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2009 DIGILAW 2086 (PNJ)

Upjinder Kaur v. Kundan Lal And Others

2009-12-01

RAKESH KUMAR JAIN

body2009
Judgment Rakesh Kumar Jain, J. 1. The plaintiff is in Second Appeal. It is alleged in the plaint that she was married to one Ashwin Spencer son of Earnest Edwin Spencer r/o Vancouver, U.S.A. at Church of North India, Ferozepur Cantt. on 27.6.1995. At the time of marriage, her husband was residing at Prem Nagar, Ferozepur Cantt. Their marriage was registered in the records maintained by the Registrar of Marriages, Abohar on 20.7.1995. She lived with her husband in the residential house in question after her marriage. Her husband left for U.S.A. with the assurance that he would call her there after arranging her Visa. She was working as Staff Nurse in Govt. Hospital at Abohar, she got herself transferred to the Civil Hospital Ferozepur City, in August 1997 and started residing in the house in question. It is alleged that she has her ration card with defendant No. 3 (Grand-mother of her husband) in the house in question since November 1997, She had also been paying elecricity bills of the electric connection installed in the said house. The plaintiffs husband did not arrange Visa for her and she has been residing in the house in question since August 1997. It is further alleged that defendant No. 2, who happens to be the maternal aunt of Ashwin Spencer (husband), procured the power of attorney of Adwin Spencer and sold the house in question by registered sale deed dated 24.6.1999 to respondent No. 1. The plaintiff has thus challenged the said sale deed. It is alleged that after the sale deed, defendant No.3 demanded Rs. 2 lacs from the plaintiff showed her inability to fulfill the demand, defendants started giving her threats which led to the filing of the present suit challenging the aforesaid sale deed dated 24.6.1999. Along with the suit for declaration, the plaintiff had prayed for injunction too. 2. After entering appearance, defendant Nos. 1 and 2 contested the suit, who had admitted that plaintiff was married with Ashwin Spencer and had been residing in a portion of the house in question as permissive user. It is also alleged that they had purchased the property against the valuable consideration. 3. On the basis of the pleadings of the parties, eight issues were framed out of which, issues Nos. It is also alleged that they had purchased the property against the valuable consideration. 3. On the basis of the pleadings of the parties, eight issues were framed out of which, issues Nos. 1 and 2, are material issues, i.e. whether sale deed dated 24.6.1999 for sale of residential house in question by defendant No. 2 in favour of defendant No. 1 is wrong, illegal, void being without consideration and whether the plaintiff is entitled to declaration as prayed for? 4. The burden to prove both the issues was upon the plaintiff. 5. After appreciation of the evidence both the Courts below dismissed the suit. The finding recorded by learned lower Appellate Court in para No. 17 of the judgment while taking both issues together is to the effect that plaintiff was married to a Charistian, the property has been sold by the owners and she has failed to establish the right of ownership of her husband on the house in question. Therefore, if the husband had no right, she does not acquire any right being married to him. 6. Aggrieved against the judgment and decree of both the Courts below, plaintiff/appellant has filed the present second appeal, in which of motion was issued and dispossession of the appellant from the house in question was stayed. 7. Learned counsel for the plaintiff/appellant has vehemently argued that the substantial question of law involved in the present appeal is as to" whether the appellant, being a legally wedded wife is entitled to the portion to the house being the ancestral property ?" 8. It is submitted by learned counsel for the plaintiff/appellant that, there is no dispute that the property was owned by Adwin Spencer and Arthur Spencer, who had sold their property through respondents No. 2 to respondent No. 1. It is, however, claimed that the property is ancestral and her husband, who is now residing in U.S.A. and abandoned her is liable to maintain her and in his absence, she has to be maintained by his parents. It is, however, claimed that the property is ancestral and her husband, who is now residing in U.S.A. and abandoned her is liable to maintain her and in his absence, she has to be maintained by his parents. In this regard, learned counsel for the plaintiff/appellant has relied upon a decision of this Court in the case titled as Balbir Kaur and another v. Harinder Kaur and others, 2003(1) R¬R(Civil) 624: AIR 2003 Punjab and Haryana 174, to contend that even in case of widowed daughter-in-law of a pre-deceased son, she is entitled to claim right of maintenance against self acquired property of her father-in-law in his hand of alienor or donee if the property is sold or gifted. 9. On the hand, learned counsel for the respondent has submitted that the aforesaid judgment in the case of Balbir Kaur (Supra) is not applicable to the facts and circumstances of the case in hand as the parties are not Hindus in the present case because the finding recorded by the Court below is that respondent/plaintiff is married to a Christian, therefore, provisions of Hindu Law are not applicable. 10. After hearing learned counsel for the parties and keeping in view the facts and circumstances of this case where the case of the plaintiff, admittedly, is that she got married at Church of Northern India, Ferozpur Cantt on 27.6.1995 and are Christian by religion, therefore,the plaintiff is not entitled to take shelter of the provisions of the Hindu Law. The judgment rendered by this Court in Balbir Kaurs case (Supra), is totally inapplicable. Moreover, a sale deed can be set aside on the ground of violation of a substantive right or if the sale deed is based upon fraud but neither there is any fraud nor the plaintiff has any substantive right in the property in question. Therefore, the plaintiff has no right to challenge the sale deed by filing the present suit. Hence, I do not find any error in the judgment and decree passed by both the Courts below as it is based upon the question of fact, which cannot be decided by this Court. No other point has been raised before this Court. Therefore, the plaintiff has no right to challenge the sale deed by filing the present suit. Hence, I do not find any error in the judgment and decree passed by both the Courts below as it is based upon the question of fact, which cannot be decided by this Court. No other point has been raised before this Court. Accordingly, the question of law that has been raised by learned counsel for the appellant is made not out from the facts and circumstances of the case as much as such the appeal is hereby dismissed, through without any cost. Appeal dismissed.