VISHAL KUMAR SHARMA Vs. CATHOLIC CHURCH, JAMMU

JUDGEMENT

(1.) PLAINTIFF Vishal Kumar Sharma son of defendant No. 2 has brought this suit against defendants 1, 2 and 3 for a declaration that the sale deed dated February 1, 1961 registered on May 27, 1961 executed by defendant No. 2, late Yogeshwar Kumar Sharma (who died during the pendency of the suit and substituted by his legal represen ­tatives, who are on record) in favour of defendant No. 1 -the Catholic -Church, Jammu and the mortgage deed dated May 4, i960, registered on May 6, 1960 in favour of Dr. Shiv Dass and the mortgage deed dated May 12, 1960 registered on May 25, 1960, in favour of defendant No. I, which culminated in the sale deed dated February 1, 1961, be declared void, inoperative and ineffective against the interests of the plaintiff and further with a prayer that an amount of Rs. 81,000/ - determined as the amount of compensation for the part of the suit property acquired by the Government for widening of the B C. Road. Jammu, as the property of the plaintiff and prayed for consequential relief of posse ­ssion of the property covered by the said sale deed and in the alter ­native for a decree for joint possession in respect of house in the plaint and shown in the map enclosed with the plaint.

(2.) THE plaintiff precisely claims the declaration and consequen ­tial relief on the grounds that during minority of the plaintiff, who was born on 8th January, 1952 and attained the age of majority on 8th Jan. 1970, the sale deed quoted above and the mortgages of the properties held by the joint family and the entire immoveable property which was a joint Hindu family property, out of which the sale tran ­saction and the mortgages done by his father late Yogeshwar Kumar Sharma were not for legal necessity of the family but were for the immoral purposes of his father thus are not binding on the plaintiff and no valid title in the property passes to the vendees. It is stated that the grand -father of plaintiff named as Rai Sahib Pt. Ram Dhan left huge immovable properties in the City of Jammu in the form of land, houses and shops, on his death defendant No. 2 late Yogeshwar Kumar Sharma inherited the said property by succession, who has two sons, namely, the plaintiff and defendant No. 3. The inherited pro ­perties were, therefore, treated as joint Hindu family property and were thrown in the common stock of the family.

(3.) LOOKING to the frame of the suit, the challenge is confined only to the transactions, which took place by way of mortgage and sale, deed out of the said properties from year 1960 extended to 1961. Admittedly the plaintiff was minor at the time when, those transactions took place and hence on attaining majority in January. 1970 brought the present, suit on July 24, 1972. It is further stated that Pt. Yogehwar Kumar Sharma was living a luxurious and extravegent life from his child -hood. Pt. Ram Dhan died while defendant No. 2 was also a minor hardly 13 years of age. The property left by Pt. Ram Dhan was so much huge property that its in and unufruct was much more than what was required for the expenses of the family. Thus in fact the family had no real or ostensible necessity much less a legal one which would warrant alienation of any joint family property. Defendant late Pt. Yogeshwar Kumar Sharma developed immoral habits of drin ­king and gambling and dissipated the major portion of the income which accrued to the family, so much so that he had dispose of va ­cant side of land situated at College Road. Jammu to one Sita Ram of Mirpur long before the year 1960 to satisfy his immoral require ­ments. The claimax of his immoral needs reach near about the year 1960 and he entered into various transactions of the property in the form of mortgages and contracted debts creating sizable encumbrance upon the family, for the immoral purposes. The transactions attacked in the prevent suit are confined to sale deed dated Feb 1, 1959 the subject -Trotter of the suit in favour of defendant No for a consideration of Rs. 51,000/ - and the earlier mortgage of Rs. 12, 500/ - in favour of one Dr. Shiv Dass dated May 4, 1960 and also subsequent to that an additional amount of Rs. 2500/ - alleged to have been received by late defendant No. 2 executing an additional deed of security and a sum of Rs. 10, 000/ - received on Feb. 12, 1959 against pronote, executed by defendant No. 2 in favour of defendant No. 1. The necessity -shown in the sale deed to elebrate the marriages of his daughters, by defendant No. 2 & to pay his debts is also attacked as fictitious and false. In fact defendant No. 2 never intended to celebrate the marriages of his daughters, who were, not married till the date of institution of the suit. It is further projected out that, on account , of the extravagance of late defend No. 2 there was a suit for partition of the joint Hindu family property filed by defendant No. 1 against defendant No. 2, the plaintiff and other members of the family in the High Court of Jammu and Kashmir, which was decreed on the basis -of a compromise according to which a partition decree was passed out of which some of the property mentioned , in the decree sheet fell to the share of defendant No. 2. One of the reasons - for allotting that property to defendant No. 2 was to hold him responsible to incur expenses on the marriages of his daughters Kumari and Santosh, but late defendants No 2 disposed of the property mentioned in. item No. 1 of the decree sheet in partition without even making a provision for the exp ­enses marriage of his daughters. Defendant No. 1 knowing fully well the immoral habits of late defendant No 2 without making the necessary enquiries as to the legal necessity purchased property in dispute, as such the transactions made in favour of defendant No. 1 are wholly inoperative and illegal in so far as the interest and benefits of the plaintiff in property were concerned The property subject matter of suit, the part of which was acquired by the Government for widening of B. C. Road, Jammu fetched a compensation of 81,000/ - which/having fallen due to defendant No. 1 - the plaintiff prays that the Said amo ­unt should also be directed to be paid to him. In all the transactions neither defendant No. 3 was vigilant nor mother of the plaintiff Smt. Vidyaw nor Smt. Bhagwanti the grand -mother of the plaintiff were taken into confidence either by late defendant No. 2 or by defendant No. 1, hence the transactions lacks in bonafides of defendant No. 1 also, who cannot be deemed to be a bonafide purchaser.