Kerala High Court
Hadiya (Minor) vs Shameera.M.M on 14 March, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
MA (EXE.) No.5 of 2024 1 2025:KER:22372
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946
MA (EXE.) NO. 5 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 06.01.2024 IN OP NO.896
OF 2018 OF FAMILY COURT, THALASSERY
APPELLANTS/PETITIONERS:
1 HADIYA (MINOR)
AGED 12 YEARS
D/O AZEEZ, RESIDING AT KUMULLY PARAMBATH, P.O
CHOROD, VADAKARA, KOZHIKODE DISTRICT MINORS
REPRESENTED BY THEIR MOTHER AND GUARDIAN
NADEERA.K.P, W/O AZEEZ, AGED 44 YEARS, RESIDING AT
KUMULLY PARAMBATH, P.O CHOROD, VADAKARA, KOZHIKODE,
PIN - 673106
2 AMINA.K.P ( MINOR )
AGED 9 YEARS
D/O AZEEZ, MINOR, RESIDING AT KUMULLY PARAMBATH, P.O
CHOROD, VADAKARA, KOZHIKODE- MINORS REPRESENTED BY
THEIR MOTHER AND GUARDIAN NADEERA.K.P, W/O AZEEZ,
AGED 44 YEARS, RESIDING AT KUMULLY PARAMBATH, P.O
CHOROD, VADAKARA, KOZHIKODE DISTRICT, PIN - 673106
BY ADVS.
PRAJIT RATNAKARAN
ABDUL RAOOF PALLIPATH
MA (EXE.) No.5 of 2024 2 2025:KER:22372
RESPONDENTS/RESPONDENTS:
1 SHAMEERA.M.M
AGED 46 YEARS
D/O YOUSUF, AL-THAVAKKAL, MENAPRAM, P.O CHOKLI,
THALASSERY, KANNUR- DISTRICT, PIN - 670672
2 AZEEZ
AGED 48 YEARS
S/O KUNHAMMAD.P, PULIATHINKAL HOUSE, PADANNAKARA,
P.O KARIYAD, THALASSERY, KANNUR DISTRICT, PIN -
673316
BY ADVS.
Millu Dandapani
V.V.SURENDRAN
S.VISHNU(K/000557/2017)
THOMAS C.ABRAHAM(K/517/2022)
ARAVIND P.V.(K/1786/2020)
P.A.HARISH(K/000392/1991)
THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR HEARING ON
11.3.2025M THE COURT ON 14.03.2025 DELIVERED THE FOLLOWING:
MA (EXE.) No.5 of 2024 3 2025:KER:22372
DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
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MA (EXE.) No.5 of 2024
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Dated, this the 14th March, 2025
JUDGMENT
M.B.Snehalatha.J The challenge in this appeal is to the order of dismissal of E.A.No.52/2023 in E.P.No.18/2020 in O.P. No.896/2018 of Family Court, Thalassery. E.A.No.52/2023 was a petition filed by the appellants under Order XXI Rule 58 r/w Section 151 of the Code of Civil Procedure to release the petition schedule property from attachment and sale.
2. Appellants' case is that the property put in auction for the realisation of decree debt belongs to them; that they obtained the same by virtue of Ext.A1 sale deed bearing No.2035/2021 of SRO, Chokli and after the execution of Ext.A1, they are paying tax in respect of the said property. According to them, their father/ judgment debtor who is the 2 nd respondent herein, has no right over the said property and therefore, the petition schedule property is to be excluded from the attachment and sale in the execution proceedings.
MA (EXE.) No.5 of 2024 4 2025:KER:22372
3. 2nd respondent/judgment debtor did not file any counter to the claim petition.
4. 1st respondent/decree holder filed counter denying the title, interest and ownership of the appellants and also stating that she obtained a decree against the 2nd respondent/judgment debtor who is her former husband for realization of ₹10,38,687/- towards the marriage expenses of her daughter born to her in the wedlock with the judgment debtor/2nd respondent and since the judgment debtor failed to pay the decree debt, petition schedule property belonging to the judgment debtor/2nd respondent was put to sale. Her contention is that in order to evade the liability, 2nd respondent/judgment debtor executed a gift deed in respect of the petition schedule property in favour of his sister Fauziya. Subsequently, on 19.11.2021, said Fauziya had filed a claim petition as E.A. No.69/2021, which was dismissed by the Family Court on 2.9.2022. Meanwhile, Fauziya created a sham document in favour of the appellants, who are the children of judgment debtor born to him in his second marriage. Evenafter, creating Ext.A1 document, Fauziya filed Mat.A.No.10/2022, claiming ownership over the property. Appellants who are the children of the judgment debtor/2nd respondent in his second marriage have filed the claim MA (EXE.) No.5 of 2024 5 2025:KER:22372 petition with a view to delay and defeat the execution proceedings and to harass the decree holder. Ext.A1 document bearing No.2035/2021 is a sham document fraudulently executed in favour of appellants and therefore the petition is liable to be dismissed.
