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Mukhtiara Vs. Sardarni Virpal Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberExecution First Appeal No. 285 of 1966
Judge
Reported inAIR1968P& H239
ActsLand Acquisition Act, 1894 - Sections 52A; Evidence Act, 1872 - Sections 101-104 and 115
AppellantMukhtiara
RespondentSardarni Virpal Kaur and ors.
Appellant Advocate Puran Chand, Adv.
Respondent Advocate D.C. Gupta, Adv.
DispositionAppeal dismissed
Excerpt:
.....superintendence under article 227 of the constitution. - this contention, in my opinion, is clearly untenable. 38550 mukhtiar chand is entitled to receive half the amount on account of the land which had come into his hands from choranji lal under the gift deed mr puran chand has, however attempted to get out of this finding by urging that choranji lal alienated a good deal of property out of other khasra numbers and accordingly, his share in these three khasra nos......gift was lying unacquired, and the compensation amount sought to be attached did not relate to the gifted property 4. in the course of the trial of the various issues arising in the case, the appellant mukhtiar chand adduced evidence in an effort to prove that before making the gift in his favour choranii lal had in fad alienated bulk of his property by sale to various persons, and on the date of the gift he did not own more than 1 bigha 14 biswas of land the learned senior subordinate judge on due consideration of the material placed before him however, rejected this contention and held that on the date of the gift both the brothers choranii lal and mukhtiar chand owned 14 bighas 19 biswas of land, and thus under the gift in his favour mukhtiar chand had acquired title to 7 bighas 9.....
Judgment:

Gurdev Singh, J.

1. This appeal under Section 47 of the Civil Procedure Code is direct-ed against the order of the Senior Subordinate Judge, Pattala, dated 4th July, 1966, whereby he dismissed the appellant-judgment-debtors objections to the attachment of Rs. 15,000 out of the compensation payable to the appellant Mukhtiara alias Mukhtiar Chand under the Land Acquisition Act in respect of the appellant's property that was acquired by the Punjab State Electricity Board.

2. To appreciate the points arising for decision in this appeal, it is necessary to refer to the circumstances in which the decree against the appellant was passed. The appellant Mukhtiara is the elder brother of Choranji Lal. They jointly owned some land in village Badungar, district Patiala. By means of a registered sale deed, dated 17th May, 1960, Choranji Lal sold quite a large area of land out of Shamilat Patti Bhara Band Nihala in village Badungar to the respondent decree holders Sardarni Virpal Kaur and others for Rs. 15,000. About a month later, on 16th June, 1960, Choranji Lal executed a gift in favour of the appellant, his elder brother, whereby he transferred his half share out of 15 bighas 17 biswas of land comprised of Khasra Nos. 465, 483 467 and 485, situate in village Badungar. Subsequently, on discovering that Choranji Lal had no title or interest in the property which had been sold to them on 17th May. 1960, the respondents Shrimati Virpal Kaur and others brought a suit for recovery of Rs. 15,000, alleging that the subsequent sift made in favour of the appellant Mukhtiar Chand was with a view to defeat their right to recover the amount from Choranji Lal. The appellant Mukhtiar Chand, who was also impleaded as a defendant in that suit, contested his liability and defended the gift inter alia on the plea that out of the property gifted to him only 1 Bigha 7 Biswas of land belonged to Choranji Lal and the rest was already owned by him (Mukhtiar Chand). The trial of suit resulted in a decree against both the defendants, but Mukhtiar Chand was not held to be personally liable. The operative part of the judgment of the trial Court, Exhibit J. D. 1, which is consistent with the decree dated 26th March, 1964 was in these words:-

'I decree the plaintiff's suit for the recovery of Rs. 15,000 against the defendants with costs. Mukhtiar Chand would be liable to refund the decretal amount to the extent of the property received by him from Choranji Lal which was owned by that vendor on 17th May 1960.'

3. Out of the various fields which had been Rifted by Choranji Lal to Mukhtiar Chand appellant on 16th June, 1960, Khasra Nos. 465 483 and 467 measuring 3 bighas 7 biswas 4 bighas 6 biswas and 5 bighas 4 biswas, respectively, were acquired by the Punjab State Electricity Board. This acquisition included half share of the land which was owned by Mukhtiar Chand before the gift was made in his favour. The total compensation payable in respect of these fields was assessed at Rs. 38,550. Alleging that one half of this amount was for acquisition of Choranji Lal's share in Khasra Nos. 465, 483 and 467 that had been gifted to Mukhtiar Chand, the decree holders Shrimati Virpal Kaur and others applied for its attachment to the extent of the amount payable to them under the decree, dated 26th March, 1964. This was, however, objected to by the appellant Mukhtiar Chand on the following grounds:-

(1) that the amount of compensation payable to him was exempt from attachment under Section 52A of the Land Acquisition Act, 1894.

