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Anil Kumar and anr. Vs. Bhagirath Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 819 of 1958
Judge
Reported inAIR1962P& H514
ActsSpecific Relief Act, 1877 - Sections 21, 42 and 56
AppellantAnil Kumar and anr.
RespondentBhagirath Lal and ors.
Excerpt:
.....to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - all these questions have been agitated in that suit as well and will be decided there. but in the circumstances of this case, however, i will leave the parties to bear their own costs in this court as well......the following issues-1. whether the suit for injunction is not maintainable? 2. whether any valid charge-deed was executed by bhagat ram in favour of the plaintiff? if so, what is its effect? 3. if issue no. 1 is proved, is the charge-deed not binding on defendants 1 and 2 for the reasons mentioned in para 3(a) to 3(d) of the written statement? 4. whether any valid power of attorney was executed in favour of plaintiff no. 2? if so, whether it is subsisting now? 5. if issue no. 4 is proved, then whether the power of attorney is not binding on defendants nos. 1 and 2 due to reasons given in para 4(1) to 4(3) in the written statement? 6. even if issue no. 4 is proved, whether defendants 3 to 7 became tenants of defendants nos. 1 and 2 after the death of shri bhagat ram? 7. relief.(5) the.....
Judgment:

(1) The following pedigree-table will be helpful in understanding the facts of this case-

Bhagat Ram = Smt. Dhan Devi| (widow) Defdt. No. 2.Bhagirath Lal = Smt. Uma Rani(defendant. No 1) (wife) Pltff. No. 2.|Anil Kumar (minor), Pltff. No. 1.

(2) In may 1952 Smt. Uma Rani was married to Bhagirath Lal. Anil Kumar was born to them after a year or so of their marriage. Unfortunately, the relations between the husband and the wife had become strained and according to Smt. Uma Rani she was deserted by her husband. In order to provide future maintenance for her an her son Anil Kumar, Bhagat Ram, father of Bhagirath Lal, on 26-12-1953 created a charge by a registered deed on the property in dispute and on its rent to the extent of Rs. 200/- per mensem--Rs. 150/- per month for Smt. Uma Rani and Rs. 50/- for Anil Kumar. On 15-1-1955 he also executed a general power of attorney in favour of Smt. Uma Rani for realising the rents of the said property, on the basis of which she started realising the same. In August 1955 Bhagat Ram died and after his death, Bhagirath Lal and his mother Smt. Dhan Devi started interfering with the realisation of the rents and asserted their own rights to the rent of the property in question. Thereupon, the present suit was brought in 1956 by Anil Kumar and Smt. Uma Rani for the grant of a permanent injunction restraining Bhagirath Lal (defdt. No. 1) and his mother Smt. Dhan Devi (defdt. No. 2) from claiming, receiving or recovering the rents from defendants 3 to 8, who are the tenants of the said property. An injunction was also claimed against defendants 3 to 8 restraining them from paying the said rents to defendants 1 and 2.

(3) The suit was resisted by defendants 1 and 2, who pleaded that Bhagat Ram had never executed any deed creating a charge on his property in favour of the plaintiffs. It was also stated that even if he did execute such a deed the same was not binding on them as it was executed under undue influence, coercion and fraud and also because he could not execute such a deed as the property in dispute was ancestral and belonged to the joint Hindu family. It was further asserted that Bhagat Ram had cancelled the alleged deed of 26-12-1953 by a subsequent deed dated 13-8-1955. The execution of the general power of attorney was also denied and it was averred that the said power of attorney, if any, came to an end with the death of Bhagat Ram. Lastly, it was pleaded that under such circumstances a suit for a permanent injunction was not maintainable and the same could not be granted.

(4) The pleadings of the parties gave rise to the following issues-

1. Whether the suit for injunction is not maintainable?

2. Whether any valid charge-deed was executed by Bhagat Ram in favour of the plaintiff? If so, what is its effect?

3. If issue No. 1 is proved, is the charge-deed not binding on defendants 1 and 2 for the reasons mentioned in para 3(a) to 3(d) of the written statement?

4. Whether any valid power of attorney was executed in favour of plaintiff No. 2? If so, whether it is subsisting now?

5. If issue No. 4 is proved, then whether the power of attorney is not binding on defendants Nos. 1 and 2 due to reasons given in para 4(1) to 4(3) in the written statement?

6. Even if issue No. 4 is proved, whether defendants 3 to 7 became tenants of defendants Nos. 1 and 2 after the death of Shri Bhagat Ram?

7. Relief.

(5) The trial Court held that a suit for injunction was maintainable, that a valid charge-deed was executed by Bhagat Ram in favour of the plaintiffs and the same was binding on defendants 1 and 2, and that a valid power of attorney was also executed by Bhagat ram in favour of plaintiff No. 2 and the same was binding on defendants 1 and 2 but it was not subsisting after his death. With regard to issue No. 6, it was held that it did not arise in view of the findings on issues Nos. 4 and 5. As a result of these findings, the suit of the plaintiffs was decreed with costs.

