Dismissed

Manoj Kumar v. R.Nirmala & Others

Kerala HC11 Sept 2012Mat.Appeal/9/2008

Case brief

AI extract

What is this about?

This matrimonial appeal challenged a Family Court order creating a charge on the appellant's property for the wife's maintenance. The High Court upheld the judgment, finding the transfer intended to defeat the wife's statutory maintenance rights, but directed proceedings on the property only if the husband failed to pay.

What did the court decide?

Appeal dismissed; direction issued to proceed against the 'B' schedule property only after the first respondent exhausts steps to recover maintenance from the second respondent.

Manoj Kumar Vs R.Nirmala & Others — Matrimonial and Divorce | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE

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THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934

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Mat.Appeal.No. 9 of 2008 (A)

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OP.614/2002 of FAMILY COURT,TRIVANDRUM

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APPELLANT/SECOND COUNTER PETITIONER:

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MANOJ KUMAR, S/O KRISHNAN NAIR,

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AGED ABOUT 30 YEARS, RESIDING AT, DEVI VILASOM VEEDU ATTIPRA VILLAGE, KARIMAL, KUZHIVILA P.O. THIRUVANANTHAPURAM.

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BY ADVS.SRI.G.P.SHINOD

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SRI.RAM MOHAN.G.

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SRI.MANU V.

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RESPONDENTS/PETITIONER AND COUNTER PETITIONERS 1 AND 3:

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R.NIRMALA, D/O RAJAMMA,

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AGED 34, KUZHIVILA PUTHEN VEEDU, KARIMAL

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KUZHIVIALA P.O., THIRUVANANTHAPURAM.

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V.K.PADMAKUMAR, S/O KRISHNAN NAIR,

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AGED 36, DEVI VILASOM VEEDU, ATTIPRA VILLAGE

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KARIMAL, KUZHIVILA P.O., THIRUVANANTHAPURAM.

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UDAYAKUMAR, S/O KRISHNAN NAIR, AGED ABOUT 28, DEVI VILASOM VEEDU, ATTIPRA VILLAGE KARIMAL, KUZHIVILA P.O., THIRUVANANTHAPURAM.

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R1 BY ADV. SRI.M.RAMASWAMY PILLAI R3 BY ADV. SRI.P.GOVIND

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.

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Mat. Appeal No.9 of 2008

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Dated this the 11^th day of September, 2012

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JUDGMENT

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Pius C. Kuriakose, J

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The second respondent in O.P.614/2002 instituted by the first respondent before the Family Court, Thiruvananthapuram challenges in this appeal the judgment of the Family Court to the extent the same creates a charge over the appellant's property (the property described in 'B' schedule to the original petition before the Family Court) for recovery of monthly maintenance of ` 1,500/- ordered by the Family Court in favour of the first respondent against her husband, the second respondent. Even though various grounds have been raised in the memorandum of appeal Sri.G.Ram Mohan, the learned counsel for the appellant submitted at the very outset that the appellant is aggrieved not by the order of maintenance passed in favour of the first

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Mat. Appeal No.9 of 2008 -2-

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respondent who is the wife of the second respondent but he is aggrieved by the charge created by the maintenance amount over the 'B' schedule property. The 'B' schedule property belongs to the appellant absolutely by way of Ext.B1 Sale Deed. According to Sri.Ram Mohan, 'B' schedule belongs absolutely to the appellant and his brother, the third respondent herein who are brothers of the second respondent, the husband of the first respondent. According to the learned counsel, the property in question belonged to the mother of the appellant and respondents 2 and 3 under a settlement deed of the year 1984. The mother settled the property in favour of her three sons by virtue of document No.2542/97. As the second respondent had to pay off some of the creditors immediately, the second respondent was in urgent and indispensable need for money. For raising the money the second respondent executed Ext.B1 sale deed. The appellant, according to the learned counsel, is a bona fide purchaser. The finding of the court below was that Ext.B1 deed was brought into existence for defeating the

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Mat. Appeal No.9 of 2008 -3-

