Delhi High Court
Renu Bala vs Vijay Kumar on 29 August, 2016
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 9th August, 2016
Judgment pronounced on: 29th August, 2016
+ Ex. P. No.126/2012 & E.A. (OS) Nos.294/2012,
294/2015, 351/2015, 604/2015 and 625/2015
RENU BALA ..... Decree-holder
Through Ms.Shobhana Takiar, Adv.
versus
VIJAY KUMAR ..... Judgment-debtor
Through Mr.Amit Sibal, Sr.Adv. with
Ms.Babita Bhagat, Adv. for
Objectors, Mr. Rajesh Kumar &
Mr. Sachin Kumar
None for the judgment-debtor
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. Ms.Renu Bala, decree-holder has filed the present execution petition under Section 44A and Order 21 Rule 11(2) CPC, for seeking the following reliefs:
a) "Order and direct the judgment-debtor to pay 76,000 GBP along with interest at the prevailing High Court rate in England and Wales on the decreetal amount w.e.f. 10.12.2011 along with cost of 1500 GBP decreed by the Wolverhampton County Court in the jurisdiction of England and Wales in favour of the decree-holder;
b) Issue warrants of attachment against the judgment-
debtor of property mentioned in Schedule-I to the present application;
Ex.P.No.126/2012 Page 1 of 21c) Recovery of amount be payable to the decree-holder by sale thereof; or in the alternative;
d) Issue arrest warrant against the judgment-debtor;
e) Costs of the present petition be paid to the decree-
holder."
2. The decree-holder has filed an application being E.A. (OS) No.294/2012 under Order XXI Rule 13 read with Section 151 CPC for attachment of property as per the Schedule-I filed along with the petition.
3. The decree-holder has filed the execution of the judgment dated 10th October 2011 passed by the Wolverhampton Country Court in the jurisdiction of England and Wales, whereby a decree for a sum of 76000 GBP along with the interest at prevailing High Court rate in England w.e.f. 10th December, 2011 till the payment along with cost of 1500 GBP decreed by the Court in favour of the decree-holder and against the judgment-debtor.
4. Brief facts of the case as per the decree-holder are that the decree-holder was married to the judgment-debtor on 10th October, 1995. Smt Krishna Rani was the mother of the judgment-debtor. After marriage, the decree-holder and the judgment-debtor had been living in UK.
4.1 The property bearing No. A-884, Block-A, Shastri Nagar, Delhi- 110052 (hereinafter referred to as the "said property") was purchased on 28th April, 2003.
4.2 Decree-holder submits and relies on its documents to show that the amount was paid by decree-holder and her father for buying the said property. It was a matrimonial asset. The entire sale Ex.P.No.126/2012 Page 2 of 21 consideration to buy the said property was paid by the decree-holder and her father.
4.3 The sale deed of the said property was executed in the name of the judgment-debtor because during that time the decree-holder was unable to travel to India as she was undergoing IVF treatment. The judgment-debtor stated and assured that he would place the said property in joint names of the decree-holder and the judgment-debtor when next time both of them would be able to travel to India together.
4.4 In the year 2004, the decree-holder became pregnant and from the wedlock of the decree-holder and the judgment-debtor on 27th May, 2005, a daughter Shreya was born who resides with the decree- holder.
4.5 After the birth of the daughter, the decree-holder was unable to travel to India for a number of years. Thereafter, some serious differences arose between them and the decree-holder and the judgment-debtor separated from each other on 16th May, 2009.
4.6 After six years of the purchase of the said property, the judgment-debtor in order to defeat the claim of the decree-holder, had transferred the said property by way of Gift Deed dated 4th August, 2009 registered on 10th August, 2009 in the name of his mother, Smt. Krishna Rani who was a senior citizen and was suffering from various ailments.
4.7 The transfer/gift was not within the knowledge of the decree- holder. The Gift Deed was executed by the judgment-debtor on 10th August, 2009 after the separation of the decree-holder and the judgment-debtor on 16th May, 2009.
