RSA No. 2274 of 2009 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 2274 of 2009
Date of Decision: 3.7.2009
Udeypal and another ......Appellants
Versus
Subhash and another .......Respondents
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: S.K. Garg Narwana, Advocate, for the appellants.
HEMANT GUPTA, J. (Oral).
Defendant Nos. 2 and 3 are in second appeal aggrieved
against the judgment and decree passed by the Courts below, granting a
decree of specific performance of the agreement of sale dated 31.1.2002.
Defendant No.1 Aasa Ram, father of the present appellants as
owner of the land, entered into aforesaid agreement to sell of the land
measuring 21 kanals 8 marlas @ Rs.1,30,000/- per acre. An agreement was
executed and the amount of Rs.2 lacs, as earnest money was received by the
said defendant. The sale deed was to be executed on 1.5.2002. It is the case
of the plaintiff that he appeared before the Registrar for execution of the
sale deed on 1.5.2002, but the defendant did not appear before the Sub
Registrar for the purpose of execution of sale deed. A legal notice was
served upon defendants on 22.12.2003 requesting defendant No.1 to execute
RSA No. 2274 of 2009 (2)
the sale deed on 5.1.2004, but still the sale deed was not executed although
the plaintiff went to the office of Sub Registrar along with sufficient money
for payment of balance sale consideration and other expenses.
Aasa Ram-defendant filed his written statement and asserted
that he has borrowed a sum of Rs.45,000/- from the plaintiff, as his wife
was seriously ill and was in the need of money for her treatment. He has
given signed stamp paper to the plaintiff as security, but the plaintiff forged
the agreement to sell on the said stamp paper. The wife of defendant No.1
died on 22.2.2002. He wanted to make the payment of Rs.45,000/-
borrowed from the plaintiff along with interest, but the plaintiff refused to
accept the same. It was asserted that the land in dispute was ancestral and
that he transferred the same in favour of his sons i.e. the present appellants
vide release deed dated 25.8.2003.
In view of the stand of defendant No.1, the plaintiff amended
his plaint by impleading the present appellants as defendant Nos. 2 and 3.
A written statement was filed on behalf of defendant Nos. 2 and 3, through
their father defendant No.1. The parties went to trial on various issues
framed by the learned trial Court, but no issue to the effect `whether the
land is a joint Hindu family property?’ was framed.
The learned trial Court on the basis of the evidence led by the
plaintiff including that of the attesting witnesses PW2-Hari Singh and
PW3-Inder Singh, returned a finding that defendant No.1 has in fact,
executed agreement of sale in favour of the plaintiff and received Rs.2 lacs
as earnest money. Defendant No.1 himself appeared as DW1 and
examined DW2- Ram Pratap and DW3-Hans Raj. DW2-Ram Pratap has
deposed that the suit land was inherited by defendant No.1 from his father
RSA No. 2274 of 2009 (3)
and it was ancestral property in the hands of defendant No.1. Hans Raj-
DW3 was also examined, who corroborated the statement of the other
witness.
The learned trial Court decided issue No.1 in favour of the
plaintiff by returning a finding that the agreement was executed and that the
said agreement cannot be said to be without legal necessity. It was also held
that release deed has been executed in favour of defendant Nos. 2 and 3, his
sons, in order to defeat the rights of the plaintiff, without any consideration
and that too after one year of the agreement in question. Thus, the suit was
decreed holding that the release deed is null and void and is not binding on
the rights of the plaintiff.
All the defendants filed appeal against the said judgment and
decree. The argument of the learned counsel for the appellants was that the
plaintiff has taken unfair advantage, when the wife of the defendant was ill
and the defendant was in dire need of money. It was also argued that the
property was a joint Hindu family property as the defendant has inherited
the same from his father. Therefore, defendant No.1 was not having any
right to alienate the coparcenary property to the plaintiff. It was argued that
the trial Court should have granted the decree for recovery of earnest money
only. It was argued that there is delay on the part of the plaintiff to file the
suit for specific performance as it was filed in the year 2004, i.e. after
about two years of the execution of the agreement.
