LATHIKA V.MENON Vs. BINDHU K.S.

JUDGEMENT

(1.) This original petition has been filed challenging the order dated 23.12.2015 in I.A.No.1819 of 2015 in I.A.No.3197 of 2014 in O.P.No.1618 of 2014, by which the petitioner's request for lifting the attachment of the property was rejected by the Family Court. The main contention urged by the petitioner was that she had acquired the property as per sale deed bearing No.3266/2014 dated 2.8.2014 of SRO, Edappally. She purchased the property from her brother for a total consideration of Rs.6,33,000/-, which she had raised after pledging fixed deposits of her husband and mother-in-law. According to her, after partition of the property, the same was mutated in her favour. Later, she had come to know that the property was under attachment as per order dated 26.8.2014 in I.A.No.3197 of 2014. Hence the application was filed seeking claim in respect of the property under Order XXI Rule 58 of the Code of Civil Procedure lifting the attachment.

(2.) O.P.No.1618 of 2014 has been filed by the 1st respondent herein seeking for recovery of gold ornaments and also for recovery of money. It is inter alia alleged that the petitioner purchased three cents of property with a building therein having terraced roof bearing door No.4900/48/1998A of Cochin Corporation. The property was purchased on 25.7.2008. The husband and wife were residing together in the said building until March, 2014. Subsequently, there arose certain disputes. According to the 1st respondent, the property was purchased in the name of the 2nd respondent, though the entire sale consideration was contributed by the 1st respondent. Initially they were on very good terms, but later, she was ousted from the house on 14.5.2014. All her efforts for an amicable settlement went futile and she filed a complaint before the Police on 30.7.2014. Immediately thereafter, the property was assigned in the name of the claimant, who is the sister of the 2nd respondent. It is alleged that she was unaware of the transfer of the property at the relevant time and sought for dismissal of the application. The Family Court, after having considered the matter, found that though there is some material to indicate that the petitioner was in possession of Rs.4,50,000/-, which she had taken as loan on 17.5.2014 and the evidence in the case discloses the fact that the property was assigned in the name of the petitioner in order to defraud the 1st respondent. It is further observed, based on the judgment in Satyamma v. Gayathri and others [2013(3) KHC 322], that alienating the property by a husband in favour of his sister will not give absolute title to the transferee, since the property was alienated to the member of same family. On this basis, the application was dismissed.

(3.) Learned counsel for the petitioner places reliance on the judgment of the Apex Court in Hamda Ammal v. Avadiappa Pathar [(1991)1 SCC 715] and also a judgment of this Court in Rajan alias Rajan Gopinathan v. Dr.D.Jayashree Nayar [2010 (1) KLT 142] in order to contend that when a property had been attached under Order XXXVIII Rule 5 of the Code of Civil Procedure, what is to be considered is whether the property is in the name of the defendant or not. In so far as the property was in the name of another person at the time when the attachment was ordered, the attachment has to be vacated.