Preethi Kalvakolanu vs Mr. Sri Satish Chandra
2023 Latest Caselaw 3477 Tel

             HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
              HON'BLE SMT. JUSTICE K. SUJANA
                Family Court Appeal No.16 OF 2023

JUDGMENT: (Per Hon'ble Sri Justice K. Lakshman)

      Heard Mr. V.Hanumantha Rao, learned counsel for the

appellant and Mr.V.Vijaya Rama Raju, learned counsel for respondent

No.1. There is no representation on behalf of 2nd respondent.

      2. Feeling aggrieved and dissatisfied with the order dated

17.03.2022 passed in E.A.No.6 of 2019 in E.P.No.04 of 2019 in

FCOP No.684 of 2014 by the Judge, Family Court, Ranga Reddy

District at L.B.Nagar, the appellant preferred the present appeal.

Facts

of the case:-

3. The appellant herein is wife of 2nd respondent herein. She had

filed FCOP No.684 of 2014 under Section 12(1) (ia) of Hindu

Marriage Act, seeking dissolution of marriage and permanent

alimony. The learned the Judge, Family Court, Ranga Reddy District

at L.B.Nagar, vide order dated 11.09.2018 allowed the said petition

dissolving the marriage between the parties by decree of divorce and

also directed the 2nd respondent herein to pay Rs.30,00,000/- to the

appellant herein towards permanent alimony within one month from

the date of the order.

4. Since the 2nd respondent herein failed to pay permanent

alimony in compliance with the said order, the appellant herein had

filed an Execution Petition vide E.P.No.04 of 2019 to attach the

petition schedule property therein, sell and pay the same to her from

the proceeds of sale. The petition schedule property is House bearing

H.No.8-6-67/SS/116 in plot No.116, in Sy.No.57 part admeasuring

289 sq.yards in Ward No.8, Block No.6, situated at Srinivasapuram

colony, Karmanghat Village, Saroornagar Mandal, Ranga Reddy

District bounded by North: Plot No.115, South: Plot No.117, East:

Plot No.101 and West: 25'wide road.

5. During the pendency of the said Execution Petition, 1st

respondent had filed claim petition vide E.A.No.6 of 2019 in

E.P.No.4 of 2019 stating that the E.P. schedule property was already

sold by 2nd respondent, husband of the appellant herein, to him by

virtue of oral agreement dated 01.03.2014. He is having preferential

right over the E.P. petition schedule property.

6. The Court below allowed the said claim petition vide order

dated 17.03.2022 execution proceedings in E.P.No.4 of 2019 are

stayed till disposal of the suit vide O.S.No.499 of 2019.

7. The appellant herein had also filed E.A.No.4 of 2022 in

E.A.No.6 of 2019 in E.P.No.4 of 2019 in F.C.O.P.No.684 of 2014 to

reject the claim petition filed by the 1st respondent/claim petitioner.

The same was dismissed vide order dated 17.03.2022.

8. Aggrieved by the said order dated 17.03.2022 in E.A.No.6 of

2019 in E.P.No.4 of 2019, the appellant herein preferred the present

appeal on the following grounds:-

i. The Trial Court without having jurisdiction allowed the claim

petition and stayed the proceedings in E.P.No.4 of 2019 on the

simple ground that 1st respondent filed a suit for specific

performance in another Court and that is pending.

ii. Mere pendency of a suit shall not operate either stay of

proceedings in Execution Petition to execute a decree or order

appealed from. The trial court allowed the claim petition

without conducting enquiry on its own which is mandatory

under Rule 58 of Order XXI of CPC. The said suit O.S.No.499

of 2019 filed by 1st respondent is collusive to frustrate the order

dated 11.09.2018 in FCOP No.684 of 2014 passed by the

Family Court.

iii. The claim of the 2nd respondent is collusive and fraudulent.

