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2006 DIGILAW 734 (PNJ)

Sarwan Singh v. Jagir Kaur

2006-02-27

M.M.KUMAR

body2006
Judgment 1. This is defendant s appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code ), challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff-respondent who is wife of defendant-respondent 2 Bhajan Singh is entitled to recover Rs. 4000/- as arrears of maintenance from 1-9-1994 to 28-2-1995 @ Rs. 800/- per month with proportionate costs. The suit of plaintiff-respondent No. 1 has also been decreed for declaration to the effect that from March 1995 onwards she is entitled to get maintenance @ Rs. 800/- per month from her husband. The amount of maintenance paid to her during pendency of the suit, on the basis of interim order is required to be adjusted and charge in respect of maintenance awarded to her has been created upon the land, fully described in the head note of the plaint. The suit with respect to setting aside the decree dated 12-11-1994 in case titled as Swaran Singh V/s. Bhajan Singh has been dismissed. Brief facts :- Jagir Kaur plaintiff-respondent 1 and Bhajan Singh defendant-respondent 2 got married on 10-4-1992. She started living with her husband at her in-laws house. But this happy arrangement did not last long. On account of strained relationship between plaintiff-respondent 1 and defendant-respondent 2, Jagir Kaur started living separately in a portion of the same house. It is pertinent to point out that brother of defendant-respondent 2 filed a civil suit No. 250 of 1994 on 22-9-1994 titled as Swaran Singh V/s. Bhajan Singh, which was decreed on 12-11-1994 on the basis of admissions made by defendant-respondent 2. The claim made by Swaran Singh in the suit was that he is owner in possession of the land in dispute. He has claimed that the payment of installments even in respect of share of Bhajan Singh in the land in dispute, used to be made by him. A compromise was alleged to have been effected and a decree dated 12-11-1994 was passed by the Lok Adalat granting declaration in favour of Swaran Singh defendant-appellant. Plaintiff-respondent 1 Jagir Kaur levelled numerous allegations against the members of her husband s family as well as her husband in the civil suit No. 273 filed on 24-3-1995. She also claimed arrears of maintenance amounting to Rs. 6000/- and future maintenance @ Rs. 1000/- per month. Plaintiff-respondent 1 Jagir Kaur levelled numerous allegations against the members of her husband s family as well as her husband in the civil suit No. 273 filed on 24-3-1995. She also claimed arrears of maintenance amounting to Rs. 6000/- and future maintenance @ Rs. 1000/- per month. She further claimed that maintenance amount be created as charge on the land in dispute by impleading the defendant-appellant as a party to the suit. The decree dated 12-11-1994 has also been challenged by the plaintiff-respondent by alleging that it had been deliberately suffered by her husband defendant-respondent 2 in favour of defendant-appellant in order to defeat her legitimate right to claim maintenance. The trial Court accepted the claim of plaintiff-respondent 1 and held her entitled to recover a sum of Rs. 4000/- as arrears of maintenance. A declaration has also been granted in her favour to the effect that she is entitled to maintenance @ 800/- per month from her husband Bhajan Singh defendant-respondent 2 and a charge of maintenance was created on the land in dispute in respect of which decree dated 12-11-1994 was suffered by her husband defendant-respondent 2 in favour of the defendant-appellant. 2 The view of the trial Court was challenged by the defendant-appellant as well as plaintiff-respondent 1. Both the appeals have been dismissed by the Lower Appellate Court by a common judgement and decree dated 25-3-2002. On the issue whether the judgement and decree dated 12-11-1994 was obtained by the defendant-appellant in collusion with defendant respondent 2 in order to defeat the rights of plaintiff-respondent 1, the Lower Appellate Court has held as under :- ".......In fact, this decree amounts to transfer of the land in dispute in favour of defendant No. 2, for the first time. From the evidence produced on the record, it can easily be inferred that this decree was obtained by the defendants in collusion with each other in order to defeat the rights of the plaintiff. This point is, therefore, decided in favour of the plaintiff and against the defendants." 3. Learned Lower Appellate Court further held that the plaintiff-respondent 1 is entitled to create a charge on the land in dispute because defendant-appellant had knowledge of her claim of maintenance against defendant-respondent 2 her husband. The view of the learned Lower Appellate Court in that regard reads as under :- "18. Learned Lower Appellate Court further held that the plaintiff-respondent 1 is entitled to create a charge on the land in dispute because defendant-appellant had knowledge of her claim of maintenance against defendant-respondent 2 her husband. The view of the learned Lower Appellate Court in that regard reads as under :- "18. Plaintiff as wife of defendant No. 1 had no right or title in the suit land, during his life time. However, her maintenance could have been made a charge on that land by virtue of Section 27 of the Hindu Adoptions and Maintenance Act, 1956. According to Section 28 of that Act, right to receive maintenance by the plaintiff can be enforced against defendant No. 2 if it is proved on the record that at the time of decree regarding the suit land was passed in his favour, he had notice of the right of the plaintiff or if the transfer in his favour was gratuitous. Therefore, the plaintiff has locus standi to file the suit that her right of maintenance is to be created a charge on the land in dispute, which was owned by her husband, but she had got no locus standi to get the decree, dated 12-11-1994 set aside and this point is accordingly decided against her." 4. Holding further that plaintiff-respondent 1 had every right to proceed against the land in dispute, the learned Lower Appellate Court observed as under :- "19. According to Section 28 of the said Act, only a transfer for consideration and without notice of right of the wife to receive maintenance is protected. Defendant No. 2 failed in his attempt to prove that defendant No. 1 had agreed to get the land transferred in his name by way of decree of the Court on the ground that he owned money to him. Therefore, it cannot be said that he was a transferee for consideration. The transfer in his favour was gratuitous. Therefore, the plaintiff has every right to proceed against the land in dispute for recovery of maintenance or arrears of maintenance. Her maintenance was correctly made a charge on this land. This point is decided accordingly." 