Ex.P.No.126/2012 Page 3 of 214.8 After the separation, it was well within the knowledge of the judgment-debtor that the decree-holder has a right to receive the maintenance out of the estate. Therefore, with malafide intention, the said property was transferred by him in the name of his ailing mother to avoid the payment of maintenance.
4.10 Separation and divorce proceedings between the decree-holder and the judgment-debtor were well within the knowledge of Smt. Krishna Rani and the present objectors.
5. It is submitted that in the proceedings of dissolution of marriage before the Wolverhampton County Court, the judgment-debtor vide order dated 7th June, 2011 accepted that the said property is to be treated as the 'matrimonial asset'. With the consent order dated 10th October, 2011 passed by the Wolverhampton County Court, the judgment-debtor agreed that in effect, the property being a matrimonial asset was held beneficially as between the husband and wife in equal 50/50 shares.
6. During the hearing, no one represented on behalf of judgment- debtor, who is the husband of decree-holder. The objectors have raised no objections, if any order, is passed against the judgment- debtor for violation of decree passed in Foreign Court. The mother of the objectors and judgment-debtor expired on 10th July, 2014. The judgment-debtor did not appear before the Court nor did he argue the matter, however, the written submissions were filed by him in which it was stated that he is a British citizen and is a resident of United Kingdom since long. The judgment-debtor is working with M/s Ellison Coating System Ltd. Unit 15, Cannon Business Park, Gough Road, Coseley, Bilston, West Midlands, WV14 8XR, England as a 'sprayer' Ex.P.No.126/2012 Page 4 of 21 (spray painter). It is stated that the decree-holder is working with Crown Prosecution Services and her pay is GBP 2212.78 per month as on August, 2010. On 10th October, 1995, judgment-debtor got married to decree-holder. It is the second marriage of the decree- holder and out of the said wedlock baby Shreya Bhardwaj was born on 27th May, 2005. In the year 1998, the decree-holder and judgment-debtor had jointly purchased property bearing No.15, Halecroft Avenue, Wednesfield, Wolverhampton, WV11 1TS, U.K. The said property is a duplex property comprising of three bedrooms and front and rear garden having market value of GBP 195000 in the joint name. In the year 2003, the judgment-debtor came to India and from his hard earned money had purchased the said property from Smt. Shanti Devi W/o Late Sh. Balbir Singh vide registered Sale Deed registered as Document No.1934, volume. 748 Book No.I, page 30 to 40 dated 28th April, 2003 with Sub Registrar, Delhi. The said property was purchased for the purpose of residence of his old father (aged about 90 years), mother (aged about 82 years) and brothers and their respective families. Later on, the said property was gifted out of love and affection by the judgment-debtor in the name of his mother Smt. Krishna Rani vide registered Gift Deed dated 4th August, 2009 registered as Document No.5312, volume. 2998 Book No.I, page 118 to 121 with Sub Registrar, Delhi.
7. It is alleged by him that on 18th May, 2009, the judgment- debtor and the decree-holder got separated after 14 years of married life and in January, 2010 the decree-holder had filed the Divorce petition in Wolverhampton County Court and finally, a consent decree dated 10th October, 2011 was passed by the Wolverhampton County Court, UK. It is submitted by him that all along from 2010 till passing Ex.P.No.126/2012 Page 5 of 21 of the consent order dated 10th October, 2011 as well as the filing of the execution petition, the decree-holder was fully aware that the said property was transferred in the name of the objector Smt. Krishna Rani much prior to the filing of the divorce petition in the year 2010. At the time of passing of the consent order dated 10th October, 2011, he was not the owner of the said property. His mother Smt. Krishna Rani had no knowledge about the divorce petition or any other proceedings between the judgment-debtor and the decree-holder. He is residing in a rented accommodation and pays GBP 500 per month as rent. He also pays the maintenance amount of GBP 35 per week w.e.f. 2010 and GBP 30 per week w.e.f. 25th September, 2012 towards the maintenance of her daughter Ms. Shreya Bhardwaj. The judgment-debtor was also paying installments to Nation Wide from his own Salary Bank account.
