Remanded

Shabna Basheer v. Asher Rasheed

Kerala HC26 Jul 2019OP (FC)/379/2017

Case brief

AI extract

What is this about?

Petitioner challenged an order limiting property attachment in a maintenance suit alleging gold ornaments. High Court noted long pendency and directed the Family Court to dispose of the original petition on merits within six months, remanding the attachment dispute for trial.

What did the court decide?

Directed Family Court to dispose original petition on merits within six months; existing interim order continues.

Shabna Basheer Vs Asher Rasheed — Maintenance and Alimony | Kerala HC (2019)

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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 K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941

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OP (FC).No.379 of 2017

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AGAINST THE ORDER IN I.A. NO. 1329 OF 2014 IN OP 709/2014 of FAMILY COURT, ERNAKULAM DATED 17-06-2017

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PETITIONER/ PETITIONER:

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SHABNA BASHEER,

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AGED 28 YEARS, D/O. MOHAMMED BASHEER, RESIDING AT AL SABAH CONVENT ROAD, II THOTTAKATTUKARA, ALUVA ERNAKULAM DISTRICT, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, P.K SHAREEF, AGED 61 YEARS, S/O. KUNJU MARAKKAR P.A, PALAPPURATH HOUSE, ELOOR, NORTH, ERNAKULAM DISTRICT.

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BY ADVS. SRI.T.K.PANKAJASHAN PILLAI SRI.SAJI PANKAJAKSHAN

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RESPONDENT/ RESPONDENT:

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1 ASHER RASHEED, AGED 28 YEARS, S/O. V.P RASHEED, RESIDING KAYYA MAHAL, N.H. BYE PASS, EDAPPALY (DIED)

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2 V.P RASHEED, AGED 65 YEARS, S/O. LATE PAREED KHAN, KAYYA MAHAL, N.H. BYE PASS, EDAPPALLY.

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3 BEENA, W/O. V.P RASHEED, KAYYA MAHAL, N.H BYE PASS, EDAPPALLY.

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O.P.(FC) No.379/2017

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: 2 :

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4 AZRIL RASHEED, S/O. V.P RASHEED, KAYYA MAHAL, N.H BYE PASS, EDAPPALLY.

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :

O.P.(FC) No.379/2017

: 3 :

JUDGMENT

K. Harilal,J.

This OP (FC) has been filed challenging the

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order dated 17.06.2017 in I.A. No. 1329 of 2014 in O.P.

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No. 709 of 2014 pending before the Family Court, Ernakulam. The petitioner herein is the wife of Asher

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Rasheed, the first respondent herein, who died during

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the pendency of the said OP. The aforesaid OP was

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filed by the petitioner herein against Asher Rasheed,

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his father, mother and younger brother, seeking a decree for recovering gold ornaments weighing 450

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sovereigns or Rs.1,25,50,000/- towards its market value and Rs.1,00,00,000/- as permanent alimony from the

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O.P.(FC) No.379/2017 : 4 :

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respondents therein. Along with the OP, she had preferred the aforesaid IA under Order XXXVIII Rule 1

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of CPC seeking an order of attachment against the landed property belongs to the respondents and the conditional attachment was ordered accordingly.

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Thereafter, the respondents, including the deceased husband of the petitioner, filed Ext.P3 objection to lift

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the conditional attachment contending that the amount

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claimed in the OP is a bogus figure only and in no

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way such an amount could be claimed from the

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respondents, even if the averments in the Original Petition are taken at its face value. As per the First Information Statement given by the petitioner in C.C.

