( 2025:HHC:37523 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 541 of 2016. Reserved on: 14 th October, 2025. Decided on: 7 th November, 2025. Mehar Chand & Anr. .... Appellants. Versus Smt. Kamlesh Devi & Ors. ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. Y. P. Sood, Advocate. For the Respondents: Mr. Dheeraj Vashisht, Advocate, for respondents No. 1 and 2. Satyen Vaidya, Judge. This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants against the judgment and decree dated 12.08.2016 passed by learned District Judge, Una, H.P. in Civil Appeal No. 135 of 2015, whereby the judgment and decree dated 24.11.2015 passed by learned Civil Judge, Junior Division, Court No.1, Una, H.P. in Civil Suit No. 01/2006 has been affirmed. 2. Respondents No.1 and 2 herein (hereinafter referred to as “the plaintiffs”) had filed a suit for declaration 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:37523 ) and permanent prohibitory injunction against the appellants herein and proforma respondent (hereinafter referred to as “defendants”). A prayer for decree in following terms was made:- “It is, therefore, prayed that a decree for declaration to the effect that the defendant no.1 is the owner in possession of land measuring 0-08-37 Hects. being 33/103 share out of total land measuring 0-26-11 Hects. comprised in Khewat no. 90, Khatauni no. 151, Khasra Nos. 307 and 308 as entered in jamabandi for the year 1998-99, situated in Village Abada Barana, Tehsil and District Una (HP) and the said share is liable to be attached and sold in execution proceedings arising out of Crl. Misc. Application No. 6/2000 decided on 1.8.2003 by the Ld. Judicial Magistrate 1st Class, Court no. II, Una and the entries appearing in the name of defendants no. 2 and 3 vide mutation no. 193 dated 15.7.2003 on the basis of alleged release deed dated 27.6.2003 is illegal, null and void, ineffective, inoperative and has got no bearing effect over the legal rights of the plaintiffs as the said release deed has been executed with malafide intention to mar the legal rights of the plaintiffs and with a consequential relief of permanent injunction restraining the defendants from 3 ( 2025:HHC:37523 ) alienating in any manner, creating any charge, changing the existing nature and character, cutting and removing the trees from the suit land be passed in favour of the plaintiffs and against the defendants with costs.” 3. Plaintiffs are wife and son of defendant No.1 Subhash Chand. Defendants No.2 and 3 are brothers of defendant No.1. 4. Plaintiffs had filed the suit on the premise that they were holders of an order dated 01.08.2003 passed by the court of competent jurisdiction to receive maintenance @ Rs.500/- each per month from the defendant No.1 under Section 125 of the Cr.P.C. 5. Initially by way of an interim order, Defendant No.1 had been directed by the Court to pay interim maintenance @ Rs.350/- each per month to the plaintiffs and on final adjudication, as noticed above, the order was passed to pay Rs.500/- each per month as maintenance. The order granting maintenance in favour of plaintiffs had attained finality. 6. Defendant No.1 had joint land with his brothers, defendants No.2 and 3. Defendant No.1 had relinquished his 4 ( 2025:HHC:37523 ) share in the joint property in favour of his brothers vide release deed dated 27.06.2003. 7. The suit was filed by the plaintiffs in January, 2006 with the allegations that the relinquishment of his share by defendant No.1 in favour of other defendants was fraudulent and had been done with a purpose to defeat the right of plaintiffs. It was alleged that the plaintiffs were not aware about the relinquishment made by defendant No.1 till the time plaintiff No.1 had visited the revenue field staff for obtaining the documents pertaining to the land of defendant No.1 to use them in execution petition filed by plaintiffs for executing the order of maintenance against defendant No.1. 8. The defendants in their written statement raised objections as to maintainability, locus standi and estoppel etc. On merits, it was submitted that plaintiff No.1 was accused of leaving her matrimonial house without any reason. Ignorance was feigned with respect to maintenance proceedings initiated by plaintiffs against defendant No.1 as also the orders passed therein. It was submitted that defendant No.1 was elder son of late Shri Sarwan. Defendant No.1 was stated to be unemployed and of no help to the family. The suit land was stated to be purchased by Sarwan. Defendant No.1 allegedly had accompanied his father on the date of 5 ( 2025:HHC:37523 ) execution of the sale deed and was further accused of getting the sale deed executed in the names of defendants without the knowledge and consent of Sarwan. Later, when the true facts came to the notice of Sarwan, defendant No.1 had been asked to leave the joint family. It was also alleged that defendant No.1 had been demanding money and other favours from defendants No.2 and 3 even for his daily needs. In such circumstances, defendants No.2 and 3 had asked defendant No.1 to release his share in the suit land in their favour. In this manner, the relinquishment of share of defendant No.1 in favour of other defendants was sought to be explained and justified. 9. Learned trial Court had framed the following issues:- 1. Whether the release deed dated 27.06.2003 executed by defendant No.1 in favour of defendant No.2 & 3 is illegal, null and void, as alleged?OPP. 2. Whether the suit is not maintainable, as alleged?OPD. 3. Whether the plaintiffs have not properly valued the suit for the purpose of court fee and jurisdiction, as alleged?OPD. 4. Relief. 