Kerala High Court
Beevi Umma vs The State Of Kerala on 4 July, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
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WA No.293 of 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
WA NO. 293 OF 2025
AGAINST THE JUDGMENT DATED 12.02.2024 IN WP(C)
NO.30477 OF 2023 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 BEEVI UMMA, AGED 70 YEARS
W/O MUHAMMED HAJI, CHEMMANJERI HOUSE,
KLARIAMSOM, CHERUSHOLADESOM, KLARI P.O,
TIRURANGADI TALUK, MALAPPURAM DISTRICT,
PIN - 676501
2 KUNJIPATHU, AGED 65 YEARS
W/O ABDURAHIMANKUTTY, THEVARPARAMBIL HOUSE,
KLARIAMSOM, CHERUSHOLADESOM, KLARI P.O,
TIRURANGADI TALUK, MALAPPURAM DISTRICT,
PIN - 676501
BY ADVS.
SRI.JAMSHEED HAFIZ
SMT.T.S.SREEKUTTY
SMT.FATHIMA NASREEN S.
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
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WA No.293 of 2025
2 THE REGISTRAR
S.R.O KALPAKANCHERY, KALPAKANCHERY P.O,
MALAPPUARM DISTRICT., PIN - 676551
3 KABEER
S/O SAIDU MUHAMMED HAJI ELAYODATH HOUSE,
VALAVANNUR AMSOM DESOM , PO VALAVANNUR, TIRUR
TALUK, MALAPPURAM DISTRICT (SOUGHT TO BE
IMPLEADED), PIN - 676551
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
04.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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3
WA No.293 of 2025
JUDGMENT
P.M. Manoj, J:
The above writ appeal is preferred by the petitioners in writ
petition No.30477 of 2023 being aggrieved by the judgment dated
12.02.2024 therein.
2. The primary grievance voiced in the writ petition was the
non-registration by the 2nd respondent, of a gift deed that was executed
between the petitioners on 25.05.2023, and seeking for a direction to
the 2nd respondent to register the same.
3. The short facts relevant for consideration of this appeal
are as follows:
The 1st appellant is the owner of 11 Ares 73 Sq. Meters of land
in Survey No.15/1-1, 2 Ares 42.1 Sq. Meter of land in Survey No.15/2-2
and 9 Ares 31.1 Sq. Meters of land in Survey No.15/3-2 of Valavannur
Village in Tirur Taluk, Malappuram District which was obtained as per
document No.373/1967 of SRO Kalpakancheri. The 1 st appellant was
remitting tax from 1967 onwards. An issue arose when the additional 3 rd
respondent filed a Suit as OS No.96 of 2022 before the Sub Court, Tirur
for specific performance in relation to the agreement between the 1 st
appellant and the 3rd additional respondent. A conditional attachment
order was issued by the Sub Court, Tirur on 18.10.2022. It is contended
that the additional 3rd respondent secured such order by relying on a
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document fraudulently obtained by him, against which the 1 st appellant
had preferred a complaint before the police and an FIR was registered.
The 1st appellant is issueless and her husband died. The 1 st appellant
wanted to register a gift deed in favour of the 2 nd appellant, who is the
sister of the 1st appellant. For that, the 1 st appellant approached the 2 nd
respondent to register Ext.P4 gift deed. However, the registering
authority declined to register the gift deed on the ground that there is
an order of attachment by civil court over the property in question.
According to the 1st appellant, an attachment of the civil court may not
be a ground to decline the registration of a gift deed. Hence, she
approached this court by preferring the writ petition.
4. The learned single judge declined her prayer considering
the counter contentions raised by the additional 3 rd respondent as well
as the contentions by the official respondents. Being aggrieved by the
judgment of the learned single judge, this writ appeal is preferred.
5. The primary question to be decided in this appeal is,
whether the writ of mandamus as sought for could have been issued to
the 2nd respondent to register the gift deed, by ignoring the attachment
order dated 18.10.2022 issued by the civil court in OS No.96 of 2022?
The answer to that would be a 'No' on the following premises.
6. Section 64 of the Civil Procedure Code (CPC) creates a
prohibition on alienation of property after an attachment. For the
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purpose of clarity Section 64 is reproduced hereunder:
"64. Private alienation of property after attachment to be
void
(1) Where an attachment has been made, any private transfer or
delivery of the property attached or of any interest therein and
any payment to the judgment -debtor of any debt, dividend or
other moneys contrary to such attachment, shall be void as
against all claims enforceable under the attachment.
