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2001 DIGILAW 835 (PNJ)

Sarup Chand v. Surjit Kaur

2001-08-10

M.M.KUMAR

body2001
Judgment 1. This regular second appeal of the plaintiff-appellant (for brevity, the plaintiff) is directed against the judgment of learned District Judge, Faridkot dated 24-5-1980 whereby the suit of the plaintiff has been partially decreed who has further appealed to this Court for specific performance of the whole 1/6th share of the entire land comprised 60 kanals, 18 marlas. The defendants-respondent (for brevity, the defendants) have also challenged the judgment and decree by filing cross-objections under Order 41, Rule 22 of the Code of Civil Procedure (for brevity, the Code). 2. The case set up by the plaintiff is that defendant Surjit Kaur along with her four children inherited 1/6th share in the agricultural land measuring 60 kanals, 18 marlas situated in village Bharu. Tehsil Muktsar after the death of her husband Bakhtawar Singh. On 6-5-1975 an agreement to sell ws executed between defendant Surjit Kaur and plaintiff Sarup Chand whereby she agreed to sell her landed property @ Rs. 9700.00 per killa. She also received Rs. 2,000.00 as earnest money. It was also agreed between defendant Surjit Kaur and plaintiff Sarup Chand that the sale deed would be executed on or before 8-12-1975. A suit for specific performance was filed by the plaintiff asserting that he was always ready and willing to perform his part of the contract but defendant Surjit Kaur did not perform her part of the contract. In pursuance to the clause in the agreement, it was further claimed that in the alternative double the amount of the earnest money may be paid by the defendants. 3. Defendant Surjit Kaur contested the suit and filed a joint written statement on behalf of her minor children as well. Firstly, she denied the execution of the agreement and asserted that the plaintiff had never been willing and ready to perform the contract. It was further claimed that she was not competent to enter into any agreement to sell on behalf of the minors and she was victim of fraud and coercion inasmuch as she was pressurised to move an application in the Guardian Court seeking permission to sell the shares of the minors and the minors are not bound in any case. 4. 4. The trial Court after detailed examination of the pleadings and the evidence on record reached the conclusion on the vital issue that Surjit Kaur had agreed to sell only her own share in the suit property. By no stretch of imagination, it could be concluded that the agreement to sell was on behalf of her minor children. It is pertinent to mention here that the Guardian Court had issued a certificate on the application of defendant Surjit Kaur on 14-10-1977. This would further strengthen the findings given by the trial Court that defendant Surjit Kaur could not have entered into an agreement to sell land belonging to the shares of her minor children. Moreover, agreement to sell Ex. P-1 does not make a reference to the share of minor children or that the agreement was being entered into on behalf of the minors who have also been impleaded as defendants. 5. The trial Court having come to the conclusion that defendant Surjit Kaur had entered into an agreement on her own behalf alone, did not pass any decree directing her to perform her part of the contract to the extent of her own share. It proceeded to dismiss the suit. 6. On appeal of the plaintiff, the first appellate Court affirmed the findings with regard to the fact that Surjit Kaur had entered into an agreement to sell only on her own behalf and that the agreement to sell was not on behalf of the minor children namely defendants Iqbal Singh and Jagtar Singh sons, Bholo and Virpal daughters. In view of the firm findings reiterated by the First Appellate Court, the appeal of the plaintiff was partially allowed and the First Appellate Court directed specific performance of the agreement to the extent of the share held by defendant Surjit Kaur excluding the shares held by the minor children. The plaintiff has approached this Court in this regular second appeal claiming that he is entitled to specific performance of the contract in respect of the shares of the minors in the agricultural land was well. Defendant Surjit Kaur has filed cross-objections under Order 41, Rule 22 of the Code seeking restoration of the judgment passed by the trial Court and dismissal of the entire suit of the plaintiff. 7. I have heard Ms. Defendant Surjit Kaur has filed cross-objections under Order 41, Rule 22 of the Code seeking restoration of the judgment passed by the trial Court and dismissal of the entire suit of the plaintiff. 7. I have heard Ms. Harsh Rekha, Advocate for the plaintiff and Shri R. K. S. Brar, Advocate for defendants (respondent Nos. 2 to 5). None has put in appearance on behalf of defendant Surjit Kaur. 8. At the outset, it may be mentioned that learned counsel for the plaintiff was unable to formulate any substantive question of law as is required by Sec. 100 of the Code. In a catena of judgments, their Lordships of the Supreme Court has now ruled that regular second appeal cannot be entertained without first formulating a substantive question of law. It has also been held repeatedly by the Supreme Court that concurrent findings of fact cannot be gone into by the High Court by reappreciating or by reappraising the evidence. In this regard reference may be made to the decision in the case of Kondiba Dagadu Kadam V/s. Savitribai Sopan Gujar (1999) 3 SCC 722 Their Lordships of the Supreme Court in paragraphs 3 and 4 observed as under :- "3. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the Court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. 4. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. 4. It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeal without adhering to the procedure prescribed under S. 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right. It has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts, howsoever, erroneous cannot be disturbed by the High Court in exercise of the powers under this section." 