Amarjit Kaur and Another vs Jatinder Sharma and Others

Sat Pal, J.—This case has a chequered history. On 5.5.1965 Mukund Singh agreed to sell his land to one Dev Raj (whose LRs are the respondents in this case) for Rs. 35,000/- and received Rs. 10,000/- as earnest money and the balance Rs. 25,000/- was left to be paid. Out of the balance amount, Rs. 2800/- were to be left with the vendee for payment to the prior mortgagee and the balance amount was to be paid before the Sub Registrar at the time of the registration of the sale deed. The sale was to be executed within, one year.

Before the sale deed in terms of the above mentioned agreement to sell dated 5.5.1965 could be executed, Mukund Singh sold his land to one Bant Kaur (whose daughters are the petitioners in the present petition) by a registered sale deed. Said Bant Kaur was the wife of Jang Singh, a collateral of Mukund Singh and a co-sharer with him. When Dev Raj and his brother came to know about the aforesaid sale, they filed a suit for specific performance of contract against Mukund Singh, Bant Kaur and her husband Jang Singh. It was pleaded that Bant Kaur was a benami and in fact the property was sought to be transferred to Jang Singh which was fictitious and without any consideration. The trial Court decreed the suit of specific performance filed by Dev Raj and his brother vide judgment and decree dated 22.3.1968. The aforesaid judgment and decree dated 223.1968 was challenged by Smt. Bant Kaur, her husband Jang Singh and Mukund Singh in RFA No. 88 of 1968. The said RFA was dismissed by this Court vide judgment dated 18.8.1982. The facts mentioned hereinabove have been taken from the court records of said RFA.

The decision dated 18.8.1982 of this Court in R.F.A. of 1968 was challenged by Bant Kaur in the Supreme Court of India in Civil Appeal No. 6240 of 1983. The Hon''ble.Supreme Court of India vide judgment dated 31.1.1996 dismissed the said civil appeal filed by Bant Kaur. The operative portion from the judgment of the Supreme Court is re-produced herein below: -

"In trial court as also the High Court has found that 19 days after the execution of the said agreement for sale, the proposed vendor Mukand Singh sold the land in dispute to Bant Kaur-the wife of his collateral, for a lower consideration of Rs. 20,000/- (rupees twenty thousand only) and that the said transaction was illegal and fictitious in order to defeat the right of the respondents. Decisions on these two important questions are essentially that of fact normally not openable at this level. Nothing abnormal has been suggested to us which could arise in this case except that by an interim order of this court, the appellants were made to deposit a sum of Rs. 10,000/- (rupees ten thousand only) in Court for a Fixed Deposit to earn interest in the eventuality that this Court might think of granting to, the respondents the alternate relief of refund of earnest money in this suit for specific performance, from which the instant appeal has arisen. Since such occasion does not arise, the appellants are at liberty to withdraw the said amount together with the interest accrued thereon, since we dismiss the appeal. Accordingly the appeal is dismissed. There shall be no order as to costs."

After the dismissal of the appeal of Bant Kaur by the Supreme Court, the LRs . of Decree Holder Dev Raj revived the execution proceedings in March, 1996. In the execution proceedings, petitions Amarjit Kaur and Karamjit Kaur who are the '' daughters of Bant Kaur and also claimed to be the LRs of their father, Jang Singh and Gajjan Singh (who was the brother of Jang Singh) and Dulla Singh, filed objections. In the objection petition they took the plea that before executing the agreement to sell dated 5.5.1965, Mukand Singh had mortgaged with possession 29 Kanal 12 Marias with Jang Singh, 37 Kanal 4 Marias with Gajjan Singh about 40 years ago. It was pleaded that since Mukand Singh failed to get the property redeemed from the mortgagees, the objectors had become owners in possession of the suit land. The objectors petition of the objections was, however, dismissed by the learned Civil Judge, Senior Division, Sangrur vide his order dated 7.11.1997. The aforesaid order passed by the learned Civil Judge, Senior Division; Sangrur has been challenged by the objectors in this petition.

Mr. Jasbir Singh, the learned counsel appearing on behalf of the petitioners/objectors submitted that the point raised by the objectors in their objection petition was hot raised in the main suit and since this point was raised for the first time in the execution proceedings, the learned executing court ought to have upheld the objections raised by the objectors with regard to the land mortgaged by Mukand Singh with Jang Singh, Gajjan Singh and Dulla Singh who are since dead and are now being represented by the objectors who are their LRs. He further submitted that the Decree Holder in the execution application dated 27.9.1997 have themselves admitted that out of the land which is under execution, some land was entered in the record under mortgage for Rs. 2821.48 P and two of the persons in whose favour the land was mortgaged have been mentioned as Jang Singh and Gajjan Singh. He, therefore, contended that the impugned order passed by the learned executing court was not sustainable. .

I have given my careful consideration to the submissions made by the learned counsel for the petitioners and have perused the record including the records of RFA 88 of 1968 decided on 18.8.1982.1, however, do not find any merit in tie contentions raised by die learned counsel of the petitioners. In the judgment dated 18.8.1982 passed by this Court in RFA 88 of 1968 it was held that the sale deed dated 24.5.1965 executed by Mukand Singh in favour of Bant Kaur, was fictitious in order to defeat the rights of Dev Raj and others. The aforeswa funding, has been upheld by the Hon''ble Supreme Court vide judgment dated 31.1.1996. Now the petitioners/objectors who are admittedly the daughters of Bant Kaur, have claimed in their objection petition that they had become owners in possession of the suit land after the expiration of limitation for re-deeming the. land as the suit land was mortgaged with their father Jang Singh, their uncles Gajjan Singh and Dulla Singh, as rightly stated in the impugned order by the learned executing court that the execution was filed on 30.10.1982 but the same was stayed by the Hon''ble Supreme Court in SLP filed by Bant Kaur and others in the year 1983 and the stay continued till 31.1.1996 when finally the appeal of Bant Kaur and others was dismissed by the Apex Court. Thus till 31.1.1996, the decree holders were not competent to get the suit property re-deemed from the mortgagees if the suit property was mortgaged. Immediately after the dismissal of the appeal of Bant Kaur, the execution proceedings were revived by the Decree Holders in March 1996. Even otherwise, the usufructuary mortgagor does not lose his title to the property or right to redemption by lapse of time. In this connection reference may be made to a judgment of the'' Supreme Court in Panchanan Shartna v. Basudee Prasad Jaganani 1995 H.R.R. 575.

In view of the facts mentioned herein above, there is no substance in the submission that the petitioners/objectors Amarjit Kaur and Karamjit Kaur had become owners in possession of the suit land after the expiration of limitation for redeeming the land. By virtue of judgment and decree dated 22.3.1968 which has been upheld up to the Supreme Court, the Decree Holders shall become owners of the suit property and shall step in place of Mukand Singh as owners and if any piece of the suit land was mortgaged with Jang Singh, Gajjan Singh and Dulla Singh, the LRs of these said persons shall be entitled only to recover the mortgage amount from the Decree Holders.

In view of the above discussion, I do not find any merit in this petition and accordingly dismiss the same.