6 ( 2025:HHC:37523 ) 10. Issue No.1 was answered in affirmative, whereas other issues were answered in negative. The suit of the plaintiff was decreed in following terms:- “19. On the basis of elaborate discussion and the findings on the aforesaid issues, the suit of the plaintiffs is decreed with costs. Consequently, release deed dated 27.06.2003 and mutation no. 193 dated 15.07.2003 is declared null and void, having no effect on the right, title or interest of the plaintiffs. The defendants are also by way of permanent injunction restrained from alienating the suit land in any manner or creating any charge, changing the nature and character and cut and remove the trees from the suit land. Decree sheet be accordingly prepared. File, after due completion, be consigned to the record room.” 11. Defendants No.2 and 3 had filed appeal under Section 96 of the Code against the judgment and decree passed by the learned trial Court, but had remained unsuccessful. Their appeal was dismissed vide impugned judgement and decree passed by the learned First Appellate Court. Hence this appeal. 12. The instant appeal was admitted on 20.12.2016 on following substantial question of law: - 1. Whether the relinquishment deed Ex. DW1/A could be held to be null and void in the absence 7 ( 2025:HHC:37523 ) of any charge on the property either agreed by the parties or created by the decree of competent court and the findings thus are vitiated? 2. Whether the decree for declaring the relinquishment deed Ex.DW1/A as null & void could be passed by the courts below in the absence of such relief being claimed in the pleadings and the findings recorded by the courts below beyond pleadings are vitiated? 13. I have heard learned counsel for the parties and have also gone through the entire record carefully. 14. It was proved on record that the plaintiffs had been awarded maintenance under Section 125 of the Cr.P.C. by the learned Judicial Magistrate 1st Class, Una vide order dated 01.08.2003 in Cr.MA No. 6 of 2000. It was also established that by way of interim order dated 7.02.2001, plaintiffs had been granted maintenance @ Rs.350/- each per month which was finally increased to Rs.500/- each per month vide order dated 01.08.2003. 15. It is also not in dispute that defendant No.1 had relinquished his share in the joint land in favour of his brothers, defendants No.2 and 3, by execution of release deed dated 27.06.2003. 16. Thus, the release deed had been executed by defendant No.1 during the pendency of proceedings under 8 ( 2025:HHC:37523 ) Section 125 of the Cr.P.C. Though, defendants had tried to explain the reason for execution of release deed by defendant No.1 in favour of other defendants, but both the Courts have disbelieved such plea for want of any convincing evidence. 17. Learned trial Court has held the transfer made by defendant No.1 in favour of defendants No.2 and 3, by relinquishment deed dated 27.06.2003, violative of the rights of plaintiffs. It has been held that defendant No.1 had released his share in favour of brothers gratuitously with malafide intent to defeat the rights of the plaintiffs, therefore, the release deed dated 27.06.2003 has been held to be fraudulent transfer under Section 53 of the Transfer of Property Act. 18. Learned First Appellate Court has also endorsed the view taken by the learned trial Court. It has been held that since the plaintiffs were holders of an order of maintenance in their favour under Section 125 of the Cr.P.C., they were creditors within the meaning of the term under Section 53 of the Transfer of Property Act. It has further been held that the gratuitous transfer was made by defendant No.1 in favour of his brothers just to defeat the rights of the plaintiffs to claim maintenance from him. 9 ( 2025:HHC:37523 ) 19. This Court has also not found anything on record which may suggest that findings and conclusions drawn by both the courts are perverse or illegal. That being so, the view inferentially formed by both the Courts that the relinquishment of his share by defendant No.1 in favour of his brothers was not bonafide, is a possible view in the given facts and circumstances of the case. 20. The inference drawn by both the Courts regarding the intent and purpose of defendant No.1 for releasing his share gratuitously in favour of his brothers is duly borne from the record. It was the case of defendants No.2 and 3 that defendant No.1 had not been doing anything in life to earn livelihood and thus, it is unbelievable that in such alleged indigent circumstances, defendant No.1 would have released or relinquished his share gratuitously in favour his brothers. 21. Mr. Y.P. Sood, Advocate, learned counsel for the appellants/defendants No.2 and 3 would contend that there could not be any charge on the property of defendant No.1 merely for the reason that the plaintiffs had secured an order of maintenance against defendant No.1. According to him, the plaintiffs had remedy to execute the order of maintenance by alternative modes and hence. He would further submit that there was no prayer for declaring release deed illegal hence 10 ( 2025:HHC:37523 ) the suit could not have been decreed more particularly when there was no specific issue framed by the learned trial Court in that behalf. 22. The contentions raised on behalf of the appellants/defendants No.2 and 3 deserve rejection. Though, no specific prayer was made in the plaint to declare the release deed dated 27.06.2003 illegal but the complete reading of the contents of plaint and the prayer clause leaves no doubt to infer that the grievance of plaintiffs was specifically against the said deed of relinquishment. The Court had jurisdiction to modify the relief on the basis of the facts pleaded and proved. The appellants cannot have any grievance with respect to non-framing of specific issue as they were fully aware about the case of the plaintiff. Even otherwise, issue No.1 had specifically been framed by the learned trial Court and there is nothing on record to suggest that the framing of such issue had ever been objected by defendants. 23. Thus, the substantial questions of law, as noticed above, are answered against the defendants. 24. For the foregoing reasons, there is no merit in the instant appeal and the same is dismissed. Accordingly, the impugned judgment and decree is affirmed. 11 ( 2025:HHC:37523 ) 25. All pending applications, if any, also stand disposed of. 26. Decree sheet be prepared accordingly. 27. Records be sent back forthwith. (Satyen Vaidya) Judge 7th November, 2025. (jai)