8. It is stated that in compliance of the decree dated 10th October, 2011, the judgment-debtor had transferred the matrimonial home bearing No.15 Halecroft Avenue, Wednesfield, Wolverhampton, WV11 1TS, U.K. in the name of decree-holder on 24th July, 2012. However, due to his low income, the judgment-debtor was not able to pay decreed amount of 76000GBP and 1500GBP as the cost of litigation. Consequently, on 11th January, 2013 the salary of the judgment- debtor was attached to the extent of the amount of the cost ordered by the Wolverhampton County Court, U.K. It is stated by him that the present execution petition has been filed by the decree-holder, just to harass the family of the judgment-debtor who do not have any concern with the dispute between the decree-holder and the judgment-debtor. The decree-holder is a permanent resident of United Kingdom and the matrimonial dispute arose in UK. The decree-
Ex.P.No.126/2012 Page 6 of 21holder has initiated the present execution proceedings in India, even though the decree-holder is fully aware that the said property is not available for attachment for satisfaction of the consent decree dated 10th October, 2011. She is living a lavish life and has been maintaining an Audi car worth about 34000 GBP and on other side, the judgment-debtor is earning only meager amount and had spent almost all of it on maintenance of her daughter, rent and daily needs.
9. The Court had passed an order dated 7th March 2013, to issue warrants of attachment in respect of the said property and the same has already been attached by the bailiff in compliance with the said order dated 7th March, 2013 under Volume 1, Chapter 12 Part H of Delhi High Court Rules.
10. Smt. Krishna Rani, came to know about the attachment orders in respect of the said property only when the bailiff came to the said property in May/June, 2013. Thereafter, she had filed the objections being E.A.No.598/2013 under Order XXI Rule 58 read with Section 151 CPC along with an application being E.A. 449/2013 under Order XXI Rule 59 read with Section 151 CPC against attachment of the said property. Later on, Smt Krishna Rani expired on 10th July, 2014 i.e. during the pendency of the aforesaid objections. In any case, Smt. Krishna Rani left behind the following legal heirs /survivors/ legal representatives:-
Sl. No. Name Relation
1. Sh.Rattan Lal Husband
2. Smt. Santosh Kumar w/o Sh.Yash Daughter
Pal
3. Sh.Satish Kumar (disappeared Son
since 2004 and till date have no
notice about his life).
3A. Smt.Raj Rani w/o Sh. Satish Daughter-in-law
Ex.P.No.126/2012 Page 7 of 21
Kumar
3B. Mr.Kamal Kant s/o Sh. Satish Grand son
Kumar
3C. Ms.Mahima d/o Sh. Satish Kumar Grand daughter
4. Smt.Prem Lata w/o Sh.Ramesh Daughter
Chander
5. Sh.Rajesh Kumar Son
6. Sh.Vijay Kumar Son
7. Sh.Sachin Kumar Son
During her lifetime, Smt. Krishna Devi had executed a Will duly registered as document No.6707, Book III, Volume No.940, pages 63 to 65, on 29th December, 2011 and bequeathed her said property, ad measuring 105 sq. yards, in favour of her sons namely Mr. Rajesh Kumar and Mr. Sachin Kumar, in equal sharing ratio, with absolute right, title and interest and power to deal/alienate/dispose of the same in any manner whatsoever.
