IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3916 of 2003 (O&M) Date of Decision: 24.2.2010 Sanjay Gupta. ....... Appellant through Shri Arun Jain, Senior Advocate with Chetan Salathia, Advocate. Versus Manju Goyal and others. ....... Respondent no.1 through Shri N.C.Sahni, Advocate. Respondent nos.5 & 6 through Shri Kanwaljit Singh, Senior Advocate with Ms. Prachi Sharma, Advocate. None for other respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The plaintiff is in second appeal. He had filed a suit for declaration pleading that he along with his parents and brother, i.e., defendant nos. 1 to 3, constituted a Joint Hindu Family; that the factory premises as described in the plaint was the property of Joint Hindu Family; that it was occupied by M/S Hemco Industries (P) Ltd., who was impleaded as defendant no.7, as tenant at the rate of Rs.400/- per month; that the R.S.A.No.3916 of 2003 (O&M) -2- .... alleged transfer of this property by his father in favour of defendant nos. 4 to 6 was not binding on him and defendant nos. 1 to 3 in any manner whatsoever; that the property in dispute was purchased by defendant no.1 on 22.7.1964; that on 29.3.1968, a declaration was made by defendant no.1- Om Parkash to the Income Tax Department that this property belonged to the Hindu Undivided Family (for short, `the HUF') and was on rent with defendant no.7 at a monthly rent of Rs.400/- per month and that since then, the suit property has been assessed to income tax as property of the HUF. It was averred that defendant nos. 4 to 6 are alleging themselves to be the owners of a portion of the suit property on the basis of some transfers effected by defendant no.1 and that in fact, no sale or transfer took place and even if the same is proved, the same is illegal, null & void and without consideration and not binding on their rights as he had no right to sell or transfer the suit property without legal necessity. Defendant nos. 1 to 3 and 7 appeared and filed their written statement admitting the claim of the plaintiff. Defendant no.4 contested the suit and claimed that the same was liable to be dismissed in view of Section 34 of the Specific Relief Act,1963 (for brevity, `the Act') as it was a suit for mere declaration without the specific relief of possession and that it was barred by time. It was pleaded that defendant no.1 had purchased 16 kanals and 8 marlas of land in his individual capacity and was in exclusive possession of the same before a part thereof was sold to him and another portion was acquired by the Punjab State Electricity Board for construction of a road. It was denied R.S.A.No.3916 of 2003 (O&M) -3- .... that the suit property was HUF property. It was further pleaded that defendant no.1 had always been treating this property to be his individual property and the plaintiff was fully aware that he had sold 71 marlas out of the suit property to defendant no.4 through seven sale deeds which were registered in the year 1982. Defendant no.4 had averred that in the year 1983, he had sold the property which was purchased by him from defendant no.1 vide eight different sale deeds registered in favour of defendant nos.5 and 6 and the possession thereof was handed over to them which was to the knowledge of the plaintiff and no objection was raised by him. Defendant nos. 5 and 6, in their separate written statement, also denied the status of the suit property being HUF property and pleaded more or less similarly on the lines of defendant no.4. It was also pleaded by them that they were bona fide purchasers for consideration. The trial Court framed the following issues:- 1.Whether the plaintiff and defendant No.1 to 3 constitute a Joint Hindu Family?OPP 2. Whether the sales and transfers by defendantNo.1 in favour of the defendant No. 4 to 6 are illegal and void and are not binding on the plaintiff?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the suit is time barred?OPD 5. Whether the plaintiff is estopped by his acts and conduct from filing the suit?OPD R.S.A.No.3916 of 2003 (O&M) -4- .... 6. Whether the suit is bad for mis-joinder and non-joinder of parties?OPD 7. Whether the plaintiff has no locus standi to file this suit?OPD 8. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit by concluding that the property was Joint Hindu Family property and that the transfer of the same made by defendant no.1 in favour of defendant nos. 4 to 6 was null & void. Feeling aggrieved, defendant no.4 and defendant nos. 5 & 6 filed two separate appeals. During the pendency thereof, the first appellate Court directed the framing of additional issues as 7-A and 7-B which are extracted below and sought the report of the trial Court on the same:- 7A. Whether plaintiff has filed the present suit in the active connivance with defendants no. 1 to 3?OPD(5-6) 7B. Whether defendant no.5 &6 are bona fide purchasers for consideration without notice and are protected u/s 41 of the Transfer of Property Act?OPD(5-6) The trial Court, after examining the evidence led by the parties, submitted its report on the aforesaid issues while concluding that the plaintiff along with his father- Om Parkash, i.e., defendant no.1 was in collusion with each other and that defendant nos. 5 & 6 were bona fide purchasers of part of the suit property. Thereafter, the first appellate Court allowed the appeals of R.S.A.No.3916 of 2003 (O&M) -5- .... defendant no.4 and defendants 5 & 6 and dismissed the suit of the plaintiff, resulting in the filing of the