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THANDARATH ASHA, DAUGHTER OF PADMANABHAN versus PATTAREKKATTU PUTHIYAPURAYIL KORAN

High Court of Kerala

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THANDARATH ASHA, DAUGHTER OF PADMANABHAN v. PATTAREKKATTU PUTHIYAPURAYIL KORAN - FAO No. 229 of 2006 [2006] RD-KL 1949 (27 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO No. 229 of 2006()

1. THANDARATH ASHA, DAUGHTER OF PADMANABHAN
... Petitioner

Vs

1. PATTAREKKATTU PUTHIYAPURAYIL KORAN,
... Respondent

2. JINA, WIFE OF THE LATE SRI.UDAYABHANU,

3. SHAWN, SON OF THE LATE SRI.UDAYABHANU,

4. SHARRAD, SON OF THE LATE

For Petitioner :SRI.P.V.MADHAVAN NAMBIAR

For Respondent :SRI.M.SASINDRAN

The Hon'ble MR. Justice M.RAMACHANDRAN The Hon'ble MR. Justice A.K.BASHEER

Dated :27/11/2006

O R D E R

M.RAMACHANDRAN & A.K.BASHEER,JJ

F.A.O.NO.229 OF 2006

DATED THIS THE 27TH DAY OF NOVEMBER,2006



JUDGMENT

A.K.BASHEER,J

This appeal is directed against the order passed by the Subordinate Judge's Court, Thalasserry, on a petition filed under Order 38 Rule 8 of the Code of Civil Procedure, in a pending suit for realisation of money.

2. Appellant is a third party-claimant. It was contented by him that the order of attachment issued by the court was liable to be lifted, since item no.1 of the the attached properties had already been mortgaged in favour of Nedungadi Bank by late Sri.Udayabhanu, the predecessor in interest of the defendants. Though the plaintiff had claimed that he had purchased the said property from late Udayabhanu, he was aware that the same had already been mortgaged to the Bank. It was further contended that item nos. 3 and 4 shown in the attachment schedule, also did not exclusively belong to late Sri.Udayabhanu who had only fractional interest in the property along with his brothers. More importantly Sri.Udayabhanu had assigned his undivided share in the said two item of properties in favour of the appellant through a registered assignment deed in the F.A.O.NO.229 OF 2006 :2: year 2000. She had been residing in the building situated in the said property. Appellant had also contented that respondent no.1/plaintiff had no cause of action to institute the suit against respondents 2 to 4 / defendants.

3. The court below had considered the contentions raised by the appellant and the respondent/plaintiff elaborately and dismissed the claim petition by the impugned order.

4. It was noticed by the court below that the appellant had suppressed the fact that she is the wife of Sadanandan , the brother of late Udayabhanu ( sister in law of late Udayabhanu). The appellant had relied on a registered assignment deed (Ext.P1) allegedly executed by her husband in her favour as power of attorney holder of late Sri.Udayabhanu. Appellant claimed that she had obtained right over the attached property on the strength of the said document. In that document appellant's husband Sri.Sadanandan had stated that he was executing the said assignment deed on the strength of a power of attorney executed by late Udayabhanu in his favour. However, it was revealed that the power of attorney was not registered and therefore, it had no legal validity in view of Section 33 of the Registration Act. The court below therefore, rightly held that the appellant could not claim any right over the attached property on the strength of Ext.P1 assignment deed allegedly executed by her husband F.A.O.NO.229 OF 2006 :3: in her favour, purportedly on the basis of an unregistered power of attorney. Significantly, the power of attorney never saw the light of the day.

5. It is pertinent to note that appellant claimant did not adduce any oral evidence before the court below though she produced Ext.P1 on her side . The court below, on an elaborate consideration of the recitals in Ext.P1 document and also all other relevant circumstances came to the right conclusion that Ext.P1 did not convey any right over the property in favour of the appellant. We are satisfied that the view taken by the court below is perfectly legal and valid. Though the appellant had also raised a contention that the plaintiff had no cause of action to file the suit against the defendants, the court below had rightly repelled the said contentions as well. We do not find any illegality or irregularity in the said finding also.

6. Having heard learned counsel for the parties and having considered the impugned order and other relevant materials on record, we have no hesitation to concur with the view taken by the court below that Ext.P1 document was got executed through the husband of the appellant in an attempt to defeat the rightful claim of the creditors of late Udayabhanu. Undoubtedly Ext.P1 did not convey any right to the assignee(appellant) , for the simple reason that the assignor (husband of the appellant) did not have any right or authority to F.A.O.NO.229 OF 2006 :4: execute the deed of conveyance . Therefore, the claim petition was liable to be dismissed; and it was rightly done so by the court below. There is no merit in this appeal. It is accordingly dismissed.

M.RAMACHANDRAN,JUDGE

A.K.BASHEER,JUDGE

dvs


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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