(2) Nothing in this section shall apply to any private transfer or
delivery of the property attached or of any interest therein, made
in pursuance of any contract for such transfer or delivery entered
into and registered before the attachment.
Explanation: For the purposes of this section, claims enforceable
under an attachment include claims for the rateable distribution
of assets."
7. The operation of Section 64 is envisaged under Order XXI
Rule 54, which contemplates the application of attachment on an
immovable property which is as follows:
Order XXI Rule 54 CPC.
"54. Attachment of immovable property
(1) Where the property is immovable, the attachment shall
be made by an order prohibiting the judgment-debtor from transferring
or changing the property in any way, and all persons from taking any
benefit from such transfer or charge.
(1A) The order shall also require the judgment-debtor to
attend court on a specified date to take notice of the date to be fixed for
settling the terms of the proclamation of sale.
(2) The order shall be proclaimed at some place on or
adjacent to such property by beat of drum or other customary mode,
and a copy of the order shall be affixed on a conspicuous part of the
property and then upon a conspicuous part of the court house, and also,
where the property is land paying revenue to the government, in the
office of the Collector of the District in which the land is situate and,
where the property is land situate in village, also in the office of the
Gram Panchayat, if any, having jurisdiction over that village. "
8. Form No.24 under Appendix E to the CPC, in which the
attachment in execution with respect to a property is communicated, is
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reproduced hereunder:
No.24
ATTACHMENT IN EXECUTION - PROHIBITORY ORDER, WHERE
THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY
[O.21,R.54]
(Title)
To
.............................. Defendant.
Whereas you have filed to satisfy a decree passed
against you on the .......day of .........19............./20............., in
Suit No. ............... of 19......../20..........., in favour of ............ for
Rs. ..............; It is ordered that you, the said, ............ be, and you
are hereby prohibited and restrained, until the further order of
this court, from transferring or charging the property specified in
the Schedule hereunto annexed, by sale, gift or otherwise, and
that all persons be, and that they are hereby, prohibited from
receiving the same by purchase, gift or otherwise.
[It is also ordered that you should attend the court on the .........
day of ........ 19.........../20..........., to take notice of the date fixed
for setting the terms of the proclamation of sale.]
Given under my hand and the seal of the court, this
.....day of ...19.........../20........
Judge.
9. Given the clear mandate of Section 64 CPC, which
declares any private transfer or delivery of attached property void and
the explicit prohibitory nature of an attachment order as per Order XXI
Rule 54 CPC and Form No. 24, Appendix E, any attempt at private
alienation of such property, including through a gift, is legally ineffective
and null.
10. Under Section 89 of the Registration Act, copies of
certain orders, certificates and instruments are to be sent to registering
officers. Here, in the case at hand, the 2 nd respondent, on receipt of the
intimation under Section 89, refused to register Ext.P4 gift deed, which
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is mandated under Section 71 of the Act.
For the purpose of immediate reference, Section 71 of Registration Act,
is reproduced hereunder:
71. Reasons for refusal to register to be recorded.--(1) Every
Sub-Registrar refusing to register a document, except on the
ground that the property to which it relates is not situate within
his sub-district, shall make an order of refusal and record his
reasons for such order in his Book No. 2, and endorse the words
"registration refused" on the document; and, on application made
by any person executing or claiming under the document, shall,
without payment and unnecessary delay, give him a copy of the
reasons so recorded.
(2) No registering officer shall accept for registration a document
so endorsed unless and until, under the provisions hereinafter
contained, the document is directed to be registered.
(3) No registering officer shall accept for registration any
document involving transfer of property including contract for
sale of immovable property belonging to or vested in the
Government of Kerala or public sector undertakings operating in
the State or local self Government institutions unless it is
accompanied by a no objection certificate issued by an officer
authorised by the State Government in this behalf.
11. An appeal against order under Section 71 is envisaged
under Section 72 of the Registration Act. Against an order passed under
Section 72, the only remedy is to approach the civil court under Section
77 of the Registration Act.
