Allowed

B.Pushpa v. Thamarath Brijesh

Kerala HC8 Oct 2021Ex.FA/28/2019

Case brief

AI extract

What is this about?

This execution first appeal set aside the lower court order allowing a claim petition. The High Court held that a sale deed executed by a judgment debtor in favor of his brother during pendency of suit, violating injunction, was a fraudulent transfer under Section 53 of the Transfer of Property Act.

What did the court decide?

Order of trial court set aside; sale deed struck down as fraudulent; claim petition dismissed.

B.Pushpa Vs Thamarath Brijesh — Execution and Attachment | Kerala HC (2021)

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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 P.SOMARAJAN

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FRIDAY, THE 8^th DAY OF OCTOBER 2021 / 16TH ASWINA, 1943

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EX.FA NO. 28 OF 2019 (B)

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AGAINST THE ORDER DATED 3.12.2018 IN E.A.No.58/2017 IN E.P.No.91/2016 IN OS No. 145/2007 OF I ADDITIONAL SUB COURT, KOZHIKODE

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APPELLANT/DECREE HOLDER:

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B.PUSHPA, AGED 60 YEARS, D/o FREDDY, POKKERTHODI PARAMBU, KATCHERI AMSOM, KURUMBRAKKATTASSERY DESOM, KOZHIKODE TALUK.

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BY ADVS. C.K.VIDYASAGAR SRI.T.I.ABDUL SALAM SMT.K.R.MONISHA

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RESPONDENTS/CLAIM PETITIONER AND JUDGMENT DEBTORS:

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1 THAMARATH BRIJESH, AGED 42, S/o THAMARATH VASUDEVAN, MALAPARAMBU P.O, CHEVAYUR AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673 009

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2 T.J. JAME LAL, AGED 44, S/o JOYI PRAKASH, KUMMATTIKULAM VAYAL, KATCHERI AMSOM, KURUMBRAKKATTASSERY DESOM, KOZHIKODE TALUK, PIN-673 502.

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3 T. BRIJULA, AGED 40, S/o THAMARATH VASUDEVAN, KUMMATTIKULAM VAYAL, KATCHERI AMSOM, KURUMBRAKKATTASSERY DESOM, KOZHIKODE TALUK, PIN-673 502

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THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 08.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Ex.FA No.28 of 2019

JUDGMENT

During the course of execution of a decree for money

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the property was attached, against which the claimant came up with an application under Order XXI Rule 58 CPC, who is

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none else, the brother of judgment debtor, who obtained the property during the pendency of the suit for recovery of money, in violation of the order of injunction granted. It is the case of the decree holder that the said sale deed was executed fraudulently and in collusion with the brother so as to defeat the creditor, the plaintiff/decree holder and hence the matter would come under Section 53 of the Transfer of Property Act. But, the court below proceeded with the matter, without considering the question of fraudulent transfer alleged and found that the property was transferred in the year 2010, prior to the attachment effected in the year 2012. The question whether it amounts to a fraudulent transfer so as to defeat the right of decree holder was not considered. The only oral evidence tendered is the oral evidence of decree holder as RW1 wherein she has asserted that the abovesaid document was

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Ex.FA No.28 of 2019 3

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executed in order to defeat the claim of decree holder in collusion with the brother of judgment debtor. None of the judgment debtors or the brother who obtained the property under Ext.A1 sale deed of the year 2010 mounted on the box to give any direct evidence. The only evidence available is the documentation exhibited as A1 of the year 2010 and the oral evidence tendered by RW1, Pushpa. The relationship between the parties to Ext.A1 sale deed who are brothers and the fact that it was executed during the pendency of the suit, that too during the pendency of an interim injunction, would clearly reveal what is behind it. In the said circumstance, there is no reason for rejecting the oral evidence tendered by RW1. The relevant portion of the judgment of the execution court is extracted below for reference:

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“The petitioner herein has purchased the property in the year 2010. Ext. A1 original document is produced. The attachment in EP 200/12 was after the sale deed. The respondent/D4 is objecting stating that the document is having no consideration and it was made only to defeat the decree holder. The

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Ex.FA No.28 of 2019 4

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decree holder was examined as RW1. She says that the claim petitioner is the brother of R3. There was another document by which part of the property was transferred to another relative of R3. There is no oral evidence adduced on the side of the petitioner to prove his bonafide. Even then Ext.A1 is a registered sale deed. There was no attachment on the property at the time when the sale deed was executed. The consideration of the document is as per the fair value. Ext.A2 is the basic tax receipt in the name of petitioner. This property was not made a charge in the suit. Since the attachment was on a later date in the year 2012, it cannot be stated that R2 and R3 have colluded with the petitioner who was the owner of the property. Hence, the claim of the petitioner is proved. He has got valid right over the property vide document number 2546/2010. Hence, petition allowed.”

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From this it is so clear that the learned Sub Judge did not understand the case advanced by the decree holder and the nature of document executed. Mere recital of the document cannot be substituted in the place of evidence, especially in a matter when allegation was levelled under Section 53 of the Transfer of Property Act and it was not

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Ex.FA No.28 of 2019

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properly addressed by the execution court. On the other hand, the fact that it was executed in the year 2010 during the pendency of the suit and that too in violation of the order of injunction and the relationship between the parties would sufficiently show that the document was created in collusion so as to defraud the decree holder herein. Hence, the sale deed, Ext.A1, would stand hit by Section 53 of the Transfer of Property Act in so far as the decretal amount is concerned and the claim petition will stand dismissed. The order of the trail court hence set aside by allowing this appeal.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

B.Pushpa v. Thamarath Brijesh

Case brief

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B.Pushpa v. Thamarath Brijesh

Case brief

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