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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mazhar Ali Shah, J.
Vishal Kumar Sharma - Appellant
Versus
Catholic Church, Jammu & Ors. - Respondent
Civil Suit No. 37/1972
Decided On : 08 November, 1985
Suit for declaration that sale deed and mortgage deeds executed by defendant No. 2 in favor of defendant No. 1 are void, inoperative and ineffective against the interests of the plaintiff and further with a prayer that an amount of Rs. 81,000/- determined as the amount of compensation for the part of the suit property acquired by the Government for widening of the B C. Road, Jammu, as the property of the plaintiff and prayed for consequential relief of possession of the property covered by the said sale deed and in the alternative for a decree for joint possession in respect of house in the plaint and shown in the map enclosed with the plaint.
Fact of the Case:
Plaintiff Vishal Kumar Sharma son of defendant No. 2 has brought this suit against defendants 1, 2 and 3 for a declaration that the sale deed dated February 1, 1961 registered on May 27, 1961 executed by defendant No. 2, late Yogeshwar Kumar Sharma (who died during the pendency of the suit and substituted by his legal representatives, who are on record) in favour of defendant No. 1-the Catholic-Church, Jammu and the mortgage deed dated May 4, i960, registered on May 6, 1960 in favour of Dr. Shiv Dass and the mortgage deed dated May 12, 1960 registered on May 25, 1960, in favour of defendant No. I, which culminated in the sale deed dated February 1, 1961, be declared void, inoperative and ineffective against the interests of the plaintiff and further with a prayer that an amount of Rs. 81,000/- determined as the amount of compensation for the part of the suit property acquired by the Government for widening of the B C. Road. Jammu, as the property of the plaintiff and prayed for consequential relief of posse₁sion of the property covered by the said sale deed and in the alternative for a decree for joint possession in respect of house in the plaint and shown in the map enclosed with the plaint.
Finding of the Court:
The sale of the disputed property was not for the legal necessity and having held that the debts by Yogeshwar Kumar late defendant No. 2 were incurred for immoral purposes and no pious duty lies on the sons to pay of such debts & to honour such a sale transaction, the impugned mortgage in favour of Dr. Shiv Dass which culminated in the purchase of his right by defendant No. 1 by deed of May 27,1960 as well as sale deed of disputed property executed on Feb. 1,1961 and registered on May 27, 1961 does not bind the plaintiff and the same is held to be null & void as against the plaintiff & to that extent is hereby declared as in-effective.
Issues: 1) Is the suit of the plaintiff within time? 2) Is Doctor Shive Dass a necessary party to the suit ? 3) Was the property in dispute the joint family property of the plaintiff and defendants 2 & 3 ? 4) Has the plaintiff obtained his share in the properties of the joint family by means of a partition decree from the High Court? 5) In case issue No. 4 is proved, is the suit of the plain₁tiff maintainable after he had obtained a decree from the High Court? 6) Was the sale of the property in dispute made by defendant No. 2 in favour of defendant No. 1 for the payment of antecedents debts ? 7) In case of proof of issue No. 6, were these antecedents incurred for immoral purposes ? 8) In case the answer to issue No. 7 is in the affirmative the defendant No. 1 be said to have notice of the fact that these debts were incurred for immoral purposes? 9) Was the defendant No. 2 leading an immoral life by indulging in gabbling & drinking? 10) In the event of the plaintiffs succeeding in the case, to what extent can the sale be declared ineffective, and what in and the value thereof? 11) Relief.
Ratio Decidendi: The pious obligation of sons to pay off the fathers debts extends for the payment of antecedent debts unless they are obtained with immorality.
Final Decision: Suit decreed holding sale deed dated February 1,19961 registered on May 27,1961 executed by late Yogeshwar Kumar as well as mortgage deed in favour of defendant No. 1 dated May 12,1960 registered on May 25,1960 merging the mortga₁ge deed of Dr. Shiv Dass executed on May 4,1960 and registered on May 6,1960 is hereby declared in-effective and nullity against the plaintiff, which does not bind his share in the property in dispute In the present suit however, it binds the share in the said property of late Shri Yogeshwar Kumar and is valid to the extent of his share in favour of defendant No. 1. The plaintiff shall also be entitled to the cost of the suit, Defendant No, 1 shall bear his own cost and shall pay that of the plaintiff. Counsel fee according to the Certificate or according to the schedule which-ever is less. The decree be drawn up accordingly.
2. The plaintiff precisely claims the declaration and consequential relief on the grounds that during minority of the plaintiff, who was born on 8th January, 1952 and attained the age of majority on 8th Jan. 1970, the sale deed quoted above and the mortgages of the properties held by the joint family and the entire immoveable property which was a joint Hindu family property, out of which the sale transaction and the mortgages done by his father late Yogeshwar Kumar Sharma were not for legal necessity of the family but were for the immoral purposes of his father thus are not binding on the plaintiff and no valid title in the property passes to the vendees. It is stated that the grand-father of plaintiff named as Rai Sahib Pt. Ram Dhan left huge immovable properties in the City of Jammu in the form of land, houses and shops, on his death defendant No. 2 late Yogeshwar Kumar Sharma inherited the said property by succession, who has two sons, namely, the plaintiff and defendant No. 3. The inherited properties were, therefore, treated as joint Hindu family property and were thrown in the common stock of the family.
3. Looking to the frame of the suit, the challenge is confined only to the transactions, which took place by way of mortgage and sale, deed out of the said properties from year 1960 extended to 1961. Admittedly the plaintiff was minor at the time when, those transactions took place and hence on attaining majority in January. 1970 brought the present, suit on July 24, 1972. It is further stated that Pt. Yogehwar Kumar Sharma was living a luxurious and extravegent life from his child-hood. Pt. Ram Dhan died while defendant No. 2 was also a minor hardly 13 years of age. The property left by Pt. Ram Dhan was so much huge property that its in and unufruct was much more than what was required for the expenses of the family. Thus in fact the family had no real or ostensible necessity much less a legal one which would warrant alienation of any joint family property. Defendant late Pt. Yogeshwar Kumar Sharma developed immoral habits of drinking and gambling and dissipated the major portion of the income which accrued to the family, so much so that he had dispose of vacant side of land situated at College Road. Jammu to one Sita Ram of Mirpur long before the year 1960 to satisfy his immoral requirements. The claimax of his immoral needs reach near about the year 1960 and he entered into various transactions of the property in the form of mortgages and contracted debts creating sizable encumbrance upon the family, for the immoral purposes. The transactions attacked in the prevent suit are confined to sale deed dated Feb 1, 1959 the subject-Trotter of the suit in favour of defendant No for a consideration of Rs. 51,000/- and the ea
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