Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 47 (KER)

George v. Reeta

2019-01-15

C.K.ABDUL REHIM, T.V.ANILKUMAR

body2019
JUDGMENT : T.V. Anilkumar, J. 1. The respondent (husband) in O.P. 752/2014 before the Family Court, Chavara is challenging two separate orders passed on 21.10.2017 by that Court against him, allowing I.A. 1748/2015, and I.A. 404/2015 filed by his wife and daughter, who are the petitioners in the O.P. 2. Wife and daughter filed the case claiming recovery of gold and arrears of past maintenance from the husband-cum-father and obtained in I.A. 1572/2014 an order of conditional attachment of 4.05 ares of property, comprised in re-survey number 420/8. The petitioner herein, who is the husband and the respondent before the Court below entered appearance and filed I.A. 1748/2015 seeking to lift the attachment over 4.05 ares of land, after accepting another adjacent land measuring 10.73 ares comprised in re-survey No. 420/8 offered by him and held in the joint names of himself and the wife in which he claims to have undivided half right. This property, according to him, was purchased as per sale deed 2363/1978 on 19.12.1978 with the common funds of the parties. The respondents herein filed serious objections to the request for lifting of the attachment, on the ground that the half right of him in property which is offered as security, in fact exclusively belonged to first respondent as it was purchased with the patrimony given by her parents. The petitioner's name in the sale deed was incorporated only as a name lender, as per the custom being followed in their community. According to the respondent, notwithstanding the sale deed being in the joint name of the spouses, the petitioner does not have any disposing power over the said property and therefore it is not worth offering as security in lieu of the attached land. 3. According to the petitioner his undivided half share fetches a minimum market value of Rs. 25 lakh and is sufficient to satisfy the decree if passed in favour of the respondents. The claim of the respondents in the O.P. is for an amount of Rs. 8,16,000 and interest due thereon. There is no much dispute between parties that, if the half right of petitioner offered is lawfully accepted as security, it would be sufficient to satisfy the claim of the respondents in the O.P. 4. The claim of the respondents in the O.P. is for an amount of Rs. 8,16,000 and interest due thereon. There is no much dispute between parties that, if the half right of petitioner offered is lawfully accepted as security, it would be sufficient to satisfy the claim of the respondents in the O.P. 4. The lower Court considered the question as to whether the land and building proposed to be offered as security could be preferred in the place of the property conditionally attached by the Court. On appreciation of the materials available, it came to a conclusion that it may not be safe to accept the property proposed to be offered as security and to release the existing attachment in respect of the property already attached by the Court. The order passed by the Court below in this regard is under challenge in O.P. (FC) No. 666/2017. 5. In this regard, the lower Court took note of an amendment granted by it on the motion of the respondents for incorporating an additional relief seeking to declare her exclusive title over the land and building acquired as per the sale deed dated 19.12.1978 and also for a permanent injunction. The said property was sought to be incorporated as 'C' schedule in the O.P. The petitioner seriously opposed the amendment, which was moved pending disposal of I.A. No. 1748/15, mainly on the ground that the amendment if allowed would result in changing the character and nature of the O.P itself. The lower Court did not accept the said objection raised to the amendment application and was of the view that the amendment was necessary for the purpose of deciding the real dispute involved between the parties in the proceeding and it would not result in any change of nature and character of proceeding. The order allowing the amendment application (I.A. No. 404/2015) is also challenged in the connected O.P. 670/2017. 6. According to the Court below, since the property sought to be offered as security itself has become subject matter of the dispute in the O.P following the amendment granted, it is no longer safe to accept the undivided half right claimed by the petitioner in the property as security in substitution of the property already attached. 7. It is in this background that both the orders on I.A. Nos. 7. It is in this background that both the orders on I.A. Nos. 1748/2015 and 404/15 passed on the same day by the lower Court are put under challenge in O.P. 666/2017 and O.P. 670/2017 respectively by invoking the jurisdiction vested on this Court under Article 227 of the Constitution of India. 8. As regards the order allowing the amendment, we do not find any reason to interfere with, since we are satisfied that the proposed amendment will not in any way change the nature and character of the O.P. There are grounds to think that amendment was necessitated as a result of a bona fide omission. In paragraph 3 of the O.P., there is a positive assertion that the amount for purchase of petition 'C schedule property was availed from the patrimony entrusted by the parents of the petitioner and, despite the acquisition of property in the joint name of the spouses also, title over the property is exclusively vested in her. Whether this assertion is true or not, is a matter which requires to be determined in the trial, on the basis of evidence as well as surrounding circumstances emerging in the case. If finally it so turns out that the source of consideration was the patrimony and consequently the petitioner is found to be the sole title holder of the property, then the order vacating the attachment would work out in prejudice to the respondents. Converse may also happen if the respondents fail to prove that patrimony amount was the source of consideration for purchase of the property. It is not possible to anticipate as to what the final view would be, at this stage of the proceedings. Further, such an anticipation is not advisable also. So long as we consider the order allowing amendment was proper and was not vitiated by any illegality, it has to be held that any view proposing to accept petition 'C' schedule, as security in lieu of land conditionally attached would only be unsafe. The very purpose of Order XXXVIII Rule 5 of the CPC is to secure the claim of the petitioning party in the litigation and to save the prospective decree from being defeated. The very purpose of Order XXXVIII Rule 5 of the CPC is to secure the claim of the petitioning party in the litigation and to save the prospective decree from being defeated. In the nature of the case on hand and also in the circumstances on record, the balanced view appears to be in favour of allowing the order of conditional attachment to survive in respect of 4.05 ares of land in re-survey No. 420/8. Considering the comparative hardship of the parties, we feel it better to take the view that the attachment shall be allowed to continue in respect of 4.05 ares in survey No. 420/8. In the circumstances we do not find any reason to interfere with the impugned orders on I.A. Nos. 404/2015 and 1748/2015, dated 21.10.2017 and accordingly they are confirmed. 9. At the end of the arguments, learned Counsel for the petitioner submitted that, a direction may be issued to the Court below to expedite the trial of the O.P. and to dispose of the case at the earliest point of time. Having heard both sides, we deem it desirable that in the facts and circumstances that have emerged in the case, it is only desirable if such a direction as canvassed by the learned Counsel for the petitioner is issued to the lower Court for speedy disposal of the O.P. We do so, and hope that the Trial Court would dispose of the O.P. within a time frame of six months from the date of production of a copy of this judgment before that Court. O.P. (FCs) are dismissed as above.