Gouri Amma (Died) Vs Aleyamma Thomas

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2025:KER:25451

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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 M.A.ABDUL HAKHIM

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TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947

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RSA NO. 861 OF 2014

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AGAINST THE JUDGMENT DATED 27.11.2013 IN AS NO.370 OF 2009
OF III ADDITIONAL DISTRICT COURT, KOLLAM ARISING OUT OF THE
JUDGMENT DATED 18.09.2009 IN OS NO.80 OF 1996 OF SUB COURT,
KOTTARAKKARA

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APPELLANT/APPELLANT NO.2/PLAINTIFF NO.2:

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1 GOURI AMMA (DIED) X

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2 LEELA, D/O.GOURI AMMA,AGED 54 YEARS, LEELA BHAVAN,ELAMADU MURI, ELAMADU VILLAGE, KOLLAM DISTRICT.

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BY ADV KALEESWARAM RAJ

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 ALEYAMMA THOMAS, W/O.THOMAS,AGED 52 YEARS, RESIDING AT KALLARA,MALICKAL VEEDU, ANGADI MURI,RANNI VILLAGE,RANNI TALUK,KOLLAM DISTRICT,REPRESENTED BY POWER OF ATTORNEY HOLDER, RAJU,S/O.NARAYANAN,ANEESH BHAVAN,PLACHERRY MURI,VALAKODE VILLAGE-691 331.

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2BENNY K JOHNSON,
S/O JOHNSON,
AGED 49 YEARS,
RESIDING AT KADAPPARACHIL HOUSE,PLACHERY MURI,
VALACODE VILLAGE,REPRESENTED BY POWER OF ATTORNEY
HOLDER, JOHNSON ABRAHAM – 691 331

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3 GOPALAKRISHNAN NAIR(DIED)LRS IMPLEADED AGED 65 YEARS S/O PARAMU NAIR,RESIDING AT THADATHIL VIA HOUSE ALANCHERRY MURI,EROOR VILLAGE-691 306

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4 LEELA (REMOVED AND TRANSPOSED AS 2ND PLAINTIFF/ REMOVED AND TRANSPOSED AS 2ND PLAINTIFF/2ND APPELLANT HEREIN.

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5RAJEEV,
AGED 56 YEARS,
S/O.NANOO,RESIDING AT PANAYIL VEEDU,ALANCHERY,
ALAYAMON VILLAGE-691 306.

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6ADDL.ROHINI GOPAL,
D/O.GOPALAKRISHNAN NAIR,THIRVONAM, SHANTI
NAGAR,CHADAYAMANGALAM-691 534.

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7 ADDL.REVATHI GOPAL, D/O.GOPALAKRISHNAN NAIR,LEELA BHAVAN,ELAMADU MURI,ELAMADU VILLAGE,KOLLAM-691 533. (LEGAL HEIRS OF DECEASED THIRD RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 6 AND 7 AS PER ORDER DATED 28.02.2023 IN IA.2205/2017)

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BY ADVS.
ASWIN.P.JOHN
MERCIAMMA MATHEW - R1 & R2
THOMAS ABRAHAM
K.SASIKUMAR
S.ARAVIND - R5

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RSA NO. 861 OF 2014

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VARUN C.VIJAY - R6

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant is the second plaintiff in the suit. She was originally the 4^th defendant in the suit. The suit was filed by one Gouri Amma, who was the mother of the appellant. On her death, her daughter/ 4^th defendant was transposed as the second plaintiff. The suit was filed for declaration of title over plaint A and B schedule property and to recover the same from the defendants.

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The facts in substance are O.S. No. 126/1989 was filed by the defendants 1 and 2 in the present suit on 17.07.1989 against the 3^rd defendant in the present suit who is the husband of the second plaintiff. They obtained an attachment over the plaint schedule property. Thereafter, the 3^rd defendant in the present suit executed in Ext.A1 sale deed in favour of the original plaintiff, who was his mother-in-law. Later the suit was decreed and in

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execution of the decree, the 5^th defendant purchased the plaint schedule property. He purchased the property as per Ext.B2 Sales Certificate. He obtained delivery as per Ext.B1 Delivery Kaichit dated 05.07.1994. The present suit is filed on 28.03.1996, claiming that the earlier suit was a collusive suit by the defendants and there is fraud played on the plaintiff, the plaintiff is entitled to get declaration of her title over the plaint schedule property on the basis of Ext.A1 document.

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During the pendency of the suit, the original plaintiff died, and the 4^th defendant who was transposed as the second plaintiff prosecuted the suit.

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The Trial Court dismissed the suit finding that there was no fraud committed by the defendants by filing the earlier suit, obtaining the decree, executing the decree and obtaining delivery of the plaint schedule property. The Trial Court specifically entered a finding that fraud is played by the original plaintiff, the 3^rd defendant and the additional plaintiff/4th defendant.

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The 2^nd plaintiff filed appeal before the First Appellate Court and the same was dismissed confirming the judgment and decree of the Trial Court.

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The present appeal is filed challenging the judgment and decree passed by the Trial Court which is confirmed by the First Appellate Court.

