RSA No.3864 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3864 of 2007 (O&M) Date of decision: 8.9.2008 Manpreet Singh and another …… Appellants Versus Bhagwant Singh and others …….Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Mohinder Singh Joshi, Advocate for the appellants. Mr. S.S. Swaich, Advocate for the respondents. * * * * Rakesh Kumar Garg, J . CM No.10892-C of 2007 CM is allowed. Annexure A-1 is taken on record. RSA No.3864 of 2007 1. By way of this appeal, the defendants have challenged the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondents for declaration to the effect that suit land is Ancestral Joint Hindu Family Coparcenery Property of the plaintiff-defendants No.1 to 3 and sale deed dated 22.8.2001 executed by defendant No.1 in favour of defendants No.2 and 3 is illegal, has been decreed. 2. Respondent No.1- Bhagwant Singh filed a suit for declaration to the effect that the suit land is Ancestral Joint Hindu Family Property and sale deed dated 22.8.2001 executed by respondent No.2 in favour of appellants is illegal, null and void as the respondents have acquired an interest in the said suit land by birth and that the impugned sale deed was without any legal necessity and consideration. 3. The suit was contested by the defendant-appellants stating therein that respondent No.1 is not the son of respondent No.2 and RSA No.3864 of 2007 (O&M) 2 therefore, is not a member of the Joint Hindu Family. It was denied that the suit property is Ancestral Joint Hindu Family Coparcenery Property. It was further stated that the impugned sale deed regarding the suit land was executed in favour of the appellants by respondent No.2 for legal necessity and for a consideration. 4. The trial Court vide its judgment and decree dated 25.9.2006 decreed the suit of the plaintiff and held that the suit land is Ancestral Joint Hindu Family Coparcenery Property and sale deed dated 21.3.2001 Ex.DW1 executed by respondent No.2 in favour of the appellants is a Sham transaction and is liable to be set aside. The appeal filed by the defendants against the judgment and decrees of the trial Court was also dismissed by the Additional District Judge, Fatehgarh Sahib vide impugned judgment and decree dated 3.10.2007. The relevant part of the judgment of the Lower Appellate Court is reproduced:- “ In view of my above discussions, I hold that the property is ancestral joint Hindu Family coparcenary property in the hands of Pal Singh. Once it is proved on record that the property is ancestral joint Hindu Family coparcenary property and respondent no. 1 Bhagwant Singh is the son of respondent no.2 Pal Singh, then he has got a right by Birth therein and respondent no. 2 could not sell the suit property except for legal necessity or benefit to the estate or joint Hindu Family. The respondent no.1 has also challenged the sale deed Ex.DW1 on the ground that it is without any legal necessity and was without any consideration. Although sale deed Ex.DW1 has been got proved by the appellants by examining RSA No.3864 of 2007 (O&M) 3 DW1 Pal Singh , DW2 Sittal Singh, Nambardar and DW3 Nachhttar Singh yet recital in his sale deed Ex.DW1 would reveal that nothing has been recorded in this sale deed Ex.DW1 that what was the legal necessity that compelled respondent no.2 Pal Singh to sell the ancestral and joint Hindu Family coparcenary property in favour of the appellants. Even Pal Singh who appeared as DW2 could not substantiate what was the legal necessity which compelled him to contract sale deed Ex.DW1. Although there is no dispute that adequacy or inadequacy of consideration is no ground to set aside the sale deed Ex.DW1 yet when there is clear cut recital in the sale deed Ex.DW1 that entire sale consideration was paid to the vendor in the house then question arises whether there is merit in this recital. Firstly, it has to be borne in mind that these appellants are none else but the sons of Pal Singh respondent no.2 and they are minors and if it is so then from where the entire sale consideration was paid by these minor appellants. No such evidence is forthcoming and in the absence of which it is proved on record that this sale deed Ex.DW1 is without consideration . Even no amount was paid before Sub Registrar and it simply proved that this sale deed is a sham transaction coupled with the fact that the respondent no.2 could not point out any legal RSA No.3864 of 2007 (O&M) 4 necessity, which compelled him to dispose of joint Hindu Family coparcenary property. No evidence has been led to prove that Pal Singh was under heavy debts and certainly sale deed Ex.DW1 is liable to be set aside being illegal and sham document.” 5. Feeling aggrieved against the judgment and decrees of the Courts below, the defendants have now filed the present appeal. 6. Learned counsel for the appellants has vehemently argued that the sale deed in favour of the appellants has been wrongly rejected while holding that there is no recital to the effect that nothing was recorded therein with respect to legal necessity in which the ancestral coparcenery property was sold by respondent No.1 in favour of his minor sons i.e. appellants. Learned counsel has relied upon Clause 6 of the sale deed wherein it has been stated that the land was being sold so as to return the debt owed by Pal Singh and further that the money had been arranged by maternal uncles of appellants and thus, the Courts below have misled and misinterpreted the evidence on record and therefore, the judgment and decrees of the Courts below are liable to be set aside being perverse. 7. Sh. S.S. Swaitch, learned counsel for the respondents, has supported the findings of the Courts below and has stated that no substantial question of law arises in the present appeal as a pure finding of fact has been recorded by the Courts below with regard to the fact that there was no legal necessity to execute the sale deed by Pal Singh as no consideration has passed. 8. I have heard learned counsel for the parties and perused the record. 9. I find no force in the contentions raised by the learned counsel for the appellants. The Courts below have given a concurrent finding of fact RSA No.3864 of 2007 (O&M) 5 that the suit property is ancestral Joint Hindu Family Coparcenery Property in the hands of Pal Singh and respondent No.1 being son of respondent No.2 has got an interest in the suit property by birth. It was further held that respondent No.2 could not sell the suit property except for legal necessity. No doubt, in the impugned sale deed, a recital has been recorded to the effect that the land is being sold for payment of debt and the money had been arranged by the maternal uncles of the appellants, yet there is no evidence on record to support this. The Lower Appellate Court has recorded a finding that even respondent No.2 while appearing as PW-2 could not substantiate the legal necessity which compelled him to execute the impugned sale deed. Although there is no dispute regarding that adequacy or inadequacy of consideration of the sale deed yet it raises a doubt whether any consideration was passed as the entire sale consideration was paid to the vendor in the house by the appellants who are none else but the minor sons of respondent No.2 and brother of respondent No.1. Undisputedly no amount was paid before the Sub Registrar. From these facts, it is clearly proved that this sale deed is a sham transaction. There is no evidence from which it could be proved that Pal Singh was under any debt. Thus, the impugned sale deed is liable to be set aside being illegal and a sham document. 10. For the reasons recorded above, I find no infirmity or illegality in the impugned judgment and decrees of the Courts below. No substantial question of law arises in the present appeal. 11. Dismissed. September 8, 2008 (RAKESH KUMAR GARG) ps JUDGE