9. Learned counsel for the 1st respondent would submit that 1st

respondent herein had filed a suit for specific performance basing on

oral agreement. He has pad total sale consideration pertaining to the

suit schedule property and fled the said suit against 2nd respondent

herein and his mother. The said suit was initially numbered as

O.S.No.48 of 2019 by the Vacation Court - cum - learned District

Judge, at L.B.Nagar, and later it is re-numbered as O.S.No.499 of

2019. The said suit is pending.

10. It is the specific contention of the appellant herein that 1st

respondent had filed the aforesaid suit alleging purchase of petition

schedule property under oral agreement. It is a collusive suit. The

Family Court has already attached the EP Schedule property. He has

filed E.A.No.6 of 2019 in order to defeat the claim of the appellant in

FCOP No.684 of 2014.

11. The contention of the 1st respondent is that ignoring the

matrimonial disputes between the appellant herein and 2nd respondent,

he purchased the EP schedule property under oral agreement and the

same is pending for registration. On coming to know that the trial

Court attached the E.P. schedule property, he had filed the claim

petition vide E.A.No.6 of 2019 in order to safeguard his subsisting

rights. The rights of 2nd respondent as owner of the subject property

have been transferred to him by way of agreement of sale on receiving

total sale consideration. If the execution of the decree in FCOP

No.684 of 2014 is allowed, 1st respondent will be put to irreparable

loss. 2nd respondent entered into oral agreement of sale dated

01.03.2014 with the 1st respondent prior to filing of FCOP No.684 of

2014 i.e.05.05.2014.

12. As discussed supra, vide order dated 11.09.2018 in

F.C.O.P.No.684 of 2014, the Family Court granted dissolution of

marriage and directed 2nd respondent to pay an amount of Rs.30 lakhs

towards permanent alimony to the appellant herein. Feeling aggrieved

by the said order, the 2nd respondent has already preferred FCA

No.532 of 2018. He had also filed a petition vide I.A.No.1 of 2021

seeking stay. This court vide order dated 26.12.2018 dismissed the

said I.A.No.1 of 2018 holding as follows:-

A bare perusal of the appellant's cross-examination clearly reveals that in his cross-examination, he has admitted that he was earning $60,000 per annum. Although the said statement was made by the appellant-husband, he has not submitted any documentary

proof to establish the said fact. Moreover, there is no specific denial of the claim made by the respondent-wife that, in fact, the appellant-husband is earning about $1,25,000 per annum. ln the absence of a specific denial, and in the absence of documentary evidence to establish the appellant's defence, the learned Family Court is justified in accepting the assertion made by the respondent-wife. Therefore, the learned Family Court is justified in concluding that "the appellant-husband has not denied the assertion made by the respondent-wife".

Further, the respondent-wife is entitled to permanent alimony in order to ensure that she continues to have the lifestyle which she was used to during her marriage. According to the respondent-wife, the appellant-husband is working as a Software Engineer in Texas, U.S.A; the respondent-wife had gone and stayed with him for some time in United States. Therefore, the respondent-wife is accustomed to an urban and upper class lifestyle.

Considering the fact that the respondent-wife happens to be a 34 years young woman, considering the fact that the chances of re-marriage of a divorced woman are rather slim in this Country, and considering the fact that, on an average, the life expectancy in lndia is 77 years, there is a great possibility that she will live for another four decades. Therefore, the grant of permanent alimony of Rs.30,00,000/- for a period of 40 years is not an unreasonable amount to be granted by the learned Family Court. Hence, the respondent-wife has a strong prima facie case for the grant of permanent alimony; the balance of convenience is also on her side. ln case, she were to be deprived of permanent alimony, she will be left out in the cold. Therefore, an irreparable loss would be caused to her, if the stay were granted in favour of the appellant-husband.

For the reasons stated above, this Court is not inclined to stay the operation of the impugned judgment and decree dated 11.09.2018 in F.C.O.P.No.684 of 2014 on the file of the Family Court, Ranga Reddy District at L.B.Nagar.

