RSA No. 2299 of 1979 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2299 of 1979 Date of decision 24 .08.2010. Pritpal Singh ...... Appellant. versus Hari Singh and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. B.R.Mahajan, Advocate for the appellant. Mr. Jatnder J.C.Nagpal, Advocate for respondent Nos.1,2,5 to 7. K.C.PURI, J . The present regular second appeal directed by plaintiff- appellant against the judgment dated 16.5.1979 passed by Shri M.S.Luna, learned Additional District Judge, Patiala vide which the appeal preferred by the defendants against the judgment and decree dated 21.10.1976 passed by Shri S.S.Kanwal, Sub Judge Ist Class, Amloh decreeing the suit of the plaintiff, stood accepted and dismissed the suit of the plaintiff. Briefly stated, the case of the plaintiff is that the sale effected by Gurdial Kaur in favour of defendant No.1 to 7 on 10.11.1961 registered on 13.11.1961 vide sale deed No.871 relating to agricultural land measuring 14 bighas 12 biswas as described in the head note of the plaint is null and void and has no effect on the ownership rights of the plaintiff and for RSA No. 2299 of 1979 2 possession of the same and consequential relief. It has been averred that the plaintiff was the owner of agricultural land in suit and on 10.11.1961 when plaintiff was minor (date of birth being 30.8.1951) and his father and mother having been alive were his natural guardian and Gurdial Kaur representing herself as guardian of the plaintiff made a sale of the agricultural land in dispute by means of registered sale deed dated 13.11.1961 for Rs.1500/- in favour of the defendant Nos.1 to 7 without any purpose and without any legal rights to do the same and for the benefit of the plaintiff being minor, she also delivered the possession to defendant Nos.1 to 7. It is also alleged that on the date of sale the plaintiff was minor and therefore, it was the legal duty of the guardian under Section 8 of the Hindu Minority and Guardianship Act, 1856 to get the previous permission of the District Judge, to make such sale on behalf of the minor by the natural guardian but no such permission was obtained and, therefore, no such sale is binding on the plaintiff and is null and void. On notice, defendants appeared and filed written statement and denied the allegations of the plaintiff. It has been alleged that the suit is not properly instituted ; the plaint is not properly verified and that the suit is not maintainable in the present form and the plaintiff has no locus standi to file the suit. It has been further alleged that Smt.Bhagwan Kaur is the real owner of the property and the plaintiff by hook or by crook got the mutation entered in his name and the transaction, on which mutation was entered is not existent and is admissible into evidence for want of registration . It was RSA No. 2299 of 1979 3 also asserted that the plaintiff was given education by the answering defendant at Nabha for about four years at a costs of Rs.8000/- and the litigation with the tenants was also fought by the answering defendants with his own expenditure and Rs.20,000/-were spent on that litigation and again paid Rs.30,000/- to the plaintiff with which the plaintiff purchased land at Chakk Bhaika and in the event of the plaintiff being successful, he is liable to pay the above-said amount. Gurdial Kaur, defendant was struck of as unnecessary party vide order dated 19.9.1973. Following issues were framed:- 1. Whether the suit is within time ?OPP 2. Whether the suit is properly valued for the purposes of court-fee and jurisdiction ? OPP. 3. Whether the plaintiff has locus standi to file the suit ? OPP. 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the suit is not properly verified ?OPD. 6. Whether Gurdial Kaur was guardian of minor plaintiff at the time of sale ?OPD (onus objected to) 7. Whether the sale in dispute is void ?OPD. 8. Whether the sale money was spent for the benefit of the plaintiff, if so its effect ?OPD. 9. Whether the defendants have effected any improvements on the land in suit, if so its effect ?OPD 10. Whether the sale was an act of good management and prudence ?OPD 11. Whether the suit is collusive ?OPD. 12.Relief. Both the parties have led their respective evidence on the aforesaid issues. RSA No. 2299 of 1979 4 The learned trial Court returned the finding on issue No.1 in favour of the plaintiff. Regarding issue No.2, it was held that plaintiff is liable to pay court fee of Rs.19.50ps. Issue No.3 was decided in favour of the plaintiff whereas all other issues were decided against the defendants and consequently the suit of the plaintiff was decreed vide judgment and decree dated 21.10.1976. Feeling dissatisfied with the judgment and decree dated 21.10.1976, the defendants-appellant preferred appeal before the First Appellate Court. The said appeal was heard by Shri M.S.Luna, learned Additional District Judge, Patiala. The First Appellate Court held that since Gurdial Kaur, who had been benefitted, has been given up and the right of defendant to claim the amount from her was also lost. So, she was a necessary party and in her absence, being a necessary party, the appeal was accepted and suit of the plaintiff stood dismissed vide judgment and decree dated 16.5.1979 on technical ground. Feeling dissatisfied with the judgment and decree dated 16.5.1979 passed by Shri M.S.Luna, learned First Appellate Court, the plaintiff-appellant has preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case with their help. Learned counsel for the appellant has submitted that there is a finding of fact recorded by both the Courts below that plaintiff was minor on the date of execution of sale deed on 10.11.1961. His date of birth is 30.8.1951. Even assuming that his date of birth is of 1949 in that case also RSA No. 2299 of 1979 5 he was minor on 10.11.1961. Both the Courts below have given a concurrent finding that Gurdial Kaur has no right to execute the sale deed on behalf of the plaintiff. The suit was filed within three years by the plaintiff on his attaining the age of majority. The trial Court has committed a grave error in dismissing the suit of the plaintiff for giving up Gurdial Kaur as unnecessary party. In fact, Gurdial Kaur is not a necessary party to the present lis. The plaintiff has to protect his rights in the suit property. The sale deed by Gurdial Kaur in favour of defendant is without any authority. The Court has not accepted the plea of the defendant that