Sections 72 and 77 are reproduced hereunder for easy reference:
72. Appeal to Registrar from orders of Sub-Registrar
refusing registration on ground other than denial of
execution.--(1) Except where the refusal is made on the ground
of denial of execution, an appeal shall lie against an order of a
Sub-Registrar refusing to admit a document to registration
(whether the registration of such document is compulsory or
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optional) to the Registrar to whom such Sub-Registrar is
subordinate, if presented to such Registrar within thirty days
from the date of the order; and the Registrar may reverse or alter
such order.
(2) If the order of the Registrar directs the document to be
registered and the document is duly presented for registration
within thirty days after the making of such order, the Sub-
Registrar shall obey the same, and thereupon shall, so far as may
be practicable, follow the procedure prescribed in sections 58, 59
and 60; and such registration shall take effect as if the document
had been registered when it was first duly presented for
registration.
Xxxx xxxxxxxx xxxxx
77. Suit in case of order of refusal by Registrar.--(1) Where
the Registrar refuses to order the document to be registered,
under Section 72 or Section 76, any person claiming under such
document, or his representative, assign or agent, may, within
thirty days after the making of the order of refusal, institute in
the Civil Court, within the local limits of whose original
jurisdiction is situate the office in which the document is sought
to be registered, a suit for a decree directing the document to be
registered ins such office if ti be duly presented for registration
within thirty days after passing of such decree.
(2) The provisions contained in sub-sections (2) and (3) of Section
75 shall, mutatis mutandis, apply to all documents presented for
registration in accordance with any such decree, and,
notwithstanding anything contained in this Act, the documents
shall be receivable in evidence in such suit."
12. Crucially, the intimation of an attachment order to the
Sub-Registrar under Section 89 of the Registration Act serves as a
statutory alert, making the Registrar fully aware of the existing
prohibition. Consequently, the Sub-Registrar's refusal to register a
document which would contravene the attachment, is a lawful and
appropriate action under the Registration Act, guided by the principles
enshrined in Section 71 thereof.
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13. Since the refusal to register was duly communicated and
was not challenged through the available remedies under Sections 72
and 77 of the Registration Act, the act of private alienation through the
unregistered gift remains void ab initio against the claims under the
attachment. The legal framework, therefore, effectively prevents the
circumvention of an attachment order, ensuring the enforceability of
claims against the attached property.
14. On a conjoined reading of all the extracted provisions
above, it can be understood that, if an attachment is ordered by a civil
court under Order XXI Rule 54, which is communicated under Form 24
under Appendix E, the Sub Registrar cannot register a deed which
prejudices the operation of the attachment order by invoking section 64
of CPC. Here, in the case at hand, the additional 3 rd respondent
contends that the 1st appellant agreed to sell the disputed property to
him by fixing an amount of Rs.1,15,000/- per Cent. An agreement to sale
was also said to be entered into between the parties on 05.01.2022,
towards which he paid an advance of Rs.15,00,000/-. Thereafter, on
15.03.2022, further amount of Rs.3,00,000/- was also paid towards the
balance consideration. On failure on the part of the 1 st appellant to
execute the agreement, OS No.96 of 2022 was preferred before the Sub
Court Tirur and by order dated 18.10.2022, a conditional attachment
under Rule 5 of Order XXXVIII of CPC was issued. In order to defeat the
said order, and to obstruct the rights and to frustrate the execution of
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any decree to be passed in OS No. 96 of 2022, the gift deed was
executed by the 1st appellant to the 2nd appellant.
15. On taking note of these contentions and considering the
statutory provisions extracted above, it appears to us that the proper
remedy available to the 1st appellant, who approached the Sub Court,
Tirur is to get the attachment ordered on 18.10.2022 in OS No.96 of
2022 lifted by approaching the said court with a proper application.
Instead, the appellants have approached this Court by preferring the
writ petition seeking for a direction to issue the writ of mandamus to
register the gift deed ignoring the attachment order, which cannot be
acceded to. This position is clarified by the Full Bench in Fathima v.
Canara Bank [2025 (3) KLT 367 (FB)].
62. When there is an entry in Book No.1 maintained in a
registration office in terms of S.89(5) of the Registration Act
relating to an attachment ordered by a court, it has the necessary
effect of prohibiting voluntary transfers of the property by its
owner. S.64 of the Code prohibits a private transfer or delivery of
the property attached or of any interest therein and also any
payment to the judgment - debtor of any debt, dividend or other
money contrary to such attachment shall be void as against all
claims enforceable under the attachment. Of course, the said
prohibition is subject to the savings provided under sub-section
(2) of S.64 of the Code.
