Parvesh Kumar v. H. P. State Forest Corporation Ltd.
2017-06-28
SURESHWAR THAKUR
body2017
DigiLaw.ai
JUDGMENT : Sureshwar Thakur, J. 1. The decree holder/plaintiff had sought execution of a decree recorded upon sole defendant Jai Narain Kaushal by the learned trial Court in Civil Suit No. 22-N/1 of 1995 comprising therein decretal amount of Rs.4,36,479/- along with interest at the rate of 18% per annum w.e.f. 8.11.95 to 8.11.2008, “by its” instituting an Execution Petition bearing No. 12-N/10 of 2009, before the learned Executing Court, yet given occurrence of demise of Jai Narain Kaushal in the interregnum “since” the recording of the judgment and decree upon the aforesaid sole defendant “till” the institution of the execution petition No. 12-N/10 of 2009, thereupon in execution petition No. 12-N/10 of 2009, the legal representatives of deceased sole defendant Jai Narain Kaushal stood arrayed as cojudgment debtors. 2. All the objectors/judgment debtors resisted the execution petition by theirs rearing objections thereto. The apposite objections reared by coobjectiors/ JD No.2 and 3 stood anvilled upon the factum of their predecessor-in-interest “not” at the time of his demise leaving behind any part of his estate for theirs hence inheriting it nor thereupon on his demise, theirs hence stepping into his shoes besides theirs also not representing his estate, thereupon, they concerted to exculpate their liability with respect to liquidation by them of the decretal amount. 3. The resistance reared to the execution petition by one Parvesh Kumar, the grand son of the sole defendant, against whom a money decree stood pronounced, stood anvilled upon the factum of his “during” the pendency of Civil Suit No. 22-N/1 of 1995 acquiring from the deceased contesting sole defendant, the “latter's estate” under a gift deed executed by the aforesaid in his favour, hence, the money decree being not realisable, “thereagainst/therefrom”, given its alienation vis-a-vis him. The apposite gift deed is borne on Ex. RB. The learned executing Court on appreciating the evidence adduced upon the issues, framed upon the apposite pleadings of the parties therebefore, proceeded to dismiss all the apposite objections, obviously hence it ordered for coercive steps being initiated against the estate of one Parvesh Kumar given his receiving “it” under a gift deed executed in his favour by the sole contesting deceased defendant, namely, one Jai Narain, his grand father.
The aforesaid Parvesh Kumar is aggrieved by the orders pronounced by the learned Executing Court, whereby, it dismissed his objections, hence, is driven to institute the instant revision petition before this Court. 4. The objecting espousals reared by co-objectors No.2 and 3 “to” the execution of the decree against their respective estates “comprised” in the factum of theirs on demise of deceased defendant Jai Narain, not inheriting his estate, hence, the decree put to execution being unexecutable against their respective estates “is” embedded in evidentiary strata given its attaining corroboration from the testification of RW-1, significantly, when he in his cross-examination acquiesces to the suggestion put to him, that on demise of Jai Narain Kaushal, both coobjectors No.2 and 3 “not” inheriting his estate, given the aforesaid deceased not leaving behind any portion of his estate for “its” being inherited by each of them. The aforesaid admission existing in the crossexamination of RW-1 “acquires solemnity” given no evidence for eroding its worth standing adduced by the decree holder, consequently, it is to be concluded that both the judgment debtors/co-objectors No.2 and 3 “not” on demise of defendant Jai Narain Kaushal inheriting his estate, whereupon, the decree put to execution against them was unexecutable against their respective estates. 5. Be that as it may, one Pravesh Kumar, coobjector No.1 resisted the executability vis-a-vis his estate of the apposite money decrees comprised in sums of Rs. 14,64,476.75/- {Rs.4,36,479/-(decreed amount) + Rs.10,21,360/- (interest w.e.f. 8.11.1995 to 8.11.2008) + Rs.6,637.75/- (cost)}, as rendered by the learned trial Court, “on anvil of” his not representing the estate of deceased sole defendant Jai Narain Kaushal, rather the estate of the latter standing bestowed upon him under the relevant/alienatory bestowment “made during” the pendency of the apposite civil suit, thereupon, with obviously, the relevant alienatory bestowment upon him “not” occurring “after” the demise of one Jai Narain Kaushal, hence, rendered him incapacitated for his being construable to be representing the estate of deceased Jai Narain Kaushal. Consequently, he contended that the decree put to execution against him, for its realization from the hitherto estate of one Jai Narain Kaushal, “being not”, amenable for its realization therefrom “through” adoption of coercive means, especially with hitherto estate of the aforesaid standing bestowed upon him under a gift deed, 6. The aforesaid contention stood rejected by the learned executing Court.
