Kerala High Court
Grace Shibu vs Shaji.P.George on 10 February, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:10672
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
MAT.APPEAL NO. 10 OF 2020
(AGAINST THE ORDER OF THE FAMILY COURT,
PATHANAMTHITTA IN IA NO.1498/2017 IN OP NO.542 OF 2017
DATED 28.11.2019)
APPELLANT/RESPONDENT IN IA:
GRACE SHIBU, AGED 44 YEARS,
W/O.SHIBU.P.GEORGE, ANU BHAVANAM,
KADAMPANADU NORTH, KADAMPANADU VILLAGE,
KADAMPANADU.P.O., PATHANAMTHITTA-691552.
BY ADVS. A.RAJASIMHAN
SMT.P.USHAKUMARI
SRI.NIKHIL.A.AZEEZ
RESPONDENTS/PETITIONER AND RESPONDENTS 2 TO 3 IN IA:
1 SHAJI.P.GEORGE, AGED 50 YEARS, S/O.P.G.GEORGE,
KRIPALAYALAM, POIKALYIL KRIPALAYAM,
KADAMPANADU NORTH, KADAMPANADU VILLAGE,
ADOOR TALUK, KADAMPANADU P.O.,
PATHANAMTHITTA-691553.
NOW EMPLOYED AT TWC, PB.NO.3781,
GM-16 TAIBA STREET, YANBU-46429,
KSA THROUGH HIS POWER OF ATTORNEY HOLDER AND
WIFE MERLY SHAJI, AGED 40 YEARS,
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MAT.APPEAL NO. 10 OF 2020
-2-
W/O.SHAJI GEORGE, KRIPALAYALAM,
POIKALYIL KRIPALAYAM, KADAMPANADU NORTH,
KADAMPANADU VILLAGE, ADOOR TALUK,
KADAMPANADU P.O., PATHANAMTHITTA-691553.
2 SHIBU P.GEORGE, AGED 42 YEARS, S/O.P.G.GEORGE,
KRIPALAYALAM, POIKALYIL KRIPALAYAM,
KADAMPANADU NORTH, KADAMPANADU VILLAGE,
ADOOR TALUK, KADAMPANADU P.O.,
PATHANAMTHITTA-691553.
3 CHINNAMMA GEORGE, AGED 75 YEARS,
W/O.P.G.GEORGE, KRIPALAYALAM,
POIKALYIL KRIPALAYAM, KADAMPANADU NORTH,
KADAMPANADU VILLAGE, ADOOR TALUK,
KADAMPANADU P.O., PATHANAMTHITTA-691553.
SRI.MANU RAMACHANDRAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 10.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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MAT.APPEAL NO. 10 OF 2020
-3-
JUDGMENT
Devan Ramachandran, J.
The appellant filed OP No.542/2017 before
the learned Family Court, Pathanamthitta,
against respondents 2 and 3 herein - who are her
now estranged husband and mother-in-law,
respectively; and along with it, she filed an
application for attachment of the property,
which she claimed to be that of the 3 rd
respondent. This application appears to have
been allowed, and attachment brought over the
property in question, on 26.06.2017.
2. Subsequently, the 1st respondent, who is
the elder brother of the 2nd respondent, filed IA
No.1498/2017, seeking that the attachment over
the property in question be lifted, asserting
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the same to be his, over which his title was
perfected as early as on 10.01.2014. This
application has been allowed by the learned
Family Court, against which the petitioner has
filed this Appeal.
3. Sri.A.Rajasimhan - learned counsel for
the appellant, argued that his client's claim is
not merely against the 2nd and 3rd respondents
herein, but as also against the 1 st respondent;
but conceded that he had not been arrayed as a
respondent before the Trial Court. He explained
that his client has, therefore, filed IA
No.1497/2019 for impleading the said person,
along with IA No.1496/2019 for amending the
Original Petition appropriately; and alleged
that, unfortunately, these applications have not
been considered by the learned Family Court
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until now, but that it took up IA No.1498/2017 -
filed by the 1st respondent, and allowed it
through the impugned order. He contended that,
had the earlier mentioned two IAs been allowed,
then the impugned order would have been
unnecessary, as the attachment of the property
would have continued in any case, with the 1st
respondent being a party to the Original
Petition.
4. Sri.A.Rajasimhan thereafter argued
that, nevertheless the above, the impugned order
is in error because the property in question was
originally owned by his client's father-in-law -
namely the husband of the 3rd respondent and the
father of respondents 1 and 2; and that, he had
left a Will bequeathing it to the 1st respondent
herein, however, with life interest over it
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reserved in favour of the 3rd respondent. He
pointed out that the father-in-law of his client
died on 14.07.1999 and therefore, that the Will
took effect; but that as long as the life
interest in favour of the 3rd respondent survives
over the property, the 1st respondent herein
cannot be deemed to be its owner. He submitted
that, therefore, in such view also, the earlier
interim attachment over the property - which is,
in fact, now reserved with a life interest in
favour of the 3rd respondent - is without error.