instant appeal. Learned counsel for the appellant has contended that the findings recorded by the first appellate Court deserve to be set aside as there was cogent evidence to show that the suit property was the property of HUF and could not have been alienated except for legal necessity. He referred to the declaration which was made before the Income Tax authorities regarding the suit property being HUF property and also argued that the appellant was minor at the time of transfer of a part of it. He further argued that after attaining majority, the appellant chose to challenge the transfer in question. He submitted that no consideration qua the sale was shown to have been paid. It was further submitted that defendant no.4 to whom a part of the suit property was sold, was a director of defendant no.7 and defendant no.1 was also one of the directors of defendant no.7 and the factory was situated on the suit property and that on the shares issued to defendant no.1, signatures of defendant no.4 appeared and she was, thus, aware of the property being HUF property. It was contended that a suit was filed by defendantno.1 on 24.4.1988 challenging the sale deeds in favour of defendant no.4, but the same was withdrawn on 30.9.1988 and the instant suit was filed by the appellant on 20.4.1988, i.e., much prior to the withdrawal of suit by defendant no.1. Learned counsel for defendant-respondent nos.5 & 6, on the other hand, contended that defendant nos. 5 & 6 were the bona fide purchasers of the property and their rights could not be defeated, more-so R.S.A.No.3916 of 2003 (O&M) -6- .... when there is no material from where it can be inferred that it belonged to HUF and that even if the declaration made to the Income Tax authorities is to be accepted, it has to be seen that it was qua the factory and rental income which were put into HUF account and not the land beneath the factory which is the subject-matter of dispute. It was next contended that revenue entries also did not show that the property was HUF property as no such mutation was entered with regard to the same. Learned counsel for defendant no.1-Manju Goyal contended that the proceedings in the instant suit in the present form cannot be sustained as the suit is merely for declaration without any relief of possession. It was next contended that the possession of the suit property was not with the appellant and, therefore, even if a declaration is granted as prayed for, it is not likely to make any difference as no prayer for delivery of possession was made. It was argued that the suit is clearly barred by limitation as the sale deeds were made in the year 1982 and the challenge to them was laid on 20.4.1988 and according to Article 56 of the Limitation Act, the appellant was precluded from raising a challenge after lapse of six years. It was next argued that the suit property was self-acquired property of defendant no.1 and the appellant had no locus to challenge its transfer. Reference was made to the evidence on record to support this contention. Learned counsel for defendant no.4 contended that the appellant has now contended that he could not lay a challenge to the sale deeds in question because he was minor at that time, but the pleadings are silent in that regard. He, thus, prayed for dismissal of the appeal. R.S.A.No.3916 of 2003 (O&M) -7- .... I have thoughtfully considered the rival contentions and have perused the impugned judgments, as also the lower Courts' record which was summoned. Concededly, prior to the challenge made in the instant suit, a suit had been filed by defendant no.1 in which he had prayed for possession of the suit property by challenging the sale deeds in favour of defendant no.4 which were executed by him in the year 1982. The plaint of the suit filed by defendant no.1 has been produced on record as Exhibit D1. The prayer clause contained in Exhibit D1 is reproduced below:- “It is, therefore, prayed that a decree with costs of the suit be passed in favour of the plaintiff against the defendants granting possession of the suit property after cancellation of the sale deeds as mentioned in the heading of the plaint and in the alternative for the recovery of Rs.4 lacs.” That suit was got dismissed as withdrawn in 1988 and prior to the dismissal thereof, the instant suit was filed by the appellant, who is son of defendant no.1. One of the primary challenges which were made to the sale deeds by the appellant and as was argued before this Court by the counsel for the appellant, was that the appellant was a minor at the time of execution of the aforesaid sale deeds and the property being HUF property could not have been alienated without any legal necessity. Therefore, the foremost question that is to be determined is as to whether the appellant had any locus to challenge the sale deeds in favour of defendant no.4 on the grounds which have been urged before this Court. R.S.A.No.3916 of 2003 (O&M) -8- .... A perusal of the record shows that no such plea was raised by the appellant in his pleadings. He merely pleaded in paragraph 8 of the plaint that cause of action had arisen to him against the defendants finally a week ago when they refused to accede to his request. Prior thereto, in paragraph 6, he had merely pleaded that no sale/ transfer had been effected by defendant no.1, his father in favour of defendant nos. 5 & 6 and even if they are proved, the same are illegal, void, without consideration and are not binding on his legal rights as well