11. After the demise of Late Smt. Krishna Rani, the present applicants/objectors had filed an application being E.A. 656/2014 under Order XXII Rule (1)(2) and (4) read with Section 151 CPC for substituting them as the legal heirs/successors of the deceased Smt.Krishna Rani (then objector). On technical reasons the aforesaid application being E.A. No.656/2014 was withdrawn by the applicants/objectors while reserving their rights to file objections in the present petition and consequently, this Court by order dated 10th February, 2015 disposed of the objections being E.A. No.598/2013 as well as the application being E.A. No.449/2013 filed by Smt. Krishna Rani and at the same time, granted leave to the present objectors to file objections in the present execution petition.
Ex.P.No.126/2012 Page 8 of 2112. The decree-holder's application being E.A. No.604/2015 for sale of property by public auction is also pending and listed for final disposal which is opposed by the objectors.
13. Mr.Rajesh Kumar and Mr.Sachin Kumar sons of Smt.Krishna Rani (objectors), brothers of judgment-debtor have filed an application under Order XXI Rule 59 read with Section 151 CPC being E.A. No.351/2015 for stay of warrant of attachment and consequential action of the Registrar General of this Court in relation to the said property.
14. The objections were also filed by them under Order XXI Rule 58 CPC read with Section 151 CPC being E.A.No.625/2015 against the attachment of the said property. It is pertinent to mention that on 5th March, 2015, the applicants had filed the objections under Order XXI Rule 58 CPC along with an application under Order XXI Rule 59 CPC vide Diary No.114286/2015. However, the objections filed by the applicants/objectors could not be listed, rather the accompanying application under Order XXI Rule 59 CPC was listed as EA No.221/2015. The aforesaid application was disposed of by the order dated 12th March, 2015 as being infructuous. Therefore, the objections are being filed by the present applicants/objectors as they are the sons of Late Smt. Krishna Rani and are the sole beneficiaries to the said property by virtue of the Will dated 29 th December, 2011 of deceased Smt. Krishna Devi and they alone have absolute right over the said property. The present applicants/objectors are residing in the said property with their families comprising of their wives, children and their father Sh. Rattan Lal who is aged about 94 years.
Ex.P.No.126/2012 Page 9 of 21Pleadings in both the applications i.e. E.A.No.351/2015 and E.A.No.625/2015 were completed by both the parties who have made their submissions from time to time.
15. In E.A. No.625/2015 filed by the objectors it is stated that their mother, Smt. Krishna Rani was the lawful registered owner of the said property who acquired the same by virtue of the registered Gift Deed dated 4th August, 2009.
16. It is also stated by them that no specific orders/directions qua the said property were passed in favour of the decree-holder by the UK court in the consent order dated 10th October, 2011. It is stated that from the year 2010 till the passing of the consent order dated 10th October, 2011 as well as till the filing of the present execution petition, the decree-holder was fully aware that the said property was not available for attachment as the same stood transferred in the name of Late Smt. Krishna Rani, (mother of the applicants/objectors) in the year 2009 which is much prior to the filing of the divorce petition by the decree-holder in the year 2010. Yet the decree-holder chose not to make Smt. Krishna Rani a party in the UK proceedings, even though the decree-holder's father was a party to the said proceedings. Thus, the said facts were deliberately concealed by the decree-holder from the UK court for malafide reasons and motive. It is also stated that the judgment-debtor was not the owner of the said property even at the time of passing of the consent order dated 10th October, 2011, therefore any statement made by him qua the said property is not significant/relevant and cannot be enforced upon the present applicants.
17. Reply to E.A.No.351/2015 has been filed. It is submitted by the decree-holder that it was well within the knowledge of the judgment-
Ex.P.No.126/2012 Page 10 of 21debtor that the decree-holder has a right to receive the maintenance out of the estate, therefore, with malafide intention, deceptively the said property was transferred in the name of the ailing mother from his name to avoid the payment of maintenance. It is stated that the separation and divorce proceedings between the decree-holder and the judgment-debtor were well within the knowledge of Smt. Krishna Rani and the present objectors. Thus, the judgment-debtor along with the objectors has played fraud upon the Court. By such a transfer the judgment-debtor sought to defraud the right of maintenance to the decree-holder, and the mother and the present objectors were/are the party to such fraud. The judgment-debtor has accepted before the Wolverhampton County Court that the transfer was in order to defeat the right of the decree-holder. Therefore, in order to avoid the right of maintenance alleged Gift Deed was executed and mother Smt. Krishna Rani, became a party to such fraud and was having the knowledge of this fraud.