The learned first Appellate Court found that the agreement
Exhibit P.1 dated 31.1.2002 is proved to be executed on the basis of
testimony of plaintiff appearing as PW1 and attesting witnesses PW2-Hari
Singh and PW3-Inder Singh. The agreement was read over and explained
RSA No. 2274 of 2009 (4)
to the defendant and after admitting the same to be true, defendant No.1
appended his signatures thereon. On the basis of the testimony of the
witnesses of the plaintiff, it was found that the amount of Rs.2 lacs as
earnest money was paid to the defendant in the presence of the witnesses.
The stand that defendant No.1 has borrowed Rs.45,000/- was found to be
not tenable in the absence of any cogent evidence to this effect.
It was also found by the learned first Appellate Court that from
the oral testimony of defendant No.1, it cannot be said that the property in
dispute was ancestral and joint Hindu family property of the defendants. It
was also held that on the basis of the stand of defendant No.1 himself in
respect of illness of his wife, it was held that the property was, agreed to be
sold to the plaintiff for legal necessity.
The appellants, in the present second appeal, has raised the
following substantial questions of law:-
“1. Whether the findings and conclusions of the
Courts below, while decreeing the suit for
possession of the land in question by way of
specific performance, are based on conjectures
and surmises, besides being perverse?
2. Whether the Courts below have misread and
misconstrued the oral and documentary evidence
led by the parties?
3. Whether the judgment and decrees passed by
Courts below are null & void for reason that no
guardian ad-litem was appointed by the court for
the minor appellants?
4. Whether under the facts and circumstances of this
case the guardian of minor appellants defended the
minor appellants with gross negligence?
5. Whether the plaintiff should stand on his own
RSA No. 2274 of 2009 (5)
legs?
6. Whether the burden to plead and prove the legal
necessity is on the plaintiff/respondent No.1?
7. Whether it was equitable on the part of the courts
below in granting the relief of execution of the sale
deed?
8. Whether the defendant No.1/respondent No.1 had
right to enter into agreement to sell the land in
dispute which is admittedly ancestral land, to the
plaintiff/respondent No.1 without legal necessity
or for the benefit of the estate?
9. Whether the Courts below have decreed the suit
for possession without considering the provisions
under Section 20 and 21 of the Specific Relief
Act?”
A perusal of the aforesaid substantial questions of law
reproduced above, would show that the finding recorded by the learned trial
Court that the release deed dated 25.8.2003 in favour of the present
appellants, is not binding on the rights of the plaintiffs as the same has been
executed without any consideration, has not been disputed, in any manner.
Learned counsel for the appellants has raised two fold
arguments in the present appeal. First, that defendant Nos. 2 and 3 were
impleaded after filing of the suit, but no application under Order 32 Rule 3
CPC was filed for appointment of a Guardian, therefore, the decree for
specific performance without appointment of a Guardian in terms of the
amended provisions of Order 32 CPC, the decree is void. Reliance was
placed upon a Division Bench Judgment of this Court in Gurpreet Singh v.
Chatterbhuj Goel, AIR 1992 P&H 95.
It was also argued that the property in the hands of defendant
No.1 was a joint Hindu family property and, therefore, defendant No.1
RSA No. 2274 of 2009 (6)
could not have sold the property without any legal necessity. The finding
has been recorded on the basis of plea in the written statement, whereas the
plea in the written statement has to be read as a whole and a part of the plea
can not be used against defendant No.1.
