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2012 DIGILAW 726 (PNJ)

Balwinder Singh v. Nasib Kaur

2012-05-17

L.N.MITTAL

body2012
JUDGMENT L.N. Mittal, J. Plaintiff Balwinder Singh who was successful in the trial court but has been non-suited by the lower appellate court has filed this second appeal. Defendant no. 3 Gurcharan Singh (since deceased and represented by legal representatives) was father of plaintiff appellant Balwinder Singh. Defendant no. 3 filed application on 28.7.1990 under section 8 of the Hindu Minority and Guardianship Act, 1956 (in short, the Act) for permission to sell 32 kanals 8 marlas land of the plaintiff who was then minor. Learned Guardian Judge vide order dated 19.3.1991 granted permission to defendant no. 3 to sell the said land subject to conditions mentioned in the order which are reproduced hereunder:- “i) that the proposed sale shall not be made at a price less than Rs 30,000/- per killa; ii) that the sale shall be made within 3 months from today; iii) the sale proceeds shall immediately be deposited in the name of Balwinder Singh minor in some scheduled bank in the fixed deposit for a period of 7 years and shall not be withdrawn except for prior permission of the Guardian Judge; and iv) the applicant shall furnish security in the sum of Rs 1,50,000/- undertaking to indemnify the minor for any loss occasioned to him.” Pursuant thereto, defendant no. 3 sold suit land measuring 31 kanals 18 marlas to defendants no. 1 and 2 vide sale deed dated 14.5.1991. Plaintiff in the suit has challenged the aforesaid sale deed dated 14.5.1991 as well as consequent mutation no. 2706 dated 15.6.1991 alleging that the sale was not for the benefit of the plaintiff and conditions of order dated 19.3.1991 of the Guardian Judge were not complied with because sale consideration was not deposited in bank in the name of the plaintiff. It was also alleged that defendant no. 3-father of the plaintiff was not his guardian because the plaintiff was living with his mother who was his guardian. Accordingly, the plaintiff sought possession of the suit land from defendants no. 1 and 2. Defendant no. 3 after initially appearing in person did not appear thereafter and was proceeded against exparte. Defendants no. 1 and 2 contested the suit and controverted all averments made by the plaintiff to challenge the impugned sale deed and mutation. Various other objections were also raised. Defendants no. 1 and 2. Defendant no. 3 after initially appearing in person did not appear thereafter and was proceeded against exparte. Defendants no. 1 and 2 contested the suit and controverted all averments made by the plaintiff to challenge the impugned sale deed and mutation. Various other objections were also raised. Defendants no. 1 and 2 also claimed to be bonafide purchasers of the suit land for valuable consideration. Learned Additional Civil Judge (Senior Division), Sardulgarh vide judgment and decree dated 30.4.2008 decreed the plaintiff's suit. However, first appeal preferred by defendants no. 1 and 2 has been allowed by learned Additional District Judge, Mansa vide judgment and decree dated 31.10.2008 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, the plaintiff has filed this second appeal. I have heard learned counsel for the parties and perused the case file. Counsel for the appellant reiterated that impugned sale was not for the benefit of the plaintiff and as per order of Guardian Judge, the sale consideration was not deposited in fixed deposit in bank in the name of the plaintiff nor any land was purchased in the name of the plaintiff and that defendant no. 3 was not guardian of the plaintiff. It was also argued that in another suit filed by one Labh Singh against plaintiff and others there was interim order dated 21.2.1989 against alienation of the suit land and thus impugned sale was in violation of the said interim order. It was also submitted that the impugned sale was effected without consideration. It was also canvassed that the suit is within limitation because title of the plaintiff to the suit land was restored vide decision dated 20.8.2002 passed by this Court in regular second appeal arising out of the suit filed by Labh Singh and also because the suit is based on title. Counsel for legal representatives of respondent no. 3 supported the contentions of learned counsel for the plaintiff-appellant. Counsel for respondents no. 1 and 2 contended that the impugned sale was effected for valuable consideration in compliance with the order of the Guardian Judge. There has not been any violation of conditions of the said order by defendants no. 1 and 2 who are thus bonafide purchasers of the suit land for valuable consideration. It was also argued that the plaintiff's mother is one of the attesting witnesses of the sale deed. There has not been any violation of conditions of the said order by defendants no. 1 and 2 who are thus bonafide purchasers of the suit land for valuable consideration. It was also argued that the plaintiff's mother is one of the attesting witnesses of the sale deed. It was also contended that the suit is barred by limitation having been filed beyond period of three years after attaining age of majority by the plaintiff. I have