RSA No. 937 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 937 of 1984 Date of Decision: 14.07.2010 1. Gurdev Singh son of Sihan Singh son of Sunder Singh; 2. Gurbux Singh; 3. Jarnail Singh; both sons of Gurdev Singh; 4. Kulwant Singh; 5. Major Singh; both minor sons of Gurdev Singh son of Sihan Singh, under the guardianship of their real brother Jarnail Singh, residents of village Sangatpura Sodhian, Tehsil Sirhind, District Patiala. ... Appellants Versus 1. Avtar Singh son of Joginder Singh son of Banta Singh; 2. Surjit Kaur wife of Banta Singh; both residents of Sangatpure Sodhian, Tehsil and District Patiala. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Amit Jain, Advocate, for the appellants. Mr. P.K. Gupta, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree RSA No. 937 of 1984 2 dated 05.12.83, rendered by the Court of Additional District Judge, Patiala, vide which, it accepted the appeal, and decreed the suit for specific performance, against the judgement and decree dated 09.11.81, rendered by the Court of Sub Judge 1st Class, Bassi, vide which, it decreed the suit for alternative relief of recovery. 2. The facts, in brief, are that, Gurdev Singh, defendant No. 1 (now appellant No. 1), as a general power of attorney of his father Sihan Singh, defendant No. 2, entered into an agreement to sell dated 12.07.76 with the plaintiffs, in respect of the land, in dispute, for a total sale consideration of Rs. 54,900/-. A sum of Rs. 20,000/-, was received, by defendant No.1, as earnest money, from the plaintiffs, and, the sale deed was to be executed on or before 25.06.77 on receipt of the balance sale consideration. It was stated that, on 24.06.77, Banta Singh, father of Avtar Singh, plaintiff No. 1, was told, by the defendants, to reach the office of the Sub-Registrar, Sirhind, for the purpose of getting executed and registered the sale deed, in respect of the land, in dispute. Accordingly, Banta Singh, reached there and waited for the defendants, but, they did not turn up till closing hours. Thereafter, an application, was moved, before the Sub-Registrar, Sirhind, by him, showing the readiness and willingness of the plaintiffs, to get the sale deed executed and registered, in respect of the land, in dispute, on payment of the balance sale consideration. It was further stated that, the land, in dispute, was mortgaged with the Land Mortgage Bank, Sirhind, for a sum of Rs. 24,000/-, which was got redeemed, by the RSA No. 937 of 1984 3 plaintiffs, after paying Rs. 32,146/-, as mortgage money which amount was adjusted against the sale consideration. The defendants, were many a time asked, to perform their own part of the contract, and get the sale deed executed and registered, in respect of the land, in dispute, after receipt of the balance sale consideration, but, to no avail. Ultimately, a suit for specific performance, was filed. 3. Sihan Singh, defendant, filed a separate written statement, wherein, it was denied, that he ever executed any power of attorney, in favour of his son Gurdev Singh, defendant No. 1. It was further denied that, any agreement to sell, was ever executed, by Gurdev Singh, defendant No. 1, as his attorney, in respect of the land, in dispute. 4. Thereafter Sihan Singh, died and his legal representatives were brought on record. 5. Gurdev Singh and Harnam Kaur, defendants, two legal representatives of Sihan Singh, deceased, filed joint written statement, wherein, they took up various objections, and contested the suit. It was denied that, Gurdev Singh, defendant No. 1, as an attorney of Sihan Singh, had ever executed any agreement to sell, in favour of the plaintiffs, in respect of the land, in dispute, and, received Rs. 20,000/- as earnest money. It was stated that, though, the land, in dispute, was under mortgage with the Land Mortgage Bank, Sirhind, for a sum of Rs. 24,000/-, yet, a sum of Rs. 32,146/-, as mortgage money, was never paid by the plaintiffs, to get it redeemed. It was admitted, that Gurdev Singh, defendant No. 1, was the general power RSA No. 937 of 1984 4 of attorney of his father Sihan Singh. 6. Gurbax Singh, Jarnail Singh, Kulwant Singh, and, Major Singh, defendants, the remaining legal heirs of Sihan Singh, deceased, filed a separate joint written statement, wherein, it was stated that, even if the execution of the agreement to sell, was proved, it was not enforceable, as the land, in dispute, was the co-parcenary property, qua them, and Gurdev Singh, defendant No. 1, had already wasted the co- parcenary property, to the tune of Rs. 90,000/-. It was further stated that, there was neither any necessity or pressure, on the estate, nor the agreement to sell, was for its benefit. It was further stated that, since the land, in dispute, was the co-parcenary property, and, on account of extravagant habits of Gurdev Singh, defendant No. 1, Sihan Singh, had given the same, to the answering defendants, through an oral family settlement. The remaining averments, were denied, being wrong. 7. In the replication, filed by the plaintiffs, they reiterated all the averments, contained in the plaint, and, challenged those, contained in the written statements. 8. On the pleadings of the parties, the following issues were struck:- (i) Whether the defendant No. 2 executed Mukhtiarnama in favour of the defendant No. 1? OPP (ii) Whether the defendant No. 1 executed an agreement of sale in favour of the plaintiff? OPP (iii) Whether the plaintiff was ready and willing to perform his part of the RSA No. 937 of 1984 5 contract? OPP (iv) Whether the agreement was got executed without consideration as alleged? OPD (v) Whether the plaintiff is entitled to specific performance of contract? OPP (vi) Whether the plaintiff is entitled to the refund of Rs. 22,500/-? OPP 9. The following additional issues, were also framed, by the trial Court, on 23.10.79:- (i) Whether the suit property is coparcenary property of defendants No. 3 to 6 qua Gurdev Singh? OPD (ii) Whether the agreement is not enforceable against defendants No. 3 to 6 as alleged? OPD (iii) Relief. 10. The following additional issue, was also framed, by the trial Court, on 05.08.80 :- Whether the plaintiffs are entitled to recover the amount of Rs. 32,146/- from the defendants? OPP 11. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiffs for recovery of earnest money only. 12. Feeling aggrieved, an appeal, was preferred by the plaintiffs (now respondents), which was accepted, by the Court of Additional District Judge, Patiala, vide judgement and decree dated 05.12.83. 