RSA No.3474 of 2008 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3474 of 2008 Date of Decision: 7.11.2008 Shyam Kumar and others ..Appellants. Vs. Smt.Chandrakalan and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.P.R.Yadav, Advocate for the appellants. * * * Rakesh Kumar Jain, J. This is an appeal by the plaintiffs against the judgment and decree of both the Courts below whereby their suit for declaration, mandatory injunction and permanent injunction has been dismissed. The plaintiffs have alleged that they are the sons of defendant No.1, who is the only daughter of Late Munshi Ram. It is further alleged that defendants No.1 and 2 were having common ancestor namely Shadi Lal, who was having two sons namely Hazari Lal and Munshi Ram. Hazari Lal was having a son namely Roshan Lal alongwith other children and Munshi Ram was having only one daughter namely Smt.Chandra Kalan (defendant No.1). Now Shadi Lal and Munshi Ram are no more in this world. The common ancestor Shadi Lal was having immovable property in RSA No.3474 of 2008 -2 - Khewat Khata Nos.220, 251 and 252 in Khasra Nos.63, 88, 470, 557 and 913. Defendant No.1 became absolute owner in possession of a share equivalent to 4/27 in the property of her father Munshi Ram. It is alleged by the plaintiffs that defendant No.1 was staying with them and she was being looked after very well. But in the month of November 2005, defendant No.2 and his brother namely Gajraj came to defendant No.1 at Delhi at the address of plaintiffs and informed that Hazari Lal is not keeping well and wanted to see her. Defendant No.1 went with defendant No.2 and said Gajraj in order to enquire about the welfare of said Hazari Lal and it was assured by defendant No.2 and his brother Gajraj that defendant No.1 will come back after 2-3 days but even after a week, defendant No.1 did not return, therefore, plaintiff No.3 went to bring defendant No.1 to village Tikli but defendant No.2 and his brother Gajraj asked plaintiff No.3 to allow defendant No.1 to stay there for few more days and likewise in spite of repeated visits by the plaintiffs to bring defendant No.1, defendant No.2 kept on postponing the return and thus almost three months' time had expired. On 31.3.2006, plaintiff No.3 again went to bring defendant No.1 at village Tikli but he was surprised to found that defendant No.1 left the house in morning. He was further informed that defendant No.1 has transferred the land which she was owning, in the name of Hazari Lal and his son about two and half months back. When defendant No.1 did not reach to her house, the plaintiffs suspected some foul play and danger to the life of their mother at the hands of defendant No.2 and his accomplices and in those circumstances plaintiff No.1 submitted a complaint to the in-charge police post Badshahpur Gurgaon. Plaintiffs made search for their mother and because of the pressure of police, defendant No.1 was produced in RSA No.3474 of 2008 -3 - police post Badshahpur by defendant No.2 and his accomplices. It is further alleged that defendant No.1 was in custody and effective control of defendant No.2 and because of undue influence, coercion and force, defendant No.1 expressed her intention to reside with defendant No.2 and not with relatives. The plaintiffs were suspecting foul play at the hands of defendant No.2 and his family members and accordingly after enquiry, they found that the immovable property of defendant No.1 was got transferred by defendant No.2 in his name by way of a release deed dated 12.1.2006 duly registered with the office of defendant No.3. After obtaining certified copy of the release deed, the plaintiffs came to know that the release deed was allegedly executed by defendant No.1 in favour of defendant No.2 and Amar Singh and Ram Kishan were shown to be witnesses to the said release deed. The release deed dated 12.1.2006 was registered with defendant No.3 vide Vasika No.21520 which is neither a valid document nor sustainable in the eyes of law as it was got executed by putting defendant No.1 under pressure, fear and coercion. It is further alleged that plaintiffs approached defendant No.2 and his family members and requested to get the said release deed cancelled but the same was not done, therefore, the present suit was filed seeking a declaration that the release deed dated 12.1.2006 executed by defendant No.1 in favour of defendant No.2 before respondent No.3, is illegal and void. It is further prayed in the suit that a decree for mandatory injunction be granted directing respondent No.3 to cancel the release deed as well as mutation, if any, sanctioned on the basis of release deed and further direct defendant No.2 to hand over peaceful possession of the land in question to the plaintiffs. It was further prayed that a decree for permanent injunction be also passed in favour of the plaintiffs and against RSA No.3474 of 2008 -4 - the defendants restraining them from creating any charge over the property in question. Defendants No.1 and 2 filed joint written statement and contested the suit filed by the plaintiffs. Besides raising preliminary objections regarding cause of action, locus standi, concealment of material facts, misjoinder and non-joinder of necessary parties, estoppel and maintainability etc., it was alleged on merits that FIR under Section 325 IPC has been registered against the plaintiffs. It was denied that defendant No.1 was staying with the plaintiffs and she was being looked after very well by the plaintiffs and there was not an iota of complaint by defendant No.1 against the plaintiffs. It is rather pleaded that plaintiffs had never looked after their mother (defendant No.1) and about six months back, she was forcibly thrown out by the plaintiffs from their house. Consequently she had to take shelter in the house of defendant No.2, who happens to be his cousin where she started residing and defendant No.2 gave her shelter, food and all other amenities of life. It is denied that in November 2005, defendant No.2 had gone to defendant No.1 at Delhi at the address of plaintiffs where defendant No.1 was residing and informed him that Hazari Lal father of defendant No.2 was not keeping well. It was further denied that plaintiff No.3 had ever visited their house and despite his repeated visits, return of defendant No.1 was postponed. As a matter of fact all the allegations contained in the plaint were denied by the defendants. The plaintiffs controverted the stand of the defendants by way of replication and the basic issue framed by the trial Court was “as to whether the release deed dated 12.1.2006 is an act of fraud and misrepresentation.” The trial Court after taking into consideration the evidence on record, came to the conclusion that the release deed was executed by RSA No.3474 of 2008 -5 - defendant No.1, which has been challenged by plaintiffs as her sons but in the written statement, it has been denied that release deed is neither a valid document nor sustainable in the eyes of law. Rather it was found by the Court below that defendant No.1 was the absolute owner of the property in question in view of Section 14 of Hindu Succession Act, 1956 and had a right to alienate the property. It was further observed that had there been any undue pressure exerted upon defendant No.1 by defendant No.2 then it was for her to challenge the same. It was also noticed that defendant No.1 has filed a separate suit to challenge the release deed, therefore, it was found that so far as plaintiffs are concerned, they have no right to file the present suit and the same was dismissed. In the first appeal also, the Appellate Court returned same finding that defendant No.1 being absolute owner of the suit land had every right to deal with the same in any manner and if there was any fraud then only defendant No.1 had a right to challenge the same for which she had already filed a civil suit to that effect. Sh.P.R.Yadav, Advocate, learned counsel for the appellants was at pains while submitting that there was a fraud committed upon defendant No.1 by defendant No.2 while keeping her in captivity and then to get release deed from her of the property in his favour, therefore, it was submitted that it was a case of undue influence exerted by defendant No.2 upon defendant No.1. Learned counsel for the appellants, however, has failed to justify the suit filed by the plaintiffs in view of the fact that defendant No.1 who is the owner of the property and had executed the release deed herself has filed a suit against defendant No.2, therefore, the plaintiffs have no locus standi to file the suit in respect of the property. In view of the above discussion, I do not find any merit in the RSA No.3474 of 2008 -6 - present appeal, therefore, the same is hereby dismissed with no order as to costs. (Rakesh Kumar Jain) 7.11.2008 Judge Meenu