5. After conducting enquiry, the learned Family Court dismissed E.A.No.52/2023 with a finding that the documents created by the judgment debtor/R2 in collusion with his sister Fauziya in respect of the petition schedule property are sham documents in order to defeat the decree and therefore the appellants who are the minor children of Judgment debtor are not entitled to the reliefs sought therein.
6. Both sides were heard.
7. The point for consideration in this appeal is whether the impugned order needs any interference by this Court.
8. Admittedly, 2nd respondent-Azeez/judgment debtor is the former husband of the 1st respondent/decree holder. The 1st respondent/decree holder obtained the decree against the 2 nd respondent/judgment debtor for realisation of the marriage expenses of her daughter born to her in her wedlock with the 2 nd respondent/judgment debtor. It is also not in dispute that the appellants herein are the children of 2 nd respondent/judgment debtor MA (EXE.) No.5 of 2024 6 2025:KER:22372 born to him in his second marriage.
9. It is an admitted case that the marriage between the 1 st respondent/decree holder and 2nd respondent/judgment debtor was dissolved in the year 2005. 1st respondent/decree holder filed original petition for realisation of the marriage expenses of their daughter and she obtained a decree in her favour. Admittedly, prior to the institution of O.P.No.896/2018, 2nd respondent, who is the former husband of the decree holder , transferred his property to his sister Fauziya by way of a gift deed bearing document No.2125/2016 of SRO Chokli. Admittedly, it was a gratuitous transfer made by the 2nd respondent in favour of his sister Fauziya. In the year 2021, subsequent to the decree in O.P. No.896/2018 and during the pendency of E.P.No.18/2020, Fauziya transferred the property in the name of the appellants, who are the minor children of the judgment debtor by virtue of Ext.A1 document.
10. It is an admitted fact that Fauziya, the sister of judgment debtor had filed a claim petition as E.A.No.69/2021 before the Family Court, which was dismissed on 2.9.2022. During the pendency of the said claim petition, Fauziya executed Ext.A1 in favour of appellants who are the minor children of the judgment debtor. Even after the execution of Ext.A1 in favour of the appellants MA (EXE.) No.5 of 2024 7 2025:KER:22372 herein, Fauziya had preferred an appeal before this Court as Mat.A (Exe) No.10/2022 from the dismissal of her claim petition. The said appeal was dismissed by this Court.
11. It is to be borne in mind that the petition schedule property, which was attached and sought to be sold in auction for realisation of the decree debt, is now being claimed by the appellants, who are none other than the minor daughters of the judgment debtor. It is an admitted fact that the children of the judgment debtor in his second marriage allegedly obtained the property by virtue of Ext.A1 document executed by Fauziya who is the sister of the judgment debtor who obtained it by virtue of a gift deed executed by the judgment debtor. So, it is quite evident that the transfer of property made by the judgment debtor in favour of Fauziya and subsequent transfer made by her are collusive transfers with a view to defeat the claim of his first wife and the daughters of the judgment debtor as rightly contended by the learned counsel for the 1st respondent/decree holder.
12. The learned counsel for the decree holder submitted that under Section 39 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'TP Act') the decree holder is entitled to realise the decree debt by proceeding against the property of MA (EXE.) No.5 of 2024 8 2025:KER:22372 judgment debtor notwithstanding the fact that the property has been transferred gratuitously to the sister of the 2 nd respondent who in turn alienated the said property in favour of the appellants who are none other than the minor children of 2 nd respondent/judgment debtor.
13. Let us have a look at Section 39 of the TP Act, which reads as under:
"39. Transfer where third person is entitled to maintenance.--
Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands."
14. Section 39 of the TP Act contemplates three situations.
a) It says that where a transfer is made gratuitously, the third person who has a right to receive maintenance or a provision for advancement or marriage from the profits of immovable property can enforce the said right against the transferee whether the transfer was with notice or without notice of the said right.
b) Even if the transfer is not gratuitous, the right can be enforced against the transferee if the MA (EXE.) No.5 of 2024 9 2025:KER:22372 transferee, has notice regarding the right of the third person to receive maintenance or a provision for advancement or marriage from the profits of immovable property.
c) If the transfer is not gratuitous and if it is for consideration and if the transferee has no notice of the right of the third person to receive maintenance or a provision for advancement or marriage from the profits of the said immovable property, the said right may not be enforced against the said property in his hands.
15. Section 39 of the TP Act was amended in the year 1929. Prior to the amendment, the person who wanted to enforce the right against the transferee had to show that there was an intention to defeat the right of the person to receive such maintenance. But after the amendment in the year 1929 to Section 39 of the TP Act, it is no longer necessary to show that there was an intention to defeat the right of the person to receive such maintenance provision for advancement or marriage. Subsequent to the amendment of Section 39 of TP Act, if the transfer is a gratuitous transfer, it is not necessary for the decree holder to prove that the transfer was with the intention to defeat his/her right. If the transfer is gratuitous, MA (EXE.) No.5 of 2024 10 2025:KER:22372 there is nothing to prove beyond his/her right to receive maintenance or a provision for advancement or marriage.
