.8.2021.
5. It is submitted at the Bar that the petitioner has obtained
a residential order under the Act and that order is in force. The learned
counsel for the petitioner submits that protection order is obtained only
against the 1st respondent-husband and in that proceedings, the 2 nd
respondent is not a party and therefore the 2 nd respondent has to be
O.P.(FC).No.495/2020
restrained from forcefully evicting the petitioner from the residential
building.
6. The Family Court in Paragraph 11 of the order observed that
the 2nd respondent is the lawful owner of the property and therefore he
cannot be injuncted. This observation, according to us, is unnecessary and
unwarranted in the fact and circumstances of the case, When a
declaration is sought to declare the title deed of the 2 nd respondent as sham
and obtained by fraudulent transfer, such observation is unwarranted. The
Court under the Act has already granted protection order. So long as that
order is in force, that cannot be defeated in any manner.
7. In the light of the fact that there is an order in favour of the
petitioner under the Act, we are of the view that on the strength of that
order petitioner can remain in the house and cannot be thrown out from
the residential building. We, therefore, restrain the respondents from
O.P.(FC).No.495/2020
forcefully evicting the petitioner until further order.
8. However, if the Court under the Act passed any order in favour of
the 1st respondent, the respondents are free to move the Family Court
modify or vary the present order. We make it clear that the relief as above
granted will not preclude the 2nd respondent from moving any competent
court as against the petitioner for any relief related to possession or
occupation of the 1st respondent in the residential building in accordance
with law.
The original petition is disposed of.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp True copy
P.A. To Judge
O.P.(FC).No.495/2020
APPENDIX OF OP (FC) 495/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION FILED
BY THE PETITIONER AS O.P.NO.223/2020 OF
THE FAMILY COURT, TIRUR DATED 20.3.2020
EXHIBIT P2 TRUE COPY OF THE PETITION FILED BY THE
PETITIONER AS I.A.NO.2/2020 IN
O.P.NO.223/2020 OF THE FAMILY COURT,
TIRUR DATED 20.3.2020
EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY THE 1ST RESPONDENT IN I.A.NO.2/2020
IN O.P.NO.223/2020 OF THE FAMILY COURT,
TIRUR DATED 4.9.2020
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY THE 2ND RESPONDENT IN I.A.NO.2/2020
IN O.P.NO.223/2020 OF THE FAMILY COURT,
TIRUR DATED 13.8.2020
EXHIBIT P5 TRUE COPY OF THE ORDER DATED, 22.11.2019
IN C.M.P.NO.12016/2019 IN M.C.NO.88/2019
OF JFCM-I, PARAPPANANGADI
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 20.11.2020
IN I.A.NO.2/2020 IN O.P.NO.223/2020 OF
THE FAMILY COURT, TIRUR DATED 20.3.2020
