RSA No.42 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.42 of 2008(O&M) Date of decision: 8.12.2008 Jagmanti and others ......Appellants Versus Ram Kumar and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Bhupinder Singh Bairagi, Advocate for the appellants. Mr. S.P. Khatri, Advocate for respondents No.1(i) to (iv). Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the defendant-Ram Kumar (predecessor-in-interest) of respondents No.1(i) to (iv) has been accepted and judgment and decree of the trial Court passed in favour of the plaintiffs has been set aside consequently dismissing the suit of the plaintiff-appellants. As per the averments made in the plaint, defendant No.4- Krishan Kumar is the husband of the plaintiff-appellant No.1 and father of plaintiff Nos.2 to 5. Defendants No.2 and 3 are the brothers of defendant No.4. As per the averments made in the plaint, defendant No.4 after his marriage with plaintiff No.1 started residing at Sonepat to earn his livelihood. They earned the livelihood by running a small tea shop as a joint venture and later on started running a Dhaba in village Bhatana Zafrabad. Out of the joint earnings, after purchasing a plot of 6 marlas situated in village Garhi Brahman, Distt. Sonepat, both of them constructed a house thereon. About three years ago, defendant No.4 started remaining sick and mentally disturbed, so plaintiff No.1 was compelled to run a small tea RSA No.42 of 2008(O&M) 2 shop on Mehlana Road, Sonepat to meet the family expenses and treatment expenses of defendant No.4. The children were sent to the parental home of plaintiff No.1 to arrange their education. Taking benefit of the poor and weak condition of plaintiff No.1 and defendant No.4, defendants No.2 and 3 started interfering in their family life. The said defendants No.2 and 3 who are men of bad habits, took defendant No.4 at village Jauli to create mismanagement in his proper treatment resulting in his abnormal condition and whenever plaintiff No.1 objected, they threatened her that house in question shall be got sold. Further, the case of the plaintiff is that defendants No.2 and 3 took plaintiff No.1 and the entire household articles forcibly and illegally to village Jauli along with defendant No.4. After getting herself freed, plaintiff No.1 reported the matter to the police at Police Post Gohana Road, Sonepat. Later on, the matter was compromised on 9.3.2000. However, plaintiff No.1 came to know later on that it was got written in the compromise that the house in question, the plot of which is in the name of defendant No.4, shall be sold and after satisfying the demands of money lenders, the remaining amount of sale would be deposited in the name of minor children i.e plaintiffs No.2 to 5. It is alleged that this was a fictitious story to grab the only residential house of the poor family of plaintiff No.1. Further taking benefit of absence of plaintiff No.1 and under the influence of defendants No.2 and 3, defendants No.1 to 3 in collusion with each other got forged sale deed dated 21.3.2000 executed from defendant No.4 in favour of defendant No.1 whereby the house in dispute of which the market value was Rs.5,00,000/- was shown to be sold at a throw away price of Rs.1,00,500/-. The said amount was usurped by defendants No.2 and 3 alone and they did not bother to give a single penny either to plaintiff No.1 or defendant No.4. On 28.3.2000, defendant No.4 was sent to the parental home of plaintiff No.1 RSA No.42 of 2008(O&M) 3 in a miserable condition and after getting him treated, it was transpired that how defendants No.2 and 3 have got transferred the house of plaintiff No.1 in the name of defendant No.1 under coercion, threat, influence and by playing a fraud. It is further alleged that defendant No.1 is now engaged in demolishing/changing the nature of the suit house. Requests made to him to deliver back the possession of the house to plaintiff No.1 went unheeded With all the aforesaid averments, plaintiffs prayed for a decree of declaration that registered sale deed dated 21.3.2000 regarding property in dispute is null and void being outcome of the illegal acts of defendants No.1 to 3 and so, it is not binding upon the rights of the plaintiffs. The plaintiffs further prayed for a decree of mandatory injunction to direct respondents No.2 and 3 to undo what they had done illegally and forcibly and further to direct defendant No.1 to handover the vacant possession of the house in dispute to plaintiff No.1. Defendant No.1 in his written statement raised certain preliminary objections. On merits, he submitted that he purchased the house in dispute for Rs.1,00,500/- which