RSA No. 2274 of 2009 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2274 of 2009 Date of Decision: 3.7.2009 Udeypal and another ......Appellants Versus Subhash and another .......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: S.K. Garg Narwana, Advocate, for the appellants. HEMANT GUPTA, J. (Oral). Defendant Nos. 2 and 3 are in second appeal aggrieved against the judgment and decree passed by the Courts below, granting a decree of specific performance of the agreement of sale dated 31.1.2002. Defendant No.1 Aasa Ram, father of the present appellants as owner of the land, entered into aforesaid agreement to sell of the land measuring 21 kanals 8 marlas @ Rs.1,30,000/- per acre. An agreement was executed and the amount of Rs.2 lacs, as earnest money was received by the said defendant. The sale deed was to be executed on 1.5.2002. It is the case of the plaintiff that he appeared before the Registrar for execution of the sale deed on 1.5.2002, but the defendant did not appear before the Sub Registrar for the purpose of execution of sale deed. A legal notice was served upon defendants on 22.12.2003 requesting defendant No.1 to execute RSA No. 2274 of 2009 (2) the sale deed on 5.1.2004, but still the sale deed was not executed although the plaintiff went to the office of Sub Registrar along with sufficient money for payment of balance sale consideration and other expenses. Aasa Ram-defendant filed his written statement and asserted that he has borrowed a sum of Rs.45,000/- from the plaintiff, as his wife was seriously ill and was in the need of money for her treatment. He has given signed stamp paper to the plaintiff as security, but the plaintiff forged the agreement to sell on the said stamp paper. The wife of defendant No.1 died on 22.2.2002. He wanted to make the payment of Rs.45,000/- borrowed from the plaintiff along with interest, but the plaintiff refused to accept the same. It was asserted that the land in dispute was ancestral and that he transferred the same in favour of his sons i.e. the present appellants vide release deed dated 25.8.2003. In view of the stand of defendant No.1, the plaintiff amended his plaint by impleading the present appellants as defendant Nos. 2 and 3. A written statement was filed on behalf of defendant Nos. 2 and 3, through their father defendant No.1. The parties went to trial on various issues framed by the learned trial Court, but no issue to the effect `whether the land is a joint Hindu family property?' was framed. The learned trial Court on the basis of the evidence led by the plaintiff including that of the attesting witnesses PW2-Hari Singh and PW3-Inder Singh, returned a finding that defendant No.1 has in fact, executed agreement of sale in favour of the plaintiff and received Rs.2 lacs as earnest money. Defendant No.1 himself appeared as DW1 and examined DW2- Ram Pratap and DW3-Hans Raj. DW2-Ram Pratap has deposed that the suit land was inherited by defendant No.1 from his father RSA No. 2274 of 2009 (3) and it was ancestral property in the hands of defendant No.1. Hans Raj- DW3 was also examined, who corroborated the statement of the other witness. The learned trial Court decided issue No.1 in favour of the plaintiff by returning a finding that the agreement was executed and that the said agreement cannot be said to be without legal necessity. It was also held that release deed has been executed in favour of defendant Nos. 2 and 3, his sons, in order to defeat the rights of the plaintiff, without any consideration and that too after one year of the agreement in question. Thus, the suit was decreed holding that the release deed is null and void and is not binding on the rights of the plaintiff. All the defendants filed appeal against the said judgment and decree. The argument of the learned counsel for the appellants was that the plaintiff has taken unfair advantage, when the wife of the defendant was ill and the defendant was in dire need of money. It was also argued that the property was a joint Hindu family property as the defendant has inherited the same from his father. Therefore, defendant No.1 was not having any right to alienate the coparcenary property to the plaintiff. It was argued that the trial Court should have granted the decree for recovery of earnest money only. It was argued that there is delay on the part of the plaintiff to file the suit for specific performance as it was filed in the year 2004, i.e. after about two years of the execution of the agreement. The learned first Appellate Court found that the agreement Exhibit P.1 dated 31.1.2002 is proved to be executed on the basis of testimony of plaintiff appearing as PW1 and attesting witnesses PW2-Hari Singh and PW3-Inder Singh. The agreement was read over and explained RSA No. 2274 of 2009 (4) to the defendant and after admitting the same to be true, defendant No.1 appended his signatures thereon. On the basis of the testimony of the witnesses of the plaintiff, it was found that the amount of Rs.2 lacs as earnest money was paid to the defendant in the presence of the witnesses. The stand that defendant No.1 has borrowed Rs.45,000/- was found to be not tenable in the absence of any cogent evidence to this effect. It was also found by the learned first Appellate Court that from the oral testimony of defendant No.1, it cannot be said that the property in dispute was ancestral and joint Hindu family property of the defendants. It was also held that on the basis of the stand of defendant No.1 himself in respect of illness of his wife, it was held that the property was, agreed to be sold to the plaintiff for legal necessity. The appellants, in the present second appeal, has raised the following substantial questions of law:- “1. Whether the findings and conclusions of the Courts below, while decreeing the suit for possession of the land in question by way of specific performance, are based on conjectures and surmises, besides being perverse? 