A property gifted does not become ancestral solely by inheritance; the transferor's intent and legal characterization of the property matter. Petitioners lacked enforceable rights to prevent sale.

JUDGMENT

Bhaskar Raj Pradhan, J. - The petitioners were not parties before the Debts Recovery Tribunal (the Tribunal). They are adult sons of the respondent no.4 who was proceeded against before the Tribunal having stood as guarantor for the loan taken by the respondent no.2 from the respondent no.1 in Case No.TRC /127/2018 in re: Allahabad Bank vs. M/s Majestic Printers and Publishers and Ors. The respondent no.4 had for that purpose mortgaged the landed property in dispute (the property) to the respondent no.1 as a guarantor. The respondent no.3 wife of respondent no.2 was also a guarantor. The respondent no.2 was the Certificate Debtor no.2 and the respondent no.4 was Certificate Debtor no.3.

2. They have approached this court under Article 227 of the Constitution of India seeking for quashing of the order dated 13.11.2019 (impugned order) purportedly passed by the Tribunal. They seek a declaration that the property involved in the auction sale shall not be sold in auction to realize the dues of the respondent no.1; a declaration that the other landed properties of respondent no.2 first be proceeded against to realize the dues of respondent no.1; and a direction that the loan shall be realized from the respondent no.3 from her employer duly adjusting the considerable amount towards recovery of loan.

3. The petitioners state that the property was originally acquired by the father of respondent no.4, late Hari Prasad Sharma and the respondent no.4 got this property as his share from his father on partition and as such it is an ancestral property of the petitioners. It is the petitioner’s case that there is an old ‘ekra’ house in the property where the petitioners along with their father-the respondent no.4 and other family members used to reside. It is stated that the petitioners and the respondent no.4 jointly cultivate the land appurtenant to the old ‘ekra’ house. It is the petitioners’ case that if they are removed from the ‘ekra’ house and the land appurtenant thereto they would be rendered homeless.

4. It is stated that the petitioners as well as respondent no.4 are Hindus governed by Mitakshara School of Hindu Law and that by virtue of their birth; they have become owners of the property along with respondent no.4 as coparceners.

5. According to the petitioners the respondent no.2 owns and possesses various landed properties bearing plot nos. 396 (area .2420), 405 (area .0240), 1191 (area .1680), 1489 (area .0600), 1489/1789 (area .2460), 1248/1790 (area .1840) and 1249/1791 (area .2320). The petitioners have relied upon a communication bearing memo no. 63/DCE dated 12.10.2017 issued by the Sub-Divisional Magistrate, East District Collectorate of the Government of Sikkim which states so. It is asserted that these properties which are recorded in the name of respondent no.2 are apart from land bearing plot no.1487/1789 at Tintek Block, East Sikkim which has been attached for sale by auction by the respondent no.1.

6. The petitioners further assert that the respondent no.3-wife of respondent no.2 who was also a guarantor of the loan taken by respondent no.2 is a regular employee of the Government of Sikkim in the Energy and Power Department, Gangtok in the rank of ARS. Her gross monthly salary is Rs.49,000/- and net amount received by her per month is Rs.33,669/-.

7. Although the respondent no.4 was arrayed as a party in the present writ petition and served, he has chosen not to appear and file his say.

8. The respondent no.1 challenges the locus standi of the writ petition. The respondent no.1 also contests the claim of the petitioners that the property is ancestral property. According to the responde