16. The object of Section 39 of TP Act is to safeguard the rights of women and children. Where one who is entitled to such rights seeks to enforce such right over the property, any transfer made is subject to such right.
17. In answer to the case of the decree holder/1st respondent based on Section 39 of TP Act, the learned counsel for the appellants would contend that Section 39 of TP Act is applicable only in respect of Hindus and is not applicable to Muslims as they follow their personal law Shariat. Section 39 of the TP Act employs the words "Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property". It does not specify the religion or caste of the third person who has the right to receive maintenance, advancement or marriage. Section 39 of the TP Act does not say that the third party mentioned therein shall be of a particular religion. Therefore, the argument advanced by the learned counsel for the appellants that Section 39 of TP Act is applicable only for enforcing the right of Hindu wives and children and it is not applicable to Muslims is unsustainable in law. We cannot agree with the said argument MA (EXE.) No.5 of 2024 11 2025:KER:22372 advanced by the learned counsel for the appellants.
18. The argument projected by the counsel for the appellants that since the parties are Muslims, they are governed by their personal law and Section 39 of TP Act is not applicable to them is unsustainable in law.
19. The parliament, in its wisdom to protect the neglected and impoverished women and children, has enacted several legislations, both personal and uniform, applicable to all cross sections of the society, making it mandatory for a man to maintain his wife and children to alleviate destitution. Section 39 of the TP Act aims to alleviate destitution by ensuring that party entitled to maintenance such as wives, children are not deprived of their right due to property transfer.
20. In Sathiyamma v. Gayathri and others (2013 (4) KLJ
233) this Court held as follows:
"Where a person has a right to receive maintenance from the profits of immovable property and when such property is transferred, the right can be enforced against the transferee, if he has notice thereof. The expression notice used under Section 39 of Transfer of Property Act has to be read along with the definition clause as contained in Section 3 of the Transfer of Property Act. It can only lead to the conclusion that where a person is fully aware of the existing rights of the parties and more so, when such transferee is a member of a family, it cannot be said that he is not aware of the rights of the other members or persons forming part."
21. In Ismail v. Fathima and another (2011 (3) KHC 825), MA (EXE.) No.5 of 2024 12 2025:KER:22372 this Court held that a Muslim father has an obligation to pay the marriage expenses of his daughter. It was held that irrespective of religion, every father has an obligation to pay the expenses in relation to the marriage of his daughter. The relevant paragraph of the said judgment is extracted hereinbelow:-
"28. We are of the opinion that the above stipulations in the Personal Law, though they do not afford direct assistance to us on this controversy, can also be relied on to reach the conclusion that the Muslim father has the indisputable obligation to maintain his unmarried daughter. We find it safe to proceed to further hold that he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly. He hence has, we hold, the legal obligation to meet the reasonable marriage expenses of his daughter, as part of his obligation to pay maintenance to her."
22. In Dan Kuer v. Sarladevi (MANU/PR/0030/1946) Privy Council held that where a person has a right to receive maintenance from the profits of immovable property and if such property is transferred, the right can be enforced against the transferee if he has notice thereof.
23. In Akza Rajan v. Rajan M.S (2023(3) KHC 204) this Court held as follows:
"25. Under S.39 of the Transfer of Property Act, any person having a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, that claim can be enforced against the immovable property of the person obliged. The right of an unmarried daughter to get marriage MA (EXE.) No.5 of 2024 13 2025:KER:22372 expenses from his father is now a legal right. By taking an analogy from the Hindu Adoptions and Maintenance Act that right, irrespective of religion can be enforced against the profits from the immovable property of the father. When the petitioners are thus entitled to claim a charge on the immovable property of the respondent who is their father the relief of creation of a charge on the petition schedule property, which belongs to the respondent, is tenable....."
24. Merely for the reason that the judgment debtor/2 nd respondent made a gratuitous transfer of his property by executing a gift deed in favour of his own sister Fauziya, it cannot be said that the property cannot be proceeded against. The gratuitous transferee Fauziya, who is the sister of the judgment debtor who was fully aware of the existing rights of the divorced wife and children, cannot be heard to say that she was not aware of the rights of the divorced wife and children of the transferer. From the gratuitous transfer made by the judgment debtor/2nd respondent in favour of his sister Fauziya and subsequent execution of Ext.A1 document by Fauziya in favour of appellants who are the minor children of the judgment debtor/2nd respondent born to him in his second marriage it is evident that it was a fraudulent transfer to defeat the decree and to prevent the decree holder from enjoying the fruits of decree. The learned Family Court was right in its finding that Ext.A1 document, on the strength of which the appellants' claim title over the property, is a sham document. We find no reason to interfere with the MA (EXE.) No.5 of 2024 14 2025:KER:22372 impugned order.
Hence, this appeal fails and the same is hereby dismissed with cost to the 1st respondent/decree holder.
Sd/-
DEVAN RAMACHANDRAN JUDGE Sd/-
M.B.SNEHALATHA JUDGE ab