JUDGMENT
Vinod K. Sharma, J.
1. This is a defendants’ Regular Second Appeal against the judgments and decrees passed by the learned Courts below in a suit for specific performance of contract of sale of land measuring 5 kanals 4 marlas equal to half share of 10 kanals and 8 marlas of land bearing Rect. No. 19, Killa No. 21 Min (1-8), 22(4-9), Rect. No. 24, Killa No. 1/3(0-15), 2/1(3-16), situated in village Valour, Tehsil and District Ferozepur, on payment of Rs. 13,000/- (Rs. thirteen thousands) less Rs. 6,00 (Rs. six thousands) already paid as earnest money and Rs. 3,000/- as mortgage amount already paid to defendant No. 1 by the plaintiffs.
2. The minor-plaintiffs filed a suit through their father Labh Singh on the plea that the land measuring 10 kanals and 8 marlas was originally owned by Shri Harwant Singh, defendant No. l. It was mortgaged with possession by Harwant Singh with Labh Singh, father of the plaintiffs for a sum of Rs. 2,700/- on 9th of June, 1960. Thereafter Harwant Singh mortgaged half share of this land with the plaintiffs for a consideration of Rs. 3,000/- vide registered mortgage deed dated 23.6.1967. The sum of Rs. 1,350/- was paid to Labh Singh, the previous mortgagee and plaintiffs came in possession as mortgagees of half share of the land fully described in the heading of the plaint. The defendant No. 1 thereafter agreed to sell half share of the land mentioned in the heading of the plaint which was mortgaged with the plaintiffs to the plaintiffs @ Rs. 20,000/-(Rs. twenty thousands) per killa. Thus the price of the land agreed to be sold by defendant No. 1 to the plaintiffs was fixed at Rs. 13,000/- (Rs. thirteen thousands) and an earnest money of Rs. 6,000/- (Rs.six thousands) was paid on 18.1.1979 and agreement was executed by defendant No. 1 in favour of the plaintiff. It was agreed between the parties that defendant No. 1 would execute the sale-deed and get it registered by 30th June, 1979 on the payment of balance sale amount and in case of his failure to do so, then the plaintiffs would be entitled to another sum of Rs. 6,000/- as damages besides the earnest money already paid by them.
3. It is the case of the plaintiffs that defendant Harwant Singh did not execute the sale-deed in their favour in spite of the request having been made. It was also pleaded that the plaintiffs were always ready and willing to perform their part of the contract. It was further the case of the plaintiffs-respondents that defendant Harwant Singh transferred the land along with other land to Milkha Singh, Mukhtiar Singh and Tara Singh, defendant Nos. 2 to 4 by way of a regd. sale deed dated 18.7.1979 for a sum of Rs. 20,000/-(Rs. twenty thousands). It was also claimed that the sale deed executed by defendant No. 1 in favour of defendant Nos. 2 to 4 was invalid, void and did not affect the rights of the plaintiffs. On these pleadings, a decree for specific performance of the contract was prayed for payment of Rs. 4,000/- (Rs. four thousands) or in the alternative a decree for recovery of Rs. 12,000/- was sought for.
4. The appellant-defendant Nos. 2 to 4 contested the suit on the ground that defendant No. 1 never executed any agreement to sell with the plaintiff-respondents regarding the land in dispute. It was claimed that defendant No. 1 had not received Rs. 6,000/- (Rs. six thousands) as earnest money. Execution of mortgage deed was also disputed. It was also the case of the defendants that no mortgage amount was received by defendant No. l. It was also the case set up by the defendants that they had purchased the land for valuable consideration without having any knowledge regarding the agreement in favour of the plaintiffs that they were bonafide purchasers for consideration. It was also claimed that the plaintiffs were not entitled to recover earnest money and damages as claimed.
5. It was also the case of the defendants that the plaintiffs being minors were not competent to enter into agreement for the purchase of land. Therefore, the said agreement was void and was not enforceable in law. The possession of the plaintiffs over the suit land was also disputed.
