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Kerala High Court

Sulochana vs Anitha on 4 February, 2026

Author: Sathish Ninan

Bench: Sathish Ninan

Mat.Appeal No.1093 of 2014


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                                                            2026:KER:9092

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                 THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                          &

                THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

      WEDNESDAY, THE 4TH DAY OF FEBRUARY 2026 / 15TH MAGHA, 1947

                             MAT.APPEAL NO. 1093 OF 2014

          AGAINST THE ORDER DATED 29.10.2014 IN I.A.230/2011 IN OP

NO.1042 OF 2007 OF FAMILY COURT,THIRUVANANTHAPURAM

APPELLANT/(CLAIM PETITIONER):

              SULOCHANA
              D/O KARTHIAYANI, ORUMUKHATHU PUTHEN VEEDU,
              PLAVODE, KODUNGANOOR P.O, THIRUVANANTHAPURAM


              BY ADVS.
              SHRI.S.BALACHANDRAN (KULASEKHARAM)
              SRI.V.R.GOPU


RESPONDENTS/(COUNTER PETITIONERS):

      1       ANITHA
              AGED 42 YEARS
              W/O SHAJIMON, MEKKUMKARA VEEDU, CHIRAKKONAM,
              PARASSALA - 695502

      2       MALAVIKA (MINOR)
              AGED 15 YEARS
              D/O ANITHA, MEKKUMKARA VEEDU, CHIRAKKONAM,
              PARASSALA - 695502, REPRESENTED BY HER MOTHER AND
              GUARDIAN - FIRST RESPONDENT

      3       MAYOOKHA MINOR
              AGED 13 YEARS
              D/O ANITHA, MEKKUMKARA VEEDU, CHIRAKKONAM, PARASSALA
              695502, REPRESENTED BY HER MOTHER AND GUARDIAN
 Mat.Appeal No.1093 of 2014


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                                                                 2026:KER:9092

      4       SHAJI MON
              S/O HARIS, IDATHARA PUTHEN VEEDU, KOLLOTTU MURI,
              KULATHUMMEL VILLAGE, ANTHIYOORKONAM,
              ANTHIYOORKONAM P.O, KATTAKKADA,
              THIRUVANANTHAPURAM 695572


              BY ADVS.
              SRI.K.SATHEESH KUMAR
              SMT.G.KRISHNAKUMARI
              SRI.T.A.UNNIKRISHNAN



      THIS    MATRIMONIAL    APPEAL   HAVING   COME   UP   FOR    HEARING   ON
28.01.2025, THE COURT ON 04.02.2026 DELIVERED THE FOLLOWING:
 Mat.Appeal No.1093 of 2014


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                                                            2026:KER:9092



                 SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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                       Mat.Appeal No.1093 OF 2014
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                Dated this the 4th day of February, 2026

                                   JUDGMENT

P.Krishna Kumar, J.

This appeal is preferred by the claim petitioner in an

application filed under Order XXI, Rule 58 of the Code of

Civil Procedure before the Family Court, Thiruvananthapuram.

Her contention is that she is a bona fide purchaser for

valuable consideration of a property which was subsequently

attached in a proceeding initiated by the first respondent for

recovery of maintenance from her husband, the fourth

respondent.

2. The property in question originally belonged to the

husband, who sold it to the claim petitioner prior to the

order of attachment. The attachment in the original petition

was effected on 14.11.2007, while the original petition itself

was decreed in favour of the wife on 12.03.2009. The sale deed

in favour of the claim petitioner had been executed earlier,

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on 16.07.2007. The property purchased by the claim petitioner

comprised 5 cents out of the total extent of 11 cents owned by

the husband.

3. The Family Court dismissed the claim petition, holding

that the wife was entitled to enforce her right of maintenance

against the property, as she had a charge over it. In doing

so, the court relied on the decision of this Court in

Ramankutty Purushothaman v. Amminikutty (AIR 1997 Ker 306).

4. We have heard Sri.S.Balachandran (Kulasekharam), the

learned counsel appearing for the appellant and

Smt.G.Krishnakumari, the learned counsel appearing for the

fourth respondent/husband.

5. Earlier this court framed the following questions and

referred the matter for the consideration of a Full Bench:

"(a) Is a Hindu wife entitled to receive maintenance from the immovable property of her husband dehors the provisions of the Hindu Adoptions and Maintenance Act, 1956?

