SUNITA AND ORS Vs. RAM KISHOR AND ORS.

JUDGEMENT

(1.) Briefly stated facts of the case are that plaintiffs- Sunita wife and Master Nikki, minor son of Sanjay son of Ram Kishore, residents of village Lawan, Tehsil and District Mohindergarh, had brought a suit against respondents i.e. Sanjay and his father Ram Kishore, seeking a declaration that they are entitled to create charge on 1553/4879 share of defendant No.2 under Sec. 39 of the Transfer of property Act on the property comprised in Khewat No. 166, Khatoni No. 212 total land measuring 244 kanal 9 marlas situated at village Tajpur, Tehsil Sub Ateli, District Mahendergarh, besides seeking a decree for permanent injunction restraining the defendants from alienating the suit property etc. The relationship between the parties can be best understand with the help of following pedigree table:-

(2.) Defendants, in collusion with each other wanted to alienate the suit land and to create charge upon it. Defendant No.1 had sold 4 kanal 2 marlas vide sale deed dtd. 12/11/2010 and mutation on the basis thereof had been sanctioned on 18/11/2010. According to the plaintiffs, in case defendants succeed in selling their entire land, the plaintiffs would not be able to recover maintenance amount and as such charge under Sec. 39 of the Transfer of Property Act, be created on the land of defendants and they be restrained to alienate the suit land. With such prayer the plaintiffs had brought the suit in question.

(3.) On notice, the defendants appeared and filed a written statement contesting the suit raising preliminary objections to the effect that the plaintiffs had no locus standi to bring the suit; that they had not approached the Court with clean hands, in as much as, they had concealed true and material facts; that the suit was bad for non- joinder and mis-joinder of necessary parties. On merits, defendants contended that defendant No.2 was sole owner of 1553/4879 share; that defendant No.1 had no concern with the suit property and that the suit property did not have nature of joint and co-parcenary property. Though relationship between the parties stood admitted but it was denied that the plaintiffs were turned out of the matrimonial home by defendant No.1. As per version of the defendants, plaintiff No.1 is a quarrelsome lady and she did not want to stay with defendant No.1. She had wrongly initiated proceedings under Sec. 125 Cr.P.C. against defendant No.1; that defendant No.1 has been giving maintenance to the plaintiffs and defendant No,2 had been wrongly made party to the suit. It was denied that defendant No.1 had sold any land. It was contended that defendant No.2 was absolute owner of his share and had full right to deal with the property and no charge could be created under Sec. 39 of the Transfer of Property Act. Refuting the remaining allegations the defendants prayed for dismissal of the suit.