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2012 DIGILAW 502 (PNJ)

Mohan Singh v. Bhupinder Singh

2012-03-27

TEJINDER SINGH DHINDSA

body2012
JUDGMENT Tejinder Singh Dhindsa, J. The plaintiffs/appellants are in second appeal before this Court having remained unsuccessful in both the Courts below. Briefly noticed, the plaintiffs filed a suit for possession as owner against defendants No.1 & 2 through specific performance of the agreement dated 22.03.1984 for land measuring 28 kanals as described in the head note of the plaint and in the alternative prayed for the relief of mandatory injunction directing defendants No. 3 to 11 to transfer equal area i.e. 28 kanals out of their land in favour of the plaintiffs. It was pleaded that the agreement to sell dated 22.03.1984, Ex.PW1/2 had been executed by Parkash Kaur-defendant No.3(mother of minors i.e. defendant Nos.1 & 2), Joginder Singh (Predecessor-in-interest of defendant No.3 to 10) and Jaswant Singh (defendant No.11) in favour of the plaintiff, Rachan Singh (since deceased) and Mal Singh (defendant No.12). It was pleaded that the sale consideration stipulated under PW1/2 was that the plaintiff-Rachan Singh and Mal Singh would bear the litigation expenses on behalf of minors (defendant Nos.1 & 2) and in consideration thereof, plaintiff-Rachan Singh would be entitled to 2/3rd and Mal Singh (defendant No.12) 1/3rd share in one half of the suit land and the remaining ½ share would be retained by the minor sons of Parkash Kaur i.e. defendant Nos.1 & 2. It was further pleaded that in terms of the agreement dated 22.03.1984 Ex.PW1/2, if the minors i.e. defendant Nos.1 & 2 do not comply with the agreement upon attaining majority then equal area can be taken from the land of Parkash Kaur (defendant No.3), Joginder Singh (Predecessor-in-interest of defendant Nos.3 to 10) and Jaswant Singh (defendant No.11). The trial Court dismissed the suit filed by the plaintiffs holding such an agreement i.e. Ex.PW1/2 as voidable and in holding that no permission had been sought by Parkash Kaur for entering into such an agreement on behalf of the minors and also on the ground that the consideration for such agreement had not been proved on record. Being aggrieved of the judgment and decree dated 04.12.2006 passed by the trial Court, the plaintiffs preferred a civil appeal and vide impugned judgment dated 30.04.2009, the Additional District Judge, Roopnagar has dismissed the appeal thereby affirming the judgment and decree passed by the trial Court. I have heard Mr. Ajit Malik, advocate for the appellants at length. Being aggrieved of the judgment and decree dated 04.12.2006 passed by the trial Court, the plaintiffs preferred a civil appeal and vide impugned judgment dated 30.04.2009, the Additional District Judge, Roopnagar has dismissed the appeal thereby affirming the judgment and decree passed by the trial Court. I have heard Mr. Ajit Malik, advocate for the appellants at length. Learned counsel appearing for the appellants has vehemently argued that the findings of the Courts below as regards the sale agreement dated 22.03.1984 in holding the same to be not for the benefit of minors, are perverse. Learned counsel would further contend that the view taken by the lower appellate Court in holding that no agreement of sale on behalf of minors could be entered into by their guardian without permission of the Court in the light of Section 8 sub clause 2 of the Hindu Minority and Guardianship Act, 1956 (hereinafter to be referred as the 'Act') is erroneous. Learned counsel would contend that Section 8 sub Clause 2 of the Act would come into operation only in a situation when the guardian is executing a sale, gift, exchange and mortgage in relation to the minor's property and as such a mere agreement of sale does not come within the purview of Section 8 sub Clause 2 of the Act. I have given my thoughtful consideration to the submissions advanced by the learned counsel. I find that the present second appeal must fail being devoid of any merit of the reasons recorded hereinafter. Both the Courts below have upon due appreciation of evidence and by way of cogent and valid reasoning concluded that the plaintiffs had failed to prove on record any legal necessity for the benefit of minors i.e. defendant Nos.1 & 2 for which the agreement to sell dated 22.03.1984, Ex.PW1/2 had been entered into. It has been held that such agreement to sell was without any consideration. No documentary evidence had been adduced on record, which would demonstrate that plaintiff-Rachan Singh had ever spent any money on the litigation expenses. On the contrary, the admitted position of fact between the parties was that Atma Ram, Predecessor-in-interest of the minors was very much alive even till the last stage of litigation being pursued before the Hon'ble Supreme Court. No documentary evidence had been adduced on record, which would demonstrate that plaintiff-Rachan Singh had ever spent any money on the litigation expenses. On the contrary, the admitted position of fact between the parties was that Atma Ram, Predecessor-in-interest of the minors was very much alive even till the last stage of litigation being pursued before the Hon'ble Supreme Court. Plaintiff-Rachan Singh himself admitted in his cross-examination that it was Atma Ram, who had filed the appeal in the Apex Court and had even paid the counsel fee. Rachan Singh-plaintiff himself admitted that he had not got any record as regards the expenditure alleged to have been incurred on the litigation on behalf of the minors. As such a concurrent finding stands recorded that such agreement was not for any legal necessity or benefit of the minors and the same was also without consideration. Such finding do not warrant any interference in second appeal. Learned counsel failed to demonstrate any mis-reading or mis-appreciation of evidence in regard to such concurrent finding. Section 8 of the Hindu Minority and Guardianship Act, 1956 reads in the following terms: “8 Powers of natural guardian: (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 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. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section(2), is viodable at the instance of the minor or any person claiming under him. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof; (b) the court shall observe the procedure and have the powers specified in sub-sections (2),(3) and (4) of section 31 of that Act; and (c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court. (6)In this section, "court" means the City Civil Court or a District Court or a court empowered under section 4A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.” Even though, the argument raised by learned counsel for the appellants to the effect that Section 8 Sub Clause 2 would come into operation only when a guardian is executing a sale, gift/mortgage in relation to minor's estate without previous permission of the Court and would not cover agreement a mere sale agreement appears attractive at first blush but the same is without merit. A statutory protection has been afforded under Section 8 in favour of a minor whereby, the guardian is prevented from selling, gifting, exchanging any part of the immovable property of a minor without seeking the previous permission of the Court. Clearly, a decree towards performance of an act which would necessarily entail a sale of minor's estate at the hands of the guardian would infact defeat the very objective for which such statutory provision was enacted. Clearly, a decree towards performance of an act which would necessarily entail a sale of minor's estate at the hands of the guardian would infact defeat the very objective for which such statutory provision was enacted. The argument raised by learned counsel to such effect is accordingly rejected. I also do not find any merit that the contention raised by the learned counsel for the alternate relief of mandatory injunction directing defendant Nos.3 to 10 to execute a ale deed with regard to their property should not have been declined by the Courts below. The agreement to sell, Ex.PW1/2 was totally vague and totally bereft of any details as regards the property owned by defendant Nos.3 to 10 are concerned. The Courts below have rightfully declined even the alternate relief of mandatory injunction to the plaintiffs/appellants as the agreement dated 22.03.1984, Ex.PW1/2 has itself been held to be invalid and totally lacking in consideration. For the reasons recorded above, I find that the present second appeal must fail as it does not raise any question of law much less substantial question of law. The appeal is accordingly, dismissed.