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2003 DIGILAW 735 (PNJ)

Lakhwinder Singh v. Paramjit Kaur

2003-05-19

M.M.KUMAR

body2003
Judgment 1. This is defendants appeal filed under Sec. 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the sale deed dated 9-9-1991 executed in favour of the defendant-appellant on the basis of power of attorney dated 29-8-1991 is not binding on the plaintiff-respondent No. 1 because her date of birth is 26-2-1975 and she attained majority on 26-2-1993. Plaintiff-respondent No. 1 was minor at the time of execution of the power of attorney dated 29-8-1991 and therefore it was void. 2. Plaintiff-respondent No. 1 filed a Civil Suit No. 31 on 26-11-1994 seeking declaration to the effect that she is owner in joint possession with defendant-respondent Nos. 2 to 12 of the suit land and the sale deed dated 9-9-1991 in respect of land measuring 1 kanal 6.1/2 marlas belonging to her share executed by one Smt. Rattan Kaur (now represented by defendant-respondent Nos. 2 to 6) is null and void and does not bind her. She further alleged that Avtar Singh her father died about 8-10 years preceding the filing the suit which was filed on 26-11-1994 and after his death she inherited the property along with other legal representatives. Even mutation was duly sanctioned. Plaintiff-respondent No. 1 further alleged that she attained the age of majority on 26-2-1993 as she was born on 26-2-1975. It was alleged that she was minor when the sale deed dated 9 9-1991 was executed by Rattan Kaur on the basis of her alleged general power of attorney dated 29-8-1991. Therefore, it has been claimed that sale deed and mutation effected on that basis in favour of defendant-appellant have no binding effect on her rights because Rattan Kaur was fully aware that plaintiff-respondent No. 1 was minor at that time. 3. Defendant-appellant took the stand that plaintiff-respondent No. 1 was estopped from filing the suit by her act and conduct as she held out to the defendant-appellant that she was major and fully competent to execute the power of attorney in favour of her mother Rattan Kaur. On the basis of the representation made and believing her representation regarding her age as correct power of attorney was got executed on 29-8-1991 and on that basis sale deed was executed by Rattan Kaur in favour of defendant-appellant on 9-9-1991. On the basis of the representation made and believing her representation regarding her age as correct power of attorney was got executed on 29-8-1991 and on that basis sale deed was executed by Rattan Kaur in favour of defendant-appellant on 9-9-1991. Further objection has been raised with regard to the period of limitation and it is alleged that the suit is time barred. The date of birth as alleged by the plaintiff-respondent to be 26-2-1975 has also been disputed and it is claimed that the defendant-appellant was a bona fide purchaser. 4. On the vital issue as to whether the plaintiff-respondent No. 1 was qualified to execute the power of attorney on 29-8-1991 and therefore the sale deed was valid, both the Courts below recorded findings of facts that the date of birth of the plaintiff-respondent No. 1 is 26-2-1975 and as such she was not competent to execute any power of attorney in favour of her mother Rattan Kaur authorising her to alienate her share in the property. Therefore, it was held that the sale deed dated 9-9-1991 is void ab initio and cannot confer any right on the defendant-appellant. 5. Shri P. K. Gupta, learned counsel for the defendant-appellant has argued that under Sec. 35 of the Indian Evidence Act. 1872 three conditions are required to be fulfilled before the document is admitted in evidence. Firstly, the document must be shown to be a public document or any other official book, register or record: secondly, it must be an entry in that document stating the fact in issue or relevant fact and thirdly, the entry must be made in such a document by a public servant in the discharge of his official duty or by any other person in the performance of his duty especially enjoined upon him by law. In support of his submission, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of Ram Murti V/s. State of Haryana, AIR 1970 SC 1029 and Birad Mal Singhvi V/s. Anand Purohit, AIR 1988 SC 1796. The learned counsel has further pointed out that the marked document cannot be relied upon because in this case the school record showing the entry of date of birth is a marked document and has not been proved to be exhibited. The learned counsel has further pointed out that the marked document cannot be relied upon because in this case the school record showing the entry of date of birth is a marked document and has not been proved to be exhibited. Learned counsel has further argued that no school admission form has been produced on the record and therefore, the same cannot be read into evidence which would materially effect the findings. For the aforementioned proposition, the learned counsel has placed reliance on Harbans Lal V/s. Bhim Sain etc., 1977 Cur LJ 259 (Punj & Har); M/s. Kulu Transport Co-operative Society Ltd. Kulu v. M/s. Arora Traders Gurdaspur Road, Pathankot, 1978 Cur LJ 386 {Punj & Har) and a judgment of the Andhra Pradesh High Court in the case of Punyamanthuda Satyanarayana V/s. Punyamanthula Lakshmanaswamy, 1997 (Suppl.) Cur CC 169. The learned counsel has still further submitted that non-appreciation of evidence or rejecting the same would constitute a question of law as has been held by the Supreme Court in the case of Rajappa Hanamantha Ranoji V/s. Mahadev Channabasappa, (2000) 6 SCC 120 : (AIR 2000 SC 2108). 