RSA No. 2321 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 4576-C of 2010 and RSA No. 2321 of 2007(O&M) Date of Decision: April 20, 2010 Abdul Mannan and others ...... Appellant Versus Smt. Shanti Devi and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Kulbhushan Sharma, Advocate for the non-applicant-appellant. Mr.R.Y.Kalia, Advocate for applicant-respondent No.1. **** 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? Ajay Tewari, J. CM No. 4576-C of 2010 For the reasons recorded, this application is allowed. Person mentioned in para 3 of he application viz. Gaurav Gupta is impleaded as legal representative of Shanti Devi-respondent No.1 who is stated to have died on 18.01.2010, subject to all just exceptions. Registry to carry out necessary correction in the memo of parties. RSA No. 2321 of 2007 This appeal has been filed against the judgment of the learned Lower Appellate Court reversing that of the trial Court and thereby RSA No. 2321 of 2007(O&M) 2 decreeing the suit of the respondents for specific performance of an agreement to sell executed by the mother of the appellants at a time when they were minors. The learned trial Court accepted the argument of the appellants that no valid agreement to sell was executed by their mother. The learned Lower Appellate Court reversed this finding of fact and held that an agreement to sell the land was executed by the mother of the appellants after understanding all the implications. The learned Lower Appellate Court further relied upon the judgment and order dated 3.1.2006 passed by the Additional Civil Judge (Senior Division), Nuh in a petition for permission to sell the agricultural land of the appellants moved by their mother whereby the requisite permission was granted. Consequently the learned Lower Appellate Court, as mentioned above, allowed the appeal and decreed the suit. The following questions have been proposed:- i) Whether impugned judgment and decree of the learned First Appellate Court and its findings on issues No. 1 to 3, partly allowing the appeal is manifest illegal, perverse and as a result of misreading of unrebutted evidence and the pleadings. Hence, the same deserves to be set aside,whereas the judgment and decree of the learned Trial Court are based on the well reasoned findings on the proper appraisal of the evidence. Hence, the judgment and decree of the learned trial Court deserves to be restored and maintained? ii)Whether once the execution of the agreement to sell is disputed, the onus is upon the plaintiff to prove the due execution of the agreement free from any suspicious circumstances? iii)Whether once the execution of the agreement to sell is shrouded with suspicious circumstances, the learned ADJ RSA No. 2321 of 2007(O&M) 3 erred in law in holding the valid execution of the agreement to sell in question? iv)Whether once it is pleaded or proved that the mother was having adverse interest against the minors and she was irresponsible type of lady and living separately and not looking the welfare and interest of the minors not providing education etc., then she was not competent to enter into any alleged agreement to sell? v) Whether without obtaining permission of the Court, the mother of the minors have got no right or authority to enter into any alleged agreement to sell and the alleged agreement to sell is not enforceable? vi)Whether the misreading of evidence and pleadings by the learned ADJ while setting aside the well reasoned findings of the learned trial court, by itself raises a substantial question of law? vii)Whether learned ADJ was under legal obligation to assign the plausible reasons while answering the findings of the learned trial Court? viii)Whether in the suspicious circumstances,mentioned in the grounds of appeal and variant stand of plaintiff and contradictory statement of PW1 and PW2,the findings of the learned ADJ holding valid execution of the agreement are illegal and perverse? ix)Whether the learned ADJ was not under legal obligation to send the thumb impression to the FSL, Madhuban by invoking the powers under Section 73 of Indian Evidence Act while not agreeing with the findings of learned trial court on the point of expert? x) Whether even when the execution of the agreement to sell has been denied, the plaintiff is required to prove the readiness and willingness by consistent and specific stand? xi)Whether during the subsistence of the findings of the learned ADJ regarding the different stand of the plaintiff and no evidence to tender the amount and no notice proved, the RSA No. 2321 of 2007(O&M) 4 findings of the learned ADJ on readiness and willingness in favour of the plaintiff are illegal, perverse and not sustainable in the eyes of law? xii)Whether once the stand of the plaintiff and Gian Chand have been taken to be different and disbelieved on the point of remaining present in the office of Sub Registrar and no evidence regarding the tendering of amount, the learned ADJ has erred in law in passing the discretionary relief of specific performance in favour of the plaintiff and against the defendants? xiii)Whether the findings of the learned ADJ based on assumptions and presumptions are illegal and not sustainable in the eye of law? xiv)Whether the minors having attained the age of majority not consenting to the alleged acts of the mother, are bound by such alleged acts? xv)Whether the passing of the judgment obtaining the alleged permission would raise assumption and presumption of execution of alleged agreement to sell in question by Mehram with Gian Chand? xvi)Whether without obtaining the probate of the alleged will, allegedly executed by Gian Chand in favour of plaintiff,the suit of the plaintiff deserves to be dismissed? xvii)Whether the appointment of guardian before dealing with the property of minor is conditional precedent under the law? xviii)Whether on attaining majority, the minor can repudiate any act and alleged transaction of Mehram? However, learned counsel has only argued questions No.