18. In the reply filed by the decree-holder, with regard to the objections being E.A.No.625/2015 filed by Shri Rajesh Kumar and Shri Sachin Kumar, the decree-holder has taken the same grounds as pleaded in the reply to E.A.No.351/2015. It is also stated that the objections are not maintainable and are liable to be dismissed because the provision of Indian Succession Act, 1925 does not supersede the provisions of the Transfer of Property Act. Due to the fact that the judgment-debtor has accepted before the Wolverhampton County Court that transfer was in order to defeat the right of the decree-holder, the said Court passed an order that the judgment-debtor would pay or cause to be paid to the decree-holder a lump sum of GBP 76,000 on or before 4 pm on the 10th December, Ex.P.No.126/2012 Page 11 of 21 2011. The Court, which was seized of the said proceedings, has also passed an order dissolving the marriage between decree-holder and her husband i.e. judgment-debtor.
19. Counsel appearing on behalf of decree-holder submits that as per law prevailing in UK, at the time of dissolution of marriage between husband and wife, the Courts require to divide the matrimonial assets held jointly by the parties to the petition and while doing so, the share payable to the wife is determined in proportion to the share of the assets, as passed by the County Court. In the proceedings that got initiated between the decree-holder and the judgment-debtor for dissolution of marriage, the judgment-debtor admitted before the Court in UK that the said property is the matrimonial asset owned by the decree-holder and the judgment- debtor. In the present case, the judgment-debtor had also made a statement that the said property is owned by him and his wife in equal share. In view of the above statement, the Court in UK had passed an order that the share of the decree-holder in the said property, would not exceed GBP 76,000 and on the payment of the said amount by the judgment-debtor to the decree-holder, she would transfer her beneficial interest in the said property to the judgment- debtor. It is further submitted that, despite of the statement being made by the judgment-debtor to the effect that the said property is jointly owned by the decree-holder and the judgment-debtor in equal share, the judgment-debtor with the intent to defeat the rights of the decree-holder, had transferred the said property in favour of his mother clandestinely to usurp the said property by executing the alleged gift deed in favour of his mother.
Ex.P.No.126/2012 Page 12 of 2120. It is argued on behalf of the decree-holder that the said transfer of the said property by the judgment-debtor in favour of his mother is absolutely illegal and void ab initio. As the said act is a result of collusion between the judgment-debtor and his mother with the intent to defeat the aforesaid order as passed by the matrimonial court in UK. Until the making of payment is ascertained by the Court in UK, the decree-holder has half share in the said property.
21. Rejoinders to the replies to E.A.No.351/2015 and E.A.No.625/2015 have been filed by the objectors wherein it is submitted that the reply filed by the decree-holder is in complete contradiction of her earlier pleas as taken by her in the reply to the application being E.A.No.449/2013 filed by the previous objector, Late Smt. Krishna Rani. It is submitted that it is only after hearing of the matter on 10th September, 2015 that the decree-holder has come up with the plea of fraud and collusion when it was pointed out to the Court by the objectors that it is not the case of the decree-holder that any fraud has been played upon her, otherwise the decree-holder had, inter alia, not raised the said pleas in the reply to E.A.No.449/2013 which have now been raised in the reply, wherein the allegation is made that the Gift Deed was executed between the judgment-debtor and his mother in a collusive manner and they had full knowledge that by the transfer, the decree-holder would be denied a right over the property and the said transfer is a sham transaction. It was done in order to fraudulently deprive the decree- holder the rights over the said property. Even the decree-holder had no knowledge as to when the gift deed was executed.
