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2024 DIGILAW 172 (KER)

Beevi Umma W/o Muhammed Haji v. State of Kerala

2024-02-12

VIJU ABRAHAM

body2024
JUDGMENT : VIJU ABRAHAM, J. 1. The above writ petition is filed seeking the issuance of a writ of mandamus directing the 2nd respondent to register the gift deed executed by the 1st petitioner dated 25.05.2023 within a time limit to be prescribed by this Court. 2. As per the averment in the writ petition, the 1st petitioner is the owner of 11 Ares 73 sq. metres of land in survey no. 15/1-1, 2 Ares 42.1 sq. metres of land in survey no. 15/2-2 and 9 Ares 31.1 sq. metres of land in survey no. 15/3-2 of Valavannur Village in Tirur Taluk, Malappuram District, obtained as per document no. 373/1967 of SRO, Kalpakancheri. The 1st petitioner is in possession of the property and is remitting tax from 1967 onwards. While so, the additional 3rd respondent filed a suit as O.S. No. 96 of 2022 before the Sub Court, Tirur seeking specific performance of a contract and Ext.P2 conditional attachment order was ordered on 18.10.2022. It is the contention of the petitioners that the agreement, the 3rd respondent is relying on, is a fabricated document by forging the signature of the 1st petitioner and thereupon the 1st petitioner has filed a complaint before the police and Ext.P3 FIR in Crime No. 88 of 2023 was registered against him. It is further contended that the 1st petitioner is issueless, and her husband died and the 2nd petitioner is the sister of the 1st petitioner. 1st petitioner wanted to register Ext.P4 gift deed in favour of the 2nd petitioner and the 1st petitioner approached the 2nd respondent for registering Ext.P4 gift deed in favour of the 2nd petitioner. The registering authority declined to register the gift deed stating that there is an order of attachment by a civil court over the property. The contention of the petitioners is that the 2nd respondent ought not to have declined registration of Ext.P4 gift deed merely for the reason that there is an order of attachment passed by a civil court and that the same cannot be a ground to refuse registration of the document. It is in the said circumstance that the petitioners have approached this Court by filing the above writ petition. 3. It is in the said circumstance that the petitioners have approached this Court by filing the above writ petition. 3. The additional 3rd respondent has filed a counter affidavit wherein it is contended that the 1st petitioner has agreed to sell the disputed property to him by fixing an amount of Rs. 1,15,000/- per cent and an agreement for sale was also entered between the parties on 05.01.2022 and an advance consideration of Rs. 15,00,000/- was paid by him. Thereafter on 15.03.2022, Rs. 3,00,000/- was also paid towards the balance consideration. When there was laches on the part of the 1st petitioner in executing the agreement, O.S. No. 96 of 2022 was filed before the Sub Court, Tirur and the court as per order dated 18.10.2022 ordered conditional attachment of the property under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred as “CPC”). It is subsequent to that on 25.05.2023, the 1st petitioner has executed a gift deed in favour of the 2nd petitioner and the 3rd respondent would contend the said attempt is only to delay and defeat his rights and to obstruct execution of any decree that may be passed in O.S. No. 96 of 2022. The 3rd respondent relies on Section 64 of the CPC which prohibits private alienation of property after an attachment order has been issued by a competent civil court. It is further contended that the 1st petitioner cannot subsequently assign the property to another party when an order of attachment of a competent civil court is pending and subsequent transfer of property even if carried out subject to the attachment and the outcome of O.S. No. 96 of 2022 pending before the Sub Court, Tirur, this being a suit for specific performance of a contract, if the same is decreed in favour of the 3rd respondent, registration of the property in the name of a third person would cause much difficulties in the future. It is also submitted that when once an order of a competent court comes to the notice of the registering authority where restriction has been imposed on the registration of a document concerning the plaint schedule property, the registering authority cannot entertain any deed of conveyance or any other transaction on such property. 4. I have heard the learned counsel for the petitioners and the 3rd respondent and also the learned Government Pleader. 5. 4. I have heard the learned counsel for the petitioners and the 3rd respondent and also the learned Government Pleader. 5. The question to be considered is as to whether the petitioners could approach this Court under Article 226 of the Constitution of India seeking a writ of mandamus directing the 2nd respondent to register Ext.P4 gift deed executed by the 1st petitioner when Ext.P2 order of attachment issued by a competent civil court is in force. 6. Section 64 CPC mandates that private alienation of property after attachment is void. Section 64 CPC reads as follows: “64. Private alienation of property after attachment to be void: (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. (2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. Explanation: For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.” 7. It is also profitable to refer to Section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as “TP Act”) which deals with the transfer of property pending suit. Section 52 of the TP Act reads as follows: “52. Transfer of property pending suit relating thereto - During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.” (Underline supplied) 8. Section 64 CPC mandates that when an attachment is made, any private transfer or delivery of the property attached shall be void as against all claims enforceable under the attachment and Section 52 of the TP Act also prohibits any transfer of property while proceedings are pending before any court except under the authority of the court and on such terms as it may impose. The “court” referred to in Section 52 of the TP Act is the civil court where the suit is pending consideration. 9. In view of the above facts and circumstances of the case, I am of the opinion that no writ could be issued by this Court invoking the powers under Article 226 of the Constitution of India directing the 2nd respondent to register Ext.P4 gift deed when Ext.P2 order of attachment dated 18.10.2022 passed by the Sub Court, Tirur in O.S. No. 96 of 2022 is in force and if the 1st petitioner wants to transfer the property pending the suit, the same can only be on the strength of an order passed by the competent civil court where the said suit is pending consideration. 10. In view of the above, I am of the opinion that no relief can be granted to the petitioners and the writ petition is accordingly dismissed.