Read Order: Barfi Devi v. Satbir Singh and others

Monika Rahar

Chandigarh, February 17, 2022:  The Punjab and Haryana High Court has recently held recently that under Section 31 of the Specific Relief Act, 1963 a party to a document is required to file a suit for annulment/ cancellation of the document if such party wishes to avoid the same, however, if the plaintiff is not a party to the document, he is not required to file a suit for annulment or cancellation thereof.

In the instant case before the Bench of Justice Anil Kshetarpal, Smt. Birwati, being the owner of the suit property, entered into an agreement to sell the suit property to Smt. Barfi Devi, and subsequently a registered sale deed on receipt of sale consideration was also executed. However, later on, Smt. Birwati fraudulently executed a transfer deed with respect to the suit property in favour of her nephew (Satbir) via a release deed in February 2011. Hence, Smt. Barfi Devi filed a suit for declaration with consequential relief of permanent injunction. 

In response to the notice of the suit, the defendants disclosed that Satbir (the first defendant) executed a release deed in favour of his two sons, namely, Mohit and Rohit in November 2011 who further transferred the suit property in favour of Rambir. Thus, the plaintiff filed an application under Order 1 Rule 10 CPC to implead Mohit, Rohit and Rambir as party defendants along with an application of permission to consequentially amend the plaint.

The Trial Court dismissed the same. Hence, the High Court was approached with a petition assailing this Trial Court order. 

The petitioner’s counsel contended that the release deed was executed by Sh. Satbir in favour of his two sons was consequential and if the release deed executed by Smt. Birwati in favour of Sh. Satbir was held to be illegal, then the subsequent transfer of the property will be of no consequence. He further contended that the subsequent transfers were consequential, therefore, the Court ought to have permitted the plaintiff to amend the plaint to implead the transferees as party defendants and amend the plaint, so as to ensure that all affected parties were heard before the court decided the matter. 

Per contra, the counsel representing the respondents contended that the factum of the release deed was disclosed by Sh. Satbir (first defendant) in his written statement filed in the year 2016 and therefore, the stand of the plaintiff that she was not in the knowledge of the document was factually incorrect.

After having considered the rival submissions, the Court observed at the outset that the concept of challenging a document available under Section 31 of the SRA is not applicable in the present case and that this right is available to the parties who are a party to the document. 

Further, the Court observed that Section 34 of the Specific Relief Act, 1963 which enables a party to file a suit for declaration that a particular document is not binding on him, can be invoked by a plaintiff who is not a party to the document. In such circumstances, there is no requirement of challenging a particular document, observed the Court. Further, on Trial Court’s decision, the Court opined that the trial Court overlooked this aspect. 

Furthermore, the Court found substance in the argument of the counsel representing the petitioner who contended that Sh. Satbir (first defendant) executed a release deed (transfer deed) in favour of his two sons on the strength of the release deed by Smt. Birwati, and that Sh. Satbir derived his right in the property from Smt. Birwati on the basis of the release deed dated February of 2011. Further, it was noted that the release deed dated February 2011 was already challenged in the suit. 

Since the validity of the aforesaid document was questioned by the plaintiff by filing the suit, thus, the subsequent document of November 2011 and subsequent sale deed of 2019 was only consequential, opined the Court. Also, the Court added that the sale deed of 2019 was also hit by the rule of lis pendens and thus, the transfer deed of 2019 was subservient to the result of the suit.

Also, the Court was of the view that it was important for the Court to grant an opportunity of hearing to the persons who were going to be affected by the result of the suit, as in the absence, Sh. Mohit, Rohit and Rambir would be adversely affected, concluded the Court. 

Thus, the Court held that the Trial Court wrongly dismissed the application on the ground of limitation and that this aspect could be examined by the Court after framing an issue and permitting the parties to lead evidence.

Hence, the Trial Court’s decision was set aside. 

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