PUSHPA DEVI AGARWAL Vs. COLLECTOR AND DISTRICT MAGISTRATE

JUDGEMENT

(1.) AGGRIEVED by attachment of house standing over plot No. 293/4 as petitioner's husband had not repaid the loan taken from U. P. Financial Corporation, the petitioner approached this court. The entire claim is founded on two facts. First, that petitioner being sole owner of the house in dispute the opposite parties were not justified in attaching and selling the same for any dues outstanding against her husband. It has also been attempted to aver that as loan was taken on two plots of land No. 293/4 and 293/22 the opposite parties acted illegally in not first attempting to recover the entire amount from plot No. 293/22 which admittedly belonged to her husband. Prima facie the first submission appeared to be attractive but when examined in the light of the counter affidavit and documentary evidence then it became quite clear that there is no substance in it.

(2.) ADMITTEDLY, petitioner purchased plot No. 293/4 on 19th July 1966. Her name was mutated in revenue records on 3rd July 1967. She executed lease-deed in favour of her husband on 20th May, 1970. It was given to petitioner on conditions that he shall continue to pay yearly rent of Rs. 400/-and shall be at liberty to use the said plot in any manner as he liked including right to construct building and to instal machinery on it. Period fixed was 20 years. She also permitted her husband to mortagage by way of assignment the lease hold land and all the rights arising under these presents to U. P. Financial Corporation, Kanpur for securing the loan proposed to be obtained by lessee for the purpose of establishing the factory on plot in dispute. In Schedule 'A' to the lease-deed there is description of property. It mentions open land measuring approximately 1 Biswa and 10 dhur part of Survey plot No. 293/4. On the basis of this lease-deed petitioner obtained loan from Financial Corporation. The claim of petitioner, therefore, that building standing over plot in dispute was constructed by her and she was the owner, stands belied by Schedule 'A'. It clearly mentions that what was being leased out to husband was open land. No building was standing over it. The attachment and sale of house, therefore, cannot be resisted by her. It appears to have been constructed during subsistence of lease. The exact purpose of lease by wife in favour of husband appears to have been to get loan from Financial Corporation. But, the last clause which permitted husband to mortgage or assign and obtain loan from financial corporation stops her from challenging auction as her husband had no right in it. In law, the opposite parties are entitled to recover loan from leased property as it was leased- out to husband for this very purpose. Once property was mortgaged with consent of mortgagee the consequences of not fulfilling conditions of mortgage follow automatically namely the property can be sold for realisation of amount loaned in equity petitioner has even worse case. She having pursuaded opposite parties to advance loan to her husband on property which belonged to her but which she leased out for purposes of securing loan cannot turn round and urge that for non-payment of loan the property should not be sold.

(3.) IN the result, this petition fails and is dismissed. there shall be no order as to costs. Petition dismissed.