The application for grant of interim stay is hereby dismissed.

However, it is hereby clarified that any observations made by this Court hereinabove shall not influence the final decision of this case.

13. It is apt to note that the 1st respondent had filed a suit vide

O.S.No.499 of 2019 seeking specific performance against the 2nd

respondent and his mother to execute registered sale deed in his

favour in respect of the suit schedule property and on failure of such

compliance by the defendants to appoint an officer of the Court for

execution of the sale deed and also deliver the vacant possession of

the suit schedule property. The said suit was filed on 09.05.2019.

14. Perusal of the plaint in O.S.No.499 of 2019 would reveal

that 2nd respondent has purchased the subject property from Smt.

V.Anantha Lakshmi under a registered sale deed bearing document

No.12771of 2012 dated 15.10.2012. 2nd respondent had executed

General Power of Attorney (GPA) dated 16.01.2013 and the same was

validated vide File No.677/Vol.13, dated 11.12.2013 in favour of his

mother Smt. S.Renuka. By virtue of the said GPA, mother of the 2nd

respondent at the behest of the 2nd respondent herein offered to sell the

said property to the 1st respondent who in turn, accepted the same and

they have entered into oral agreement on 01.03.2014. Thus, 2nd

respondent agreed to sell the property for a total sale consideration of

Rs.27lakhs and 1st respondent had consented for the same over phone

with the 1st respondent. Therefore, 1st respondent had paid entire sale

consideration. Despite specific request, 2nd respondent is not

executing registered sale deed in his favour. Therefore, he has filed

the said suit. On the strength of the same, he has filed the aforesaid

claim petition vide E.A.No.6 of 2019.

15. This Court directed Sri Mr.V.Vijaya Rama Raju, learned

counsel for respondent No.1 to produce a copy of the agreement of

sale. On instructions, he would submit that the agreement is oral and

however, he has filed a copy of the GPA dated 11.01.2013 said to

have been executed by the 2nd respondent in favour of his mother. He

is resident of USA. Perused the non-judicial stamp paper for Rs.100/-

on which General Power of Attorney was drafted, number is

mentioned as 3210 date as 27.12.2002. Licensed stamp vendor is

mentioned as J.Ramarao Yadav and licence number as 15-27-

005/2010. On the back side of the said non judicial stamp paper, there

is a stamp of District Registrar, Ranga Reddy District stating as

follows:-

"Certificate U/s.18 of Indian Stamp Act-1899 File No.677/Vol.13, Date 11/12/2013 This is certify that the instrument is duly stamped."

16. The said General Power of Attorney said to have been

executed by the 2nd respondent in favour of his mother Smt. S.Renuka

to do the following acts:-

a) To appear in all courts and in all matters in which I am involved and filed against me and to be filed on my behalf to protect my interest in the properties belonging to me and also in all other matters including person and property of mine

b) To engage an advocate or advocates in all litigations to get protect my interest in such cases with a right to remove and engage another advocate.

c) To Open Bank account in any Nationalized Bank and any other Banks and operate the same.

d) To withdraw and claim all funds either from the banks or the courts or in any of the offices wherein I am entitled for and payable to me and receive the same at my instance and on my behalf

e) I also authorize my General Power of Attorney to lookafter the Purchase of properties in my name and on my behalf with his signature.

f) To manage, supervise to obtain construction permission, and raise further construction to submit applications, petitions, to transact and lease out, to enter into lease agreement or agreements, to collect rents, to carry on and to procure loans.

g) I hereby agree and only simple mortgage in favour of GHMC and things which are being done and done by the aforesaid attorney holder in pursuance of this deed and I hereby confirm the same as done and deemed to be done at my instance and on my behalf and by me.

h) To appoint and constitute on my behalf pleaders, vakils, advocates or other attorneys whenever my attorney shall think proper to do so.

i) I hereby further authorized the said Attorney and to make necessary applications, plans, declarations, affidavits etc., to the Govt Grampanchavat Municipality Revenue or any other Authorities and to file any documents, get permission of any kind

if necessary thereof and to mortgage the document in any bank on my behalf

j) I empower my Attorney in General to do all or every act, deed or thing, which are necessary, useful, lawful for carrying out the purpose of appointment hereby made.