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interest of the first respondent is contrary to the evidence oral, documentary and circumstantial. The first respondent had no legal right to be maintained out of the properties covered by Ext.B1. The entire property covered by Ext.B1 was under the absolute ownership, possession and enjoyment of the mother till she executed settlement deed No.2542/97. Ext.B1 is a bona fide transaction and the appellant and his brother, the third respondent are the bona fide purchasers. Sri.Ram Mohan submitted that Section 39 of the T.P Act which is resorted to by the court below cannot have any application in the present case. Counsel pointed out that the first respondent has not so far sought for invalidation of Ext.B1 deed. Counsel referred to Section 53 of the T.P Act dealing with fraudulent transfers. A transfer which is a fraudulent transfer for the purpose of Section 53 of the T.P Act is not ab initio void. The said transfer is only voidable at the option of the creditor to defeat whom the transfer is made. Therefore, according to the learned counsel in the absence of a prayer for invalidation of the

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Mat. Appeal No.9 of 2008

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document the Ext.B1 settlement deed executed by the mother is a valid document. Ext.B1 has to be found to be a valid document. The appellant and his brother, the third respondent took possession actually from the mother and not from the second respondent. Sri.Ram Mohan would place reliance on the judgment of this Court in Vijayan v. Sobhana and others (2007(2) KHC 178), Devu v. Preetha (2012(1) KLT 617), Muthuperumal Pillai v. Pechi Amma (1955 KHC 49), Lakshmi v. Valliyammal (1992(2) KLT 873) in support of his submissions.

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All the submissions of Sri.Ram Mohan were resisted by Sri.M.Ramaswamy Pillai, the learned counsel for the first respondent. According to Sri.Ramaswamy Pillai the decision cited by Sri.Ram Mohan except the decision in Lakshmi v. Valliyammal (1992(2) KLT 873) will not have any application to the facts which obtain in this case. It is the decisions in Ramankutty v. Amminikutty (1997(1) KLT 559) and Divakaran v. Chellamma (1985 KLT 1001) which were relied on by the court below which are actually applicable.

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Sri.Ramaswamy Pillai submitted that at the time when Ext.B1 Sale Deed was executed the Family Court has already passed the order of maintenance in favour of the first respondent. The liability of the second respondent, husband herein to maintain his wife, the first respondent had already become crystallized by the passage of the maintenance order. The very execution of the settlement deed by the mother and the contemporaneous execution of Ext.B1 in favour of the two sons were made with the objective of defeating the interest of the first respondent, the abandoned wife of the second respondent who has not been able to realise a single rupee from the second respondent notwithstanding the maintenance order passed by the Family Court way back in 1997. There is no warrant for interfering with the impugned order, so submitted Sri.Ramaswamy Pillai.

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We have given our anxious considerations to the rival submissions addressed at the Bar. We have analysed the relevant statutory provisions as well as the ratio

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emerging from the decisions cited at the Bar and the decisions relied on by the Family Court. The liability of every husband to maintain his wife who is incapable of maintaining herself is statutory. The liability of the second respondent to maintain the first respondent became crystallized by the order of maintenance passed by the Family Court in 1997. Our scrutiny of the documents reveal that even without execution of the settlement deed by the mother/the appellant, the other sons of the mother namely the second and third respondents herein were having interest in the property as the parties were Nairs and the property was tarwad property. The inference drawn by the court below that Ext.B1 was got executed with oblique motives is justified by the circumstances attending on such execution. The appellant is not entitled for equitable relief also. In short we do not find any warrant for interfering with the impugned judgment. We dismiss the appeal.

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However, in deference to the submissions of Sri.Ram Mohan that the second respondent is quite capable of

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Mat. Appeal No.9 of 2008 -7-

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paying the maintenance amount we issue a direction that 'B' schedule property belonging to the appellant will be proceeded against only after the first respondent has exhausted all steps for recovering the amounts from the second respondent i.e from the person and properties of the second respondent.

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Sd/PIUS C. KURIAKOSE JUDGE

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Sd/BABU MATHEW P. JOSEPH JUDGE

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kns/-

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//TRUE COPY//

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P.A. TO JUDGE

Manoj Kumar v. R.Nirmala & Others

Case brief

What is this about?

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Manoj Kumar v. R.Nirmala & Others

Case brief

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