(6) Aggrieved by the decision of the trial Court, defendants 1 and 2 went in appeal to the Additional District Judge, Amritsar, before whom only issue 1 to 3 were argued. He confirmed the decision of the trial Judge on issues 2 and 3, but reversed his finding on issue No. 1. As a result, the appeal was accepted and the plaintiffs' suit was dismissed on the ground that the same as framed was not maintainable. The plaintiffs have come here in second appeal.

(7) The only point that arises for decision in this case is whether in the circumstances of this case a suit for injunction is maintainable or not. After hearing the learned counsel for the parties, I am of the view that the suit has been rightly dismissed by the lower appellate Court. In the first place, it would be barred under the provisions of S. 56(f) read with S. 21(g) of the Specific Relief Act, 1877. The relevant portions of these sections are as follows:

'Section 56. An injunction cannot be granted-

xx xxx (f) to prevent the breach of a contract the performance of which would not be specifically enforced;

xxx xxx 'Section 21. The following contracts cannot be specifically enforced:--

xx xxx (g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;xx xxx'

(8) The charge-deed in the present case being for perpetuity, it involves the performance of a continuous duty extending over a longer period than three years. Consequently, such a contract cannot be specifically enforced. The charge-holders, in the present case, could file a suit for the recovery of the arrears of maintenance and could then follow the property charged and recover the amount of arrears therefrom. The contract in the present case being not specifically enforceable, an injunction could, therefore, not be granted to prevent its breach. Learned counsel for the appellants submitted that there was no contract between the plaintiffs and defendants 1 and 2, though it might be with defendants 1 and 2, though it might he with defendant No. 1's father Bhagat Ram and his contention was that it was necessary for the application of the provisions of S. 21(g) and S. 56(f) of the Specific Relief Act that the defendants. I am of the view, however, that there is no merit in this contention, because in the present case Bhagat Ram was the predecessor-in-interest of his son Bhagirath Lal and his widow Smt. Dhan Devi. All the rights and liabilities arising under this contract had devolved upon defendants 1 and 2 after the death of Bhagat Ram. It cannot, therefore, be said that there was no contract between the parties to this suit.

(9) It was also submitted by the learned counsel that the plaintiffs in the present case did not want to prevent the breach of any contract and that they were only wanting to exercise their rights which were being infringed by the defendants. There is no substance in this submission either, because there is no manner of doubt that the plaintiffs are seeking to enforce the provisions of the charge-deed and preventing the defendants from committing its breach by realising the rents themselves directly from the tenants.

(10) Secondly, it would also be barred under the provisions of S. 56(k) of the Specific Relief Act, which mentions that an injunction cannot be granted where the applicant has no personal interest in the matter. It is undisputed that, unlike a mortgage, there is no transfer of interest in the property when only a charge is created. The remedy of the charge-holders in the present case was merely to follow the property when a decree for arrears of maintenance had been obtained by them.

After the death of Bhagat Ram, the property in suit had devolved on the defendants, of course, subject to the charge of the plaintiffs thereon. The plaintiffs would not have any interest in the property as such and they could not file a suit for arrears of maintenance against the tenants of this property. Besides, they have not even asked that the tenants be directed to pay the rents to them All that they have claimed is that defendants 1 and 2 should be restrained from paying lies in bringing a suit for recovery of their arrears of maintenance against defendants 1 and 2. In view of the I have said above. I would hold that a suit for injunction in the present case is not maintainable.

(11) Learned counsel for the appellants then submitted that the plaintiffs may be allowed to amend their plaint so as to include the prayer for an injunction directing the tenants to pay the rent to them. I am not prepared to accede to this request because, in the first place, this a very late stage for making this prayer, and, secondly they have no locus stand to realise the rents from the tenants because they cannot be considered to be the landlords of this property, after the death of Bhagat Ram.

(12) Lastly, it was contended that a declaration should be given to the plaintiffs to the effect that a valid charge-deed was executed by Bhagat Ram in their favour and the same was binding on defendants 1 and 2. No such prayer was, however, made in the plaint and besides such a declaration would be barred by the proviso to section 42 of the Specific Relief Act. Moreover, learned counsel for the parties have informed me that a separate suit on the basis of the charge-deed had already been brought by the plaintiffs and a regular first appeal regarding the same is pending in this Court. All these questions have been agitated in that suit as well and will be decided there.

(13) As a result, I would dismiss this appeal. But in the circumstances of this case, however, I will leave the parties to bear their own costs in this Court as well.

HF/M/K.S.B.

(14) Appeal dismissed.


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