17. In the said GPA, there is no mention about the subject

property and details of the same. No power was given to the mother of

the 2nd respondent to sell the said property, to receive sale

consideration etc. It was for a different purpose. Even then, the 1st

respondent is claiming that the mother of the 2nd respondent on behalf

of the 2nd respondent agreed to sell the subject property for Rs.27

lakhs, had filed the aforesaid suit vide O.S.No.499 of 2019. Without

considering the said aspects, more particularly, the aspect that the said

GPA, dated 16.01.2013 said to have been executed by 2nd respondent

in favour of his mother, power was not given to her to sell the

property or to deal with the subject property, the trial Court stayed the

proceedings in E.P.No.4 of 2012.

18. As discussed supra, vide order dated 11.09.2018, the Family

Court allowed the F.C.O.P.No.684 of 2014 filed by the appellant

herein seeking dissolution of marriage and directed the 2nd respondent

to pay an amount of Rs.30 lakhs towards permanent alimony. Feeling

aggrieved by the said order, 2nd respondent had preferred the appeal

vide FCA No.532 of 2018. This Court vide order dated 10.10.2018,

dismissed stay petition filed by him. Thereafter, 2nd respondent in

collusion with his mother and 1st respondent having created GPA and

also alleged oral agreement dated 01.03.2014 filed the aforesaid suit

vide O.S.No.499 of 2019 on 09.05.2019. There is no consideration of

the said aspects by the trial Court in the impugned order dated

17.03.2022 in E.A.No.6 of 2019 in E.P.No.4 of 2019 in

F.C.O.P.No.684 of 2014.

19. It is relevant to note that the claim petition was filed on

20.08.2019 seeking claim over the subject property. If any claim

petition is filed, it is the duty of the trial Court to conduct an enquiry

as per the procedure laid down under Order XXI Rule 58 of CPC.

Whereas, in the present case, the Family Court did not follow the said

procedure. Family Court simply allowed the claim petition and stayed

the proceedings in EP filed by the appellant herein. Therefore, viewed

from any angle, the impugned order dated 17.03.2022 in E.A.No.6 of

2019 in E.P.No.4 of 2019 in FCOP No.684 of 2014 is not on

consideration of entire facts, material available on record, contents of

the GPA, dated 16.01.2013, contents of plaint in O.S.No.499 of 2019

and date of filing of the same etc. and also in violation of the

procedure laid down under Order XXI Rule 58 of CPC. There is no

consideration of the order passed by this Court dated 26.12.2018 in

I.A.No.1 of 2018 in FCA No.532 of 2018. Therefore, the impugned

order dated 17.03.2022 passed in E.A.No.6 of 2019 in E.P.No.04 of

2019 in FCOP No.684 of 2014 by the learned Judge, Family Court,

Ranga Reddy District at L.B.Nagar, is liable to be set aside.

20. In view of the above discussion, this appeal is allowed. The

impugned order dated 17.03.2022 passed in E.A.No.6 of 2019 in

E.P.No.04 of 2019 in FCOP No.684 of 2014 by the learned Judge,

Family Court, Ranga Reddy District at L.B.Nagar, is set aside.

Learned Judge is directed to dispose of E.A.No.6 of 2019 in

accordance with law as expeditiously as possible preferably within a

period of three months from today.

Consequently, miscellaneous petitions if any pending in this appeal shall stand closed.

________________________ JUSTICE K. LAKSHMAN

______________________ JUSTICE K. SUJANA Date:01.11.2023.

Note: Furnish C.C.by 02.11.2023.

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