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Gurnam Kaur Vs. Dalip Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 32 of 1964
Judge
Reported inAIR1967P& H350
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rules 58 and 59
AppellantGurnam Kaur
RespondentDalip Kaur and ors.
Appellant Advocate S.P. Goyal, Adv.
Respondent Advocate M.R. Aggarwal, Adv. for Respondent (Nos. 1 and 2)
Cases ReferredMahesh Prasad v. Mt. Mundar
Excerpt:
.....in view of the observations in the order of the trial court as well as in the order of this court on appeal in the earlier proceedings, it is not open to the donees and to piara singh and jit singh to plead ignorance of the decree-holder's claim......their learned counsel, shri moti ram aggarwal has submitted that the trial court in smt. gurnam kaur's suit had negatived the plea of charge and, therefore, it is not open to the decree-holder to claim any right to execute the decree against the gifted property. he has further complained that the question of the non-applicability of order 21, rule 58 was not raised in the executing court and that on revision, it should not be allowed to be raised. had this point been raised in the executing court, he would have requested that the application may be treated as one under section 47 of the code. he has also submitted that all the objectors were not parties to the suit and, therefore, this objection cannot prevail against all of them.6. in reply, the petitioner's learned counsel has.....
Judgment:
ORDER

I.D. Dua, J.

1. Smt. Gurnam Kaur, widow of Gurdial Singh, instituted a suit for maintenance sometime in 1955 against her father-in-law Narain Singh on the allegation that she had been married to Gurdial Singh son of Narain Singh and that Gurdial Singh had died about 15 years earlier. Some time before the institution of the suit, Narain Singh had gifted away the whole of his property in favour of his two daughters, and it is because of this that Smt. Gurnam Kaur instituted the suit for maintenance claiming Rs. 50/- per mensem. It was instituted in forma pauperis. There was an averment in the plaint that she had one daughter from her husband Gurdial Singh. It was also pleaded that Narain Singh had made the aforesaid gift in order to defeat her right to maintenance, the gift covering the whole of his land. The parties were stated to be Jats and governed by custom. In the written statement, it was pleaded that after the death of his son, Smt. Gurnam Kaur had contracted karewa with one Bachan Singh and that she had been residing with him.

An objection was also raised to Smt. Dalip Kaur, Piara Singh and Tit Singh, sons of Smt. Gurdial Kaur, having been wrongly impleaded. Issue No. 2 related to the plea that Smt. Dalip Kaur, Jit Singh and Piara Singh, sons of Gurdial Kaur, were not necessary parties. Under issue No. 2, it was held that no relief having been claimed against Smt. Dalip Kaur, Jit Singh and Piara Singh, they were not necessary parties. It was, however, expressly observed that if the property gifted away could be charged for the maintenance of Gurnam Kaur, then they would be bound by the finding of the Court and the property would be made liable. The suit was decreed for a sum of Rs. 20/- per mensem by way of maintenance payable by Narain Singh, which he was ordered to pay on the 5th of each month. Issue No. 5, which was in the following terms:--

'Whether charge can be created on the property at this stage gifted by Narain Singh defendant No. 1 to Dalip Kaur and Gurdial Kaur deceased, before this suit?'

was decided by the trial Court against the plaintiff, it being observed that no property having ever vested in the plaintiffs husband under Paragraph 17 of Rattigan's Digest, no charge could be created against the estate of the father-in-law and the plaintiff was not entitled to follow that estate in the hands of third persons to whom it was gifted away.

2. An appeal was preferred by Narain Singh in the Pepsu High Court in 1955, but the same was disposed of after merger by a Bench of this Court consisting of Tek Chand and Shamsher Bahadur JJ. on 25-5-1960. The following passage from that judgment may here be reproduced with advantage :--

'It is next argued that the defendant had incapacitated himself after having executed a deed of gift in favour of his two daughters from maintaining the plaintiff. He cannot, by relieving himself of the estate in the manner he has done, deprive his daughter-in-law of her maintenance. In our view, if the father-in-law has no other means of maintaining his daughter-in-law, then she is entitled to be maintained out of the estate from the income of which she could claim maintenance if he had not gratuitously alienated his property.'