(v) & (xvii). In this regard learned counsel has argued that it was incumbent upon the mother of the appellants to have got the requisite permission before entering into the agreement for sale. In this connection he had relied upon Kallathil Sreedharan v. Komath Pandyala Prasanna reported as 1996(3) RCR(Civil) 633. In that case uptil the date of filing of the suit for specific RSA No. 2321 of 2007(O&M) 5 performance no permission had been obtained by the guardian of the minors. It was in that context that the Hon'ble Supreme court held that such a contract for sale would be void. Learned counsel has further relied upon Darbara Singh v. Karminder Singh and others reported as AIR 1979 Punjab 215 wherein it was held as follows:- “5. The provision of Sub-Section (1) of Section 8 of the Act makes it expressly clear in unqualified terms that no personal covenant of the guardian shall be binding on the minor. It means only this that when looked from the standpoint that the aforesaid interdiction is added at the fag-end of section 8(1) by way of proviso to the clause that preceded it, a guardian though well within his right to enter into a contract for the benefit of the minor, but the said contract would not be enforceable against the minor even when it was entered for his benefit and would be voidable at his instance.” In my opinion both these judgments are not applicable. As has been noticed above, in the present case, specific permission to sell this land was obtained by the mother of the appellants. Learned counsel for the appellants has argued that the material occasion for seeking permission was before the agreement to sell. The judgments which have been cited above do not lay down any such principle. No law has been cited to support the proposition that a permission which was duly granted by the Guardian Court would not relate back to specific agreement to sell. Even otherwise the requirement of seeking permission without having a buyer is like putting the cart before the horse. It would be very difficult for a guardian to convince a Court to give him permission to sell property even when there is no buyer and no price at which the property is likely to be sold. A Guardian Court can only exercise discretion after it is brought to its notice as to what is the proposed price at which the property is to be sold and also whether the RSA No. 2321 of 2007(O&M) 6 proposed price is the fair market price or is just a device to defraud the minors. Learned counsel has also cited Meethiyan Sidhique v. Muhammad Kunju Pareeth Kutty reported as 1997(1) RCR(Civil) 427. In this case the Hon'ble Supreme Court held as follows:- “8. Tyabji in this “Principles of Mohammadan Law” also has stated in Section 261 that neither mother,nor brother,nor the uncle can without the authority of the Court deal with the property of a minor. Asaf A.A. Fyzee in Section 34 has reiterated the same principles. In Venkama Naidu v. S.V.Chistry, AIR 1951 Mad. 399, the Madras High Court had held that after the father's death, the mother, as the guardian of the minor, has no power to execute a sale deed. Therefore, the sale deed executed by the mother was held to be void and inoperative under Mohammadan Law. 9. In Muhamadan Law by Syed Ameer Ali [Vol.2] also it is stated at page 500 that unless mother is appointed by the father as the guardian of his minor children's estate or is so appointed by the Judge,she has no power to intermeddle with their immovable property. All her dealings with the property are ipso facto void. In case the minor has no means of support except the property,she must apply to the court for sanction in order to deal with the property.” Again, this case does not deal with the situation where regular permission was granted by the court to sell the property. Learned counsel has also started that the suit as originally filed by the respondents had been filed against the minors through their mother and natural guardian. As per learned counsel it was incumbent upon the respondents to have moved an application under Order 32 Rule 3 CPC and since no such application was filed the suit was not maintainable. In this regard he has relied upon Baldev Singh and others v. Sukhdev Singh and others reported as 2006(3) RCR (Civil) 76. Before discussing this authority it is necessary to mention here RSA No. 2321 of 2007(O&M) 7 that after the instant suit was filed the learned trial Court did fulfil the requirements of Order 32 rule 3 CPC and appointed an advocate as their guardian ad litem. The judgment cited by the learned counsel arose from a case where the trial court had decreed a suit against the minors without following the provisions of Order 32 rule 3 CPC. In appeal the First Appellate Court had set aside the judgment and remanded the case back to the trial court for fresh decision after fulfilling the requirements of Order 32 rule 3 CPC. It was that remand order which was challenged and this court dismissed the appeal. In the present case this is precisely what the trial court has done. Consequently whatever irregularity was there on the part of the respondents in not moving an application under Order 32 rule 3 CPC the same has been cured by the trial Court itself by following the procedure under Order 32 Rule 3 CPC. Consequently holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. (AJAY TEWARI) JUDGE April 20, 2010 sunita