RSA No. 4169 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CM No. 12047-C & 12048of 2011 and RSA No. 4169 of 2011 Date of decision: 19.10.2011 Naresh Kumari etc. LRS of Amrik Singh and another … Appellants Versus Som Raj and others … Respondents Present: Mr. Sandeep Jain, Advocate, for the appellants. … ARVIND KUMAR, J: CM No. 12047-C of 2011 : For the reasons stated in the application, CM is allowed. Delay in making up the deficiency in the Court-fee is condoned. CM No.12048-C of 2011: After hearing the counsel for the appellant and going through the averments made in the application which is duly supported by an affidavit, I am of the view that the delay in filing the appeal was not intentional. Accordingly, the application is allowed and delay of 108 days in filing the appeal is condoned. RSA No. 4169 of 2011: Som Raj and Malkit Singh filed suit for declaration challenging sale-deed dated 1.8.1997 executed by their father,i.e. defendant Bidhi Singh in favour of Amrik Singh and Darshan Singh on the ground that the land which was sold by way of said sale-deed, was a co-parcenary property of the plaintiffs and defendant No.3, which was inherited from Bhagat Singh, grand-father of the plaintiffs, and thus, the sale was illegal, null and void and also without any legal necessity and therefore, not binding on the rights of the plaintiffs. Defendants 1 and 2 contested the suit and controverted the pleas raised by the plaintiffs by filing written statement wherein they pleaded that the land in question was earlier mortgaged by RSA No. 4169 of 2011 2 defendant No.3 with possession to them for a consideration of Rs.50,000/- and thereafter, the same was alienated by way of sale-deed which was for consideration and legal necessity and for betterment and welfare of the family and estate. On the basis of the evidence adduced by the parties, the trial Court held that the property in dispute was ancestral and had come in their hands from their fore-fathers. Trial Court also held that it was a property of joint hindu family and thus, ancestral in nature and that Bidhi Singh had got the same in succession/inheritance from his father. It was also held that the sale was not a bona-fide transaction as defendants 1 and 2 failed to prove the payment of sale consideration to defendant No.3 by leading cogent evidence in that regard. Moreover, the original sale-deed had not been produced on the file and the statements made by the witnesses produced by the defendants had given contradictory statements in regard to payment of sale consideration. Accordingly, the trial Court decreed the suit and declared the sale-deed dated 1.8.1997 as null and void and directed the appellants to restore the possession of the suit land to the plaintiffs. Feeling dissatisfied, defendants 1 and 2, Amrik Singh and Darshan Singh went up in appeal which was heard by Additional District Judge(Ad-hoc) Hoshiarpur. The learned first appellate Court while holding that the land was ancestral, recorded a firm finding of fact that defendants 1 and 2 had failed to show that any money exchanged hands which they had allegedly paid to Bidhi Singh, defendant, during execution of alleged sale-deed and further they failed to produce any receipt of Rs.25,000/- which was paid in advance. It has been further held by the first appellate Court that no amount was paid in the presence of Sub Registrar who had attested the sale-deed. In so far as legal necessity of selling the land is concerned, it held that the plea taken by defendants 1 and 2 that defendant No.3 Bidhi Singh had sold the land for solemnizing the marriages of his daughters was not correct as the sale-deed was executed on 1.8.1997 whereas one daughter was married in 1994 and the other in 1997 and that it was also not mentioned in the sale-deed that the land was being sold as Bidhi Singh required the amount for the purpose of solemnization of marriages of his daughters. Further, the plea raised before the first appellate Court that Bidhi Singh had purchased some land from the amount which he had received from defendants 1 and 2 has also been RSA No. 4169 of 2011 3 negatived on the ground that no evidence in that regard was led to prove the same. However, the first appellate Court upset the finding of the trial Court and accordingly modified the judgment with regard to grant of mandatory injunction for restoration of possession, holding that the land in question was already mortgaged with possession with defendants 1 and 2 and hence, no injunction can be granted. Feeling dissatisfied with the judgment and decree, the present appeal has been filed. Counsel for the appellants has tried to articulate a substantial question of law that once the land was mortgaged and that mortgage had not been challenged by the plaintiffs, the sale following the said mortgage could not be said to be illegal, null and void and not in the interest of joint hindu family. The argument is not tenable for the reason that it stands proved on record beyond doubt and held concurrently by the Courts below that the land in dispute in the hands of father of the plaintiffs, i.e. defendant No.3 Bidhi Singh was a coparcenary property. The plea raised that the mortgage was not challenged by the successors of Bidhi Singh who are plaintiffs in the present suit, also cannot be accepted because the transfer of property by mortgage of coparcenary property could be redeemed at any stage whereas the sale changes the permanent nature of the property thereby taking away the rights of the other co-parceners permanently. Once on the basis of the evidence, it has been held that the sale-deed was not a genuine document because payment of sale consideration either before the Sub Registrar or otherwise had not been proved, the sale,whether it being for legal necessity or otherwise, need not be gone into. Consequently, the appeal being without any merit is hereby dismissed in limine. October 19, 2011 ( ARVIND KUMAR) JS JUDGE