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I heard the learned counsel for the appellant Adv.Sri.Kaleeswaram Raj and the learned counsel for the 5^th respondent Sri.K.Sasikumar and Sri.S.Aravind.

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The learned counsel for the appellant contended that there is irregularity in affecting the attachment. The Trial Court specifically found that there is irregularity in the attachment. In such a case, the sale conducted pursuant to the attachment is also invalid. On the strength of Ext. A1 document, the plaintiff got exclusive title over the plaint schedule property. The learned counsel further contended that the attachment will not create any charge over the plaint schedule property. In order to substantiate the said

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point learned counsel cited the decision of the Hon’ble Supreme Court in S.Noordeen v. V.S. Thiru Venkita Reddiar [1996 (3) SCC 289] that attachment before judgment does not create any new right, title, or interest, but it disables the judgment-debtor to create any encumbrances on the property. The learned counsel also cited the decision of this Court in Jayan Kuttichakku v. Common Man Chitties & Loans (P) Ltd [2006 SCC Online Ker 612] in which it is held that attachments, by themselves do not amount to creation of charges and are therefore not encumbrances. On the strength of these two decisions, the learned counsel submitted that as on the date of Ext. A1 sale deed there is no charge on the plaint schedule property and hence Ext.A1 sale deed is not to be accepted as legal and valid ignoring the attachment. The learned counsel specifically invited my attention to the specific contentions raised by the plaintiff which are extracted in Para No. 5 of the Trial Court judgment as to how the attachment is invalid.

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On the other hand, the learned counsel for the contesting respondent contended that the earlier suit was not a collusive affair, the present suit is a collusive affair. The learned counsel pointed out that the fraud is alleged by the original plaintiff against the defendants, which includes her daughter 4^th defendant. On the death of the original plaintiff it is the very same 4^th defendant, who was transposed as the additional plaintiff and conducted the suit. The evidence is clear that Ext.A1 document was executed subsequent to the attachment. The plaint schedule property is situated within the limits of Anchal Sub Registry Office. In order to avoid attachment, Ext.A1 document was executed at Sub Registry Office, Chadayamangalam. The 3^rd defendant, who was the sole defendant in the earlier suit was represented by his wife 4^th defendant herein and hence the plaintiff and the original 4^th defendant could not contend that they are not aware of the attachment etc. Even otherwise, the 3^rd defendant is the son-in-law of the original plaintiff, and from the

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facts, it is very clear that they want to defeat the claim of the defendants 1 and 2, who were the plaintiff in the original in O.S. No.126/1989 and hence executed Ext.A1.

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10.I have considered the rival contentions.

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Admittedly, Ext.A1 document was executed on 17.07.1989 subsequent to the attachment effected in O.S. No.126/1989. Even though the learned counsel for the appellant contended that there are several irregularities in the attachment, the learned counsel could not point out that, any evidence to substantiate those irregularities. The fact remains that the attachment is properly communicated with the S.R.O. In O.S. No. 126/1989, the third defendant herein, represented by his power of attorney holder 4^th defendant was the party. The suit was compromised. In execution of the decree, the 5^th defendant purchased the plaint schedule property as per Ext.B2 Sale Certificate and obtained Delivery as per Ext.B1 Delivery Kaichit. No obstruction was made by anybody in the delivery proceedings. Now the present

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suit is filed seeking declaration of the title with respect to the property which was obtained delivery as per Ext.B1. In such a case, the present suit is not maintainable in view of the bar under Order 21 Rule 101 Code of Civil Procedure (CPC). If the original plaintiff had any objection against the delivery, she should have made obstruction while effecting the delivery and should have prayed for adjudicating her claim. After effecting delivery, a fresh suit for challenging the delivery is not maintainable. That apart, as rightly pointed out by the learned counsel for the contesting respondent, the original plaintiff filed the suit alleging fraud against the defendants including the 4^th defendant. Thereafter, it is the very same 4^th defendant, the person who prosecuted the suit. The evidence would clearly indicate that the present suit is a fraudulent one, as rightly found by the Trial Court.

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The second plaintiff was a party to the earlier suit as the power of attorney of the 3^rd defendant who was the sole defendant in the earlier suit. It is she, who compromised the earlier suit. The

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facts would clearly disclose that the 3^rd defendant transferred the property to his mother in law, who is the mother of the second plaintiff after the attachment only to defeat the defendants 1 and 2 who were the plaintiffs the earlier suit. Any sale made by the defendant subsequent to attachment is subject to the attachment. When the property is sold pursuant to the attachment, sale made subsequent to the attachment has no legal validity.

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13.The legal prepositions laid down by the aforesaid decisions are

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correct, but the same is not applicable in the facts and circumstances of the present case as the claim is not a charge on the basis of attachment.

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14.Accordingly, I do not find any ground or reason to interfere; no substantial question of law arises in the matter. The Regular Second Appeal is dismissed.

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M.A.ABDUL HAKHIM JUDGE

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mus

Gouri Amma (Died) v. Aleyamma Thomas

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Gouri Amma (Died) v. Aleyamma Thomas

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