5. Mr. Therefore, it cannot be said that he was a transferee for consideration. The transfer in his favour was gratuitous. Therefore, the plaintiff has every right to proceed against the land in dispute for recovery of maintenance or arrears of maintenance. Her maintenance was correctly made a charge on this land. This point is decided accordingly." 5. Mr. Aman Bahri, counsel for the defendant-appellant has argued that the judgement of the learned Lower Appellate Court cannot be sustained in the eyes of law because Sections 27 and 28 of the Hindu Adoptions and Maintenance Act, 1956 (for brevity, the "Act") would not be applicable to the present case because those sections do not cover that the wife is a dependent within the meaning of Section 21 of the Act. In support of his submission, learned counsel has placed reliance on the judgement of Madras High Court in the case of Raghavan and another V/s. Nagammal and another, AIR 1979 Mad 200 and argued that in Punjab no charge under Section 39 of the Transfer of Property Act, 1882 (for brevity, "TPA") could be created because the provisions of TPA have not been extended to Punjab, as is evident from a bare reading of Section 1 of TPA. He has reiterated his submission made on 15-2-2006 by offering on behalf of defendant-appellant 1, maintenance @ Rs. 800/- per month for the preceding 10 years and also for succeeding 10 years @ Rs. 1000/-, as has been claimed by plaintiff-respondent No. 1 along with the offer to permit her to continue living in the house. 6. Mr. Salil Sagar, learned counsel for plaintiff-respondent No. 1 has argued that the impugned judgement of the learned Lower Appellate Court may not be sustainable as it is, yet the conclusion of the Courts below is supportable by general principles contained in the TPA. He has maintained that Section 39 of the TPA since contains the principle of equity, justice and good conscience the same could be invoked to sustain the judgement and decree passed by the learned Lower Appellate Court. He has maintained that Section 39 of the TPA since contains the principle of equity, justice and good conscience the same could be invoked to sustain the judgement and decree passed by the learned Lower Appellate Court. He has placed reliance on para 20 of the judgement of the Supreme Court in the case of Rakesh Wadhawan and others V/s. Jagdamba Industrial Corporation and others, (2002) 5 SCC 440 : (AIR 2002 SC 2004) and has submitted that the TPA may not in terms apply to the State of Punjab yet the principles contained therein are essentially the principles of equity, justice and good conscience and, therefore, the same must be held applicable. Learned counsel has further placed reliance on a judgement of Supreme Court in the case of Namdeo Lokman Lodhi V/s. Narmadabai and Ors., AIR 1953 SC 228 and a Full Bench judgement of Lahore High Court in the case of Mt. Shankari and Ors. V/s. Milkha Singh, AIR 1941 Lab 407. On the question of offer made by the defendant-appellant, learned counsel, after instructions from plaintiff-respondent No. 1, has urged that it was not possible to accept the amount offered because plaintiff-respondent No. 1 cannot claim maintenance from the defendant-appellant as a matter of right as he is merely the brother of her husband. 7. After hearing the learned counsel for the parties, it has become evident that the judgement and decree passed by the learned Lower Appellate Court is not sustainable on the rationale furnished which is based on Sections 27 and 28 of the Act. However, it would not necessarily result into setting aside the judgement and decree. It is well settled that a judgement and decree could be sustained on the grounds other than the one surrected in the impugned judgement and decree. Therefore, the impugned judgement and decree could be sustained. 8. The question which requires consideration is whether the provisions of Section 39 of TPA could be applied to the facts of the present case. It is true that the whole TPA has not been extended to the States of Haryana and Punjab. On 1-4-1955 vide Punjab Gazette Notification Part I dated 1-4-1955 only Sections 54, 107 and 123 of TPA were extended to the erstwhile State of Punjab. It is true that the whole TPA has not been extended to the States of Haryana and Punjab. On 1-4-1955 vide Punjab Gazette Notification Part I dated 1-4-1955 only Sections 54, 107 and 123 of TPA were extended to the erstwhile State of Punjab. It is further appropriate to mention that Section 59 was extended to the State of Punjab w.e.f.10-6-1968 vide Punjab Gazette Notification, 1968 Part III Extra ordinary Page 247. It is equally true that the principle underlying various Sections of TPA flow from equity, good conscience and justice and are based on the common law principle which are nurtured by the Judges in various judgements. A Full Bench of Lahore High Court in Shankari s case, AIR 1941 Lah 407 (supra) while commenting upon Section 55 (6) of TPA has held as under :- ".......Although the Transfer of Property Act is not in force in this province, the principle enunciated in S. 66 (6) (b) is nothing new, but is a general rule of English law which can be followed in provinces where the Act is not in force, as being in accordance with justice, equity and good conscience." 