2. Whether the Courts below have misread and misconstrued the oral and documentary evidence led by the parties? 3. Whether the judgment and decrees passed by Courts below are null & void for reason that no guardian ad-litem was appointed by the court for the minor appellants? 4. Whether under the facts and circumstances of this case the guardian of minor appellants defended the minor appellants with gross negligence? 5. Whether the plaintiff should stand on his own RSA No. 2274 of 2009 (5) legs? 6. Whether the burden to plead and prove the legal necessity is on the plaintiff/respondent No.1? 7. Whether it was equitable on the part of the courts below in granting the relief of execution of the sale deed? 8. Whether the defendant No.1/respondent No.1 had right to enter into agreement to sell the land in dispute which is admittedly ancestral land, to the plaintiff/respondent No.1 without legal necessity or for the benefit of the estate? 9. Whether the Courts below have decreed the suit for possession without considering the provisions under Section 20 and 21 of the Specific Relief Act?” A perusal of the aforesaid substantial questions of law reproduced above, would show that the finding recorded by the learned trial Court that the release deed dated 25.8.2003 in favour of the present appellants, is not binding on the rights of the plaintiffs as the same has been executed without any consideration, has not been disputed, in any manner. Learned counsel for the appellants has raised two fold arguments in the present appeal. First, that defendant Nos. 2 and 3 were impleaded after filing of the suit, but no application under Order 32 Rule 3 CPC was filed for appointment of a Guardian, therefore, the decree for specific performance without appointment of a Guardian in terms of the amended provisions of Order 32 CPC, the decree is void. Reliance was placed upon a Division Bench Judgment of this Court in Gurpreet Singh v. Chatterbhuj Goel, AIR 1992 P&H 95. It was also argued that the property in the hands of defendant No.1 was a joint Hindu family property and, therefore, defendant No.1 RSA No. 2274 of 2009 (6) could not have sold the property without any legal necessity. The finding has been recorded on the basis of plea in the written statement, whereas the plea in the written statement has to be read as a whole and a part of the plea can not be used against defendant No.1. In respect of first argument, it may be noticed that the Division Bench of this Court has held that the provisions of Order 32 are mandatory and that if an application is filed under Order 32 CPC, it can be presumed that the minor has been sued through Guardian, but in the absence of even an application for appointment a Guardian, the decree passed would be void. There is no dispute with regard to the aforesaid proposition, but in the present case, the minors, defendant Nos. 2 and 3 were impleaded on the basis of averments of defendant No.1 that he has executed a release deed in favour of defendant Nos. 2 and 3 on 25.8.2003. The plaintiff has sought specific performance of agreement, which was executed by defendant No.1 alone. Defendant Nos. 2 and 3 are claiming interest in the property on the basis of release deed executed without any consideration and executed obviously to defeat the rights of the plaintiff in the aforesaid agreement. In the case referred to by learned counsel for the appellant, it was the minor defendant, who was the owner of the suit property, but was sued without seeking appointment of a Guardian. In the present case, the execution of the release deed is without consideration and after the agreement executed in favour of the plaintiff. Therefore, in the facts of the present case, the principle laid down in the aforesaid judgment cannot be made applicable. It is particularly so when the appellant has not sought any substantial question of law in respect of finding recorded by the trial court that such release deed is not binding on the rights of the plaintiff. RSA No. 2274 of 2009 (7) Learned counsel for the appellants has relied upon single Bench judgment of this Court in Jagjit Singh and others v. Mithoo Singh, 1998(2) PLR 661 and Atul Sharma and another v. Gurinder Singh and others, 1985 PLJ 143, to contend that it is open to the other co-parceners to resist the grant of decree of specific performance of the agreement in respect of the joint Hindu family property. The said argument is untenable. The minor coparceners cannot dispute the action of Karta before finalisation of the sale. A Division Bench of this Court in Aman Behal v. Smt. Aruna Kansal, 1986(1) PLR 608, has held that in a suit for specific performance, the Court is to decide whether the Karta has entered into an agreement of sale with the plaintiff and whether the sale could not be executed because of default on the part of defendant. It was held to the following effect:- “5..........In a suit for specific performance, the court has merely to decide as to whether the Karta had entered into an agreement of sale with the plaintiff and whether the sale deed could not be executed because of the default on the part of the defendant. These issues can be completely and effectively adjudicated upon without the presence of the co-parcener before the court. Nor, the presence of the co-parcener is