Regular Second Appeal No. 2830 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2830 of 2010(O&M) Date of decision:16th February, 2011 Rameshwar Dass .......Appellant/Plaintiff Versus Smt. Sobha Sharma and another ........Respondents/Defendants BEFORE: HON'BLE MS. JUSTICE SABINA Present: Mr. Subhash Ahuja, Advocate for the appellant. SABINA, J The plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 14.03.1991. The case of the plaintiff in brief was that defendant No. 1 had entered into an agreement to sell with the plaintiff qua 20 Kanals of land in dispute on behalf of defendant No. 2 being her natural guardian. `25,000/- were paid towards earnest money at the time of execution of agreement to sell on 14.03.1991 out of the total sale consideration of `1,75,000/-. The sale deed was agreed to be executed within six months after obtaining permission from the competent court. Plaintiff served a notice on defendant no. 1 dated 11.02.1994 that he was ready and willing to perform his part of the contract but defendant no. 1 had failed to disclose as to whether she had obtained any permission from the competent court or not. In the Regular Second Appeal No. 2830 of 2010(O&M) 2 first week of May 1997 defendant No. 1 disclosed that althought she had been declared a guardian of defendant no. 2 but the property held by defendant no. 2 had been ordered to be controlled and managed by Tehsildar Thanesar. Plaintiff was assured that as and when defendant No. 2 would attain the age of majority, the sale deed shall be got executed in favour of the plaintiff. Defendant no. 2 attained the age of majority on 10.04.2000. However, the sale deed had not been executed in favour of the plaintiff. Defendant in their, written statement, denied the execution of agreement to sell in question. It was averred that the said alleged agreement was a result of fraud. Defendant no. 2 moved an application on 1.05.2000 in a suit, pending in the Civil Court at Kurukshetra titled as Rameshwar and others vs. Miss. Swati and others that she repudiated any act done by her mother on her behalf. On the pleadings of the parties, following issues were framed by the trial court:- “1. Whether the defendant No. 1 entered into an agreement on behalf of defendant No. 2 to sell in writing dated 14.03.1991 of the land mentioned in para no. 1 of the plaint and received a sum of Rs. 25,000/- as earnest money and agreed to get the sale deed duly executed after obtaining permission from the competent Guardian Court?OPP Regular Second Appeal No. 2830 of 2010(O&M) 3 2. Whether the plaintiff was always ready and willing to perform his part of the contract?OPP 3. Whether the plaintiff is entitled to a decree as prayed for?OPP 4. Whether the plaintiff has got no locus standi to file and maintain the present suit?OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD 6. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of the necessary parties?OPD 7. Whether no proper court fee has been affixed on the plaint?OPD 8. Whether the plaintiff has got no cause of action to file and maintain the present suit?OPD 9. Whether the suit is bad for mis-joinder of causes of action?OPD 10. Whether the suit is not maintainable? OPD 11. Whether the suit of the plaintiff is Regular Second Appeal No. 2830 of 2010(O&M) 4 barred U/o 2 Rule 2 CPC?OPD 12. Relief.” The trial court vide judgment and decree dated 19.09.2007 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree plaintiff preferred an appeal and the defendants filed cross objections qua findings on issue Nos. 4 to 11. Vide judgment and decree dated 9.12.2009, the Additional District Judge, Kurukshetra dismissed the appeal as well as the cross objections. Hence, the present appeal by the plaintiff. After hearing learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Plaintiff had filed the suit placing reliance on agreement to sell dated 14.03.2001. The attesting witnesses examined by the plaintiff in order to prove the execution of the sale deed, however, did not support the case of the plaintiff. The said witnesses Lal Singh and Deva Singh deposed that they had thumb marked the blank stamp papers. Ex:P-1 the alleged agreement to sell was not executed in their presence. In these circumstances, the courts below rightly held that the plaintiff had failed to prove the due execution of the agreement to sell. The sale deed Annexure A-1 place on record, executed by Swati in favour of Nishan Singh, Jaswant Singh, Radha Ram, Satnam Singh, Mahavir Singh sons of Shri Roor Singh son of Shri Sardha Ram and Arit Mandhan can not be taken in consideration, at this stage as Regular Second Appeal No. 2830 of 2010(O&M) 5 the same has been executed by defendant no. 2 in her own right on 17.12.2009. Moreover, the agreement to sell in question was based on an uncertain condition. The sale deed was liable to be executed as and when permission was granted to defendant No. 1 by the competent court and the said agreement was not enforceable as it was based on uncertain condition. Defendant No. 1 could not execute the agreement to sell in favour of the plaintiff on behalf of defendant no. 2, without obtaining permission from the Court in view of Section 8 of the Hindu Minority and Guardianship Act, 1956 which reads as under:- “8(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate, but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the Court. a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of Regular Second Appeal No. 2830 of 2010(O&M) 6 the immovable property of the minor, or b) lease any part of such property for a terms exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian in contravention of sub section 1 or sub section 2, is voidable at the instance of the minor or any person claiming under him..... -----x-------x------x ---------.” In view of the above provision, the agreement to sell in question could not have been executed by defendant no. 1 on behalf of defendant No. 2, as admittedly there was no permission obtained by defendant no. 1 before execution of the alleged agreement to sell. Thus, the agreement to sell could not be specifically enforced. In these circumstances, the courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, the same is dismissed. [SABINA] JUDGE 16th February, 2011 Shivani Kaushik