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Allahbad High Court
M.P.MEHROTRA
Lakshmi Devi - Appellant
Versus
Kala Devi - Respondent
Decided On : 04/01/1977
SUIT UNDER O. XXI, R. 63, C.P.C. - SCOPE AND AMBIT - JOINT FAMILY PROPERTY - SHARE OF COPARCENER - ATTACHMENT AND SALE - ADMISSION OF DEFENDANTS - RATIO OF SUPREME COURT CASES - APPLICABILITY - TRANSFER OF PROPERTY ACT, S. 10 - CONDITION RESTRAINING TRANSFEREE FROM PARTING WITH INTEREST - VALIDITY - COURT AUCTION SALE.
Fact of the Case:
Plaintiff Lalaram filed a suit under O. XXI, R. 63, C.P.C., seeking a declaration that the property in dispute was not attachable and saleable in execution of two decrees passed against his son Baburam. The property was attached in execution of one decree and was also attached before judgment in the other suit. Lalaram claimed exclusive ownership of the property, alleging that it was his separate property and that Baburam had no interest in it. However, the trial court and the lower appellate court found that the property was joint family property and dismissed the suit.
Finding of the Court:
The High Court held that the suit under O. XXI, R. 63, C.P.C. was not maintainable as the plaintiff had not first obtained an order under O. XXI, R. 58, C.P.C. The court also held that the plaintiff could not claim a declaration in respect of his share in the joint family property as he had not raised this contention in his objection under O. XXI, R. 58, C.P.C. The court further held that the admission of the defendants that the property was joint family property was not sufficient to grant the plaintiff a declaration in respect of his share, as the defendants had not admitted that the plaintiff had a subsisting right or interest in the property. The court also held that the condition in the Tamleeknama restraining Baburam from selling or mortgaging the property without the written consent of Lalaram was not attracted to the facts of the case as the property was sold in court auction and not by Baburam voluntarily.
Issues: 1. Whether a suit under O. XXI, R. 63, C.P.C. is maintainable without first obtaining an order under O. XXI, R. 58, C.P.C.? 2. Whether a plaintiff can claim a declaration in respect of his share in joint family property in a suit under O. XXI, R. 63, C.P.C., when he has not raised this contention in his objection under O. XXI, R. 58, C.P.C.? 3. Whether the admission of the defendants that the property is joint family property is sufficient to grant the plaintiff a declaration in respect of his share in the property? 4. Whether a condition in a Tamleeknama restraining the transferee from selling or mortgaging the property without the written consent of the transferor is valid in the context of a court auction sale?
Ratio Decidendi: 1. A suit under O. XXI, R. 63, C.P.C. is not maintainable unless the plaintiff has first obtained an order under O. XXI, R. 58, C.P.C. 2. A plaintiff cannot claim a declaration in respect of his share in joint family property in a suit under O. XXI, R. 63, C.P.C., when he has not raised this contention in his objection under O. XXI, R. 58, C.P.C. 3. The admission of the defendants that the property is joint family property is not sufficient to grant the plaintiff a declaration in respect of his share in the property, unless the defendants have also admitted that the plaintiff has a subsisting right or interest in the property. 4. A condition in a Tamleeknama restraining the transferee from selling or mortgaging the property without the written consent of the transferor is not valid in the context of a court auction sale.
Final Decision: The High Court dismissed the plaintiff's appeal.
2. The original plaintiff Lalaram deceased sought a declaratory relief to the effect that the property mentioned in the plaint was not attachable
and saleable in the execution of decree No. 172 of 1962, Smt. Kala Devi v. Baburam and of decree No. 194 of 1962, Ramesh Chandra v. Baburam. Smt. Kala Devi was impleaded as the defendant No. 1 and Ramesh Chandra was impleaded as the defendant No. 2. As I have already stated above Baburam, the plaintiffs son, was impleaded as the defendant No. 3. The aforesaid decrees Nos. 172 of 1962 and l94 of 1962 were passed against the said Baburam in favour of the said decree-holders. The suit property was attached in execution case No. 239 of 1962 wherein the decree passed in Suit No. 194 of 1962 was put into execution. The said property had also been attached before judgment on 18th September, 1962 in Suit No. 172 of 1962. Lala Ram filed an objection against the said attachment before judgment under O. XXXVIII, R. 8, C.P.C. but the same was dismissed on 27th April, 1963. The said Suit No. 172 of 1962 was decreed against Baburam on 15th November, 1962. Against the attachment effected in execution case No. 239 of 1962. Lalaram filed an objection under O. XXI, R. 58, C.P.C. The said objection was pending when the instant suit under O. XXI, R. 63, C.P.C. was instituted. Apart from the aforesaid facts which were set out in the plaint, Lalaram further alleged that he had been forced to execute a Tamleeknama on 25th February, 1961 but the same was ineffective inasmuch as it had been obtained by his son under duress from him. Alternatively, it was pleaded that Baburam reconveyed the property to his father Lalaram by means of a deed of surrender dated 17th August, 1962. Therefore, the plaintiff Lalaram was the sole owner of the property and the same was not liable to be attached and sold in the execution of the aforementioned two decrees passed against his son Baburam.
3. The defendant No. 3 filed a written statement supporting the plaintiffs case but the other two defendants who were the decree-holders resisted the plaintiffs claim. They pleaded that the Tamleeknama was a genuine document and was not obtained from the plaintiff under duress. The deed of surrender dated 17th August, 1962 was alleged to be a sham and fictitious document which was executed to defeat the claim of the creditors. It was further pleaded by the defendants-decree-holders that the property in dispute was a joint family property and, in any case, at least half of the share of the judgment-debtor Baburam was attachable and was liable to be sold. It may be stated that respondents Nos. 4 and
5 who have been impleaded in the instant second appeal are the auction-purchasers. They were not originally parties to the suit. The respondents 1, 2 and 3 in the instant appeal are defendants Nos. 1, 2 and 3 in the suit.
4. The trial court framed necessary issues and after trial dismissed the suit. The lower appellate court affirmed the trial courts decree. The plaintiff has now come up in the instant appeal and the learned counsel for the appellant has, in the main, contended as follows:-
(1) The Tamleeknama did not confer an absolute right on Baburam. H
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