3. The decree-holder Smt. Gurnam Kaur, petitioner in the present proceedings, later sought execution of the decree. In execution proceedings, an application under Order 21, Rule 58 C. P. Code was presented by Smt. Dalip Kaur, Piara Singh and Jit Singh and also by three other daughters of Gurdial Kaur objecting to the execution. It is the order passed on this application by the learned Senior Subordinate Judge on 7-11-1963, which is the subject-matter of the present revision. The learned Senior Subordinate Judge, acting as executing Court, framed the following two issues on the pleadings of the parties:--

1. Whether the attached property is not liable to attachment and sale in execution of the decree?

2. Whether the objection petition is not maintainable?

Under issue No. 1, he held that the property under attachment is not liable to attachment and sale because it had been gifted away to the objectors and Narain Singh was left with no subsisting interest or right. In the judgment, Narain Singh has been wrongly described to be a decree-holder. Indeed, it should be judgment-debtor.

4. On revision in this Court, it has been very strongly argued that Smt. Dalip Kaur and predecessors-in-interests of the mother of respondents Nos. 2 to 7 were parties to the suit in which the decree sought to be executed was passed. Being parties to the suit, no objection petition at their instance was competent under Order 21, Rule 58 of the Code. This point, among others, though argued at great length, has not been considered by the Court below. Reference at the bar has also been made on the merits to Section 39 of the Transfer of Property Act, the principles of which, according to the petitioners learned counsel, are applicable to the present case.

5. On behalf of the respondents, their learned counsel, Shri Moti Ram Aggarwal has submitted that the trial Court in Smt. Gurnam Kaur's suit had negatived the plea of charge and, therefore, it is not open to the decree-holder to claim any right to execute the decree against the gifted property. He has further complained that the question of the non-applicability of Order 21, Rule 58 was not raised in the executing Court and that on revision, it should not be allowed to be raised. Had this point been raised in the executing Court, he would have requested that the application may be treated as one under Section 47 of the Code. He has also submitted that all the objectors were not parties to the suit and, therefore, this objection cannot prevail against all of them.

6. In reply, the petitioner's learned counsel has pointed out that the other three daughters of Smt. Gurdial Kaur, who are not donees, have no interest in the property and, therefore, no locus standi to object. It is emphasised that Smt. Gurdial Kaur had died long before the recent amendment under Hindu Law conferring rights on these three daughters.

7. In my opinion, this revision must succeed. Order 21, Rule 58 of the Code providing for investigation of claims and objections says that where any claim is preferred to or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court should investigate into the claim or objection as if the claimant or objector was a party to the suit, with a proviso that such an investigation should not be made where the claim or objection is considered by the Court to have been designedly or unnecessarily delayed. A further proviso has been added by the Punjab High Court that if an objection is not made within a reasonable time of the first attachment, the/objector shall have no further right to object unless he can prove a title acquired subsequent to the date of the first attachment.

Under Rule 59, the claimant or objector is enjoined to adduce evidence to show that at the date of attachment, he had some interest in or was possessed of the property attached. These two provisions quite clearly point out the narrow scope of the summary enquiry contemplated by them and also the burden of proof which is imposed on the claimant or the objector. If he had no interest in or was not possessed of the property attached at the date of the attachment, then he obviously has no locus standi to prefer the objections. Regarding the three daughters, who are not the donees, it is argued on behalf of the petitioner, that there is no evidence that they had any such interest or were so possessed of the property attached. The learned Senior Subordinate Judge, so proceeds the grievance, has not eared to apply his mind to this aspect. The grievance, in my opinion, is justified.