necessary at the stage of the execution of the decree, because the decree, if obtained, by the plaintiff could be executed without the co-parcener being brought into picture at any stage, the possession being obtained by the plaintiff. On the decree being obtained by the plaintiff, the Karta also is competent to satisfy the decree in question by executing the requisite deed of transfer of the property in question.” RSA No. 2274 of 2009 (8) The aforesaid judgment has specifically overruled the judgment in Atul Sharma's case (supra) relied upon by the learned counsel for the appellant. The judgment in Jagjit Singh's case (supra), proceeds on different facts. That was a case, where Karta has died and the issue raised was whether the legal representatives should be called upon to file suit to challenge the alienation after the decree for specific performance is granted. This is apparent from the following observation:- “8. There is no dispute that was raised that in turn ordinarily under the Hindu Law right would only accrue to challenge the sale after the sale takes place. There is in cases where Karta effects the sale deed and the coparceners can challenge if it was not for legal necessity. What is the position herein? The alleged person who executed the agreement of sale had died. The petitioners are his legal representatives. It would look preposterous to say that in case the suit is decreed, they should execute the sale deed and subsequently again file a civil suit challenging the sale deed executed by them on the ground that it was not for legal necessity. Each case has to be examined in the light of the facts.” The powers of Karta were delineated by the Hon'ble Supreme Court in Sunil Kumar and another v. Ram Parkash and others AIR 1988 Supreme Court 576. The relevant extracts from the judgment read as under:- “21. In a Hindu family, the Karta or manager occupied a unique position. It is not as if anybody could become manager of a joint Hindu family. “As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property.” the manager occupies a position superior to other members. He has greater rights and RSA No. 2274 of 2009 (9) duties. He must look after the family interests. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them. xx xx xx 23. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect is that of the Privy Council in Hanuman Parshad v. Mt. Babooee, (1856) 6 Moo Ind. App 393. There it was observed at p. 423: (1) “ The power of the manager for an infant heir to charge an estate not his own is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate.” This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.” In Muraka Properties (P) Ltd. v. Beharilal Murarka, AIR 1978 SC 300, the Hon'ble Supreme Court recognised the power of the Manager of a Joint Hindu Family to alienate for value Joint Hindu Family Property so as to bind the interest of both adult and minor members of the RSA No. 2274 of 2009 (10) family, provided such alienation is made for the benefit of the estate. In view of the above, even if the property is assumed to be a joint Hindu family property, defendant No.1 was competent to enter into an agreement and defendant Nos. 2 and 3, his minor sons cannot dispute the specific performance of the agreement in the present suit for specific performance. The other argument is that the property was a joint Hindu family property in the hands of defendant No.1 and that the sale has been effected without any legal necessity. Apart from the fact that no specific issue was framed regarding the nature of the property, the defendants have not led sufficient evidence to return a finding that the property in the hands of defendant No.1, is a joint Hindu family property. To determine the nature of the property as joint Hindu family property or not, it needs to be examined whether defendant No.1 inherited the property after the commencement of Hindu Succession Act, 1956 or not and whether the property was inherited by all the legal heirs keeping in view the principle of survivorship in terms of Section 6 or inheritance as per Section 8 of the Act. There is no such evidence to this effect. Therefore, mere fact that defendant No.1 got inherited the property from his father, is not sufficient to return a finding that the same was joint Hindu family property. Both the Courts have recorded a finding of fact that there is no documentary evidence to show that the property was joint Hindu family property in the hands of defendant No.1. The learned first Appellate Court has also examined the issue whether the sale was for legal necessity. It has been found that defendant No.1 has pleaded in the written statement itself that he borrowed a sum of RSA No. 2274 of 2009 (11) Rs.45,000/- as his wife was ill. The argument raised by the learned counsel for the appellant is that admission is to be read as a whole. Both the Courts have relied upon the admission in the written statement to the effect that the wife of defendant No.1 was ill and he required money. Whether the requirement of money was Rs.45,000/- or Rs.2 lacs, but the fact remains that wife of defendant No.1 was ill and she required treatment. It has also come on record that she died in February, 2002. Therefore, there is no illegality or irregularity committed by the Courts below in returning a finding that the sale was for the legal necessity as well. Consequently, I do not find any patent illegality or material irregularity in the findings recorded or that the findings recorded gives rise to any substantial question of law in the present appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 3.7.2009 ds