The aforesaid contention stood rejected by the learned executing Court. The reasoning afforded by the learned trial Court “for” construing Parvesh Kumar to be the legal representative of deceased sole defendant Jai Narain Kaushal, “stood embedded” in the factum “of” with the definition of “legal representatives” occurring in Section 2, sub-section (11) of the CPC embodying therein even an intermeddler with the estate of a deceased, thereupon, within domain thereof it hence concluded the aforesaid to fall, “is” wanting in legal worth, arising from the donee accepting the relevant gift made upon him during the life time of the donor, one Jai Narain Kaushal, thereupon when a close reading of “its provisions” unearths the fact that only “the” occurrence of demise of a contesting JD or of the sole defendant being the sine qua non “for” thereupon his purported successors-in-interest being hence construable to be his legal representatives. Moreover, with the innate import of the parlance “legal representative” “being” of the person concerned, who purportedly falls within its ambit “being” enjoined to be evidently demonstrated “to” at the relevant stage “of” occurrence of demise of the predecessor-in-interest concerned, hence, receive the latter's estate. “Contrarily whereas hereat” with the apposite alienatory bestowment of the estate of one Jai Narain Kaushal upon one Parvesh Kumar evidently occurring prior to his demise, thereupon, “with” at the relevant time of occurrence of demise of one Jai Narain Kaushal, the aforesaid Parvesh Kumar as evidenced from the statement of RW-1, hence not inheriting the estate of deceased Jai Narain Kaushal, thereupon, the aforesaid Parvesh Kumar “cannot be” construed to be representing the estate of the deceased concerned. However, even if, JD/objector No.1 Parvesh Kumar does not fall within the definition of “legal representative” rather “when as evident” from a display occurring in the uneroded testification of RW-1 “of one” Jai Narain Kaushal “making” alienations of his entire property upon one Parvesh Kumar “through” a gift deed comprised in Ex.RB, thereupon, rather the mandate of Section 128 of The Transfer of Property Act, provisions whereof stand extracted hereinafter, attain rejuvenated vigour “for” hence enabling the decree holder to seek successful realization of the decretal amount from the estate of Parvesh Kumar, especially, when he “through” a gift deed received the entire estate of the deceased contesting sole defendant Jai Narain Kaushal. Provisions of Section 128 of the Transfer of Property Act read as under:- “128.
Provisions of Section 128 of the Transfer of Property Act read as under:- “128. Universal donee.—Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by [and liabilities of] the donor at the time of the gift to the extent of the property comprised therein.” 7. A close reading of the provisions of Section 128 of the Transfer of Property Act, 1882, “discloses” that where a gift deed in respect “of” the entire estate of the donor stands executed upon the donee, thereupon, the donee is personally liable for all debts indemnifiable by the donor, significantly, when debts arise or occur at the relevant time of the making of a gift by the donor, also the relevant liability “of” the donee in respect of the donor “is” limited to the extent of the property received by the donee from the donor. However, since, the entire property of Jai Gopal Narain Kaushal stands, for the reasons aforesaid, concluded to be gifted to Parvesh Kumar, thereupon, prima facie hence the entire property borne therein is rendered amenable for realization “through” coercive process “of” the entire decretal amount. 8. However, at this stage, the learned counsel appearing for petitioner Parvesh Kumar, submits that the mandate of Section 128 of the Transfer of Property Act, standing attracted with respect to debts or legal liabilities in respect whereto the donor “is” pronounced “under” judicial verdicts to be personally liable, whereas at the time of making of the relevant gift deed, “no adjudicatory verdicts” standing pronounced upon the apposite civil suits, given the making of the relevant gift deed obviously occurring during the pendency of civil suits, thereupon, rendering unattractable hereat, the mandate of Section 128 of the Transfer of Property Act.
The aforesaid submission addressed before this Court, by the learned counsel appearing for the petitioner, “if accepted” will tear apart the salutory besides the holistic wisdom behind the mandate engrafted in the aforesaid provisions of the Transfer of Property Act, more so, when it is meant for carrying ahead “the relevant salutary purpose” “of” hence enabling the decree holder concerned “to” seek realization of the decretal amount from the assets received by a donee from the donor “through a gift deed” also is meant for forestalling a donor “from by his” employing the aforesaid stratagem qua his, thereupon, concerting to frustrate the execution of decrees, whereunder liability(ies) stand pronounced upon him. Also the import of the signification borne by the coinage “debts due by the donor at the time of the gift” occurring in Section 128 of the Transfer of Property Act “cannot” be controlled or trammeled “by” any illiberal strict interpretation being meted thereto, comprised in its bearing a pedantic parlance that “at the stage”, the Court concerned stands seized with suits for recovery of amounts from the donor, it being imperatively enjoined to in contemporaneity “of averred eruption of liabilities” “make” an adjudication thereon, contrarily, a liberal signification in consonance with the wisdom behind the aforesaid provisions is enjoined to be imputed thereto, whereupon, the mere institution of a suit by the plaintiff against the donor, wherein the former claims a decree for recovery of debts due to it “may be sufficient” for its being construable “to fall within” the ambit of the aforesaid statutory coinage also the apposite averments in the plaint being amenable for a construction “that hence” debts being open for defrayment by the donor to the plaintiff dehors no adjudication being pronounced upon the apposite suit, “especially” when the donor for frustrating or for forestalling a successful plaintiff/decree holder from proceeding against his estates “may proceed to” distribute his estates by making its gift. 9. For the foregoing reasons, there is no merit in the instant petition. Accordingly, the instant petition is dismissed. All pending applications also disposed of. Records be sent back forthwith.