It is further submitted that the decree-holder is raising false pleas of fraud and collusion against the mother of the objectors, only Ex.P.No.126/2012 Page 13 of 21 after her death and such allegations were not raised when she was an objector in the present case. These false pleas are after-thoughts which have been raised to harass the objectors and have no substance.
It is further submitted that the decree-holder all along had been aware about the factual position in respect of the said property and yet chose not to initiate any proceedings in India qua the property either against the present objectors or against their deceased mother or even against the judgment-debtor. The decree-holder under the garb of the present execution petition is seeking judicial determination with regard to the ownership of the property of the objectors despite being aware that these are not appropriate proceedings and the decree-holder cannot be permitted.
22. It is denied on behalf of the objectors that the present objections are not maintainable and are liable to be dismissed because the provision of Indian Succession Act, 1925 does not supersede the provisions of Transfer of Property Act. The decree- holder has not mentioned as to how and in what manner provisions of either the Indian Succession Act or Transfer of Property Act are applicable. The decree-holder is giving her own incorrect interpretation to the law of the land. It is denied that the separation and the divorce proceedings between the decree-holder and the judgment-debtor were well within the knowledge of Smt. Krishna Rani and the present objectors. It is submitted that it has not been stated as to how the decree-holder had a right to receive maintenance more specifically when no details about any maintenance being fixed ever in her favour have been given. It is also denied that by such a transfer the judgment-debtor had sought to defraud the right of maintenance Ex.P.No.126/2012 Page 14 of 21 to the decree-holder and the mother and present objectors were/are party to such fraud. It is denied that it has come on record that in order to defraud the right of maintenance, the alleged Gift Deed was executed and mother Smt. Krishna Rani also became party to such fraud. It is denied that mother had full knowledge of this fraud. It is denied that the property has already been attached by the Bailiff in compliance with the order of this Court dated 7th March, 2013 under Volume 1, Chapter 12 part H of Delhi High Court Rules.
23. It is argued by Mr. Amit Sibal, learned counsel appearing on behalf of the objectors that the mother's house cannot be the subject matter of the present petition and that the decree-holder cannot seek attachment of the same. Even assuming arguendo that the said attachment and sale can be sought, the same cannot be done without putting the matter to trial.
24. Section 60 of CPC bars attachment in the present case. The provisions of Section 60 of CPC makes it clear that only the property "belonging to the judgment debtor... whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf is liable to attachment and sale in execution of a decree". Consequently, in the present case where the mother's house belongs solely to the objectors and the judgment-debtor has no interest in the mother's house, there can be no question of attaching the mother's house with a view to executing a decree against the judgment-debtor (a decree to which the previous objector Smt. Krishna Rani is not even a party).
25. The facts of the present case are similar to the facts of the decision referred by Mr.Amit Sibal decided by this Court in Binatone Computers Pvt. Ltd. v. Setech Electronics Ltd., 162 (2009) DLT Ex.P.No.126/2012 Page 15 of 21
537. In the said judgement, this Court (in the context of a plea by a decree-holder that the judgment-debtor had fraudulently transferred the property in question to the objectors, who were his relatives, in collusion with them, with the sole objective of depriving the decree- holder of the fruits of his decree) held that:
"14. Attachment of property can continue only if it belongs to the Judgment-debtors. Once it is not shown that the property belongs to the Judgment-debtors, attachment cannot be continued, even if the property belongs to a person other than the objectors."
To some extent, the present case of the objectors stands on an even better footing than the objector in Binatone Computers (supra) because there are no allegations of collusion or misconduct by the decree-holder against the objectors in respect of the transfer of the property to her at the first instance. Those allegations were raised at a later stage.
26. It is not disputed that the recitals in the UK order recorded that the judgment-debtor agreed that he had transferred the legal estate in the mother's house to the objectors to defeat the decree-holder's claim for financial relief in the matrimonial dispute between the decree-holder and judgment-debtor. The same document has binding effect on the rights of the objectors.