6. On the pleadings of the parties the trial court was pleased to frame the following issues:
1. Whether Harwant Singh defendant No. 1 executed an agreement on 18.1.1979 or sale in favour of the plaintiffs regarding the land in dispute for a sale consideration of Rs. 20,000/-per killa? OPP
2. Whether the defendant No. 1 received Rs. 6,000/- as earnest money from the plaintiffs and the land in dispute was already under mortgage for Rs. 3,000/- with the plaintiffs? OPP
3. Whether the plaintiffs have been ready and willing to perform their part of the contract? OPP
4. Whether the plaintiffs are entitled to recover Rs. 6,000/- as damages and Rs. 6,000/- on account of the return of earnest money in case the decree for specific performance is not passed? OPP
5. Whether the plaintiffs being minors were incompetent to enter into an agreement for the purchase of land and the agreement is void and unenforceable? OPD
6. Whether the defendants 2 to 4 purchased the land in dispute from defendant No. 1 for valuable consideration and without notice of the agreement of sale in favour of the plaintiffs? OPD
7. Whether the plaintiffs are in possession of some portion of the land in dispute as mortgagees, if so, to what effect? OPP
8. Relief.
7. (a) On issue Nos. 1 and 2 an appreciation of evidence brought on record, learned trial Court was pleased to hold that Harwant Singh defendant No. 1 had entered into agreement dated 18.1.1979 for sale in favour of the plaintiffs regarding the land in dispute for sale consideration of Rs. 20,000/- (Rs. twenty thousands)per killa. It was further held that defendant No. 1 received a sum of Rs. 6,000/- (Rs. Six thousand) as earnest money from the plaintiffs for the land in dispute which was already under mortgage with the plaintiffs for Rs. 3,000/-.
(b) On issue No. 3, the learned trial Court was pleased to hold that the plaintiffs were always ready and willing to perform their part of the contract and they are even now ready and willing to perform their part of the contract. Hence, issue No. 3 was also decided in favour of the plaintiffs.
(c) On issue No. 5, the learned trial Court was pleased to hold that in view of the amendment in Specific Relief Act, 1963 by addition of sub clause (4) of Section 20, it was not possible to refuse to perform the specific performance of the contract merely on the ground that the contract was not enforceable at the instance of the other party and, therefore, a finding was recorded that the agreement in dispute cannot be said to be void and unenforceable merely because that no contract can be enforced against the minors. Thus issue No. 5 was also decided in favour of the plaintiffs and against the defendant-appellants.
(d) On issue No,6 the learned trial court was pleased to hold that defendants No. 1 had sold the land in dispute to defendant Nos. 2 to 4 for consideration. It was also held under this issue that the defendant-appellants were aware of the agreement of sale executed by defendant No. 1 in favour of the plaintiffs prior to the execution of the sale-deed in favour of the defendant-appellants.
(e) On issue No. 7, the learned trial Court was pleased to hold that the plaintiffs were in possession of the land in dispute as mortgagees.
(f) On issue No. 4, the learned trial Court held that as the plaintiffs have been held entitled to specific performance of the contract, there was no need to pass any decree for damages. Consequently, the suit filed by the plaintiff-respondents was ordered to be decreed and decree for specific performance was passed.
8. The defendant-appellants filed an appeal against the judgment and decree passed by the learned trial Court. While disposing of the appeal, the learned lower Appellate Court noticed that the only question raised by the defendant-appellants was with regard to knowledge on the part of the appellants about the agreement of sale in favour of the plaintiffs. The learned lower Appellate Court affirmed the findings of the learned trial Court on issue No. 6 and recorded a finding that the defendant-appellants were fully in the know of the existence of the agreement in favour of the plaintiff-respondents. It was further noticed that both the parties were residents of same village, therefore, it cannot be believed that the said agreement was not within the knowledge of the defendant-appellants. Consequently, the appeal filed by them was dismissed.
