Partly allowed

Kartar Kaur v. Rajwant Kaur and Ors.

Punjab & Haryana HC20 Apr 2009CR/3514/2007

Case brief

AI extract

What is this about?

In a civil revision, the High Court set aside the lower court's order dismissing an interim injunction in a partition suit. The Court granted a restraint against the respondents from alienating properties in the widow's name but denied restraint over properties exclusively allotted to her deceased son, while directing expedited trial.

What did the court decide?

Orders of Court below set aside. Restraint imposed on alienation of plaintiff's properties but not on properties exclusively allotted to the deceased son; direction to expedite trial.

Kartar Kaur Vs Rajwant Kaur and Ors. — Property and Title | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.3514 of 2007 Date of decision:20.04.2009

Kartar Kaur

...Petitioner

versus

Rajwant Kaur and others

¶7

...Respondents

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CORAM: HON'BLE MR. JUSTICE K.KANNAN

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Present: Mr.B.B.S. Sobti, Advocate for the petitioner.

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Mr. Arun Palli, Senior Advocate with Mr. Sunil Garg, Mr. Jai Bhagwan and Mr.Divanshu Jain, Advocates, for the respondents.

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Whether reporters of local papers may be allowed to see the judgment ?

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To be referred to the reporters or not ?

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Whether the judgment should be reported in the digest ?

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K.Kannan, J. (Oral)

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The revision is against the order concurrently rejecting the plaintiff's interim relief of injunction against the defendants from alienating the properties. The revision petitioner who was the plaintiff has since died and the legal representatives have been brought on record.

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The interim prayer for injunction against the respondents was dismissed essentially on the ground that the suit had been filed for the bare relief of injunction in a case where the defendants claimed title to the property by virtue of transactions of sale and gift made by the plaintiff in their favour and the suit having not been instituted either for setting aside the transactions or seeking for a

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Civil Revision No.3514 of 2007 - 2 -

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declaration, the plaintiff shall not have the interim order as prayed for.

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Learned counsel for the petitioner states that it is a case where the plaintiff was stripped off the properties that stood allotted in the name of her deceased son Premjit Singh and some property which was allotted to her independently. According to the learned counsel, she was aged 90 years and she was suffering from cancer and the so called documents obtained from her were not valid and she had been completely denuded of all the rights in the properties. The respondents staked their claim by virtue of the sale and the gift deed executed by the plaintiff. The counsel for the petitioner states that the plaintiff had subsequently filed an application for amendment of the plaint seeking for declaratory relief as well, and the application was still pending before the Court below. According to him, the relief of injunction was not in any way to prevent the respondents from enjoying the property but was only to restrain them from in any manner alienating or incumbenting the property pending the suit.

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Even before going into the merits of the respective claims, I put it to the counsel appearing for the respondents as to why he would not fetter himself from selling the properties pending suit especially when the application for amending the suit to include the prayer for declaration had been filed before the trial Court was awaiting adjudication. To respond to the same, the counsel states that the first respondent is a widow and one of the items of the properties was indeed a property which was allotted exclusively to her husband and the old lady herself had appeared before the Registrar Office and admitted the

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Civil Revision No.3514 of 2007 - 3 -

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execution of the gift in her favour. He would also be urge on her behalf that the children are growing and there could be a need for her to raise finances for educating them or putting them up in some gainful employment and any order that may fetter the right of sale will grossly jeopardize their interest.

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The right of alienation is invariably a natural incident of ownership and in a case where there is a strong prima facie case for ownership, there ought not to be a restraint against exercise of such a right of alienation. However, in this case, the counsel for the petitioner states right from the beginning when the son died, there had been some problems and the defendants had obtained mutation on a representation that the mother had died already and that the defendants alone were the legal heirs. This contention was refuted by the counsel appearing for the respondents, but the undeniable fact is that the suit came to be instituted soon enough after the documents of sale and gift of property were propounded by the defendants. It has so happened that the plaintiff has expired and the civil revision is sought to be prosecuted at the instance of the surviving sons and daughters of the deceased plaintiff. Without going into the merits of the respective claims and to balance the equities, I am of view that there shall be a restraint in respect of the properties, which were allotted to the mother but in respect of the property which stood exclusively in the name of Premjit Singh and of which the plaintiff claimed 1/4^th share as a heir to her son, there shall be no such restraint. Needless to state that any sales in respect of properties of which the defendants claim that they are the absolute owners, they shall be subject

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Civil Revision No.3514 of 2007 - 4 -

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to lis pendens, and any purchaser who may venture to take a conveyance or an encumbrancer who advances money on the security of the property shall do so subject to the ultimate decision in the suit. It shall also be open for the defendants to approach the Court at any time for any modification to show that the properties that stood in the name of Premjit Singh are not sufficient to raise enough resources for their immediate needs and the Court may in such an eventuality consider any application that may be moved for encumbrancing any other property which stood exclusively allotted to the mother. Any such permission that might be sought at the instance of the defendants shall be considered by the trial Court on available materials and if so satisfied, it may pass appropriate orders, subject however to the fact that any such transaction would be hit by lis pendens.

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It is contended by the learned senior counsel for the respondents that the application for amendment of the plaint is pending before the Court below and it is getting adjourned from time to time without any effort on the part of the plaintiffs to obtain an adjudication. It would only be appropriate that the application for amendment of the plaint shall be taken up for consideration as expeditiously as possible preferably within a period of three months and the Court below shall pass appropriate orders.

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In sum, the orders of the Court below are set aside and there shall be a restraint against the respondents from alienating any property that stood in the name of the plaintiff and there shall be no restraint in respect of property that was exclusively allotted to the son

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Civil Revision No.3514 of 2007 - 5 -

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Premjit Singh. This again would subject to any modification that parties may apply for before the trial Court in the manner and circumstances referred to above. Disposed of.

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After the application for amendment is considered and appropriate orders are passed, the suit itself may be taken up expeditiously preferably within a period of six months from the date of passing of this order and report to this Court about the status.

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(K.KANNAN) JUDGE

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20.04.2009 sanjeev

Kartar Kaur v. Rajwant Kaur and Ors.

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Kartar Kaur v. Rajwant Kaur and Ors.

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