13. Feeling dissatisfied, the instant Regular Second Appeal, has RSA No. 937 of 1984 6 been filed by the appellants. 14. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 15. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, that the property, in dispute, was not the ancestral co-parcenary property, qua the grand-sons of Sihan Singh, on the ground, that the same, had devolved on him, on the basis of Will? 16. The Counsel for the appellants, submitted that, Sunder Singh, was the owner of the property, in dispute. He further submitted that, on the death of Sunder Singh, the property, in dispute, was mutated, in favour of Sihan Singh son of Sunder Singh, on the basis of Will, but, that did not mean, that the co-parcenary character of the same ceased. He further submitted that, in the natural course, Sihan Singh, was to succeed to the property and the Will, mention whereof, was made in D1 mutation, only amounted to acceleration of succession. He further submitted that, since it was the ancestral coparcenary property, in the hands of Sihan Singh, his grand-sons had got right by birth therein, and, as such, Sihan Singh, defendant No. 2, was not competent, to execute the agreement to sell, in respect of the land, in dispute, in favour of the plaintiffs. He further submitted that, even no legal necessity, was averred, by the plaintiffs, in the plaint, for the execution of the agreement to sell. He also placed reliance, on RSA No. 937 of 1984 7 Valliammai Achi Vs. Nagappa Chettiar and another, AIR 1967 (SC), 1153, in support of his contention, that execution of Will, in respect of the co-parcenary property, did not change the nature thereof. He further submitted that, the first Appellate Court, recorded perverse findings, in decreeing the suit of the plaintiffs for specific performance. 17. On the other hand, the Counsel for the respondents, submitted that, since Sihan Singh, did not succeed to the property of Sunder Singh, by way of natural succession, but, he became the owner thereof, on the basis of Will, executed by Sunder Singh, in his favour, and, mutation of inheritance, on the basis of the same, was sanctioned, in his favour, the character of the alleged co-parcenary property, came to an end. He further submitted that, Sihan Singh, was, thus, the exclusive owner of the property, in dispute, and, was competent, to execute the agreement to sell. He also placed reliance, on C.N. Arunachala Mudaliar Vs. C.A. Muruganatha Mudaliar and another, AIR 1953 (SC), 495, and, Babru Vs. Basakha Singh & others, 1995 (2), Civil Court Cases, 440 (P&H), in support of his contentions. He further submitted that, the judgement and decree of the first Appellate Court, being legal and valid, are liable to be upheld. 18. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal, is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. RSA No. 937 of 1984 8 Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, was very clear that the Legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgement of the first Appellate Court, is confined only to the hearing of substantial questions of law. No doubt, Sunder Singh, was the owner in possession of the property, in dispute. Sihan Singh (now deceased), was the son of Sunder Singh. It is evident, from D1 mutation that, on the death of Sunder Singh, the property, in dispute, did not come down to Sihan Singh, by descent, but devolved on him on the basis of Will executed by the former, in his favour. In Babru's case (supra), it was held, that only the property, which devolves from the common ancestor on legal heirs, by way of natural succession/descent, is the co-parcenary property, and the other property, is non-ancestral property. Similar principle of law, was laid down, in C.N. Arunachala Mudaliar's case (supra). The first Appellate Court, was, thus, right in holding, that since the land of Sunder Singh, was mutated, in favour of Sihan Singh, on the basis of Will, and, did not devolve, on him, by way of natural succession, it lost the character of alleged co-parcenary RSA No. 937 of 1984 9 property. In this case, even it was not proved that the property in the hands of Sunder Singh, was the ancestral coparcenary property. The facts of Valliammai Achi 's case (supra), relied upon, by the Counsel for the appellants, are distinguishable, from the facts of the present case, as in that case, it was proved, as a fact that, the property, in the hands Pallaniappa's father, was the Joint Hindu family coparcenary property, and it was, in these circumstances, that it was held that, he (Pallaniappa's father) had only a very limited right of executing the Will, and right of the grandson, in such property, which he acquired by birth, was independent of the right of his father. It was in these circumstances, that it was held that the character of the property as coparcenary did not cease. No help, therefore, can be drawn, by him therefrom. The findings of the first Appellate Court, that the property, in dispute, was not the ancestral co-parcenary property, in the hands of Sihan Singh, but, was his self-acquired property, being correct, are affirmed. The submission of the Counsel for the appellants, therefore, being without merit, must fail, and the same stands rejected. 19. Not only this, the first Appellate Court, was right, in coming to the conclusion, that since the agreement to sell, was executed, by Sihan Singh, for the purpose of payment of the mortgage amount of Rs. 24,000/-, as the land, in dispute, was under mortgage, even if, it was assumed, that it was a co-parcenary property, the said agreement, was executed for legal necessity, and, by way of act of good management. The findings of the first Appellate Court, in this regard, RSA No. 937 of 1984 10 being based on the correct reading and due appreciation of evidence, are not open to challenge. The same are also affirmed. The submission of the Counsel for the appellants, therefore, being without merit, must fail, and the same stands rejected. 20. The judgement and decree of the first Appellate Court, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The same, are liable to be upheld. 21. The substantial question of law, depicted above, is answered, against the appellants. 22. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 14.07.2010 (SHAM SUNDER) Amodh JUDGE