Judgment:
Sangeet Lodha, J.
1. In this writ petition, the petitioner Shri Dharam Singh (since deceased) represented by his legal representative Smt. Gulab Devi has sought directions to restrain the respondents from putting the petitioner's property situated at A-12, Subhash Nagar, Bhilwara to auction for recovery of the loan amount outstanding against his son Shri Kishan Singh.
2. The petitioner's son Shri Kishan Singh took some loan from the respondent Rajasthan Financial Corporation (in short 'RFC') and could not repay the loan, interest and other moneys in terms of the loan agreement. The recovery proceedings were initiated against the petitioner's son by the RFC under Section 32G of the State Financial Corporation Act, 1951 (in short 'the Act of 1951' hereinafter). Since the petitioner's son failed to make payment of entire outstanding amount despite a notice being served upon him, the RFC made an application to the District Collector (Recovery), Bhilwara for recovery of the amount due as arrear of land revenue in terms of Section 32G of the Act of 1951. In pursuance thereof, the District Collector, Bhilwara issued a notice under Section 229 of the Land Revenue Act, 1956 to the petitioner's son. The petitioner has filed this writ petition aggrieved by the recovery proceedings initiated as aforesaid inasmuch as for the recovery of the loan outstanding against his son, the self acquired property of the petitioner is sought to be auctioned.
3. The respondents in the reply to the writ petition have taken the stand that the son of the petitioner took loan from RFC and, therefore, recovery of the money from Joint Hindu Family's property cannot be said to be illegal, arbitrary and unreasonable and, therefore, the property has rightly been ordered to be auctioned.
4. It is to be noticed that the petitioner Dharam Singh had expired during the pendency of the writ petition and on an application being preferred by his wife Smt. Gulab Devi claiming herself to be her sole legal representative on the strength of the Will regarding the property in question said to have been executed in her favour, vide order dt. 05.11.2007, she was ordered to be substituted as petitioner being legal representative of Shri Dharam Singh.
5. It is contended by the learned Counsel for the petitioner that the property in question is self acquired property of the petitioner and there is nothing on record to show that the property is HUF property, therefore, the recovery sought to be made by auction of the petitioner's property is ex facie without jurisdiction.
6. The learned Counsel appearing on behalf of the respondents submitted that for recovery of the loan, the HUF property wherein the loanee has share can always be put to auction. However, on being pointedly asked by the Court as to how the property in question is treated to be HUF property, the learned Counsel appearing on behalf of the respondents had no answer.
7. A perusal of the documents on record reveals that the property in question has been purchased by the petitioner from Shri Mangi Lal s/o Shri Sabhori Lal Acharya by way of a registered sale deed dt. 14.10.1957. There is nothing on record to show that the said property is HUF property as claimed by the respondents. Admittedly, the property in question is not mortgaged by the petitioner with the RFC against the loan advanced to his son. In this view of the matter, the impugned action of the respondents in putting the petitioner's self acquired property to auction against the loan advanced by the RFC to his son is ex facie illegal and arbitrary.
8. In the result, the writ petition succeeds, it is hereby allowed. The respondents are restrained from putting the property in question of the petitioner Shri Dharam Singh situated at A-12, Subhash Nagar, Bhilwara to auction for recovery of the loan outstanding against Shri Kishan Singh. However, it is made clear that the Will said to have been executed by Shri Dharam Singh in favour of his widow Smt. Gulab Devi has not been placed on record and this Court has not examined the question as to whether Smt. Gulab Devi has acquired the property in question to the exclusion of other legal heirs of late Shri Dharam Singh therefore, if ultimately, it is found that some share in the property in question has devolved upon Shri Kishan Singh after the death of late Shri Dharam Singh then, the respondents shall be at liberty to effect the recovery against his share in the property in accordance with law. No order as to costs.