RSA No.3863 of 2009 1 IN THE HIGH COURT OFPUNJAB AND HARYANA, CHANDAIGRH RSA No.3863 of 2009 Date of decision:28.7.2010 Jetsana and another ....Appellants. v. Chhotu Singh ...Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr.A.K.Khunger, Advocate, for the appellants. Mr.Sandeep Jasuja, Advocate, for the respondent. -- RAKESH KUMAR GARG,J.(oral) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit for possession by way of specific performance of agreement to sell dated 2.7.1996 regarding the suit land was decreed in favour of the plaintiff-respondent. As per the averments made in the suit, appellant No.1 executed the agreement in question on her behalf and on behalf of appellant No.2 her daughter, who was minor at the time of execution of the agreement to sell the suit property in favour of the plaintiff-respondent on 2.7.1996, and received a sum ofRs.1,24,000/- as earnest money in the presence of witnesses and agreed to execute the sale deed on or before 30.6.1997 on receipt of balance sale consideration before the Sub Registrar at the time of registration of the sale deed. It was further the case of the plaintiff- respondent that he request appellant No.1 to accompany him to purchase the stamp papers for the execution and registration of the sale deed in terms of the aforesaid agreement to sell and to get permission from the competent Court for sale of the property of appellant No.2 who was minor RSA No.3863 of 2009 2 at that time but appellant No.1 avoided to do so. However, appellant No.2 attained majority before the stipulated date of registration of the sale deed i.e. 30.6.1997 itself. Since the appellants failed to execute the sale deed in terms of the agreement to sell in question, necessity arose to file the present suit. The suit was resisted by the appellant-defendants who filed a joint written statement raising various preliminary objections. On merits, it was stated that no agreement regarding sale of land in question between the parties was written or signed on 2.7.1996. It was further stated that in fact appellant No.1 had taken a loan of Rs.25,000/- from the plaintiff-respondent and at that point of time he had taken her signatures on blank stamp papers. She never agreed to sell the land of appellant No.2 who was minor. The plaintiff never approached appellant No.2 for a fresh agreement when she attained majority. Thus, the plaintiff had no cause of action to file the present suit. Rest of the averments made in the plaint were denied. It was specifically contended that appellants never agreed to sell their land to the respondent. So the question of execution of the sale deed did not arise. Dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed:- 1. Wehther plaintiff is entitled to the decree for possession by way of specific performance of the agreement to sell dated 2.7.1996 for sale of agricultural land measuring 17 kanals 15 marlas fully detailed and described in the head note of the plaint ?OPP 2. If issue No.2 is not proved, whether plaintiff is entitled to the alternative relief of recovery of Rs.2,48,000/- along with RSA No.3863 of 2009 3 damages ? 3. Whether plaintiff is entitled to the relief of permanent injunction restraining the defendants from interfering in his cultivating possession and from ousting him from the land fully detailed and described in the head note of the plaint ?OPP 4. Whether plaintiff is entitled to the relief of permanent injunction restraining the defendant from alienating the suit property in any manner or creating a charge thereof ?OPP 5. Whether agreement in question is a product of fraud perpetrated upon the defendants by the plaintiff in connivance with scribe and the marginal witnesses ?OPP 6. Whether agreement to sell is not binding on defendant No.2 as she was minor at the time of alleged execution of the agreement ?OPD 7. Whether plaintiff has no locus standi and cause of action to file the present suit ?OPD 8. Relief. It may be relevant to mention at this stage that despite the fact that appellant No.2 had become major before the stipulated date of execution of the sale deed and before filing of the present suit, she has not avoided the agreement to sell in question on the ground that her mother was not competent to execute the agreement of sale on her behalf. In fact, no such defence has been raised by appellant No.2 in her written statement. Neither any such argument on the basis of the aforesaid defence was raised by the appellant No.2 before the Courts below. Even before this Court no argument is raised and what is argued is that she was required to take permission of the Court before making the agreement. Both the Courts below on appreciation of evidence on record held that the plaintiff-respondent had proved the due execution of the sale RSA No.3863 of 2009 4 in question and the appellants have failed to lead any evidence to prove that the aforesaid agreement in question was a fabricated document and the same was forged into an agreement on the blank papers, on which signatures of appellant No.1 were obtained as pleaded. Before this Court, learned counsel for the appellants has vehemently argued that the agreement to sell executed by natural guardian of minor without the permission of the Court was not enforceable against the minor and the minor can avoid such alienation. It has been further argued that a sale of the minor's property effected without the permission of the Court does not satisfy the requirement of Section 8 of the Hindu Minority and Guardianship Act, 1956 and, therefore, the sale is void. To support this argument, learned counsel for the appellants has relied upon the judgment in O.G.Sankar and another v. S.Veera Sameera Kumar Dev and another, 1997(2) Civil Court Cases 700 (A.P) and in Panni Lal v. Rajinder Singh and another, 1993 (Suppl)Civil Court Cases 76(SC). On the basis of the aforesaid arguments, it is submitted that following substantial questions of law arises in this appeal:- 1. whether the guardian of a minor can sell the land/property owned by the minor without getting any permission from the Court Guardian ? 2. Whether the terms and conditions of the alleged agreement to sell are not against the factual position, when particularly it has been alleged by the respondent that the actual and physical possession of the land in question was handed over to the respondent which is totally against the evidence of the case file ? 3. Whether there is not a total mis-appreciation of evidence by both the courts below ? RSA No.3863 of 2009 5 On the other hand, learned counsel for the respondent has supported the impugned judgment and decrees by submitting that appellant No.2 had become major before the stipulated date and before the filing of the suit which was being defended by her and she could have very well avoided the agreement by taking up such a defence. However, no such defence was taken by the aforesaid appellant and, therefore, no such argument could be raised before this Court as argued by the learned counsel for the appellant and the appeal is liable to be dismissed. I have heard the learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. There is no dispute with regard to the proposition of law canvassed by the learned counsel for the appellants. However, the aforesaid judgments are not applicable to the facts and circumstances of the present case,as no such defence has been taken by appellant No.2 in her written statement that the agreement to sell in question executed by appellant No.1 was void qua her rights and not enforceable against her. After attaining the age of majority, appellant No.2 has not challenged the competence of appellant No.1 to make agreement on her behalf as a minor. Even the judgment of the Hon'ble Supreme Court in Panni Lal's case (supra) will not be applicable as on the stipulated date of sale appellant No.2 was major and she could have very well avoided the same. However, no such defence has been taken by her. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. ( Rakesh Kumar Garg) Judge July 28, 2010 rk RSA No.3863 of 2009 6