9. Mr. Gaurav Chopra, learned Counsel appearing on behalf of the appellants has challenged the findings recorded by the learned trial Court on issue No. 5 by placing reliance on the judgment of this Court in the case of Sundar Singh v. Jiwan Singh (1970)72 P.L.R. 218, wherein this Court was pleased to lay down as under:
12. According to this ruling, therefore, such contracts can be specifically enforced by or against the minors if two conditions are satisfied- (i) if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it and (ii) if it is for the benefit of the minor. If either of these two conditions is not satisfied, that contract cannot be specifically enforced at all. The powers of a natural guardian are dealt with in Section 8 of the Hindu Minority and Guardianship Act, 1956. Particular attention is invited to the provisions of Sub-section (1) of that section, according to which the natural guardian of a Hindu minor has power, subject to the provisions of that section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate; but the guardian cannot (can?) in no case bind the minor by a personal covenant.
13. In the present case, the learned Additional District Judge has held that the plaintiff could enforce the agreement and ask for its specific performance merely on the basis of the provisions of Section 20(4) of the Specific Relief Act, 1963, without determining the above mentioned two conditions laid down by the Privy council in Sri Kakulam Subrahamanyam’s case, which would make that agreement valid and enforceable in law. It is only after that finding was given that the plaintiff could seek its specific performance. For giving a finding on these two conditions, the learned Judge would have to bear in mind the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956.
10. It was further contended by the learned Counsel for the appellants that the agreement claimed to be enforced by way of specific performance was not enforceable in law for want of mutuality as the said agreement could not be enforced against the minors and in support of this contention, the learned Counsel for the appellants placed reliance on the judgment of the Hon’ble Allahabad High Court in the case of Bholanath v. Balbhadra Prasad , wherein it was held as under:
Where the plaintiff-purchase was a minor at the time of the agreement, there is want of mutuality because the agreement could not have been enforced against the plaintiff by the defendant. This defect disentitles the plaintiff to enforce the agreement for specific performance against the defendant irrespective whether the defendant was of sound or unsound mind, when he made the agreement. I.L.R. 39 Cal. 232 (P.C.) and A.I.R. 1933 Madras 322 (F.B.) Foil.
11. Mr. H.S. Gill, learned Senior Counsel appearing on behalf of the respondents, controverted the contention raised by the learned Counsel for the appellants on the ground that it was not open to the appellants to challenge the findings on issue No. 5, as the said issue was not challenged before the learned lower Appellate Court by the appellants. To controvert this argument, the learned Counsel for the appellants submitted that the learned lower Appellate Court was wrong in recording that only issue No. 6 was pressed before it. The contention of the learned Counsel for the appellants was that a plea with regard to issue No. 5 having been decided contrary to law, was raised in the grounds of appeal and an affidavit of Advocate, who represented the appellants before the learned lower Appellate Court was also filed in support thereof. However, this plea was controverted by the learned senior Counsel for the respondents by placing reliance on the judgment of the Hon’ble Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak , wherein the Hon’ble Supreme Court was pleased to lay down as under:
The Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. It cannot allow the statement of the Judges to be contradicted by statement at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession was made on a wrong appreciation of the law and had led to gross injustice; but he may not call in question the very fact of making the concession as recorded in the judgment.
12. The learned Counsel for the respondents also placed reliance on the judgment of the Hon’ble Supreme Court in the case of Central Bank of India v. Vrajlal Kapurchand Gandhi , wherein the Hon’ble Supreme Court was pleased to lay down as under:
Statement of fact as to what transpired at the hearing recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before the Supreme Court to the contrary. Supreme Court cannot lacuna (look?) into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in Court.