There is no decision of the UK Court that states that judgment- debtor had transferred the legal estate in the mother's house to the objectors to defeat the decree-holder's claim for financial relief in the matrimonial dispute between the decree-holder and the judgment- debtor. Thus, it is a matter of trial as to whether the recitals can be relied upon or has a binding effect upon the objectors.
Ex.P.No.126/2012 Page 16 of 2127. Though admittedly, the judgment-debtor is the brother of the objectors, they are separate and independent persons in the eyes of law. The rights have already been created in favour of the objectors. The Gift Deed has not been challenged in any separate proceeding. He submits that the unilateral statement of the judgment-debtor alone cannot affect the status of the Gift Deed. The gift deed is dated 4th August, 2009. Further rights are created by the mother by virtue of the registered Will on 29th December, 2011. The execution was filed in 2012 after the expiry of three years. It is pointed out by Mr. Sibal that the decree-holder had full knowledge about the dates and title in favour of mother but she had chosen not to take the separate action as available in law within the limitation; thus at this ground itself, the matter at least requires trial. Prima facie, this Court is of the view that the Gift Deed and the subsequent registered documents cannot be cancelled merely on the basis of the statement recorded of the judgment-debtor before the District Judge, Wolverhampton County Court on 7th June, 2011.
It is a matter of fact that part of the UK order which is the operative part following the recitals therein, does not even mention the mother's house or say that the decree-holder has any share therein. The UK order deliberately does not envisage the attachment and sale of the mother's house or recognize the decree-holder as having any claim in the same.
On that date when the UK order was recorded, the decree- holder was well aware of the existence of the Gift Deed and yet it chose not to make the objectors a party to the UK proceedings, even though the decree-holder's father was a party to the same.
Ex.P.No.126/2012 Page 17 of 2128. It is argued by Mr. Sibal that the execution of the UK order by way of attachment and sale of the mother's house is barred by Section 13 read with Order 1 Rule 9 CPC. Mr. Sibal submits that assuming that the UK order intents to hold that it should be executed by way of attachment and sale of the mother's house, as the objectors had no rights therein, the said UK order is violative of the principles of natural justice (specifically, audi alteram partem), as it has decided the rights of the objectors in the mother's house without impleading and hearing the objectors. The objectors were the necessary parties if the UK order was deciding their rights in the mother's house in view of the Gift Deed. Therefore, it is argued by Mr. Sibal that the UK order is not conclusive between the parties as it is violative of Section 13(d) of CPC. It is also argued by him that the decree-holder, deliberately deleted the objectors as party to the present proceedings before the notice was issued in the execution petition. This was a deliberate and malafide attempt to obtain attachment and sale of the mother's house behind the objector's back, even though the decree-holder was well aware of the fact that the objectors were in the possession of the mother's house.
29. I agree with the argument of Mr. Sibal that the doctrine of lex situs is a well accepted doctrine of private international law that has long been applied by Courts all across India. It states that an immovable property must be governed by the law of the place where the immovable property is situated and not in accordance with any foreign law. This principle is also enshrined in Section 16 of CPC, which mandates that only the Court, within the local limits of whose jurisdiction, an immovable property is situated, can exercise power and jurisdiction, and a foreign Court cannot determine parties rights Ex.P.No.126/2012 Page 18 of 21 in relation to such disputed and controversial subject matter unless the position and titles are clear beyond any doubt.