In respect of first argument, it may be noticed that the Division
Bench of this Court has held that the provisions of Order 32 are mandatory
and that if an application is filed under Order 32 CPC, it can be presumed
that the minor has been sued through Guardian, but in the absence of even
an application for appointment a Guardian, the decree passed would be
void. There is no dispute with regard to the aforesaid proposition, but in the
present case, the minors, defendant Nos. 2 and 3 were impleaded on the
basis of averments of defendant No.1 that he has executed a release deed in
favour of defendant Nos. 2 and 3 on 25.8.2003. The plaintiff has sought
specific performance of agreement, which was executed by defendant No.1
alone. Defendant Nos. 2 and 3 are claiming interest in the property on the
basis of release deed executed without any consideration and executed
obviously to defeat the rights of the plaintiff in the aforesaid agreement.
In the case referred to by learned counsel for the appellant, it
was the minor defendant, who was the owner of the suit property, but was
sued without seeking appointment of a Guardian. In the present case, the
execution of the release deed is without consideration and after the
agreement executed in favour of the plaintiff. Therefore, in the facts of the
present case, the principle laid down in the aforesaid judgment cannot be
made applicable. It is particularly so when the appellant has not sought any
substantial question of law in respect of finding recorded by the trial court
that such release deed is not binding on the rights of the plaintiff.
RSA No. 2274 of 2009 (7)
Learned counsel for the appellants has relied upon single Bench
judgment of this Court in Jagjit Singh and others v. Mithoo Singh, 1998(2)
PLR 661 and Atul Sharma and another v. Gurinder Singh and others, 1985
PLJ 143, to contend that it is open to the other co-parceners to resist the
grant of decree of specific performance of the agreement in respect of the
joint Hindu family property.
The said argument is untenable. The minor coparceners cannot
dispute the action of Karta before finalisation of the sale. A Division Bench
of this Court in Aman Behal v. Smt. Aruna Kansal, 1986(1) PLR 608, has
held that in a suit for specific performance, the Court is to decide whether
the Karta has entered into an agreement of sale with the plaintiff and
whether the sale could not be executed because of default on the part of
defendant. It was held to the following effect:-
“5……….In a suit for specific performance, the
court has merely to decide as to whether the Karta
had entered into an agreement of sale with the
plaintiff and whether the sale deed could not be
executed because of the default on the part of the
defendant. These issues can be completely and
effectively adjudicated upon without the presence
of the co-parcener before the court. Nor, the
presence of the co-parcener is necessary at the
stage of the execution of the decree, because the
decree, if obtained, by the plaintiff could be
executed without the co-parcener being brought
into picture at any stage, the possession being
obtained by the plaintiff. On the decree being
obtained by the plaintiff, the Karta also is
competent to satisfy the decree in question by
executing the requisite deed of transfer of the
property in question.”
RSA No. 2274 of 2009 (8)
The aforesaid judgment has specifically overruled the
judgment in Atul Sharma’s case (supra) relied upon by the learned counsel
for the appellant.
The judgment in Jagjit Singh’s case (supra), proceeds on
different facts. That was a case, where Karta has died and the issue raised
was whether the legal representatives should be called upon to file suit to
challenge the alienation after the decree for specific performance is granted.
This is apparent from the following observation:-
“8. There is no dispute that was raised that in turn
ordinarily under the Hindu Law right would only accrue
to challenge the sale after the sale takes place. There is in
cases where Karta effects the sale deed and the
coparceners can challenge if it was not for legal
necessity. What is the position herein? The alleged
person who executed the agreement of sale had died. The
petitioners are his legal representatives. It would look
preposterous to say that in case the suit is decreed, they
should execute the sale deed and subsequently again file
a civil suit challenging the sale deed executed by them on
the ground that it was not for legal necessity. Each case
has to be examined in the light of the facts.”