13. Faced with this situation, learned Counsel for the appellants pleaded that the findings on issue No. 5 being contrary to settled law, would be pure question of law, which can be agitated for the first time in the Regular Second Appeal and in support of this contention, he placed reliance on the judgment of the Hon’ble Supreme Court in the. case of Pushpa Devi Bhagat (D) through LR Smt. Sadhna Rai v. Rajinder Singh , wherein Hon’ble Supreme Court has been pleased to lay down as under:
It is no doubt true that the landlords did not contend either before the first appellate Court or before the High Court that the appeal against the consent decree was not maintainable. This contention is urged for the first time in this Court. This contention relates to jurisdiction of the Appellate Court and is evident from the record. Such a plea does not require any evidence. Further, being a contention relating to the jurisdiction of the appellate Court, it does not require any ‘pleadings’. Though this Court will not normally permit a new plea to be raised at the hearing of the special leave petition or an appeal under Article 136, where such plea does not involve any question of fact or amendment of pleading and is purely one of law, particularly relating to jurisdiction of the appellate Court, it cannot be entertained by this Court. See: Shanti Devi v. Bimla Devi and Zahoor v. State of U.P. A.I.R. 1991 S.C. 41. In Hiralal v. Kasturi Devi , this Court observed:
…though the question of jurisdiction had not been urged before the High Court, it stares one on the fact of the judgment of the appellate Court. We are satisfied that the appellate Court had no jurisdiction though this point was not raised in the High Court, it is so obvious that we have permitted the plea to be raised before us.
In this case, the contention raised being one relating to jurisdiction of the appellate Court, we have permitted the said contention and heard both sides thereon.
14. The learned Counsel for the appellants also placed reliance on the Division Bench judgment of this Court in the case of Punjab Urban Development Authority v. Dashmesh Educational Society (Regd.) , wherein this Court has been pleased to lay down as under:
In our view, the ratio decidendi of the judgments relied upon by learned Counsel for the Appellants carriers binding force and in terms whereof it is settled law that a pure question of law can be raised first time even in Second Appeal. Accordingly, we reject the preliminary objection raised by Shri Rajiv Atma Ram, learned senior Counsel regarding our competence to examine the questions of law sought to be raised in the appeals.
Thereafter the learned Counsel for the appellants contended that the judgments and decree passed by the learned lower Appellate court was liable to be set aside, as the learned lower Appellate Court has not decided all the issues. The contention of the learned Counsel for the appellants was that the learned lower Appellate Court was bound to consider and decide the appeal on all issues raised and it was not open to the learned lower Appellate Court to dispose of the appeal merely on one issue and in case such a procedure is adopted, that would be contrary to law. In support of this contention, reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Mrs. Vijaya Shrivastava v. Mirahul Enterprises and Ors. of the said judgment read as under:
4. By the impugned judgment dated 10th May, 2002, the Division Bench allowed the appeals filed by the developers by holding that the suit agreements dated 2.11.1983 were provisional agreements; that they were inconclusive and accordingly the plaintiff-appellants herein were not entitled to claim specific performance of the agreement for immovable property. Surprisingly, none of the other issues were answered by the Division Bench.
5. In our view, the Division Bench ought to have answered all the issues which were framed by the trial court. All the issues are interconnected. For example, in the suit, the plaintiff-appellant has alleged that there were two separate transactions one for sale of the flat and another for specific performance of the agreement under which interest free loan was extended to the developers. Whether the loan amount was adjustable towards the price payable to the developers was an important issue which has a linkage with the agreement of sale of flats. We do not wish to express any opinion on any of the said issues.
Learned Counsel for the appellants also contended that on issue No. 5 the onus of proof was wrongly placed on the appellants whereas it should have been placed on the plaintiff-respondents, as it was for them to prove that the agreement was legally enforceable. The contention of the learned Counsel for the appellants, therefore, was that where a Court wrongly places burden of proof on a party, it becomes a substantial question of law and in support of this contention, reliance was placed on the judgment of the Hon’ble Supreme Court in the case of P. Chandrasekharan v. S. Kanakarajan 2007 (1) R.C.R. (Rent) 543. Para 18 of the said judgment reads as under:
18. This Court in Hero Vintosh (supra) held:
24. The principles relating to Section 100 C.P.C. relevant for this case may be summarised thus:
(i) An inference of the fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rises to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of the parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation where the legal position is clear either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored the material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence taken as a whole, is not reasonably capable of supporting tire finding.