(2) that out of the land that had been gifted to him by Choranii Lal on 17-5-1960 Choranji Lal merely owned 1 bigha 14 biswas, and since Mukhtiar Chand's liability was restricted only to the property which belonged to Choranji Lal and had come to him under the gift, the entire amount of compensation payable to him could not be attached, and

(3) that the land which had come to the hands of Mukhtiar Chand under the gift was lying unacquired, and the compensation amount sought to be attached did not relate to the gifted property

4. In the course of the trial of the various issues arising in the case, the appellant Mukhtiar Chand adduced evidence in an effort to prove that before making the gift in his favour Choranii Lal had in fad alienated bulk of his property by sale to various persons, and on the date of the gift he did not own more than 1 Bigha 14 Biswas of Land The learned Senior Subordinate Judge on due consideration of the material placed before him however, rejected this contention and held that on the date of the gift both the brothers Choranii Lal and Mukhtiar Chand owned 14 bighas 19 Biswas of land, and thus under the gift in his favour Mukhtiar Chand had acquired title to 7 bighas 9 biswas of land, which belonged to Choranii Lal. He further found that Khasra Nos. 465, 483 and 467 out of the Rifted property had been acquired by the Punjab State Electricity Board Accordingly, the learned Judge held that out of the compensation payable to Mukhtiar Chand, the decree holders were entitled to realize the decretal amount. Section 52-A of the Land Acquisition Act was held to be not a bar to the attachment of the amount payable by the Punjab State Electricity Board as compensation

5. Mr. Puran Chand, appearing for the appellant Mukhtiar Chand has contested all these findings It is common case of the parties that the amount of compensation, which is sought to be attached by the respondent-decree holders, has not so far been paid to the appellant but is lying with the Collector Mr Puran Chand contends that so long as that amount is not received by the appellant it is exempt from attachment. In this connection, he places reliance on Section 52-A of the Land Acquisition Act, which runs thus :--

''52-A. No compensation awarded or awardable under this Act

(a) before it is actually paid to the person entitled to receive the same; or

(b) before or after it is actually paid to the person entitled to receive the same in respect of any land which is not liable under the law for the time being in force to attachment or sale in execution of a decree or order of any Court.

shall be liable to seizure, attachment or sequestration by process of any Court, at the instance of a creditor, for any demand, against the person entitled to compensation or in satisfaction of a decree or order of any Court, and, notwithstanding anything to the contrary in any law for the time being in force, neither the official assignee nor any receiver, appointed under any law shall be entitled to proceed against or to have any claim on any such compensation'

6. Mr. Puran Chand contends that the appellant's case falls under Clause (a) and is not affected by the words 'in respect of any land which is not liable under the law for the time being in force to attachment or sale in execution of a decree or order of any Court.' According to him, these words which follow Clause (b) apply only to that clause and cannot be held to govern Clause (a). Elaborating his argument, he submits that so long as compensation is not paid to the person entitled to the same it is exempt from seizure, attachment or sequestration by process of any Court etc., irrespective of the fact whether the property in respect of which compensation has been awarded is or is not exempt from attachment or sale in execution of a decree or order of a Court. This contention, in my opinion, is clearly untenable. The expression 'in respect of any land which is not liable under the law for the time being in force to attachment or sale in execution of a decree or order of any Court,' in my opinion governs both the Clauses (a) and (b). This expression defines or specifies the compensation in respect of which exemption is granted under this section. If this expression is held not to govern Clause (a), then the effect would be that compensation payable to a person in respect of any type of property would be exempt from attachment so long as it is not received by the person to whom the compensation is payable, but the moment it is received by the person entitled to compensation it would become liable to attachment in execution proceedings if the property is not exempt from attachment or sale in execution of a decree or order of a Court I must confess my inability to appreciate any logic in such a provision, and I am not prepared to believe that the legislature could have intended that if a certain property is not exempt from attachment or sale in execution of a decree it should be open to its owner to obtain such exemption by having that property acquired under the provisions of the Land Acquisition Act and permit him to obtain the compensation The object of exemption under Section 52-A of the Land Acquisition Act is merely to keep intact the protection which a judgment debtor enjoys under the ordinary law for exemption under Section 60 of the Civil Procedure Code from attachment or sale of the property. There appears to be a valid reason for it, if a judgment-debtor is entitled to keep a property with him without danger of its losing it by way of attachment or sale, there is no reason why he should be deprived of that protection if that property is compulsorily acquired. In view of all these considerations, I have no hesitation in agreeing with the learned Senior Subordinate Judge that the compensation payable to the appellant in this case is not exempt from attachment.