9. Similar principle was reiterated in para 11 of the judgement of Supreme Court in the case of Tara Singh V/s. Kehar Singh AIR 1989 SC 1426 which reads as under :- ".......The only question for consideration is whether the redemption should have been sought for by the State itself through its officers or whether the redemption can be sought for by a nominee of the State Government under an order or allotment made in his favour. In this case, in addition to the order of allotment made by the Collector, warrants of possession had also been issued in favour of the respondents. By reason of these two orders the respondents had acquired a right under the doctrine of promissory estoppel to call upon the Government to regularise the allotment of the land to them if for any reason the order of allotment made by the Collector was as defective in any manner. By reason of these two orders the respondents had acquired a right under the doctrine of promissory estoppel to call upon the Government to regularise the allotment of the land to them if for any reason the order of allotment made by the Collector was as defective in any manner. Such being the case, even if no registered deed of conveyance or agreement of sale had been executed by the Government, the respondents had become entitled in law to claim title to the land and seek delivery of possession of the allotted land to them and to ask for a charge, in the absence of delivery of possession over the property for the money deposited by them under the allotment order. Viewed from this angle, there is no room whatever for any contention that the respondents would not constitute the buyers of the land and are, therefore, not entitled to claim a charge over the allotted land under S. 55 (6) (b) of the Transfer of Property Act. Though the provisions of the Transfer of Property Act are not applicable to the State of Punjab the principle enunciated in S. 55 (6)(b) has been held applicable to Punjab on grounds of justice, equity and good conscience (vide Shankri V/s. Milkha Singh, AIR 1941 Lahore 407 (FC). The logical consequence would then be that as charge-holders the respondents would be entitled under S. 91 of the Transfer of Property Act to seek the redemption of the mortgage." 10. In the case of Rakesh Wadhawan, (AIR 2002 SC 2004) (supra) the Supreme Court has again endorsed the aforementioned principle in para 20. 11. When the provisions of Section 39 of the TPA are examined in the light of principle enunciated by the Supreme Court then no doubt is left that the aforementioned provision is based on the principle of justice, equity and good conscience. It would be highly unjust to permit a party to transfer its land which is likely to be required for execution of a decree for maintenance. Such a course would result into extreme injustice to the decree holder. Section 52 of the TPA incorporates the doctrine of lis pendens which is based on common law principle that any transfer made during pendency of the proceeding before the Court would be subject to the result of the judgement and decree eventually passed. Such a course would result into extreme injustice to the decree holder. Section 52 of the TPA incorporates the doctrine of lis pendens which is based on common law principle that any transfer made during pendency of the proceeding before the Court would be subject to the result of the judgement and decree eventually passed. Therefore, it would be highly unconscious and unjust to permit a husband to alienate his property with an oblique motive to defeat the legal right of maintenance of his wife. Therefore, on the basis of precedent as well as principle, I am of the view that Section 39 of the TPA provides sufficient support to the judgement and decree passed by the learned Lower Appellate Court. 12. Applying the aforementioned principle to the facts of present case, it becomes evident that the defendant-appellant did have notice of the claim of the plaintiff-respondent 1 with regard to her maintenance against the defendant-respondent 2 the vendor and his brother. Despite that he obtained a decree in his favour on the basis of admission made by the defendant-respondent 2 who is the husband of plaintiff-respondent 1. The aforementioned judgement and decree dated 12-11-1994 have been concurrently found to be the result of collusion with oblique motive of defeating the right of plaintiff-respondent 1. The sale has also been found to be gratuitous. It has also been concurrently found that defendant-appellant had notice of the claim of plaintiff-respondent 1. Therefore, the judgement and decree cannot be set aside merely on the ground that Sections 27 and 28 of the Act have been erroneously cited to provide basis to the judgement and decree. 13. There is an offer made by defendant-appellant to plaintiff-respondent 1, which has not been accepted. Defendant-respondent 2, who is the husband of plaintiff-respondent 1 has not come forward in appeal. There is no legal obligation on the part of the defendant-appellant to provide maintenance to plaintiff-respondent 1 merely because he is brother of the husband of plaintiff-respondent 1. In such a situation in the absence of consent by plaintiff-respondent 1, to compromise the matter, she cannot be compelled to accept the offer of payment of maintenance for 20 years. Accordingly, I am of the view that there would be no effect on the merits of the case on the basis of the offer made on 15-2-2006. 14. In such a situation in the absence of consent by plaintiff-respondent 1, to compromise the matter, she cannot be compelled to accept the offer of payment of maintenance for 20 years. Accordingly, I am of the view that there would be no effect on the merits of the case on the basis of the offer made on 15-2-2006. 14. In view of the above, this appeal fails and the same is dismissed. However, there shall be no order as to costs.