Allowed

Shalini, v. Surendran

Kerala HC14 Sept 2021OP (FC)/495/2020

Case brief

AI extract

What is this about?

High Court intervened to restrain respondents from forcibly evicting the petitioner. Relying on the petitioner's valid protection order under the Protection of Women from Domestic Violence Act, 2005, the Court held the son of the husband could not exclude the wife, setting aside the Family Court's reasoning on title.

What did the court decide?

Respondents restrained from forcefully evicting petitioner until further order; Family Court's observation on title deemed unnecessary.

Shalini, Vs Surendran — Pension and Retirement Benefits | 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 A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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TUESDAY, THE 14^TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943 OP (FC) NO. 495 OF 2020

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AGAINST THE ORDER DATED 20.11.2020 IN IA 2/2020 IN OP 223/2020 OF FAMILY COURT, TIRUR

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PETITIONER/PETITIONER/PETITIONER:

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SHALINI, AGED 44 YEARS, W/O.SURENDRAN, MELAYIL HOUSE, ARIYALLUR POST, ARIYALLUR AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN 676 312

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BY ADV K.RAKESH

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RESPONDENTS/RESPONDENTS/RESPONDENTS:

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1 SURENDRAN, AGED 57 YEARS, S/O.VELUKUTTY, MELAYIL HOUSE, ARIYALLUR POST, ARIYALLUR AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN 676 312

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2 RANJITH, S/O.VALAPPIL PURUSHOTHAMAN, AGED 32 YEARS, NEDUVA, CHETTIPPADI POST, MALAPPURAM DISTRICT, PIN 676 319

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BY ADVS.SRI.K.P.SUDHEER, SRI.C.M.MOHAMMED IQUABAL SRI.J.RAMKUMAR

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(FC).No.495/2020

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J U D G M E N T

Dated this the 14th day of September, 2021

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A.Muhamed Mustaque,J.

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The petitioner in this original petition is the petitioner in O.P.No.223/2020 on the files of the Family Court, Tirur. That Original

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Petition was filed seeking a relief to declare that document No. 2309/1/19

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of SRO Parappangadi, is a sham document on the premise that the transfer

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is fraudulent and was intended to defeat the right of the petitioner, who is

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the wife of the 1st respondent. The petitioner also seeks an injunction against the forcible eviction. The interim application filed for injunction

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has been dismissed and challenging the same, the petitioner has

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approached this Court.

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O.P.(FC).No.495/2020

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The petitioner and the 1st respondent are husband and wife.

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The subject matter of the property is consisted of the residential building.

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The petitioner claims that she is residing in that house. The 1 st respondent executed the document in favour of the 2nd respondent as referred above.

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This was sought to be declared as fraudulent transfer and a sham document.

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The Family Court declined to grant interim relief stating that

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the petitioner's remedy is to move the Court under the Protection of

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Women from Domestic Violence Act, 2005 (for short 'the Act') and to protect the right to remain in the house can only be sought before appropriate forum under the Act. The Family Court also found that

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injunction cannot be granted against the true owner of the property.

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This Court at the admission stage has passed the following

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order on 22.12.2020:-

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O.P.(FC).No.495/2020

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“Admit. Issue notice to the respondents by

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speed post.

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If the petitioner is in possession, she shall

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not be forcibly evicted from the scheduled premises until further orders in the Original Petition. There shall also be a direction to respondents 1 and 2 not to further alienate or encumber the property, scheduled in Ext.P1

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Original Petition. The schedule as seen in the Original Petition shall be affixed to the interim order.”

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Thereafter another interim order was passed on 05.8.2021.

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It is submitted at the Bar that the petitioner has obtained

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a residential order under the Act and that order is in force. The learned

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counsel for the petitioner submits that protection order is obtained only

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against the 1st respondent-husband and in that proceedings, the 2nd respondent is not a party and therefore the 2nd respondent has to be

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O.P.(FC).No.495/2020

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restrained from forcefully evicting the petitioner from the residential

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building.

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The Family Court in Paragraph 11 of the order observed that

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the 2nd respondent is the lawful owner of the property and therefore he

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cannot be injuncted. This observation, according to us, is unnecessary and unwarranted in the fact and circumstances of the case, When a declaration is sought to declare the title deed of the 2 nd respondent as sham and obtained by fraudulent transfer, such observation is unwarranted. The

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Court under the Act has already granted protection order. So long as that order is in force, that cannot be defeated in any manner.

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In the light of the fact that there is an order in favour of the

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petitioner under the Act, we are of the view that on the strength of that order petitioner can remain in the house and cannot be thrown out from

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the residential building. We, therefore, restrain the respondents from

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O.P.(FC).No.495/2020

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forcefully evicting the petitioner until further order.

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However, if the Court under the Act passed any order in favour of

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the 1st respondent, the respondents are free to move the Family Court

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modify or vary the present order. We make it clear that the relief as above

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granted will not preclude the 2nd respondent from moving any competent

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court as against the petitioner for any relief related to possession or

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occupation of the 1st respondent in the residential building in accordance

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with law.

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The original petition is disposed of.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

JUDGE

kp True copy

P.A. To Judge

O.P.(FC).No.495/2020

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APPENDIX OF OP (FC) 495/2020

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE ORIGINAL PETITION FILED BY THE PETITIONER AS O.P.NO.223/2020 OF THE FAMILY COURT, TIRUR DATED 20.3.2020
EXHIBIT P2	TRUE COPY OF THE PETITION FILED BY THE PETITIONER AS I.A.NO.2/2020 IN O.P.NO.223/2020 OF THE FAMILY COURT, TIRUR DATED 20.3.2020
EXHIBIT P3	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN I.A.NO.2/2020 IN O.P.NO.223/2020 OF THE FAMILY COURT, TIRUR DATED 4.9.2020
EXHIBIT P4	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN I.A.NO.2/2020 IN O.P.NO.223/2020 OF THE FAMILY COURT, TIRUR DATED 13.8.2020
EXHIBIT P5	TRUE COPY OF THE ORDER DATED, 22.11.2019 IN C.M.P.NO.12016/2019 IN M.C.NO.88/2019 OF JFCM-I, PARAPPANANGADI
EXHIBIT P6	TRUE COPY OF THE ORDER DATED 20.11.2020 IN I.A.NO.2/2020 IN O.P.NO.223/2020 OF THE FAMILY COURT, TIRUR DATED 20.3.2020

Shalini, v. Surendran

Case brief

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What did the court decide?

Shalini, v. Surendran

Case brief

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