was the market value prevailing at the time of execution of the sale deed. He denied the facts relating to family affairs of plaintiffs and defendants No.2 to 4 for want of knowledge. It is further pleaded that husband of plaintiff No.1 was absolute owner of the house in dispute and so had every right to alienate the same and that he sold the same for consideration which was duly paid. He denied allegations of any fraud, threat or undue influence etc. It is also submitted that defendant No.1 has since expired on 21.4.2000 and after his death, his LRs are now using the house in dispute and that plaintiffs have no concern with the same. With this stand and controverting all other material averments of the plaintiff, defendant No.1 (through his LRs) prayed for RSA No.42 of 2008(O&M) 4 dismissal of the suit. Defendants No.2 and 3 denied any interference on their part in the household affairs of plaintiffs and defendant No.4. They denied to have ever taken defendant No.4 with them. As per these defendants, disputed house was sold by defendant No.4 at his free will and in sound mind without any interference on their part. It is submitted that they are residing separately from defendant No.4 and have no concern whatsoever with his properties. They denied any fraud or undue influence etc. Controverting all other averments of the plaint, these defendants also prayed for dismissal of the suit. In rejoinder, it is submitted that house in question was purchased by defendant No.4 i.e husband of plaintiff No.1 as a joint family property. The plot underneath the house was purchased from one Dayawati for sale consideration of Rs.8000/- which was earned by both husband and wife by sometimes running tea shop and sometimes by running a Dhaba and that money earned by both of them was of joint venture and used for constructing the house. Controverting the stand of defendants, plaintiff reiterated their entire case. After taking into consideration the evidence produced by both the parties, the trial Court decreed the suit by holding that registered sale deed dated 21.2.2000 was null and void and the defendants were directed to hand over the physical possession of the suit property to the plaintiff within a period of one month from the date of judgment. Aggrieved by the aforesaid judgment and decree, defendant No.1 filed an appeal . The Lower Appellate Court vide impugned judgment and decree dated 6.9.2007 accepted the appeal and held that sale deed Ex.P-1 is legal and valid and is binding upon the rights of the plaintiffs. Still feeling aggrieved, the plaintiffs have filed the present RSA No.42 of 2008(O&M) 5 appeal challenging the judgment and decree of the Lower Appellate Court. It is vehemently contended by the learned counsel for the appellants that it has been proved on record that property in dispute was purchased from the joint venture of plaintiff-appellant No.1 and defendant No.4 and the said property was sold to defendant No.1 [predecessor-in- interest of respondents No.1(i) to (iv)] in connivance with defendants No.2 and 3 at a throw away price. Moreover, defendant No.1 has not followed the provisions of Section 39 of the Transfer of Property Act, and therefore, he cannot be called to be a bona fide purchaser and there is nothing on record to show that the sale consideration was actually paid to defendant No.4 or to the family of the plaintiff who had a charge over this property. Thus, on the basis of this argument learned counsel has prayed for acceptance of appeal and has stated that the following substantial questions of law arise in this appeal: “1. Whether the judgment and decree dated 3.3.2006 passed by the ld. trial Court, Sonepat is illegal? 2. Whether the judgment and decree passed by the ld. Additional Distt. Judge, Sonepat is suffering from legal infirmities? 3. Whether the Hindu wife is entitle for maintenance from husband and from the property of husband which is jointly purchased from the income of both (husband and wife)?” On the other hand, counsel for the respondents has supported the findings of the Lower Appellate Court and has prayed for dismissal of the appeal. I have heard learned counsel for the parties and perused the record. RSA No.42 of 2008(O&M) 6 Ex.P-1 is the registered sale deed whereby property in dispute has been sold by defendant No.4 in favour of defendant No.1 for consideration of Rs.1,00,500/-. The said sale deed has been proved on record. Even passing of the sale consideration of Rs.1,00,500/- is also not in dispute as is clear from the plea taken by the plaintiff-appellants in para No.5 of the plaint wherein it is alleged that suit property was sold at a throw