BALJINDER SINGH Vs. GURCHARAN SINGH

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment and order dated May 14, 1985, passed by the learned single Judge in Regular First Appeal No. 1125 of 1976. The learned single Judge on construction of Section 28 of the Hindu Adoptions and Maintenance Act of 1956 (hereinafter referred to as the Act) held that the transferee had no notice of the right of maintenance and the transfer was for consideration. Thus, in the light of these two findings and provisions of section 28 of the Act, the learned single Judge dismissed the appeal. It is this judgment of the learned single Judge which is subject matter of challenge in this Letters Patent Appeal.

(2.) MR . Malik, learned Counsel appearing for the appellants urged that respondents Nos. 2 to 5 had only an agreement to sell dated 24th August, 1968 under which the father of the appellants sought to sell the suit property to them. He urged that minors had sent a notice on 25th November, 1968 of their rights for maintenance and such a notice was served on one of the vendees on 27th November, 1968. He then pointed out that admittedly, respondents 2 to 5 filed a suit for specific performance on 1st January, 1969 against appellants' father which came to be decreed on 28th February, 1970. Relying upon these dates, the Counsel urged that until the decree was passed the rights of respondents Nos. 2 to 5 as vendees were not crystallised as owners and before that the notice dated 25th November, 1968 was served on one of the vendees. Counsel for the appellants, therefore, urged that respondents Nos. 2 to 5 had a notice of the minors' rights of maintenance against the suit property and in view of Section 28 of the Act, a charge be created on the suit property.

(3.) AFTER hearing counsel for the parties and after perusing the provisions of Section 28 of the Act and the material on record, we are satisfied that there is no evidence on record to show that the notice, in fact, was served upon the prospective vendees. Mr. Mittal drew our attention to Ex. D -1, a judgment in case No. 1/23 of 1969 between respondents Nos. 2 to 5 and the father of the appellants. In the said judgment, there is, however, reference to the issuance of notice by the minors but having regard to the nature and scope of the said suit, it was not necessary for the Court to record a positive finding as regards the service of notice. Even the issue was also not framed as regards the service of notice in the said suit. The reference is only a casual reference and there is no findings as regards the service of notice. In the present suit, the appellants did not lead any evidence to show the service of notice on any of the vendees. Apart from that it appears to us as on today the father of the appellants has died. Whatever consideration amount respondents Nos. 2 to 5 were required to deposit/pay shall go to the minors who have by now probably become majors. This litigation has been going on for more than 20 years and that respondents Nos. 2 to 5 have already paid Rs. 37,000/ - pursuant to the agreement dated 24th August, 1968. Having regard to the facts and circumstances of the case, we are of the opinion that the learned single Judge was right in dismissing the first appeal filed by the appellants. There is no substance in the Letters Patent Appeal. It stands dismissed but in the circumstances there will be no order as to costs.