The powers of Karta were delineated by the Hon’ble Supreme
Court in Sunil Kumar and another v. Ram Parkash and others AIR 1988
Supreme Court 576. The relevant extracts from the judgment read as under:-
“21. In a Hindu family, the Karta or manager occupied a
unique position. It is not as if anybody could become
manager of a joint Hindu family. “As a general rule, the
father of a family, if alive, and in his absence the senior
member of the family, is alone entitled to manage the
joint family property.” the manager occupies a position
superior to other members. He has greater rights and
RSA No. 2274 of 2009 (9)duties. He must look after the family interests. He is
entitled to possession of the entire joint estate. He is also
entitled to manage the family properties. In other words,
the actual possession and management of the joint family
property must vest in him. He may consult the members
of the family and if necessary take their consent to his
action but he is not answerable to every one of them.
xx xx xx
23. The managing member or karta has not only the
power to manage but also power to alienate joint family
property. The alienation may be either for family
necessity or for the benefit of the estate. Such alienation
would bind the interests of all the undivided members of
the family whether they are adults or minors. The oft
quoted decision in this aspect is that of the Privy
Council in Hanuman Parshad v. Mt. Babooee, (1856) 6
Moo Ind. App 393. There it was observed at p. 423: (1) ”
The power of the manager for an infant heir to charge an
estate not his own is, under the Hindu Law, a limited and
qualified power. It can only be exercised rightly in case
of need, or for the benefit of the estate.” This case was
that of a mother, managing as guardian for an infant heir.
A father who happens to be the manager of an undivided
Hindu family certainly has greater powers to which I will
refer a little later. Any other manager however, is not
having anything less than those stated in the said case.
Therefore, it has been repeatedly held that the principles
laid down in that case apply equally to a father or other
coparcener who manages the joint family estate.”
In Muraka Properties (P) Ltd. v. Beharilal Murarka, AIR
1978 SC 300, the Hon’ble Supreme Court recognised the power of the
Manager of a Joint Hindu Family to alienate for value Joint Hindu Family
Property so as to bind the interest of both adult and minor members of the
RSA No. 2274 of 2009 (10)
family, provided such alienation is made for the benefit of the estate.
In view of the above, even if the property is assumed to be a
joint Hindu family property, defendant No.1 was competent to enter into an
agreement and defendant Nos. 2 and 3, his minor sons cannot dispute the
specific performance of the agreement in the present suit for specific
performance.
The other argument is that the property was a joint Hindu
family property in the hands of defendant No.1 and that the sale has been
effected without any legal necessity. Apart from the fact that no specific
issue was framed regarding the nature of the property, the defendants have
not led sufficient evidence to return a finding that the property in the hands
of defendant No.1, is a joint Hindu family property.
To determine the nature of the property as joint Hindu family
property or not, it needs to be examined whether defendant No.1 inherited
the property after the commencement of Hindu Succession Act, 1956 or not
and whether the property was inherited by all the legal heirs keeping in view
the principle of survivorship in terms of Section 6 or inheritance as per
Section 8 of the Act. There is no such evidence to this effect. Therefore,
mere fact that defendant No.1 got inherited the property from his father, is
not sufficient to return a finding that the same was joint Hindu family
property. Both the Courts have recorded a finding of fact that there is no
documentary evidence to show that the property was joint Hindu family
property in the hands of defendant No.1.
The learned first Appellate Court has also examined the issue
whether the sale was for legal necessity. It has been found that defendant
No.1 has pleaded in the written statement itself that he borrowed a sum of
RSA No. 2274 of 2009 (11)
Rs.45,000/- as his wife was ill. The argument raised by the learned counsel
for the appellant is that admission is to be read as a whole. Both the Courts
have relied upon the admission in the written statement to the effect that the
wife of defendant No.1 was ill and he required money. Whether the
requirement of money was Rs.45,000/- or Rs.2 lacs, but the fact remains that
wife of defendant No.1 was ill and she required treatment. It has also come
on record that she died in February, 2002. Therefore, there is no illegality or
irregularity committed by the Courts below in returning a finding that the
sale was for the legal necessity as well.
Consequently, I do not find any patent illegality or material
irregularity in the findings recorded or that the findings recorded gives rise
to any substantial question of law in the present appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
3.7.2009
ds