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2019 DIGILAW 546 (ALL)

Rajeev Alias Raju v. Ram Jeewan

2019-02-28

JASPREET SINGH

body2019
JUDGMENT : Jaspreet Singh, J. The Court has heard learned counsel for the appellants on admission. 2. The submissions of the learned counsel for the appellants is that both the courts below have committed an error in misinterpreting the provisions of Hindu Minority and Guardianship Act, 1956 inasmuch as a deed executed by a minor was not void and this aspect has not been considered by the two courts. It was also urged that the lower appellate Court has committed manifest error by not framing the points of determination while passing the judgment and as such the judgment rendered by the lower appellate Court was bad in the eyes of law. It was also urged that the suit for cancellation of the sale-deed, which was filed on behalf of the minor, through his next friend (Tau) ignoring that such a suit was not maintainable as the natural guardian of the minor was the mother and she was deliberately impleaded as a defendant in the suit, which has resulted in sheer miscarriage of justice. 3. In order to appreciate the submissions of the learned counsel for the appellants, certain facts may be noted in order to put the submission in a correct perspective. 4. A suit for cancellation of a sale-deed was filed by Ram Jeevan son of Pirthi through his next friend (Uncle) seeking cancellation of the sale-deed in respect of agricultural land total measuring 2.46 hectares bearing Plots No.65/1 and 215, situated in Village Karauta, Pargana Kundari, Tehsil Biswan, District Sitapur. The suit was filed on two grounds that the defendant No.2 in the suit namely Smt. Loharki was the mother of the plaintiff, who under undue influence of the defendant No.1 got executed a sale-deed in respect of the agricultural property without seeking permission of the Court as provided under Section 8 of the Hindu Minority and Guardianship Act and without paying any sale consideration. The defendant No.1, who is the appellant before this Court contested the suit and stated that the sale-deed in his favour was not void. He had got the same executed since the minor children were in a need of money and, therefore, their natural guardian namely Smt. Loharki had received full consideration and on account of genuine need of the minor the sale-deed was executed in his favour. He had got the same executed since the minor children were in a need of money and, therefore, their natural guardian namely Smt. Loharki had received full consideration and on account of genuine need of the minor the sale-deed was executed in his favour. He further stated that he had got his name duly mutated in the revenue records and is in possession of the same. He further took a defence that the suit was collusive since the suit for cancellation was filed by the minor through his next friend (Tau) whereas his natural guardian was his mother and apparently she was impleaded as defendant in the above suit, who did not appear to contest the suit. 5. On the pleadings of the parties, the trial court had framed five issues whereas the Issue No.1 was most relevant as to whether the plaintiff was entitled to get the sale-deed cancelled. 6. Upon leading the evidence, the trial court found that the sale-deed was without any consideration and that there was no permission taken from the Court of law for the execution of such sale-deed, consequently, it decreed the suit by means of the judgment and decree dated 04.03.2013. The defendant preferred a Regular Civil Appeal No.22/2013 before the A.D.J.-III, Sitapur, who also after hearing the parties, by means of its judgment dated 07.09.2018 dismissed the appeal and affirmed the judgment passed by the trial court. It is in this backdrop that the present second appeal has been filed. 7. So far as the first submission of the learned counsel for the appellants is concerned, it would indicate that in terms of Section 8(1) and (2) of the Hindu Minority and Guardianship Act, 1956, it is imperative to obtain a permission of the Court before transferring the property belonging to the minor. In the present case, the facts are not disputed that the property belonged to a minor and that no permission was obtained from any Court for such transfer. Thus, the submission to be considered is whether such a sale-deed at the behest of the minor can be cancelled or not. In the present case, the facts are not disputed that the property belonged to a minor and that no permission was obtained from any Court for such transfer. Thus, the submission to be considered is whether such a sale-deed at the behest of the minor can be cancelled or not. The trial court had specifically framed Issue No.1 in this regard and considering the evidence led before it, it held that since at the time of institution of the suit, the plaintiff was a minor but during the pendency of the proceedings once he had attained majority and he reiterated his stand calling in question the disputed sale-deed, thus, the