R.S.A No. 3216 of 1997 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 3216 of 1997 (O&M) Date of decision : August 31, 2010 Major General Darshan Singh, dead, through L.Rs ...... Appellant. v. Brij Bhushan Chaudhary, dead, through L.Rs and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Kanwaljit Singh, Senior Advocate, with Mr. Nitin Thatai, Advocate for the appellant. Mr. M.L.Sarin, Sr. Advocate with Mr. Kabir Sarin, Advocate for the respondents. *** 1. Whether Reporters of Local Newspapers 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 This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the appellant for specific performance of an agreement to sell dated 16.1.1980 in respect of the property in dispute for a consideration of ` 3.50 lacs. It was pleaded that subsequently a novated contract of sale R.S.A No. 3216 of 1997 (O&M) ::2:: came into existence in which the sale consideration was reduced to ` 2.90 lacs. It was further pleaded that on 18.3.1980, a draft sale deed was executed and possession of the property in dispute was delivered to the plaintiffs by the defendants. The said draft sale deed along with the affidavit was filed before the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (for short `the Act') by the respondents and permission under the Act was granted on 11.8.1980. Similarly, no objection certificate was also obtained by the respondents. However, on the appointed date, the respondents did not turn up despite having been informed by way of a telegraphic notice. In reply, the respondents took a plea that under the agreement to sell, penalty for non-execution of sale deed was specifically mentioned as refund of earnest money and damages of Rs.10,000/- without interest. Consequently, the appellant could not seek specific performance. The further plea taken was that after the first agreement to sell, no other agreement was executed and even if it was proved then the same was null and void being in contravention of sub-section (III) of Section 5, and Sections 10, 26, 27 of the Act. It was further pleaded that the property belonged to the HUF of the respondents in the knowledge of the appellant and since the property in dispute was impartible, no sale deed could be executed. It was denied that possession of the property was ever handed over to the appellant. Both the Courts below held that the appellant was entitled to sue for specific performance notwithstanding the stipulation to the contrary in the agreement to sell. It was further concurrently held that the property in dispute was owned by the HUF to the knowledge of the appellant; the R.S.A No. 3216 of 1997 (O&M) ::3:: suit for specific performance did not lie, and consequently, the Courts below dismissed the suit despite also finding that the appellant was ready and willing to honour the agreement to sell. At the time when the appeal was filed, no questions of law were proposed. However, subsequently the following questions of law have been proposed :- “ (i) Whether the Courts below erred on law in not noticing the well established principle of law that the vendor cannot be allowed to resile from the contract on the ground of want of title ? (ii) Whether the property mutated in the name of the vendor in the revenue record and even if shown in the income tax record to be joint Hindu family would have any effect on the purchase by an outsider ? (iii) Whether the agreement to sell having been upheld and vendor obtaining no objection certificate and clearance for the purposes of sale in his individual capacity can set up the plea of joint hindu undivided family ? (iv) Whether without their being any evidence of purchase of property from joint hindu undivided family, the property can be treated to be an HUF property ? (v) Whether it was incumbent upon the respondent- defendant to discharge the onus of joint hindu undivided family and mere income tax record would not be sufficient ? (vi) Whether the agreements dated 16.1.1980 and 18.3.1980 having been admitted, readiness and willingness proved by vendee, suit for specific performance should have been decreed in view of Section 10(b) & 13 of the Specific Relief Act, 1963 ? (vii) Whether the Courts below have failed to grant specific performance of the whole property and in any case to the extent of the share of the vendor ? (viii) Whether the seller can be permitted to be clever and to take advantage in a fraudulent manner of his own act ? (ix) Whether the appellant-plaintiff has acted in a bona fide manner and the agreements dated 16.1.1980 and 18.3.1980 having been admitted and proved against valid consideration is entitled to a decree of specific performance as a bona fide purchaser ? (x) Whether the judgments and decrees of Courts below are based on incorrect appreciation of pleadings and evidence and hence, liable to be set aside ?” R.S.A No. 3216 of 1997 (O&M) ::4:: It would be seen that questions No. (ii), (iii), (iv) and (v) are pure questions of law, whereas questions No.(viii), (ix) and (x) are pure questions of fact, while questions No.(i), (vi) and (vii) are mixed questions of law and fact. With regard to questions No.(ii), (iii), (iv) and (v), both the Courts below have concurrently found that the appellant knew from the very beginning that the property in dispute was owned by the HUF. It was found that even in the novated agreement to sell, the property was described as HUF property. In the plaint, there were no averments that the intended transaction was for the benefit of the HUF. Not only that, the respondents had taken a specific plea in the written statement yet even in the replication, there was no averment in respect thereto. Learned counsel for the appellant has relied upon D.S.Lakshmaiah and another vs L.Balasubramanyam and another, AIR 2003 SC 3800(1), wherein the Hon'ble Supreme Court held as follows :- “18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self- acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” In my opinion, however, once in the novated agreement to sell, which has been relied upon by the appellant himself, it was mentioned that the property in dispute was HUF property and the appellant had himself forwarded that application to the competent authority under the Act for permission and exemption, he cannot now turn around and insist on a formal proof of the existence of the HUF property as has been laid down in R.S.A No. 3216 of 1997 (O&M) ::5:: the decision of the Hon'ble Supreme Court in D.S.Lakshmaiah and another's case (supra), In Balmukand L.Hira Nand v. Pindi Dass (deceased) and others, AIR 1958 Punjab 267, a Division Bench of this Court held as follows :- “ 10. The facts of the present case are entirely different. The plaintiff has not been able to prove any benefit to the estate. He has only proved that Pindi Das was able to sell the land at a rate much higher than the market rate. This by itself is not a benefit to the estate. In the absence of any further fact that the money utilised by the sale was needed by the family or was utilised for the purposes of the family, we feel that the turning of a stable asset like immovable property of the family into cash which was to be realised by the then manager of the family could not by itself be for the benefit of the estate.” It must be borne in mind that the above judgment was confirmed by the Hon'ble Supreme Court in Balmukand v. Kamla Wati and others, 1964 SC 1385. Consequently, questions No. (ii), (iii), (iv) and (v) have to be decided against the appellant. As regards questions No.(viii), (ix) and (x), both the Courts below have returned a concurrent finding of fact that in the circumstances of the case where allegations and counter allegations about mala fides and dishonest act/intention were made on both sides, it cannot be held that the respondents are taking advantage of any fraudulent act. Learned counsel for the appellant has not been able to persuade me that the findings recorded in this regard are either based on no evidence or are based on such misreading of evidence so as to render the same so perverse as to be liable for interference under Section 100 of the CPC. As regards questions No.(i), (vi) and (vii), it is admitted that the property in dispute is impartible and cannot be partitioned by metes and bounds under the provisions of the Capital of Punjab (Development and R.S.A No. 3216 of 1997 (O&M) ::6:: Regulation) Act, 1952. Further, even in regard to the relinquishment sought to be pressed by the appellant, there can be two opinion; as to whether the said relinquishment met the requirement of law. In the circumstances, questions No.(i), (vi) and (vii) are also answered against the appellant. Resultantly, holding the questions proposed against the appellant, this appeal is dismissed with no order as to costs. As the main appeal has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) August 31, 2010. JUDGE `kk'