Gurdial Kaur was a de facto guardian of Pritpal Singh plaintiff. Even the guardian cannot sell the property without getting the permission of the Court. The Hon'ble Apex Court in authority Madhegowda (D) by Lrs v. Ankegowda (D) by Lrs & Ors. JT 2001 (9) SC 596 has held that sale by de facto guardian is void ab initio. He has also relied upon authority Lakhwinder Singh vs. Miss Paramjit Kaur 2004(1) L.J.R. 371 . Learned counsel for the appellant has submitted that vendor may be a proper party but not a necessary party, inasmuch as a factual decree can be passed in favour of the 3rd party against vendor. To support this contention, learned counsel for the appellant has relied upon authority Hardeva vs. Ismail and others, AIR 1970 Rajasthan 167 (Full Bench) and Abdul Hameed vs. Eganathan AIR 1981 Madras 137. The last limb of argument of the counsel for the appellant is that suit of the plaintiff could not be dismissed on technical ground. The First Appellate Court at the most could have ordered to array Gurdial Kaur RSA No. 2299 of 1979 6 as party and should not have non-suited the plaintiff on technical ground. In reply to above noted submissions, the counsel for the respondent has supported the judgment of the First Appellate Court. It is submitted that Gurdial Kaur is not stranger but a real aunt of the plaintiff. She was arrayed as respondent but has been given up as unnecessary. The First Appellate Court has rightly held that she was a necessary party and in her absence, rights of the parties cannot be determined. The First appellate Court has rightly observed that the defendant/respondent suffered ultimately in case the suit of the plaintiff is decreed in the absence of Gurdial Kaur. The defendants might have a right to recover the amount from Gurdial Kaur, even if, the sale deed is held to be invalid. So, the First Appellate Court has rightly dismissed the suit of the plaintiff. Since the plaintiff-appellant has himself given up Gurdial Kaur and as such it does not lie in the mouth of the plaintiff that she be ordered to be arrayed as respondent. In support of his contention learned counsel has relied upon authority Jugraj Singh and another vs. Jaswant Singh and others AIR 1971 SC 761. Following substantial question of law has arisen for determination in the present appeal : - Whether the suit of the plaintiff could be dismiss on the technical ground that Gurdial Kaur is a necessary party ? I have given my thoughtful consideration to the rival submissions made by both the learned counsel for the parties and have gone through the records of the case. The trial Court returned a definite finding that on the date of sale executed by Gurdial Kaur i.e. 10.11.1961 plaintiff was minor. It has RSA No. 2299 of 1979 7 also been held by the trial Court that suit is within limitation. It has also been observed by the trial Court that Gurdial Kaur was never appointed as guardian of Pritpal Singh plaintiff. It has been further observed by the trial Court that even if Gurdial Kaur would have been the guardian of Pritpal Singh plaintiff in that case also the sale is invalid as the plaintiff was minor at the time of execution of the sale deed. Even if it is assumed that plaintiff took birth in the year 1949 in that case also he was minor on 10.11.1961. It is settled law that property of the minor cannot be sold away without the permission of the Court and any such sale is void ab initio and that fact has been approved by Apex Court in authority Madhegowda (D) by Lrs's case (supra) and of this Court in authority Lakhwinder Singh & another's case (supra). One another circumstance which militates against the case of the respondent is that counsel for the defendant/respondents has conceded before the First Appellate Court that sale executed by Gurdial Kaur in favour of defendant is invalid as the plaintiff was minor on the date of its execution. So, it is a finding of fact recorded by both the Courts below that the sale deed executed by Gurdial Kaur dated 10.11.1961 in favour of the defendant is null and void. The finding of the First Appellate Court to the effect that the suit is liable to be dismissed on the ground that Gurdial Kaur has been given up is erroneous findings. The main ground taken by the First Appellate Court in arriving at the conclusion that Gurdial Kaur is a necessary party is that in case the suit of the plaintiff is decreed in that case, RSA No. 2299 of 1979 8 the defendants would be deprived of their rights to claim money from Gurdial Kaur. That finding is against the law. In case the suit of the plaintiff is decreed, the defendants would have a right to claim the money from Gurdial Kaur in a separate suit as no interpleader suit has been filed by the defendants claiming the said amount from Gurdial Kaur. Had the defendant filed interpleader suit recovering that amount in that case the matter would have been different. So far as the authority Jugraj Singh's case (supra) is concerned that authority is distinguishable as in that case, the sale deed was executed on the basis of power of attorney and the Hon'ble Apex Court has held that proving of power of attorney is a material fact. In the present case, there is no dispute regarding power of attorney. The Full Bench of Rajasthan High Court in authority Hardeva's case (supra) held that in case of sale of immoveable property if possession is delivered to the vendee, suit by the 3rd party claiming property as is in hand, vendor may be a proper party but he is not a necessary party in as much as in an effective decree can be passed in favour of such person and against the vendee. In authority Abdul Hameed's cas (supra) , it has been held that vendor is not a necessary party in a suit declaring title of the plaintiff over the suit property which was purchased by the defendant without impleading the vendor as party. So, in view of the above discussion, the substantial question for determination stands determined in favour of the appellant and against the respondent. It is held that mere giving up Gurdial Kaur by plaintiff, the RSA No. 2299 of 1979 9 suit of the plaintiff for possession against other defendants cannot be dismissed. Therefore, the appeal stands accepted. Consequently, the judgment and decree 16.5.1979 passed by the First Appellate Court stands set aside and the judgment and decree passed by the trial Court dated 21.10.1976 stands restored with costs through out. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 24th , 2010 sv