IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 30717 of 2003(F)
1. P.S. AMBIKA, D/O. SARASAMMA,
... Petitioner
2. ASWATHY, D/O. SURENDRAN,
3. AKHIL, S/O. SURENDRAN,
Vs
1. SURENDRAN ALIAS SURESH,
... Respondent
2. SUSEELA,
3. STATE OF KERALA,
For Petitioner :SRI.BASANT BALAJI
For Respondent :SRI.M.R.RAJESH
The Hon'ble MR. Justice K.A.ABDUL GAFOOR
Dated :24/01/2007
O R D E R
K.A.ABDUL GAFOOR, J.
---------------------------------------
W.P.(C).No.30717 of 2003 F
---------------------------------------
Dated this the 24th day of January, 2007.
JUDGMENT
Ab
dul Gafoor, J.
In a suit between an estranged wife and children on
the one part and the husband on the other, the petitioners
instituted a suit for maintenance as well as seeking an
injunction and declaration that a document executed by the
husband/1st respondent in favour of his sister/2nd respondent
was void.
2. According to the first petitioner, the said
property was purchased by her husband/1st respondent,
utilising the sale consideration in respect of her property
which was sold to a stranger and also the money obtained on
selling off her gold ornaments. After the relationship has
been strained, her husband ejected her out and thereafter
created a document transferring the title to the property in
W.P.(C).No.30717 of 2003 F
:: 2 ::
favour of his sister/2nd respondent. Immediately thereafter,
the suit was filed.
3. In the suit, the petitioners sought for
restraining the 2nd respondent from further alienating the
property. Though an ad interim injunction was granted, on
appearance of the contesting respondents and after hearing
them, the interim injunction was vacated. Ext.P3 is the
order passed by the Family Court vacating the ad interim
order of injunction. It is challenged in this writ petition.
4. The self-same contentions urged before the
Family Court are again reiterated before me. It is further
submitted that the 2nd respondent is only a name lender to
defeat the rights of the petitioners. In case, the 2nd
respondent further alienates the property, the petitioners
have to follow them and implead them to get an effective
relief. Therefore, it was necessary, in the interest of justice,
W.P.(C).No.30717 of 2003 F
:: 3 ::
to grant an order of injunction and the Family Court went
wrong in vacating the interim injunction.
5. It is submitted on behalf of the 2nd respondent
that the 1st respondent had incurred liability concerning
the property by mortgaging it in a bank to obtain loan for
construction of the house now put up therein. The loan
could not be repaid. This resulted in threat of recovery
proceedings. It was at that stage, as nobody else was there
to purchase the encumbered property, the 2nd respondent
came to save her brother and purchased the property. In
such circumstances, she being a bona fide purchaser, cannot
be injuncted from dealing with the property, in the manner
in which she desires.
6. Certainly, the petitioners are the wife and
children of the first respondent. But, so far as the 2nd
respondent is concerned, she is a bona fide purchaser. She
W.P.(C).No.30717 of 2003 F
:: 4 ::
had not been put to notice as to the claim, if any, of the
petitioners over the said property. Whether the 2nd
respondent did have knowledge that the petitioners had a
claim over the property is not a matter of enquiry while
granting interim injunction. Merely because the petitioners
are the wife and children of the first respondent, who is
attempting to defeat their interest, an interim injunction
cannot be granted in respect of the said property. The
remedy is to seek maintenance. It is submitted that
actually an order in that regard has been passed. If the
maintenance ordered is not sufficient to meet both the
ends, they are free to seek for revision of the maintenance
before the Family Court. On any count, Ext.P3 order
passed by the Family Court cannot be said to be so unjust
and unconscionable to invite interference in the writ
petition. Writ petition fails, dismissed.
W.P.(C).No.30717 of 2003 F
:: 5 ::
But taking into account the pendency of the case
before the Family Court and considering the nature of the
case set up by the petitioners/plaintiffs, the wife and
children, it is only appropriate that the suit be tried and
disposed of at the earliest, at any rate, within three months
from the date of receipt of a copy of this judgment.
Sd/-
(K.A.ABDUL GAFOOR)
JUDGE
sk/
//true copy//
K.A.ABDUL GAFOOR , J.
———————————————-
W.P.(C).No.30717 of 2003 F
JUDGMENT
24th January, 2007.
————————————————