ESA No.9 of 2008 and 1 CR No.4660 of 2008 In the Punjab and Haryana High Court,at Chandigarh. ESA No.9 of 2008 and CR No.4660 of 2008 Decided on April 24,2009. Tasveer Paul Kaur --Appellant Vs. Sukhmahinder Singh and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Ajay Jain,Advocate,for the appellant Mr.Vikas Kumar,Advocate, for the respondents. Rakesh Kumar Jain,J: This appeal is directed against the orders passed by the Civil Judge (Senior Division), Sirsa dated 31.5.2008 and learned Addl.District Judge,Sirsa dated 3.6.2008 by which the objections filed by the appellant in the execution of the decree have been dismissed. Broadly, the facts of the case are that respondent No.1 ESA No.9 of 2008 and 2 CR No.4660 of 2008 (Sukhmahinder Singh) filed Civil Suit No. 587-C of 1998 for possession by way of specific performance of an agreement to sell against respondent No.2 (Nachhattar Kaur) in respect of land measuring 34 kanal 9 marla falling in Sq. No.7/6 (6-18),7/1 (3-7),14/2 (3-12), 15 (5- 18), Sq.No.8/9/2 (2-7), 10(6-2),11(4-13)12/1(1-12) situated in village Raghuana, Tehsil and District Sirsa (in short,'the suit land'). Respondent No.2, entered into an agreement to sell with respondent No.1 in respect of the aforesaid land for a consideration of Rs.1,00,000/- per acre. Respondent No.3. (Jagroop Singh) who was impleaded in the suit was later on given up by respondent No.1. The learned Civil Judge (Junior Division), Sirsa decreed the suit on 4.5.2002 and ordered that “the suit of the plaintiff succeeds and the same is hereby decreed with costs. A decree for possession by way of specific performance of agreement for sale duly executed by defendant No.1 dated 18.11.1997 in favour of the plaintiff in respect of the suit land at the rate of Rs.1,00,000/- per acre is hereby passed in favour of the plaintiff. The plaintiff is directed to deposit the remaining sale consideration amount within a period of three months from the date of decree and the defendant is directed to get the sale deed executed and to hand over the possession of the suit land to the plaintiff within a period of one month from the date of depositing the remaining sale consideration by the plaintiff”. Respondent No.2. preferred appeal against the judgment ESA No.9 of 2008 and 3 CR No.4660 of 2008 and decree dated 4.5.2002, which was dismissed on 15.9.2004. Regular Second Appeal No. 4296 of 2004 was also dismissed on 28.2.2005. Since no further appeal was filed by respondent No.2 in the Apex Court, therefore, the decree dated 4.5.2002 has attained finality between respondent Nos.1 and 2. Since respondent No.2. did not execute the sale deed as ordered by the trial Court in its judgment and decree dated 4.5.2002, respondent No.1 filed an application for execution No.42-8 of 2004. The present appellant filed objections in the said execution on 15.6.2007 in which it was inter-alia, alleged that she is the real daughter of respondent No.2 and in view of the amendment in Section 6 of the Hindu Succession Act, 1956 ( for short,'the Act') by virtue of Hindu Succession (Amendment) Act, 2005, which came into force w.e.f. 9.9.2005, she has also become a co-parcener and in view of proviso of Section 6 (1) of the Act, only those alienations would not be affected by the amendment which had taken place before 20.12.2004 and since the sale deed has been executed in this case on 08.2.2005, the same is against her rights. The objections filed by the appellant were dismissed by the Civil Judge (Senior Division),Sirsa vide his order dated 13.5.2008, on the ground that the judgment and decree dated 4.5.2002 was passed prior to the amendment and the execution was also pending prior to the enforcement of the Amended Act on 9.9.2005 and at that time, the appellant had no right in the Joint Hindu family as she could not ESA No.9 of 2008 and 4 CR No.4660 of 2008 have been treated a member of the Joint Hindu Family. The appeal filed by the appellant against the order dated 13.5.2008 was also dismissed by the learned Addl. District Judge, Sirsa vide order dated 3.6.2008 by imposing cost of Rs.3000/-. During the pendency of this appeal, the appellant filed an application under Order 41 Rule 6 (2) read with Rule 8 of Code of Civil Procedure,1908 (for short,'CPC') before the executing Court for stay of execution till the decision of the present appeal pending before this Court. The said application was taken up on 14.6.2008 in which the following order was passed by the executing Court:- “P.A. filed and an application under Order 41 Rule 6(2) read with rule 8 CPC for staying execution of warrants of possession till the decision of the appeal pending before the Hon'ble High Court read with Order 41 Rule 5 (10) has been moved. When asked, learned counsel for the DH requests some time for filing of reply to the same. Let, file be now put up after lunch for reply and consideration on this application”. Then, on the same date, following order was also passed:- “Reply to the application filed. At this stage, during the course of arguments, it has been brought to the notice of this Court that warrant of possession as ordered on previous date of hearing has been executed. Civil Ahlmad ESA No.9 of 2008 and 5 CR No.4660 of 2008 has furnished a report to this effect that warrant of possession duly executed has been received by him. As such no further action is called for on this application under Order 41. At this stage, Ld. counsel for the DH has requested an adjournment on the point as regards disbursement of remaining sale consideration. Now to come up on 23.8.2008 for arguments on the same”. Aggrieved against the said order, the appellant filed a Civil Revision No.4660 of 2008 before this Court which was listed on 14.11.2008 in which it was ordered that it should be heard with the present appeal. Thus, Civil Revision No.4660 of 2008 is also taken up for hearing and disposal with this ESA No.9 of 2009. Mr. Ajay Jain, learned counsel for the appellant has vehemently contended that after the amendment in the Act w.e.f. 9.9.2005, the appellant has become a member of the Joint Hindu Family and a co parcener, therefore, she too had a right in the suit land which has been illegally sold by her mother. It is further contended that the sale deed has been executed on 8.2.2005 whereas proviso to Section 6 (1) of the Act, only saves alienations which had taken place before 20.12.2004. Learned counsel for the appellant has further submitted that the learned Courts below have erred in dismissing the objections without even framing issues. In reply to the above contentions raised by learned ESA No.9 of 2008 and 6 CR No.4660 of 2008 counsel for the appellant, Mr.Vikas Kumar, learned counsel appearing on behalf of respondent No.1 has vehemently contended that the sale deed has already been executed on payment of sale consideration to respondent No.2. Respondent No.1 has already taken possession in terms of the order passed on 14.6.2008 as the warrant of possession has already been executed. In this case, the judgment and decree which is being sought to be executed was passed on 4.5.2002 much prior to the enforcement of the Amended Act on 9.9.2005 or even prior to the cut off date provided in Section 6 (1) of the Act i.e. 20.12.2004. He further contends that the sale deed which has been executed cannot be termed to be an alienation provided in proviso to Section 6 (1) because it is in terms of the decree passed by the Civil Court on 4.5.2002, which has already attained finality between respondent Nos. 1 and 2. It is also contended that the appellant could not establish that the property in question was ancestral in the hands of her mother who had alienated the suit land. Since her mother was not co-parcener, she had no right in the property in view of Section 6 (1) of the Act. It is also contended that the learned Courts below have rightly imposed cost of Rs.3000/- on the appellant for filing false and vexatious claim in order to scuttle execution of the decree in respect of the agreement to sell which was executed between respondent Nos. 2. and 1 as far back as on 18.11.1997. I have given my thoughtful consideration to the rival ESA No.9 of 2008 and 7 CR No.4660 of 2008 contentions raised by learned counsel for the parties and perused the record with their assistance. Before adverting to their respective contentions, it would be just and expedient to refer to Section 6 of the Act, which is re- produced blow:- “(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of coparcener shall -- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include reference to a daughter of a coparcener; Provided that nothing contained in this sub section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th Day of December,2004. (2) Any property to which a female Hindu becomes ESA No.9 of 2008 and 8 CR No.4660 of 2008 entitled by virtue of sub section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed by her testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and--- (a) The daughter is allotted the same share as is allotted to a son., (b) the share of the pre-deceased son or predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c ) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of partition, ESA No.9 of 2008 and 9 CR No.4660 of 2008 shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation- for the purpose of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment)Act, 