carefully considered the rival contentions. The question whether the proposed sale was for benefit of plaintiff who was then minor has been considered and adjudicated upon by the Guardian Judge in order dated 19.3.1991 and therefore, cannot be re-agitated. If the same question is allowed to be re-agitated, then order of the Guardian Judge would become redundant and in no case, permission granted by Guardian Judge would have any value or utility. Consequently, impugned sale cannot be said to be invalid on the ground that the sale was not for the benefit of the plaintiff, then a minor. As regards non-deposit of sale consideration in bank in the name of the plaintiff as stipulated in order of the Guardian Judge, defendant no. 3 furnished necessary surety bond as per order of the Guardian Judge and therefore, if the aforesaid condition of the order of the Guardian Judge regarding non-deposit of the sale consideration in bank in the name of the plaintiff was violated, the plaintiff could have his appropriate remedy against his father defendant no. 3 and not against defendants no. 1 and 2. The aforesaid condition has not been violated by defendants no. 1 and 2. The contention that defendant no. 3 as father of the plaintiff was not his guardian cannot be accepted because as per section 6 of the Act, father was natural guardian of the Hindu minor at the relevant time. Even otherwise, the plaintiff has alleged that his mother was his guardian. However, plaintiff's mother also attested the impugned sale deed. For this added reason also, the aforesaid contention cannot be accepted. As regards stay of alienation vide order dated 21.2.1989 in suit filed by Labh Singh and the contention that the sale was without consideration, these contentions are completely beyond pleadings of the plaintiff. No such plea was even taken in the plaint to challenge the impugned sale. Consequently, these contentions cannot be raised. As regards stay of alienation vide order dated 21.2.1989 in suit filed by Labh Singh and the contention that the sale was without consideration, these contentions are completely beyond pleadings of the plaintiff. No such plea was even taken in the plaint to challenge the impugned sale. Consequently, these contentions cannot be raised. Moreover, it cannot be said that the impugned sale was without consideration. There is admission by recital in the sale deed that sale consideration had been paid. The said admission was reiterated before the Sub Registrar at the time of registration of the sale deed. As regards stay of alienation of the said suit, ultimately the plaintiff was held to be owner of the suit land pursuant to compromise decree passed by this Court on 20.8.2002 in RSA No. 2579 of 1995 arising out of the suit filed by Labh Singh. Consequently, the said contention cannot be accepted for this reason as well. On the other hand, defendants no. 1 and 2 are bonafide purchasers of the suit land for valuable consideration. They purchased the suit land after confirming about permission granted to defendant no. 3 by the Guardian Judge to sell the suit land on behalf of the plaintiff who was then a minor. Thus, plaintiff has miserably failed to prove that the impugned sale is vitiated on any ground. In addition to the aforesaid, the suit is also barred by limitation. The date of birth of the plaintiff as per his own evidence is 25.3.1981. He filed the suit on 18.5.2005 i.e. when he was aged over 24 years. The suit could be filed within three years after attaining the age of majority i.e. 18 years. The suit is thus barred by limitation. The suit cannot be said to be within limitation by computing the limitation period from date of judgment of the aforesaid RSA No. 2579 of 1995 because no such plea was even raised in the plaint nor decision in the said RSA gave rise to cause of action for filing the present suit. Cause of action for filing the present suit arose when the impugned sale was made and plaintiff could challenge the same immediately after attaining the age of majority. On the basis of title also, the suit cannot be said to be within limitation because impugned sale deed dated 14.5.1991 is being challenged in the suit. Cause of action for filing the present suit arose when the impugned sale was made and plaintiff could challenge the same immediately after attaining the age of majority. On the basis of title also, the suit cannot be said to be within limitation because impugned sale deed dated 14.5.1991 is being challenged in the suit. The same could be challenged within three years and since the plaintiff was then minor, he could challenge it within three years on attaining the age of majority, but challenged it after more than six years after attaining the age of majority. So, the suit has been rightly held to be barred by limitation by the lower appellate court. For the reasons aforesaid, I find no merit in this second appeal. There is no infirmity much less illegality or perversity in the impugned judgment of the lower appellate court nor it is shown to be based on misreading or misappreciation of the evidence on record. No question of law much less substantial question of law arises for adjudication in this second appeal. The appeal is accordingly dismissed.