30. In support of his submission, Mr. Sibal has also referred the decision of this Court in Janak Datwani v. Jaskirat Datwani, in CS(OS) 1124/2007 decided on 5th July, 2010 wherein in the context of enforcing a divorce decree obtained in France, this Court held as under:-
"34. Another aspect on which the French decree is contrary to Indian law is on ground of the French Court not possessing the requisite jurisdiction with respect to the suit property. The French decree therefore, falls within the ambit of the exceptions laid down under Section 13 CPC in that it sustains a claim founded on the breach of Indian law, in terms as already stated... In this case, the French Court clearly lacked jurisdiction to deal with the suit property. As held earlier, there is no indication that the plaintiff's rights in respect of the property were admitted, or even adjudicated in his favour. Hence, the order of the French Court,- to the extent it deals with property that is subject to jurisdiction of this Court is not enforceable in India.
35. The plaintiff's contention that the defendant having taken the benefit of the decree herself by claiming share in the immovable properties belonging to the plaintiff, she cannot object when similar relief is sought by the plaintiff also must jail. This is because of the simple reason that the suit property is located outside the territorial extent to which the French decree extends. The principle of lex situs prevails over the argument of the plaintiff. Thus, the French decree is invalid and unenforceable to the extent that it extends over immovable property in India irrespective of the fact that the parties had submitted to the jurisdiction of the French Court and had subjected themselves to French law. It is pointed out that the reasons discussed above even when independently considered are enough to warrant dismissal of the suit."Ex.P.No.126/2012 Page 19 of 21
31. I agree with Mr. Sibal that at this stage, even without trial the submission of the decree-holder that if the attachment and sale of the mother's house is not allowed, the same will deprive her of the fruits of the UK order, cannot be accepted. He says that at the best the decree-holder is entitled to enforce the same by pursuing the contempt of court proceedings envisaged in the UK order. It is also open to the decree-holder to challenge the Gift Deed in separate proceedings as envisaged under the Transfer of Property Act, 1882, if the decree-holder can make out a case in law for the institution of such proceedings.
32. No doubt, the decree in the present case is enforceable against the judgment-debtor and the amount agreed by him is recoverable, however, his main movable and immovable assets are in UK. If the decree-holder is able to identify any assets within the jurisdiction of this Court, the same were/are liable to be attached. But the details are not available which may show that those are in the name of judgment-debtor.
From the material placed on record, it appears to the Court that prima facie the decree-holder was aware about the transfer of the property in the name of mother by the judgment-debtor. The decree- holder earlier did not challenge the validity of the Gift Deed before filing of the objections. No separate proceedings were initiated by the decree-holder in this regard. It is also a matter of fact that the Gift Deed was executed prior to the settlement. The decree-holder ought to have brought to the notice of the Court when the compromise was being recorded that even the judgment-debtor was aware about the transfer of suit property in the name of her mother.
Ex.P.No.126/2012 Page 20 of 2133. Even if such a relief was sought in the present execution petition, the same cannot be granted without the parties being allowed to lead evidence on the validity of the Gift Deed. Thus, the trial in the present case is needed. The attachment order passed on 7th March, 2013 in E.A. No.294/2012 is recalled. Consequently, the order for selling the property by way of auction also becomes infructuous. However, considering the circumstances in the matter, the objectors are restrained from disposing of the said property directly or indirectly till the final disposal of the execution petition after trial.
34. The applications being E.A.(O.S) Nos. 294/2012, 294/2015, 351/2015 and 604/2015 are accordingly disposed of.
Ex.P.No. 126/2012 and E.A.(O.S) No. 625/2015 (objections filed by objectors)
35. The following issue is framed:
"Whether the decree-holder is entitled to claim the attachment of the mother's house in view of Gift Deed dated 4th August, 2009 by the judgment-debtor despite of decree having passed by the Foreign Court in the present execution petition." OPDH
36. Both the parties shall file their evidence by way of affidavits within 10 weeks from today. They are entitled to raise all the rival pleas and are allowed to file the original/certified copies of the documents along with the affidavit.
37. List the matter before the Joint Registrar on 21 st December, 2016 for further proceedings.
(MANMOHAN SINGH) JUDGE AUGUST 29, 2016 Ex.P.No.126/2012 Page 21 of 21