as those of defendant nos. 1 to 3, his father, mother and brother and further, that defendant no.1 had no right or authority to sell/ transfer HUF property under the land without legal necessity existing as there was sufficient income to defendant no.1. There is, thus, no pleading to the effect that the appellant was a minor at the time of execution of the sale deeds by his father and that the suit was filed after he had attained majority. Once, these crucial factors are missing from the plaint, then the sale deeds which were executed in the year 1982 by the father of the appellant, i.e., defendant no.1, were clearly precluded from a challenge in the year 1988 as the suit was barred by limitation. As mentioned above, defendant no.1 had earlier laid a challenge to the sale deeds in favour of defendant no.4 by filing a suit, which was withdrawn in September,1988. The present suit by the appellant was, therefore, a clever ploy in order to defeat the valid sale deeds executed in favour of defendant no.4 by raising a bogey of property being HUF property, which ploy, in my opinion, was rightly negatived by the first appellate Court because in the plaint, Exhibit D1, defendant no.1 had described the suit property in R.S.A.No.3916 of 2003 (O&M) -9- .... paragraph 1 thereof as being his personal property. The relevant extract of paragraph 1 of plaint, Exhibit D1, is reproduced below:- “..... The land, building over the land, where the joint business was being run, mentioned in the heading of the plaint, measuring 71 Mls 260 sq.ft. was exclusively owned by the plaintiff which was a part of land purchased by the plaintiff from M/S Hind Engineers, Jalandhar on 22.7.64. ...........” There is also evidence to suggest that this property was mortgaged with bank by defendant no.1 as being his own individual property. Even if the declaration which has been made to the Income Tax authorities regarding the property being HUF property, is to be seen, it only shows that defendant no.1 has stated that he constituted Joint Hindu Family with his wife-Smt.Sudershan Goyal, aged about 25 years and son- Master Shant Kumar, aged about 3 years and that he owns a factory building on G.T.Road, Kasoodpur, Near Punjab State Electricity Board Sub Station, which was described in the plan annexed to it and which was at present occupied by M/S Hemco Industries (P) Ltd. on a monthly rent of Rs.400/-. He further went on to say that out of his own free will, he had thrown the said factory building and rent outstanding in the common pool of Joint Hindu Family constituted by him, his wife and son and that he had abandoned all his separate rights and claims in respect of the said building and outstanding rent. There is no mention regarding the land as having been put in the common pool of the Joint Hindu Family. The declaration is on R.S.A.No.3916 of 2003 (O&M) -10- .... record as Exhibit PW6/37 and has been extracted by the first appellate Court in its judgment. If the property was HUF property, then it is not conceivable as to how an equitable mortgage was created by defendantno.1 in his individual capacity. DW5-Kuldeep Angrish, who was examined after remand of the case by the first appellate Court, brought the record to show that on 16.12.1975, defendant no.1 had deposited the title deed of his property bearing khasra nos. 25/21/3, 29/1/3, 2/135 & 5 measuring 16 kanals 18 marlas situated at village Maqsoodpur, by way of equitable mortgage to clear repayment of credit limit granted by the bank to M/S Hemo Industries (P) Ltd. and that after adjustment of the loan, defendant no.1 had received the original title deeds from the bank. Admittedly, the aforesaid property also includes the property transferred by defendant no.1 in favour of defendant no.4, who subsequently sold the same to defendant nos. 5 & 6. From this evidence, it is clear that defendant no.1 was dealing with the suit property as his own individual property and this was never treated as HUF property. If the facts and evidence are to be seen in totality, then it transpires that defendant no.1 clearly raised these clever tactics to his advantage and the property was never HUF property, but was his own individual property and the instant suit was purely in collusion with him in order to defeat the validly executed sale deeds in favour of defendant no.4, who subsequently executed sale deeds in favour of defendant nos. 5 & 6. I am further of the opinion that this litigation is completely a R.S.A.No.3916 of 2003 (O&M) -11- .... dishonest litigation initiated by the appellant and, therefore, the appeal deserves to be dismissed with exemplary costs. In so far as the plea of defendant nos. 5 & 6 being bona fide purchasers is concerned, the same cannot be doubted. They had paid the valid consideration to defendant no.4 and the transfer in their favour cannot be faulted. In view of the above discussion and the fact that there is conclusive evidence to show that the challenge to the sale deeds in favour of defendant no.4 was barred by limitation and also the fact that the appellant had wrongly projected the suit property to be HUF property and he himself failed to show as to how the challenge was made belatedly in the absence of any pleading that he was minor at the time of execution of the sale deeds giving right to him to file suit after attaining majority, the appeal, which does not disclose any substantial question of law, is dismissed with costs of Rs.50,000/-. February 24,2010 ( Mahesh Grover ) “SCM” Judge