15. On the basis of the law cited above, the contention of the learned Counsel for the appellants was that this Court is competent to frame a substantial question of law arising between the parties and, adjudicate upon the same. In support of this plea, the learned Counsel for the appellants placed reliance on the judgment of the Hon’ble Supreme Court in the case of Gian Dass v. The Gram Panchayat Village Surmer Kalan 9 2007(4) R.A.J. 430, wherein the Hon’ble Supreme Court has been pleased to lay down as under:
The plea about proviso to Sub-section (5) of Section 100 instead of supporting the stand of the respondent rather goes against them. The proviso is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal or any other substantial question of law. The expression “on any other substantial question of law” clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question.
16. The sum and substance of the argument raised by the learned Counsel for the appellants was that the suit, as framed, was not competent as the plaintiff-respondents had failed to prove on record that the agreement entered into between the minors and defendant No. 1 was within the competence of the guardian and it was for the benefit of the minors and, therefore, the suit was liable to be dismissed. According to the learned Counsel for the appellants, this was a substantial question of law primarily on the ground that onus to prove this issue was wrongly placed on the appellant-defendants. The plea of the learned Counsel for the appellants, therefore, was that this being a substantial question of law can be raised for the first time in the High Court in this appeal and in view of the submissions made above, the appeal deserves to be allowed. In order to controvert this argument, the learned senior Counsel appearing on behalf of the respondents, submitted that it is not a case where the point is being agitated for the first time, rather issue No. 5 was framed by the learned trial Court and decided against the appellants. In spite of decision on issue No. 5, the appellants chose not to challenge the same before the learned lower Appellate Court and, therefore, they cannot be permitted to raise this plea in the regular second appeal as it would be deemed to have been accepted.
17. In find force in the contention raised by the learned Counsel for the respondents. The learned lower Appellate Court has specifically noted that only arguments addressed by the defendant-appellants were on issue No. 6. Therefore, it would be presumed that no other issue was pressed. In view of the law laid down by the Hon’ble Supreme Court in the case of State of Maharashtra (supra), it has to be held that the proceedings recorded by the learned lower Appellate Court were correct as the appellants did not choose to challenge the findings on issue No. 5 by moving an appropriate application before that Court.
18. It is also pertinent to notice here that the affidavit filed by the Advocate, who represented the appellants before the learned lower Appellate Court, is defective and cannot be read into evidence in view of the fact that it has not been properly verified. Thus, there remains no material on record to controvert the findings recorded by the learned lower Appellate Court. Even, otherwise, there is no force in the argument raised by the learned Counsel for the appellants that the agreement entered into by the minors was not enforceable. The judgment of the Hon’ble Allahabad High Court in Bholanath’s case (supra) relied upon by the learned Counsel for the appellants can be of no help to the appellants as Clause 4 has been added to Section 20 of the Specific Relief Act, 1963 which permits the enforcement of contract though the same lacks mutuality. The agreement entered into by the plaintiff-respondents for the purchase of land from defendant No. 1 which stood mortgaged with them, is held to have been executed for the benefit of the minors and the competence of the guardian to enter into the said agreement on behalf of the minors can also not be doubted. Consequently, the findings recorded by the learned trial court on issue No. 5 do not suffer from any illegality or irregularity.
19. Learned Counsel for the appellants has also challenged the findings on issue No. 6 on the plea that the defendant-Appellants were bonafide purchasers for consideration. However, this plea also cannot be sustained, as learned courts below, on appreciation of evidence on record, have recorded a concurrent finding of fact that the sale deed was executed by the defendant-appellants in spite of having knowledge of agreement of sale in favour of the plaintiff-respondents. The concurrent findings of facts are not open to challenge in the regular second appeal.
20. Consequently, it is held that no substantial question of law arises for consideration in this appeal, which is, accordingly, dismissed with no order as to costs.