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O.P.(FC) No.379/2017

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: 5 :

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No. 643/2015, the total weight of her gold ornaments

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is 350 sovereigns only. Thus, the petitioner's claim

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that he has 450 sovereigns of gold ornaments is a wild dream only. So also, it is contended that the Income Tax Department conducted a surprise raid in

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the house of the respondents and they have seized

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gold ornaments weighing 1655.46 grams from the locker on the ground that no wealth tax or gift tax, had been paid. Excluding the above said quantity of

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gold, 635.93 grams of gold ornaments which were found in the bank locker were released and that gold

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ornaments are in the possession of the elder son of the second respondent. He is ready and willing to

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O.P.(FC) No.379/2017 : 6 :

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hand over the said gold ornaments, after adjusting the

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gold ornaments given by the respondents to the

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petitioner. It is also contended that to the knowledge of the respondents, the petitioner has not brought 350 sovereigns of gold ornaments during her marriage or after marriage. Moreover, they contend that the first respondent had entrusted 180 sovereigns of gold ornament with the petitioner and he is entitled to get back that ornaments from the petitioner. So after adjusting 180 sovereigns the petitioner is entitled to get 106.5 sovereigns only. After considering the objection raised by the petitioner herein, the Family Court passed Ext.P7 order vacating the conditional

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O.P.(FC) No.379/2017

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: 7 :

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attachment in respect of A, B, and C schedule properties, and limiting the attachment to 37 cents of

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property only. The legality and correctness of Ext.P7

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order are challenged in this OP (FC).

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Heard the learned counsel for the

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petitioner.

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We have meticulously gone through the

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earlier proceedings and the orders passed by this

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Court. Going by the proceedings, we find that this is

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the 4^th round of litigation, on Exts.P2 application seeking attachment before judgment. The original

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petition was filed in the year 2014 and the same has been dragged on, for more than 5 years on the order

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O.P.(FC) No.379/2017 : 8 :

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passed on the aforesaid interlocutory application, seeking attachment, before judgment. This court

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remanded the matter back to the trial court thrice.

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Thus, Ext.P7 has come up before us after a long

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chequered history.

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In this OP (FC) also, the petitioner herein

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raised a contention that the Family Court has

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exceeded its jurisdiction by passing Ext.P7 order determining the merits of the OP. However,

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considering the long pendency of the original petition for the last more than five years, we are of the opinion that an early disposal of the original petition

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pending before the Family Court itself on merits is just

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O.P.(FC) No.379/2017 : 9 :

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and proper, rather than considering the legality and correctness of Ext.P7 order again. That apart, we find

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that the question in controversy involved in Ext.P7 order, in respect of the total quantity of gold ornament in the possession of the respondents can be resolved,

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on the basis of evidence only, after trial. Unless the parties are allowed to adduce evidence in support of their rival contentions, the rival claims, the total quantity of gold ornaments in the possession of the respondents cannot be determined.

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In the above view, we direct the Family

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Court, Ernakulam to dispose OP.No.709/2014, at the

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earliest, at any rate, within a period of six months from

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O.P.(FC) No.379/2017 : 10 :

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the date of receipt of copy of the judgment. Being an

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OP filed in the year 2014, priority shall be given to the

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original petition. We express no opinion on the merits of Ext.P7. The interim order dated 05.07.2017 passed by this Court will continue till the disposal of the

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aforesaid original petition.

Sd/K.HARILAL, JUDGE

Sd/ANNIE JOHN, JUDGE

rv/ RKM

O.P.(FC) No.379/2017

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE O.P NO. 709/2014 FILED BY THE PETITIONER. EXHIBIT P2 A TRUE COPY OF THE IA. NO.1329/2014 FOR ATTACHMENT OF THE IMMOVABLE PROPERTY SHOWN IN THE SCHEDULE. EXHIBIT P3 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN I.A NO. 1329/2014 IN THE LOWER COURT. EXHIBIT P4 A TRUE COPY OF THAT JUDGMENT IN O.P(FC) 495/2014 DATED 17.6.2014. EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN OP(FC) NO. 60/2015 DATED 25.2.2015. EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN O.P (FC) NO.60/2015 (R) DATED 12.4.2017. EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 17.6.2017 IN I.A NO.1329/2014 IN O.P NO.709/2014 OF THE FAMILY COURT ERNAKULAM.

Shabna Basheer v. Asher Rasheed

Case brief

What is this about?

What did the court decide?

Shabna Basheer v. Asher Rasheed

Case brief

What is this about?

What did the court decide?

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