63. The procedure for getting such an attachment removed or
lifted is provided in the Code itself. R.58 of Order XXI enables any
person claiming that the attached property is not liable for
attachment to prefer a claim or an objection to the court which
ordered attachment. On preferring such a claim, the court is
obliged to consider the claim or objection and determine the
same. Although R.58 envisages a post - decree scenario by virtue
of R.8 of Order XXXVIII any claim preferred to a property
attached before judgment shall also be adjudicated as provided in
R.58 of Order XXI of the Code.
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Attachment is not an encumbrance on the property
64. The question next arises is as to whether an attachment is an
encumbrance on the property or it creates an interest on it. The
Apex Court in National Textile Corporation v. State of
Maharashtra, 1977 (3) SCC 4 after referring to Wharton's Law
lexicon, explained the term "encumbrance" as a claim, lien or
liability, attached to property. This is the sense in which the term
is ordinarily used. An encumbrance, in this sense, has to be a
liability "attached to property"; it must be a burden or liability
that runs with the land. In State of H.P. v. Tarsem Singh, 2001 (8)
SCC 104 the Apex Court held that the word "encumbrance"
means a burden or charge upon property or a claim or lien upon
an estate or on the land and that the word "encumber" means
burden of legal liability on property. In that view, a charge
created in terms of S.100 of the Transfer of Property Act was held
to be an encumbrance.
65. Can in that perspective an attachment by a court an
encumbrance on the property? The purport of S.64 of the Code
embodies the interdiction to the rights of a property owner by
reason of an attachment by a civil court. It says that where an
attachment has been made, any private transfer or delivery of the
property attached, etc. shall be void as against all claims
enforceable under the attachment. That is the limited restriction
created against the owner of a property when it is attached. The
Apex Court dilated the concept of attachment before judgment in
S. Noordeen v. V. S. Thiru Venkita Reddiar, 1996 (3) SCC 289
wherein it was held that an attachment of a property before
judgment would prevent the owner of the property to create
encumbrance, sell or create charge thereof. But an attachment
before judgment does not create any right, title or interest, but it
disables the judgment debtor to create any encumbrance on the
property. Attachment thus is not an encumbrance in a strict sense
on the property. See also: Iyyunni v. Anto, 1994 (1) KLT 583,
Fousiya v. Rajula, 2020 (1) KLT 5, Jayan Kuttichakk v. Common
Man Chitties and Loan (Private) Limited, 2007 (1) KLT 932 and
Nirmala v. Sundaresan (Deceased), 2023 (5) KHC 282."
16. As against the said position, the learned counsel for the
appellants relies on the precedents in National Textile Corporation
and Others v. State of Maharashtra and Others [AIR 1977 SC 1566],
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S.Noorudeen v. Tiru Venkita Reddiar and others [AIR 1996 SC
1293] and Fousiya v. Rejula and Others [2021 (1) KLJ 339]. These
judgments are in no way directly connected to the issue involved in this
case. Going by the settled principles, it appears that a writ of mandamus
cannot be issued to register a gift deed ignoring the attachment order
issued by the civil court under Section 64 CPC by applying order XXI
Rule 54 and the order passed under Order XXXVIII Rule 5.
Under such circumstances, we do not find any reason to
interfere with the impugned judgment. The writ appeal fails, and is
accordingly dismissed.
sd/-
Dr.A.K.JAYASANKARAN NAMBIAR
JUDGE
sd/-
P.M. MANOJ
JUDGE
das
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PETITIONER ANNEXURES
Annexure A5 TRUE COPY OF THE LETTER ISSUED BY THE
SUB REGISTRAR, TIRUR DATED 07.04.2025
STATING REASONS FOR NON REGISTRATION
OF THE DOCUMENT
Annexure A5a TRUE COPY OF THE ENGLISH TRANSLATION
OF THE LETTER ISSUED BY THE SUB
REGISTRAR, TIRUR DATED 07.04.2025
STATING REASONS FOR NON REGISTRATION
OF THE DOCUMENT.
RESPONDENT ANNEXURES
Annexure R2(a) The Attachment Order in OS 96/2022
dated November 21, 2022.
Annexure R2(b) A true copy of the rejection order
dated O7-04-2025 from the second
respondent.