7. This brings me to the consideration of the appellant's second objection that his liability for the decretal amount does not extend to the property which he had acquired by gift from his brother Choranji Lal as except for one Bigha 14 Biswas the share of Choranji Lal which was gifted to him already belonged to him and Choranji Lal had title to that gifted property. In support of this objection, reliance was placed upon the evidence of the Patwari, J. D. W. 4, who stated that out of the joint holding of 26 bighas 3 Biswas held by Choranji Lal and Mukhtiar Chand. Choranji Lal had sold away an aggregate area of 11 Bighas 7 Biswas prior to the gift in the appellant's favour, and this on 17th May 1960, when the gift in the appellant's favour was made, he owned only 1 Bigha 14 Biswas of land in the joint holding. This statement of the Patwari was stated on mutations and other documents evidencing the transfer of property by Choranii Lal. I have gone through the various mutations and the sale deeds with the assistance of the learned counsel for the appellant, and the transactions to which the appellant's learned counsel could refer are these:

Exhibit

Date ofsale

Purchaser

Khasra No.

Area

BBB

J

D. W 1/A

24.2.1955

Jagdish Ram

485/9

0.10-0

J

D. W. 3/A

27.6.1955

Gajjan Singh

485/1

1.0-0

J

D. W. 4/A

28.2.1955

Mst. Mukhtiar Inder Kaur

485/2

2.0.0

J

D. 1

27.6.1985

Joga Singh

485/1

1-6-0

J

D. 2

28.7.1956

Virindernaul Singh

469/1

10.0

J.

D. 3

15.11.1955

Mukhtiar Inder Kaur

485/3

1.0.0

J.

D. 4

31.1.1956

Gurudev Singh

469/1

1.0.0

J.

D. 5

2.4.1957

Gajjan Singh and Ravinder Singh

169

1.5-0

J

D. 9

5.11. 1958

Ajmer Singh

366

8.17.0

Total12-18.0

8. The total area covered by these transactions comes to 12 Bighas 18 Biswas. This is obviously in consistence with the statement of the Patwari who had stated that Choranji Lal had alienated 11 Bighas 7 Biswas out of the joint holding Apart from this, it will be noticed that these alienations, on which the learned counsel for the appellant relies, relate to Khasra Nos. 485/2, 485/3, 469, 469/1 and 356 The land which is covered by the gift in the appellant's favour bears Khasra Nos. 465, 483, 467 and 485 only, and out of these, Khasra No 485 has not been acquired, while the remaining Nos. 465. 483 and 467 with the aggregate area of 12 Bighas 17 Biswas has been acquired by the Punjab State Electricity Board for which Rupees 38550 have been assessed as compensation. The half share of all these three Khasra numbers admittedly belonged to Choranji Lal before the gift was made in the appellant's favour. It is thus obvious that out of the total compensation Rs. 38550 Mukhtiar Chand is entitled to receive half the amount on account of the land which had come into his hands from Choranji Lal under the gift deed Mr Puran Chand has, however attempted to get out of this finding by urging that Choranji Lal alienated a good deal of property out of other Khasra numbers and accordingly, his share in these three Khasra Nos. 465 483 and 467 could not have remained intact and as deposed to by the Patwari he was owner of 1 Bigha 14 Biswas of land out of these Khasra numbers. According to this submission, it is only the compensation payable in respect of 1 Bigha 14 Biswas that would be open to attachment even if the exemption claimed by the appellant under Section 52A of the Land Acquisition Act is not allowed.

This argument, in my opinion, is untenable There is nothing on the record to prove Choranii Lal had alienated property in excess of his share in the entire property held by the two brothers and that he had no right or interest in the acquired land bearing Khasra Nos. 465 483 and 467 when he gifted these Khasra numbers alone with Khasra No 485 to the appellant. The onus of proving that this property which he had accepted under the gift deed in his favour did not belong to Choranii Lal rested upon the appellant Apart from the fact that the gift deed itself recites that half share in this property belonged to Choranji Lal and same was being transferred to the appellant. We have the further fact that the appellant accepted this Rift and never protested against the averments contained therein. It was only after the respondent-decree-holders challenged the gift as intended to defeat their interest that the appellant came up with the plea that Choranii Lal had no interest in the property which he had gifted in his favour except to the extent of 1 Bigha 14 Biswas Most of the evidence on which the learned counsel for the appellant relies merely relates to proof of the sales which have been summarized above Even if we accept that evidence, as has been observed earlier, that is of no assistance to the appellant as Khasra Nos. 485/3, 485/1, 469/1, 469 and 356 to which most of those transactions relate, are not in dispute since they do not form the subject matter of the gift deed and the compensation which is sought to be attached does not relate to the acquisition of these fields.

9. I thus find no force in this appeal and dismiss the same with costs.


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