1998 Supreme(Bom) 431

IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
Eknath Nana Shinde ..... Petitioner.
Versus
Shankarappa Chanbasappa Shindgi another .... Respondents.
Writ Petition No. 3514 of 1989, decided on 5-8-1998.
Advocates appeared:
M.V. Sali, for the petitioner.
P.M. Mengane, for respondent No. 2.

Headnote:Order XXI, Rule 58-Bombay Motor Vehicles Act, 1939-Accident claim under M.V. Act-Award made by Tribunal-Execution of award Land of award-debtor attached- Debtor dubiously transferred land to his minor son-No deed of conveyance-Son objecting against attachment of land-Tribunal allowed objection-Validity-Held, when son had no title in land his objection cannot be allowed-order of Tribunal illegal and unsustainable.-It is really unfortunate that a Tribunal headed by a District Judge should have recorded finding to the above effect, which has the result of defeating the claim of a poor accident victim. The claim of the second respondent was wholly unsustainable to law. It is not disclosed as to how did the second respondent acquire the property who paid the consideration? And what was the mode of transfer by respondent No.1 to respondent No.2. It is strange that the truck bearing registration No. MHO 5266 belonging to the first respondent, which was initially attached, was permitted to be sold by the first respondent even before the decree was satisfied. The first respondent purchased the land and secretly got it mutated in favour of his minor son and put him up by way of an application under Order XXI, Rule 58 of the CPC. Without any legal evidence in support of the title of the second respondent, the Tribunal headed by a District Judge accepted the claim of the second respondent and ordered the attachment to be raised.

       Order XXI, Rule 58 and Motor Vehicle Act (4 of 1939), Section 110A-Self acquired land belonging to judgment-debtor attached-Said land shown to have been transferred to minor son of judgment debtor under mutation entry without executing any conveyance-Application for raising attachment filed by minor son under Order XXI, Rule 58.allowed by the Claims Tribunal without there being any evidence of title of transferee son-Respondent had played fraud in procuring mutation entry without any document of title-Order set aside being perverse in law.-In respect of an accident which took place on 5.10.1978, the claimant was awarded compensation of Rs. 1,08,770/- with interest at the rate of 6% per annum by order dated 5th January, 1982 under Section 110-A of the Motor Vehicles Act, 1939. Out of the said amount, the Insurance Company paid an amount of Rs. 50,000/- to the claimant. Darkhast proceedings were filed for recovery of the remaining amount of Rs. 58,770/-. On 23.5.1978 the judgment-debtor had purchased certain land in his name which was attached. Thereafter mutation entry was effected on 2.9.1987 showing the name of the minor son of the judgment-debtor as the owner of the said land. On 26.2.1988 the minor son of the judgment-debtor filed an application through his guardian under Order XXI, Rule 58 of the Code of Civil Procedure for raising the attachment of the immovable property. The said application was opposed by the claimant on the ground that in absence of any conveyance in favour of the minor son, the mutation entry could not confer any title on the minor son. The Motor Accident Claims Tribunal however, allowed the said application and the land standing in the name of the minor son was ordered to be released from attachment. In writ petition by the claimant challenging the said order.

       Held, that it was really unfortunate that a Tribunal headed by a District Judge should have recorded finding to the above effect, which had the result of defeating the claim of a poor accident victim. The claim of the second respondent was wholly unsustainable in law. The respondents had played a fraud in procuring mutation entry mutating the land in favour of respondent No. 2 without any document of title. What was unfortunate was that the Tribunal recorded a finding that though immovable property could not be transferred except by way of a registered conveyance, nevertheless the property was transferred under a mutation entry pursuant to the order of a District Collector. There was no conveyance, much less, a registered document transferring the said land to his minor son. No case of any partition or family arrangement had been pleaded. The judgment-debtor had purchased the land and had secretly got it mutated in favour of his minor son and had put him up by way of an application under Order XXI, Rule 58 of the Civil Procedure Code. The Claims Tribunal without any legal evidence in support of the title of the minor son accepted his claim and ordered attachment to be released. Order of Claims Tribunal set aside. Judgment debtor directed to pay costs of Rs. 10,000/- to the claimant.