2005, no court shall recognize any right to proceed against a son, grand son or great grand son for the recovery of any debt due from his father, grand father or great grand father solely on the ground of the pious obligation under the Hindu law of such son, grand son or great grand son to discharge any such debt; Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub- section shall affect- (a) the right of any creditor to proceed against the son, grand son or great grand son, as the case may be; or (b) any alienation made in respect of or in satisfaction of, ESA No.9 of 2008 and 10 CR No.4660 of 2008 any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005, had not been enacted. Explanation-- For the purpose of clause (a) the expression “ son”, “ grand son” or “great grand son” shall be deemed to refer to the son, grand son or great grand son, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to partition, which has been effected before the 20th day of December, 2004”. Undisputed facts of the case are that an agreement to sell dated 18.11.1997 was entered into between respondent Nos. 2 and 1 for the sale of 34 kanal 9 marla of land. A decree dated 4.5.2002 has been passed by the Civil Court in favour of respondent No.1. First appeal and Regular Second Appeal filed by respondent No.2 against the judgment and decree dated 4.5.2002 have been dismissed and the decree has become final between the parties as the same has not been challenged further in the Apex Court. Now the question in the present case is whether the appellant who is the daughter of respondent No.2 has a right in the ESA No.9 of 2008 and 11 CR No.4660 of 2008 suit land by virtue of the amendment in Section 6 of the Act by the Hindu Succession (Amendment) Act, 2005, which came into force w.e.f. 9.9.2005. It is also pertinent to mention here that the language of Section 6 (1) of the Act provides that on and from the commencement of the Hindu Succession (Amendment) Act, 2005, daughter of a coparcener shall have a right in the Joint Hindu Family governed by the Mitakshara law by birth in the same manner as the son shall have the same rights in the coparcenary property as she would have had she been a son and be subject to the same liabilities in respect of the said coparcenary property as that of a son, but the provisions of the sub section shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December,2004. I am afraid, the above amended provisions are not applicable to the present case because in this case, agreement to sell was executed by respondent No.2. on 18.11.1997 and suffered a decree for possession by way of specific performance in favour of respondent No.1 on 4.5.2002. Till such time, the appellant had no right in the property in question as the Hindu Succession (Amendment) Act, 2005, which became enforceable w.e.f.9.9.2005. Primary contention of learned counsel for the appellant that since the sale deed has been executed on 8.2.2005 i.e. after ESA No.9 of 2008 and 12 CR No.4660 of 2008 20.12.2004, therefore,it would come within the purview of Section 6 (1) of the Act, is also not convincing, because the property in question has been sold in execution of a decree for specific performance which came into being on 4.5.2002 and has attained finality having been unsuccessfully challenged by respondent No.2, before the first Appellate Court as well as in the High Court by way of Regular Second Appeal. Therefore, in my view, the execution of sale deed/alienation pursuant to an execution of a decree for specific performance does not fall within the purview of Section 6 (1) of the Act and as such, the appellant cannot take advantage of the fact that the sale deed was executed on 8.2.2005 i.e. after 20.12.2004. Insofar as the question of framing of an issue, as raised by the learned counsel for the appellant, is concerned, the objections raised by the appellant are patently frivolous and vexatious, therefore, in view of the decision of this Court in the case of Bikram Singh Vs. Surjit Singh & Ors. 2005 (1) Civil Court Cases 374, framing of an issue is not necessary in the execution merely because frivolous and vexatious objections are filed with a view to delay and defeat the execution of the decree. In view of the above discussion, I do not find any merit in the present appeal and the same is hereby dismissed. Since the appeal is dismissed, Civil Revision No.4660 of 2008 which has been ordered to be heard with the present appeal, has ESA No.9 of 2008 and 13 CR No.4660 of 2008 become redundant and the same is also dismissed. However, in the peculiar facts and circumstances of the case, the parties shall bear their own costs. April 24,2009 (Rakesh Kumar Jain) RR Judge