Jaswinder Kaur v. Jagir Singh & Anr.

Present : Mr. Jagdish Manchanda, Advocate, for the petitioner. HEMANT GUPTA, J. (Oral) The petitioner is aggrieved against an order passed by the Executing Court on 08.10.2010, whereby the objections to the sale of the property in execution of the Award of the Motor Accident Claims Tribunal, was dismissed. Respondent No.1 filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 in respect of injuries suffered by him on account of motor vehicular accident with a vehicle owned and driven by one Lakhwinder Singh. The Tribunal awarded a sum of Rs.4,60,650/- as compensation vide Award dated 15.10.2009. In execution, the learned Executing Court ordered attachment of land measuring 5 kanals 12 marlas situated in Village Harigarh Bhorakh, Tehsil Pehowa, District Kurukshetra. The attachment was carried on 18.05.2010. Subsequently, the attached property was ordered to be put to sale, wherein the petitioner filed objections asserting title over the suit property on the basis of prior agreement to sell dated 10.04.2010 and the C.R.No.7941 of 2010 2 sale deed dated 17.5.2010. The said objections were dismissed by the Executing Court vide the order impugned in the present revision petition. The petitioner has attached copy of the sale deed and also a copy of the objection petition filed before the Executing Court. It is the case of the petitioner that in revenue record, the land is owned by Rulda singh i.e. father of judgment debtor-Lakhwinder Singh and that Rulda Singh had sold the property vide registered sale deed prior to the attachment to the petitioner, therefore, the land cannot be put to sale in execution of the decree against Lakhwinder Singh. The learned Executing Court declined the objections raised by the petitioner. The petitioner relies upon Vannarakkal Kallalathil Sreedharan Vs. Chandramaath Balakrishnan, 1990 (1) PLR 623, Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others, 2004 (2) PLR 53 and Avtar Singh Vs. Gurjeet Kaur, 1996(3) PLR 567 in support of his plea that the sale before attachment cannot be said to be illegal. The said judgments were relied upon by the petitioner before the Executing Court as well. In the sale deed attached with the present petition (Annexure P- 2), the total cost of the land is stipulated to be Rs.6,37,500/-. The sale deed stipulates that the entire sale consideration has been received in cash from the purchaser and there will be no transaction before the Sub Registrar. The sale deed also recites that the vendor or his legal heirs will have no concern with the land in question. The sale deed has no reference to any prior agreement to sell. In the objections filed, it has been pleaded that agreement to sell dated 10.04.2010 was executed, the entry of which was found in the register of Tara Chand, Notary Public, Pehowa. It was further pleaded that C.R.No.7941 of 2010 3 after execution of the sale deed, the agreement to sell could not be traced as it was unnecessary. It was further pleaded to the following effect: “(ii) That Rulda Singh had suddenly fell seriously ill and for treatment, he required dire need of money for his treatment so he had first executed an agreement to sell on 10.04.2010 and then executed the sale deed in favour of the applicant after receiving the full balance sale consideration. Even Rulda Singh succumbed to his incurable disease and expired on

20.08.2010 leaving behind 3 daughters and 2 sons. Copy of death certificate is attached herewith.” The petitioner also produced jamabandi for the year 2005-06 alongwith the present revision petition. The said document does not appear to be on record of the learned Executing Court. As per the facts on record, it transpires that the petitioner is relying upon sale deed registered on 17.05.2010 purportedly executed by Rulda Singh. The entire sale consideration is stated to be paid in cash and not a paisa was paid before the Sub Registrar. Still further, there is no reference to any agreement to sell in the sale deed. If the sale deed is executed in pursuance of an agreement to sell, the reference of the same was bound to be found in the sale deed as Rs.4 lac are stated to be paid at the time of execution of the agreement to sell. Absence of such recital in the sale deed throws doubt on the genuineness of the transaction of sale. Still further, Rulda Singh is said to be seriously ill and that he requires money for his treatment. The agreement to sell is said to be executed on 10.04.2010. Rulda Singh has died on 20.08.2010. It appears that ill health of Rulda Singh was used as a mean to execute the sale deed in favour of the petitioner. Such sale deed lacks bona fide. The manner in which transaction of sale has been effected and in proximity of illness and C.R.No.7941 of 2010 4 death of Rulda Singh shows that the transaction is to defeat and delay the execution of the decree. The Motor Accident Claims Tribunal has awarded a sum of Rs.4,60,650/- as compensation vide Award dated 15.10.2009. Lakhwinder Singh, the driver and owner of the offending vehicle knowingly that the decree has been passed against him and he has liability to satisfy the award, got executed a document of sale from a person, who was not in good health, so as to give a colour of bona fide transaction. The circumstances, mentioned above, are sufficient to infer that document of sale registered on

17.05.2010 was executed with the sole object to defeat the rights of the decree holder, who has suffered injuries at the hands of Lakhwinder Singh son of deceased Rulda Singh. The judgments referred to by the learned counsel for the petitioner are not applicable to the facts of the present case. In Janki Vashdeo Bhojwani’s case (supra), the decree was sought to be executed against wives of guarantors. It was found that mere relationship will not be sufficient to make them liable for the execution of the decree. In Vannarakkal Kallalathil Sreedharan’s case (supra), the agreement of sale and the execution of the sale deed prior to the attachment have been found to be act of bona fide transaction of sale. In fact, the nature of the transaction in the present case i.e. alleged agreement to sell dated

10.04.2010 and that of sale deed dated 17.05.2010 itself is doubtful and seems to be actuated to defeat and delay the execution of the decree. Such was not the situation in any of the cases referred to by the learned counsel for the petitioner. Though technically the sale of the property is a day before the attachment of the decree and thus such sale may not be void in terms of C.R.No.7941 of 2010 5 Section 64 of the CPC, but such sale is with a view to defeat and delay the execution of the decree. Therefore, it is voidable in terms of Section 53 of the Transfer of Property Act, 1882. As per Section 53 of the Transfer of Property Act, the transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Only the rights of a transferee in good faith and for consideration were protected. Since the consideration part of the document is unbelievable, therefore, the petitioner is not entitled to assert sale in his favour, it being a fraudulent transfer. Consequently, I do not find any patent illegality or irregularity in the order passed by the learned Executing Court, which may warrant any interference by this Court in exercise of its revisional jurisdiction. Dismissed.

08.12.2010 Vimal (HEMANT GUPTA) JUDGE