(b) Is there not an apparent conflict between the views expressed in Vijayan v. Sobhana and Others [ILR 2007 (1) Kerala 822], or Sathiyamma v. Gayathri and Others [2013 (3) KHC 322], Nysha v. P.Suresh Babu (MANU/KE/2266/2019) and Hadiya (Minor) v. Shameera M.M. [2025 (3) KHC 131], and what is the correct law?"

6. As per order dated 14/01/2026, the Full Bench has

answered the reference in the following lines:

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"23. In conclusion to the discussions aforesaid, we answer the reference made as follows:

(i) A Hindu wife is entitled to receive maintenance from the immovable property of her husband dehors the provisions of the Hindu Adoption and Maintenance Act, 1956.

(ii) The aforesaid right of the Hindu wife has to be presumed to be in a dormant stage till she initiates legal steps to realise maintenance from her husband and his properties, or till she is deprived of such maintenance due to the death of her husband.

(iii) During the above dormant stage of the aforesaid right, the purchasers of the immovable properties belonging to the husband of that Hindu wife cannot be presumed to be having the knowledge of such right for invoking Section 39 of the Transfer of Property Act, 1882, or Section 28 of the Hindu Adoptions and Maintenance Act, 1956. However, if there existed evidence to show that the purchaser, at the time of sale, was aware of denial of maintenance by the seller to his wife and any subsisting claim for maintenance which arose out of such denial, or if there were reasons to show that the transfer was gratuitous, then the wife's right for maintenance will get the protection and privilege of Section 39 of the T.P Act.

(iv) If any such transfer is effected during the period when a legal action, which even include the registered legal notice issued by the wife to her husband, has been initiated for getting maintenance from the husband and his properties; or during the period when she is deprived of such maintenance due to the death of her husband, then the purchaser shall be deemed to be having the knowledge of such right for the purposes of Section 39 of the Transfer of Property Act, 1882 or Section 28 of the Hindu Adoptions and Maintenance Act, 1956, as the case may be

(v) The law laid down by a Division Bench of this Court in Vijayan v. Sobhana & Others [ILR 2007(1) Kerala 822] cannot be termed to be one expounding the correct proposition of law insofar as it holds that the wife and children of a Hindu do not have any right to claim maintenance from the profits of the immovable property held by that person."

7. Sri S. Balachandran, learned counsel appearing for the

appellant, submitted that in view of conclusion No. (iv) in

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the Full Bench decision, the impugned order is liable to be

set aside, since the appellant had purchased the property much

prior to the initiation of the original petition seeking

maintenance. The learned counsel appearing for the fourth

respondent/husband also supported the said contention. The

wife remained absent.

8. We are unable to accept the argument of the learned

counsel. The Full Bench has held that a Hindu wife has a right

to claim maintenance out of her husband's property and,

consequently, is entitled to the protection under Section 39

of the Transfer of Property Act. Therefore, if the wife is

able to establish that the purchaser had knowledge of her

right at the time of purchase, she would be entitled to

enforce the decree against him, in view of the statutory

provisions contained in Section 39 of the Transfer of Property

Act. Conclusion (iv) of the judgment deal specifically with

the concept of deemed knowledge of the purchaser about the

wife's right to get maintenance from her husband's property

and not otherwise. For availing the benefit of deemed

knowledge, the conditions stipulated therein must be

satisfied. In conclusion (iii) the Full Bench has held,

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"However, if there existed evidence to show that the purchaser, at the time of sale, was aware of denial of maintenance by the seller to his wife and any subsisting claim for maintenance which arose out of such denial, or if there were reasons to show that the transfer was gratuitous, then the wife's right for maintenance will get the protection and privilege of Section 39 of the T.P Act."

Therefore, during the dormant stage of the wife's right,

a purchaser cannot be presumed to have knowledge of such a

right for the purpose of invoking Section 39 of the Transfer

of Property Act, 1882, or Section 28 of the Hindu Adoptions

and Maintenance Act, 1956. However, as held by the Full Bench,

it is open for the wife to establish actual knowledge on the

part of the purchaser that the transfer is fraudulent and

intended to defeat her rights.

9. In the present case, since the purchase was effected

prior to the filing of the maintenance proceedings, the wife

cannot claim the benefit of deemed knowledge on the part of

the purchaser regarding her right. It was therefore incumbent