away price of Rs.1,00,500/- and that this amount was usurped by defendant No.2 and 3 alone who did not bother to pay even a single penny either to plaintiff No.1 or defendant No.4. This plea taken in the plaint itself clearly implies the admission of plaintiffs regarding the payment of consideration on the part of defendant No.1. Not only this, plaintiff No.1- Jagmanti when appeared in the witness box as PW1 clearly stated in her cross-examination that she has no dispute whatsoever with defendant No.1-Ram Kumar. Thus, execution of the sale Ex.P1 by defendant No.4 in favour of defendant No.1 is duly proved on record for valuable consideration. The Lower Appellate Court has also recorded a finding of fact that there is no evidence that plot in dispute had been purchased out of the joint earnings of plaintiff No.1 and defendant No.4. Since the plot was in the name of defendant No.4, the plea of plaintiff No.1 that she has also contributed towards the sale consideration is contrary to the provisions of Benami Transaction (Prohibition) Act, 1988. In view of this finding, plaintiffs had no right, title or interest to file the present suit challenging the sale deed executed by defendant No.1. Even if for the sake of arguments, it is assumed that plaintiffs have any locus standi, there is no cogent evidence to support their allegations that impugned sale deed is result of any undue influence . Deed writer and one of the attesting witnesses examined in Court have clearly stated that sale deed was executed by defendant No.4 in favour of RSA No.42 of 2008(O&M) 7 defendant No.1. Nothing transpires from their testimony that defendant No.4 was under undue influcne or threat of his brothers i.e defendants No.2 and 3. Moreover, defendant No.4-Krishan Kumar i. the vendor himself has not challenged the sale deed whereby he sold the suit property to defendant No.1. As per the testimony of PW-1-Jagmanti i.e. appellant No.1 she is not aware that defendant No.4 is now alive or not and if he is alive where he is living. As per plaintiff No.1, whereabouts of Krishan Kumar are not known for the last 5-6 years. The suit was filed on 6.4.2000. The title of the plaint itself reveals that defendeant No.4 Krishan Kumar was stated to be residing with the plaintiffs. In para No.5 of the plaint also, it was mentioned that when on 28.3.2000 defendant No.4 was sent to parental home of plaintiff No.1, on enquiry it transpired that he had transferred the suit property in favour of defendant No.1 under coercion, threat and undue influence. Thus, when suit was filed, at least at that time defendant No.4 was residing with the plaintiffs. Still defendant No.4 did not challenge the impugned sale deed on the ground of any fraud or threat or undue influence etc. nor joined the plaintiffs in this suit. In the background of entire facts and circumstances, the version of the plaintiff-appellant cannot be accepted. In the present case, there is absolutely no averment of the plaintiffs that any maintenance was being claimed by them from defendant No.4 or that suit property was a charge for that maintenance claim. Section 39 of the Transfer of property Act provides that where third person has a right to receive maintenance, or a provision for her marriage, from the profits of immovable property and said 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 the transferee for consideration and without notice of the right, nor against such property in his hands. In the present RSA No.42 of 2008(O&M) 8 case, as already noticed that there is absolutely no averment on the part of the plaintiffs that they had any right to receive maintenance from defendant No.4 or that the provision for advancement of marriage from the profits of such property had been made at any point of time. Moreover, transfer in question i.e. sale deed Ex.P1 is not gratuitous; rather it is for valuable consideration. Not only this, there is neither averment of plaintiffs nor evidence that defendant No.1 i.e. transferee had any notice of the alleged rights of the plaintiffs so as to claim any sort of maintenance from defendant No.4 out of the property in dispute. It has already been noticed that in her testimony as PW1-Jagmanti has clearly stated that she has no grievance against defendant No.1 i.e. transferee. In the aforesaid circumstances, Section 39 of the Transfer of Property Act or Section 18/20 of the Hindu Maintenance and Adoption Act, 1956 has absolutely no applicability to the facts of the present case. No other point has been urged. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. December 8, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.42 of 2008(O&M) 9