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1996 Supreme(P&H) 1152
PUNJAB AND HARYANA HIGH COURT
N.K. Kapoor, J.
Banwari and another - Appellants
Versus
Moti Lal - Respondent
R.S.A. No. 2061 of 1990.
Decided On : 5 August, 1996
For the Petitioner/Appellant:Mr. C.B. Goel, Advocate.
For the Respondent:Mr. Hemant Sarin, Advocate and Mr. Suresh Monga, Advocate.
A son has the right to challenge an alienation of joint Hindu family property made by his father without legal necessity or benefit to the estate, even if the father has suffered a decree in favor of a third party.
Headnote:
HINDU LAW - JOINT HINDU FAMILY PROPERTY - ALIENATION BY FATHER - SON'S RIGHT TO CHALLENGE - DECREE SUFFERED BY FATHER IN FAVOUR OF BROTHER - PROPERTY UNDER ATTACHMENT - MAINTENANCE ALLOWANCE PAID - PROPERTY RELEASED - WHETHER FATHER CAN SUFFER DECREE IN FAVOUR OF BROTHER - WHETHER SON ENTITLED TO CHALLENGE DECREE - HINDU MARRIAGE ACT, 1955 - SECTION 18 - CIVIL PROCEDURE CODE, 1908 - ORDER 21 RULE 58 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 53A.
Fact of the Case:
Plaintiff, a minor, through his mother as next friend, filed a suit for possession of land against his father and uncle. The plaintiff claimed that he was born out of the wedlock of his mother and father, who deserted her, leading to an application for maintenance before the Magistrate. The maintenance amount was ordered to be paid, and the suit land was put under attachment with a condition that it could not be transferred. The plaintiff challenged a collusive decree suffered by the father in favor of the uncle on the grounds of illegality, nullity, and fraud.
Finding of the Court:
The courts below found that the decree was illegal, null, and void and did not bind the plaintiff. They also held that the plaintiff and the uncle were members of a joint Hindu family and that the property in suit was joint Hindu family property. The plaintiff was entitled to joint possession of the land with his father.
Issues: 1. Whether the decree dated 26.10.1984 passed by S.J. III C. Karnal is illegal and null and void? 2. Whether the plaintiff and defendant No. 2 are members of Joint Hindu Family and the property in suit is joint Hindu Family property? If so, to what effect? 3. Whether the plaintiff is entitled to the possession of the land in suit? 4. Whether the suit is not maintainable in the present form? 5. Whether the plaintiff has no locus standi to file this suit?
Ratio Decidendi: The courts below correctly held that the decree was illegal, null, and void as it was obtained by fraud and collusion and violated the order of attachment issued by the court. The property in suit was found to be joint Hindu family property based on the admission of the father and uncle in a previous suit. The plaintiff, as a coparcener, had the right to challenge the alienation made by the father without legal necessity or benefit to the estate.
Final Decision: The appeal was dismissed, upholding the concurrent judgments of the courts below. The decree suffered by the father in favor of the uncle was set aside, and the plaintiff was granted joint possession of the land.
N.K. Kapoor, J. - This is defendants regular second appeal against the concurrent judgments of the Courts below.
2. Plaintiff Moti Ram (then minor) through his mother as next friend filed suit for possession of land against his father Sidhu Ram and uncle Banwari. As per the case of the plaintiff he was born out of the wedlock of his mother Ratni and father Sidhu Ram. Sidhu Ram deserted his wife Smt. Ratni ultimately leading her to file an application for her maintenance before Magistrate. Her application was accepted and Sidhu Ram was ordered to make payment of Rs. 150/- as maintenance to Smt. Ratni. Since this amount of maintenance was not paid suit land was put under attachment. One of the conditions of attachment was that the property cannot be transfered away. According to the plaintiff, defendant No. 2 suffered a collusive decree in favour of defendant No. 1 on 26.10.1984. which the plaintiff has challenged on a number of grounds.
3. Defendant resisted the claim stating that plaintiff has no locus standi to file the suit, the maintenance amount having been paid the property stands released.
4. On the pleadings of parties, the following issues were framed:-
(1) Whether the decree dated 26.10.1984 passed by S.J. III C. Karnal is illegal and null and void ? OPP.
2. Whether the plaintiff and defendant No. 2 are members of Joint Hindu Family and the property in suit is joint Hindu Family property ? If so, to what effect ? OPP.
3. Whether the plaintiff is entitled to the possession of the land in suit ? OPD.
4. Whether the suit is not maintainable in the present form ? OPD.
5. Whether the plaintiff has no locus standi to file this suit ? OPD
6. Relief.
Issues, 1 and 2 taken up together and the trial Court on considering the oral as well as documentary evidence came to the conclusion that decree dated 26.10.1984 is illegal, null and void and does not bind the plaintiff. Both these issues were decided in favour of the plaintiff and against the defendant. Issues No. 4 was decided against the defendant. Under issue No. 5 the Court came to the conclusion that plaintiff being son of Sidhu Ram defendant No. 2 has a right to challenge the decree exhibit P-4. Under issues 3 and 6, which were taken up together the court held that plaintiff being a co-parcenary in the land is entitled to joint possession with his father. Thus, a decree for joint possession of land in the suit in favour of the plaintiff was passed.
5. Lower appellate Court, on re-examining the matter on fact as well as law found no valuable ground to vary to reverse the conclusion arrived at by the trial Court. Appeal was, thus, dismissed.
6. Learned counsel for the appellant has termed the conclusion arrived at by the Courts below to be wholly unwarranted on facts as well as law. According to the counsel, maintenance allowance having been paid there was no charge upon the property and so Shri Sidhu Ram was well within his right to suffer a decree a favour of his brother Banwari. Otherwise also, the Courts below erred in law in coming to the conclusion that the suit property is a co- parcenary property. In fact, the decree rightly suffered by Sidhu Ram in favour of Banwari had primarily been challenged on the ground that there was a charge upon the property and that the property could not be transferred in view of the direction of the court. In any case, there being no proof on record that land in dispute was ancestral/co-parcenary property of the plaintiff and defendant No. 2 such an inference could not be drawn merely for the reason that in the earlier suit defendant No. 2 happened to admit one para of the plaint wherein such an assertion had been made.
7. Concededly, the plaintiff, a minor, sought possession of land challenging the decree suffered by his father on a number of grounds, namely, (i) that the suit land was under attachment and that there was specific order from a competent court that property cannot be disposed of. Thus, the decree is liable to be set as
