R.S.A.No.2064 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2064 of 2008 Date of Decision : 27.08.2009 Talwinder Singh ...Appellant Versus Manjit Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 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? Present: Mr. Surinder Singh, Advocate, for the appellant. Mr. S.M.Sharma, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) Defendant No.3 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for specific performance of an agreement to sell dated 2.8.1994 executed by defendant No.1 in favour of plaintiff Nos.1 and 2 in respect of land measuring 30 Kanals 5 Marlas, was decreed. Defendant No.1 as owner of the land measuring 30 Kanals 5 Marlas, entered into an agreement to sell with plaintiff Nos.1 and 2 for a total sale consideration of Rs.3,14,000/-. Rs.1,10,000/- was paid as earnest money. The sale deed was to be executed on or before 1.10.1994. Since, the sale deed was not executed on the agreed date, the present suit for specific performance was filed on 5.4.1995. After the filing of the suit, defendant No.1 executed gift deed in favour of defendant Nos.3 and R.S.A.No.2064 of 2008 2 4, his grand-sons, in respect of land measuring 26 Kanals 8 Marlas on 10.6.1997. The plaintiff amended the plaint so as to incorporate the challenge to the said gift deed as well. Both the Courts below have decreed the suit holding that the agreement to sell dated 2.8.1994 is proved to be executed and that the plaintiff was ready and willing to perform his part of the agreement. It was also found that the gift deed has been executed by defendant No.1 in favour of his grand-sons after the filing of the suit, therefore, such gift deed cannot affect the rights of the plaintiff as such gift deeds are hit by doctrine of lis pendence. Learned counsel for the appellant has vehemently argued that defendant No.4 sukhwinder Singh was a minor on the date of the filing of the suit, therefore, he could not be sued without appointing guardian in terms of order 32 of the Code of Civil Procedure. Such argument has been negated by the learned first Appellate Court on the ground that Sukhwinder Singh has attained majority when the trial Court decreed the suit on 15.6.2007 and that in the gift deed there is no recital that Sukhwinder Singh is a minor and that the plea raised by the appellant is blowing hot and cold and both have not come to the Court with clean hands. Sukhwinder Singh has not challenged the judgment and decree passed by the learned trial Court, even before the learned first Appellate Court, nor he is in second appeal before this Court. The decree was granted against Sukhwinder Singh on 15.6.2007, though he attained the age of majority in the year 2001. Still further, the appellant cannot be permitted to espouse the cause of another defendant as against the R.S.A.No.2064 of 2008 3 appellant. It is further argued that the agreement was in favour of plaintiff Nos.1 and 2, but Karnail Singh, their father was impleaded as plaintiff No.3 and that it is Karnail Singh, who has appeared as a witness. Therefore, ready and willingness of the plaintiffs cannot be inferred on the basis of statement of Karnail Singh. The said argument is again not tenable. The agreement dated 2.8.1994 is signed by Karnail Singh on behalf of plaintiff Nos.1 and 2, his sons. Therefore, Karnail Singh is not a stranger to the agreement to sell. He being signatory of the agreement could depose about the ready and willingness of the plaintiffs. Both the Courts have recorded concurrent finding of fact that the plaintiffs were ready and willing to perform their part of the contract. Learned counsel for the appellant has further argued that the land in the hands of defendant No.1 was ancestral property and, therefore, he could not alienate the same. Both the Courts have recorded concurrent finding of fact that the property in the hands of defendant No.1 was not ancestral property. Even if, it is presumed to be so, defendant No.1 could sell the same as Karta of the Joint Hindu Family property. It has been so held by this Court in Padmawati and others Vs. Kulwant Rai and others 2008 (2) PLR 424. In view thereof, I do not find that any substantial question of law arises for consideration of this Court in second appeal. Dismissed. 27.8.2009 (HEMANT GUPTA) Vimal JUDGE