question is no more confined to the fact whether the person, who executed a sale-deed at the time of minority was empowered to do so but the entire transaction is open before the Court to be considered on its merit whether the said transaction was bonafide or not. In the sale-deed in question, only a bald statement was mentioned that the claimant, who is the natural guardian of the minor, was in need of some funds for minor and, therefore, the sale-deed was being executed. However, there was no clear mention as to what was the urgent need or the financial distress which affected the person and property of the minor, who was around nine years of age, which compelled the sale of his property. The trial court has given a detailed findings considering the facts and circumstances and that the defendant had miserable failed to establish any bonafides regarding the purchase of the property nor could establish the exchange of any sale consideration. It is in view thereof that the suit came to be dismissed and the first appellate Court also considering the same has affirmed the findings. 8. Thus, this Court finds that the first submission raised by the learned counsel for the appellants pales into insignificance in light of the pronouncements given by the Hon'ble Apex Court in the case of Rangammal vs. Kuppuswami and others, reportred in (2011) 5 AWC Page 4692 (SC). 9. Now coming to the other submissions regarding non-framing of the points of determination, it has now been fairly settled that unless and until the non-framing of points of determination results in any consequential failure of justice, till then, mere non-framing of point of determination is not fatal. 9. Now coming to the other submissions regarding non-framing of the points of determination, it has now been fairly settled that unless and until the non-framing of points of determination results in any consequential failure of justice, till then, mere non-framing of point of determination is not fatal. In this regard in a decision of this Court reported in 2019 (1) ADJ 246 , Dalla vs. Nanhu, wherein it has been held as under:- "The spirit of the provision is to ensure that the appellate Court must record reasons for the decisions and is to focus attention of the Court to rival contentions of the parties which arise for determinations and also to offer the litigating parties an opportunity of knowing and understanding the grounds upon which the decision is founded in a view to enable them to know the basis of decision and if they think proper and so advised to avail the remedy of second appeal conferred by Section 100 CPC. Applying the ratio of the aforesaid judgments as mentioned above, if the judgment passed by the lower appellate court is perused, it indicates that the lower appellate Court has discussed the narration of facts of the case of the parties to the lis, the submission urged by the parties, the legal principles applicable and involved and has also given its finding in support of its conclusions". "In order to successfully canvass the point of noncompliance of Order XLI Rule 31 CPC, it is not mere non framing of points of determination alone, but consequent failure of justice must also be established occasioned to a party. 10. The purpose and object of incorporating Section 99 CPC is to prevent mischief, which may be caused by the reversal of the decree in a case of this kind. Thus, unless and until the non-compliance of Order XLI and Rule 31 CPC is of such a nature that it affects the merits of the case or the jurisdiction of the Court or the soul of the provision is robbed by not discussing the bare facts, issues arising therefrom, the rival points urged and recording of reasons upon which the judgment is based, till then minor infraction of the aforesaid provision will not give a latitude to a party to assail a judgment and seek its reversal only on this infraction under Section 100 CPC." 11. Thus in view of the above, this Court is not inclined to interfere with the concurrent findings of fact. Moreover, where the Court exercises power under Section 100 CPC, its jurisdiction is restricted in the sense that unless a substantial question of law is involved, it is not open for this Court to intervene. 12. In this case, there are concurrent findings on facts by both the courts below. The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse. 13. In a recent case of Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:- "...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law." 14. In another recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:- "...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal." 15. In one more recent case Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible. 16. In view of the above settled legal position as considered above, this Court is of the opinion that no substantial question of law arise and this appeal being misconceived is dismissed at the admission stage itself under Order XLI Rule 11 CPC. 17. There shall be no order as to costs.