6. I have thoughtfully considered the submissions made by the learned counsel and do not feel persuaded to take a view different than the one taken by the Courts below because it has been concurrently found that the age of the plaintiff-respondent on 29-8-1991 when the power of attorney was executed was less than 18 years. Once it has been established as a fact then under .Sections 2, 10 and 11 of the Indian Contract Act, 1872 , plaintiff-respondent No. 1 would not be a person competent in law to contract. According to the provisions of the Indian Majority Act 1875 every minor before joining the age of 18 years has to be looked after by his guardian and even if such a minor has the property the supervision of the property must be assumed by any Court of Wards before the minor attained the age of 21 years. It is only on completion of 18 years of age and not before that mior acquires competence to enter into a contract. It is only on completion of 18 years of age and not before that mior acquires competence to enter into a contract. In the leading judgment of Mahoribibi v. Dharmodas Ghose, (1903) 30 Indian Appeals 114, the Judicial Committee of the Privy Council speaking through Sir Lord North observed as under : "Looking at Sec. 11 their Lordships are satisfied that the Act makes it essential that all contracting parties should be competent to contract and expressly provides that a person who by reason of infancyis incompetent to contract cannot make a contract within the meaning of the Act. The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act, and cannot arise in the case of an infant." The above enunciation of law shows that a contract entered into by the minor would be void ab initio as has been held by the judgment of the Lahore High Court in the case of Khan Gul V/s. Lakha Singh, AIR 1928 Lahore 609 (FB). Referring to the views of Lord Summer in Leslie (R) Ltd. v: Sheill, (1914) 3 KB 607, Sir Shadilal, the Chief Justice also rejected the contention for restitution of the benefits received. The view of the learned Chief Justice reads as under:- ".............There is no real difference between restoring the property and refunding the money, except that the property can be identified but cash cannot be traced......It must be remembered that, while in India all contracts made by infants are void, there is no such general rule in England. There should therefore be a greater scope in India than in England for the application of the equitable doctrine of restitution." 7. It is further appropriate to mention that under the Guardians and Wards Act, 1890 before selling the share of the minor permission from the District Judge was required to be obtained by the mother of the plaintiff-respondent No. 1 and under Sec. 43 of the Transfer of Property Act, 1882 (for brevity the 1882 Act) the defendant-appellant was required to make all necessary enquiries especially when he was aware that the property does not belong to the transferor i.e. mother of plaintiff-respondent No. 1. In somewhat similar circumstances, the Supreme Court has decided the case titled as Kartar Singh V/s. Harbans Kaur (1994) 4 SCC 730. In somewhat similar circumstances, the Supreme Court has decided the case titled as Kartar Singh V/s. Harbans Kaur (1994) 4 SCC 730. For the views taken by the Supreme Court it relied upon an earlier judgment in the case of Jumna Masjid Mercara V/s. Kodlmaniandra Devlah, AIR 1962 SC 847. In Kartar Singhs case (supra) the contention that the transferee is a bona fide purchaser was rejected because such an argument would not be available. It would be apposite to refer to the views of their Lordships which are as under : "It is settled law that the transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor. On satisfying those requirements, he is to enter into and have the sale deed from the guardian or manager of the estate of the minor. Under the Guardians and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the District Court. Admittedly, no such permission was obtained. Therefore, the sale of the half share of the interest of Kulwant Singh made by his mother is void. Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the transferor does not possess the title which he represents that he has. When note in the sale deed had put the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor. For the purpose of Sec. 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is non est to the extent of the share of the minor from its inception. For the purpose of Sec. 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is non est to the extent of the share of the minor from its inception. The second limb of Sec. 43 is that the contract must be a subsisting one at the time of the claim. A void contract in the eyes of law and was never in existence so the second limb of Sec. 43 is not satisfied." 8. The instant case would also be governed by the aforementioned principles and, therefore, no interference is called for because when the power of attorney was executed on 29-8-1991 and sale deed executed on 9-9-1991, the plaintiff-respondent No. 1 was minor. Therefore, no valid title could be transferred within the meaning of Sections 5 and 7 of the 1882 Act. The appeal is thus without any merit. 9. The argument that no value could be attached to the record maintained by the Government High School, Nasrala as produced by PW. 1 Jatinder Kumar would not require any detailed consideration merely because the certificate is a marked document. Even in the absence of certificate, the statement made by Jatinder Kumar wherein he categorically stated that the date of birth of plaintiff-respondent is 26-2-1975, he produced the original record pertaining to the school leaving certificate and the admission register. The name of the plaintiff had been recorded at S. No. 6382 in the school register. Therefore, I am not impressed with the aforementioned argument raised by the learned counsel. The judgments in the cases of Harbans Lal and Kulu Transport (1977 Cur LJ 259) (supra) would not help the defendant-appellant. 10. The other judgment of the Supreme Court in Rajappa Hanamantha Ranojis case (AIR 2000 SC 2108) (supra) relied upon by the learned counsel would also not come to his rescue because the Courts below have not recorded findings without evidence. Sufficiency or insufficiency of evidence cannot be gone into for overturning the findings of facts. It is only in cases where there is no evidence that a finding of fact can be held to be in air and the same could be set aside. However, in the instant case, there is ample evidence to sustain the findings. Therefore. there is no merit in this contention of the learned counsel. It is only in cases where there is no evidence that a finding of fact can be held to be in air and the same could be set aside. However, in the instant case, there is ample evidence to sustain the findings. Therefore. there is no merit in this contention of the learned counsel. No substantive question of law has been raised in this appeal which may warrant admission. 11. For the reasons mentioned above, this appeal falls and the same is dismissed. Appeal dismissed.