Kerala High Court
Ummul Khair vs V.P.Muhammed on 12 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945
IA.NO.1/2022 IN MAT.APPEAL NO. 656 OF 2022
OP 163/2019 OF FAMILY COURT, MALAPPURAM.
PETITIONER/APPELLANT:
UMMUL KHAIR, AGED 57 YEARS, W/O.V.P.MUHAMMED, VALIYAPEEDIKAKKAL
HOUSE, NEAR FIRE STATION, HOSPITAL ROAD, PERINTHALMANNA, POST
OFFICE PERINTHALMANNA, PERINTHALMANNA TALUK, MALAPPURAM
DISTRICT-679322.
RESPONDENT/RESPONDENT:
V.P.MUHAMMED, AGED 75 YEARS, S/O. KUNAHAMMED HAJI,
VALIYAPEEDIKAKKAL HOUSE, NEAR FIRE STATION, HOSPITAL ROAD,
PERINTHALMANNA, POST OFFICE PERINTHALMANNA, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT-679322.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to pass an order
attachment of petition scheduled properties before judgment and intimate
the same to the concerned village officers.
This Application coming on for orders, upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of MR.MAHESH V.MENON, Advocate for the applellant, and of M/S. P.SAMSUDIN,
MILAN RACHEL MATHEWS and LIRA A.B. Advocates for the respondent, the court
passed the following:
P.T.O.
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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I.A.No.1 of 2022
in
Mat.Appeal No.656 of 2022
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Dated this the 12th day of April, 2023
ORDER
P.G. Ajithkumar, J.
The appellant has filed this interlocutory application
under Order XXXVIII, Rule 5 of the Code of Civil Procedure,
1908.
Heard the learned counsel appearing for the petitioner
and the learned counsel appearing for the respondent.
The appeal arose on the judgment in O.P.No.163 of
2019 on the file of the Family Court, Malappuram.
O.P.No.163 of 2019 was filed by the appellant for recovery
of gold ornaments, money and arrears of maintenance.
Originally the claim in the original petition was
Rs.1,26,37,000/-. At that time, the appellant filed an
application for attachment and item Nos.1 and 2, which are
A, B and C schedule properties, were attached. Later, the
I.A.No.1 of 2022 in
Mat.Appeal No.656 of 2022
original petition was amended and now the claim is
Rs.7,80,31,000/-.
The Family Court after trial allowed the appellant to
realise an amount of Rs.2,60,000/- along with interest from
the respondent. The respondent was further directed to
execute a deed of assignment in favour of the appellant
transferring the property covered by assignment deed
No.2557/2015. The appeal is filed since the claim of the
appellant in O.P.No.263 of 2019 in whole was not allowed.
The contention of the appellant is that the respondent has
been taking hasty steps to alienate A to J schedule
properties with a view to defeat the claim of the appellant.
On such grounds, the appellant seeks attachment of the
aforesaid properties.
The respondent filed a counter-affidavit, wherein he
would contend that the appellant has no right to get any
amount than what has been decreed by the Family Court
and therefore there is no justification for attachment of
I.A.No.1 of 2022 in
Mat.Appeal No.656 of 2022
properties over and above which have been attached by the
Family Court. The respondent further would contend that A,
B and C schedule properties are already under attachment
as per the order of the Family Court and D to J schedule are
his family properties. All the said properties were
partitioned among members of the family and the
respondent has right on 1/6th share in H schedule property
alone. The respondent would categorically contend that
excepting his right and possession over 1/6 th share in H
schedule properties, other members of his family are the
owners in possession of D to J schedule properties and
therefore those properties are not liable to be attached.
The appellant has filed a reply-affidavit refuting the
contentions raised by the respondent in the counter-
affidavit. On a perusal of the impugned judgment, it is seen
that an amount of Rs.7,80,31,000/- was claimed on the
basis of a totally speculating estimation. The Family Court,
after trial, allowed the appellant to realise an amount of
I.A.No.1 of 2022 in
Mat.Appeal No.656 of 2022
Rs.2,60,000/- along with interest, besides directing the
respondent to execute a deed of assignment in respect of
7.65 Ares of land covered by document No.2557/2015 of
S.R.O. Melattur.
Extensive properties are described in D to J schedules.
When the respondent contends that he has no title to the
properties scheduled as D to J, except a fractional interest
in schedule H property, the appellant has the burden to
show atleast prima facie that the respondent retains right
and interest in the said properties. But no material to
substantiate that fact has been produced. Considering the
nature of the claim of the appellant in O.P.No.163 of 2019
and lack of material to substantiate that the respondent has
right and interest in petition D to J schedule properties,
except a fractional interest in H schedule, we are of the
view that there is no justification in ordering attachment of
those properties. Admittedly, the respondent has 1/6 th
share in petition H schedule property.
I.A.No.1 of 2022 in
Mat.Appeal No.656 of 2022
Hence, we allow this application to the extent of
attaching 1/6th of the respondent in H schedule property.
Needless to say that attachment of A, B and C schedule
properties ordered by the Family Court will continue.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
12-04-2023 /True Copy/ Assistant Registrar