8. It has next been pointed out that under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, would be determined by the Court executing the decree and not by a separate suit. Whether any person is or is not the representative of a party, has to be determined by the Court. This provision, it is argued, overrides the provision of Order 21, Rule 58 and where an objection is raised by a party to the suit, then it is this section and not Order 21, Rule 58, which is applicable. The legal position has not been controverted by the respondents. It, therefore, follows that the objection at the instance of those who were parties to the suit should have been preferred under Section 47, with the result that the determination of any question under this section would be included in the definition of the word 'decree' as defined in Section 2(2) of the Code. Being a decree, it would be appealable to this Court and will be dealt with under the appellate jurisdiction, which clearly has a much wider scope.

9. In so far as the other applicants against whom it is alleged that they have no interest in the property or were not possessed of the property on the date of attachment are concerned, obviously, Order 21, Rule 58 would be inapplicable and if so advised, they may seek relief by a separate suit or in some other manner permitted by law.

10. It, however, appears to me that these aspects having not been adverted to by the learned Senior Subordinate, Judge, the impugned order must be quashed and the matter remitted back for proper adjudication in accordance with law in the light of the observations made above.

11. The learned counsel for the respondents has, it may be noted, urged that Smt. Gurnam Kaur had also appealed from the judgment of the trial Court granting her maintenance and that the said appeal was dismissed in limine. He has shown to me copies of the orders of the Pepsu High Court and also the grounds of appeal preferred by her. I find that Smt. Gurnam Kaur had applied for leave to appeal as a pauper and Passey, J., on 19-10-1955 declined to grant such leave. The petitioner was given some time to pay up the Court-fee. Apparently, she was unable to pay court-fee, with the result that the appeal was not pursued. In my opinion, although in terms Passey C. J. and G.L. Chopra J., on 7-11-1955 rejected the memorandum of appeal, the real position was that the application for leave to appeal having been disallowed, nothing more was done by the petitioner-decree-holder.

There was no appeal pending in the High Court which was to be rejected. However, that rejection seems to me to be of no con-sequence in the present proceedings, and indeed nothing cogent has been urged by the respondents as to how that order can be of assistance to the respondents. It is undoubtedly true that in the grounds of appeal by Smt. Gurnam Kaur, it was urged mat a lawful charge can be created on the property which would have fallen to the share of her deceased husband, but in my opinion, inclusion of this ground in the memorandum of appeal, which never matured, is of little avail to the respondents.

12. Reliance on behalf of the petitioner has been placed on a judgment of the Punjab Chief Court in Mst. Dhaa Kaur v. Lekha Singh, 71 Pun Re 1918 and a Full Bench decision of the Allahabad High Court in Mahesh Prasad v. Mt. Mundar, AIR 1951 All 141, and it has been urged that even without creating a charge, Section 39 of the Transfer of Property Act gives Smt. Gurnam Kaur a right to proceed against a transferee of the property in question, if the transfer is without consideration. Notice of her maintenance in the present case must, according to the learned counsel, be assumed, and indeed in view of the observations in the order of the trial Court as well as in the order of this Court on appeal in the earlier proceedings, it is not open to the donees and to Piara Singh and Jit Singh to plead ignorance of the decree-holder's claim. This matter has also to be determined by the Court below. The principle of Section 39, according to the petitioner's learned counsel, would be applicable to the case in hand, an argument on which I express no opinion at this stage.

13. As observed earlier, I set aside the impugned order and send the case back to the Court below with a direction that the application may be considered to have been presented under Section 47 and to proceed with its trial on that basis. It is apparent that if the other three daughters, are found not to be the donees and also not to be parties to the suit, they can have no locus standi to press the objections. In regard to the other parties, the Court will proceed to determine and dispose of their application in accordance with law and in the light of the observations made in the present order. Parties have been directed to appear in the Court below on 29-11-1965 which another short date would be given for further proceedings. There would be no order as to costs in this Court.


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