9. The substantial question of law is absolutely different than a substantial question of fact. This distinction was pointed by their Lordships of the Supreme Court in Sir Chunilal V. Mehta and Sons Ltd. V/s. Century Spg. and Mfg. Co. The substantial question of law is absolutely different than a substantial question of fact. This distinction was pointed by their Lordships of the Supreme Court in Sir Chunilal V. Mehta and Sons Ltd. V/s. Century Spg. and Mfg. Co. Ltd., AIR 1962 SC 1314 which reads as under (para 6) :- "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 10. Similar principles have been laid down by their Lordships in Vidhyadhar V/s. Manikrao (1999) 3 SCC 573 , Taherakhatoon (D) by L.Rs. V/s. Salambin Mohammad, (1999) 2 SCC 635 and the latest judgment on the subject is Kulwant Kaur V/s. Gurdilal Singh Mann (dead) by L.Rs. (2001) 4 SCC 262 wherein their Lordships of the Supreme Court declared S. 41 of the Punjab Courts Act, 1930 as ultra vires of S. 100 of the Code because S. 41 of the Punjab Courts Act, 1930 permitted the High Court to interfere in the findings of fact. 11. In this background, learned counsel for the plaintiff was not able to formulate any substantive question of law and as a matter of fact, none arises for determination. The factual position cannot undergo any change as defendant Surjit Kaur has executed an agreement to sell on 6-5-1975 and there was no reference to the share of the minors. In any case, it could not have been mentioned as there was no permission taken from the Guardian Gourt, to sell the share of the minors. The certificate by the Guardian Court was issued only on 14-10-1977. Hence, both the Courts reached the conclusion that the agreement to sell dated 6-5-1975 Ex. In any case, it could not have been mentioned as there was no permission taken from the Guardian Gourt, to sell the share of the minors. The certificate by the Guardian Court was issued only on 14-10-1977. Hence, both the Courts reached the conclusion that the agreement to sell dated 6-5-1975 Ex. P-1 could not be construed to have been made on behalf of the minor children and it was rightly interpretted that it is in respect of the share of defendant Surjit Kaur alone. 12. Learned counsel for the plaintiff has argued that under S. 8 of the Hindu Minority and Guardianship Act, 1956 (for brevity, 1956 Act) read with S. 54 of the Transfer of Property Act, 1882, the bar created on the power of the natural guardian to bind the minor in respect of the share of the minor in immovable property is not attracted. According to learned counsel, the agreement to sell is neither a mortgage nor a charge or a transfer by sale, gift or exchange as postulated by S. 8 of the 1956 Act. Therefore, it is claimed that the agreement to sell binds the minor as well even in the absence of certificate issued by the Guardian Court on 14-10-1977. The provisions of Ss. 8(1) and (2) of 1956 Act read 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 realisation, protection or benefit of the minors 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 the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority." 13. On the other hand, Shri R. K. S. Brar learned counsel appearing for the minor defendants submitted that in the agreement to sell, no reference to the share of the property of the minors has been made, therefore, the agreement to sell executed by defendant Surjit Kaur would not bind the minors. On the other hand, Shri R. K. S. Brar learned counsel appearing for the minor defendants submitted that in the agreement to sell, no reference to the share of the property of the minors has been made, therefore, the agreement to sell executed by defendant Surjit Kaur would not bind the minors. 14. I have thoughtfully considered the submissions of the learned counsel and find myself unable to agree with her. Both the Courts below have given concurrent findings that no agreement to sell was entered into on behalf of the minor children. There was no certificate issued by the Guardian Court on the date of the agreement i.e. 6-5-1975. The certificate was issued only on 14-10-1977. Hence, it does not fulfil the basic ingredient of S. 8(2) of the 1956 Act wherein it is provided that the natural guardian is forbidden by law not to create any charge on the immovable property belonging to minor. Moreover, this submission of the learned counsel is based on the assumption that the charge was created or could have been created on the share of the land belonging to the minor. This assumption is absolutely unwarranted in view of the categorical finding of both the Courts below that it was defendant Surjit Kaur alone who had agreed to sell her share of the land only inherited by her and not that of the minors. The Supreme Court in a recent judgment in the case of Ragavendra Kumar V/s. Firm Prem Krishan and Company (2000) 1 SCC 679 had considered this question and concluded that formulation of substantive question of law cannot be on incorrect assumption in respect of findings recorded by the Courts below. There a question was framed by the learned single Judge of the High Court on the assumption that the plaintiff-landlord had admitted the fact that there were number of plots, shops and houses in his possession whereas no such admission had been made. There a question was framed by the learned single Judge of the High Court on the assumption that the plaintiff-landlord had admitted the fact that there were number of plots, shops and houses in his possession whereas no such admission had been made. However, the learned single Judge of the High Court proceeded to frame the following question which the Supreme Court rejected (para 4 of AIR) :- "Whether in view of the fact that respondent admitted that there are number of plots, houses and shops in his possession, the lower appellate Court could not have decreed the suit of the respondent under S. 12(1)(f) of the M.P. Accommodation Control Act, 1961........" In view of the clear enunciation of law by their Lordships of the Supreme Court, I do not find any merit in the contention raised by the learned counsel for the plaintiff. 15 No one has put in appearance on behalf of defendant Surjit Kaur. However, I have considered the cross-objections filed by her wherein she has raised the objection that the plaintiff was not ready and willing to perform his part of the contract or that she committed any default. She has also claimed that no decree for specific performance in respect of part of the land could be granted as it is not proved that the plaintiff was always ready and willing to perform his part of the contract. Therefore, the relief which could be granted to the plaintiff is to pay the double amount of the earnest money. All these pleas are based on question of facts and cannot be gone into in the regular second appeal. There is no issue claimed and no argument advanced on this question. Therefore, the cross-objections lack substance and the same are also rejected. 16. For the reasons recorded above, I dismiss the appeal as well as the cross-objections. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs. Order accordingly.