He thus prayed that this Appeal be allowed.
5. In response, Sri.Manu Ramachandran -
learned counsel for the respondents, submitted
that the facts are not as stated by
Sri.A.Rajasimhan, but as correctly noticed by
the learned Family Court. He affirmed that, as
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per Ext.C1 - Will, the father-in-law of the
petitioner - namely the father of respondents 1
and 2 and the husband of the 3rd respondent - had
left a Will, document bearing No.18/1999 dated
20.05.1999 of the Sub Registrar's Office,
Kadampanadu, bequeathing his property in favour
of the 1st respondent, but with life interest
reserved in favour of the 3rd respondent. He then
showed us that, as per Ext.C2, the life interest
in favour of the 3rd respondent - mother was
released by her in favour of the 1st respondent;
and therefore, that from the date of that
document, namely with effect from 10.01.2014, he
became its full owner. He contended that,
therefore, the attachment over the property in
question was impermissible and that it has been
correctly found so by the learned Family Court.
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6. At this time, Sri.A.Rajasimhan
intervened to say that, in fact, his client has
an adscititious plea that IA No.1498/2017 - from
which the impugned order has emanated - is not
maintainable because, it has been filed by him
through the holder of his Power of Attorney,
which has not been verified under the provisions
of Rule 22 of the Kerala Civil Rules of
Practice. He argued that this is a valid reason
why the application ought to have been
dismissed.
7. We have considered the afore rival
positions of the parties, evaluating it on the
basis of the materials and documents on record.
8. On the argument of the petitioner that
the IA is not maintainable because it was filed
by the 1st respondent through a Power of Attorney
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Holder and which Power of Attorney was not
verified or certified by the Court under Rule 22
of the Kerala Civil Rules of Practice, we are
afraid that we cannot find favour with it after
the parties have gone to trial, and since we
cannot find any such issue having been raised
before the learned Family Court. In fact, we
have gone through the counter pleadings filed by
the appellant against the application, and no
such objections has ever been raised. In such
perspective, we cannot allow her to raise it in
this Appeal now, particularly, as we said above,
the parties have gone to trial.
9. Coming to the question regarding the
attachment over the property, the same was
ordered by the learned Family Court on
26.06.2017, on the basis of the assertion of the
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appellant that the property belonged to the 3 rd
respondent - namely her mother-in-law. However,
the evidence on record is limpid that the
property originally belonged to the appellant's
father-in-law, who left a Will registered as
document No.18/1999 of the Sub Registrar Office,
Kadampanadu, on 20.05.1999. He passed away on
14.07.1999, and the Will thus came into force.
5. As per Ext.C1 - Will, the property was
bequeathed by the father-in-law of the appellant
in favour of the 1st respondent herein, namely
his younger son; but with life interest over it
reserved in favour of his wife, namely the 3rd
respondent herein. However, the 3rd respondent
thereafter executed a settlement deed in favour
of the 1st respondent on 10.01.2014, bearing
No.27/2014, registered at SRO, Kadampanadu,
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transferring all her rights over the property in
his favour.
6. We are, therefore, without doubt that
the view of the learned Family Court, that the
property had been fully transferred in the name
of the 1st respondent, has great force.
7. That apart, the further evidence on
record would establish that the transfer of
Registry of the property had been effected by
the 1st respondent in his name, which is evident
from Ext.C3 - tax receipt and Ext.C4 -
Possession Certificate; and these facts are not
in contest even before us. Further, the learned
Family Court has also found that the "Thandaper"
of the property in question was transferred in
favour of the 1st respondent, which is to mean
that the transfer of its Registry had been
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completed in his favour.
8. When we find so, the further argument
of Sri.A.Rajasimhan, that the two applications
filed by his client, namely 1496/2019 and
1497/2019, ought to have been allowed by the
learned Family Court; and that if that had been
done, there would have been no requirement of
deciding IA No.1498/2017, is speculative and
cannot be considered by us for the singular
reason that what is under challenge is the order
of the said IA.
9. The appellant does not appear to have
made an effort to have the above-mentioned two
IAs heard and no such prayer has been made
before us until now. Therefore, we can only
find this argument to be conjectural in nature.
10. To paraphrase, when the challenge
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before us impelled by the appellant is against
the order in IA No.1498/2017, without seeking
any other relief, we can only confine ourselves
to that, particularly because we are within the
parameters of Article 227 of the Constitution of
India.
In the afore circumstances, leaving every
other liberty open to the parties as per law, we
dismiss this appeal, confirming the impugned
order.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
akv JUDGE
