Punjab-Haryana High Court
Ram Chander (Minor) Son Of Nanak Chand vs Sher Singh And Ors. on 18 February, 1997
Equivalent citations: (1997)117PLR140
Author: B. Rai
Bench: B. Rai
JUDGMENT B. Rai, J.
1. This Regular Second Appeal has been filed by defendant No.2 against the judgment and decree, dated September 27, 1979 of the Court of Additional District Judge, Gurgaon, whereby findings recorded by the trial Court dismissing the suit of the appellant were affirmed and the appeal was dismissed.
2. Brief facts of the case are that Kishan Lal defendant-respondent was the owner of agricultural land measuring 24 Kanals as per Jamabandi for the year 1971-72 fully described in Para 1 of the plaint situated in Village Dhani Mehchana, Tehsil and District Gurgaon. Kishan Lal executed an agreement for sale dated February 11, 1975 in favour of the Sher Singh etc. plaintiffs for a consideration of Rs. 34,000/- and received a sum of Rs. 11,000/- as part payment from the plaintiffs. He also executed a receipt on the same day, i.e., February 11, 1975 in token of having received the part payment. The sale deed was to be executed on May 3, 1975. The plaintiffs pleaded that they were ready and willing to perform their part of the contract, but Kishan Lal defendant No.1 illegally and without the consent of the plaintiffs executed sale deed, dated February 28, 1975 in favour of Ram Chander minor son of Nanak Chand for an ostensible consideration of Rs. 35,000/-. The plaintiffs gave a notice on February 17, 1975 to Kishan Lal not to sell the land. That notice was duly served upon him on February 19, 1975. On February 17, 1975 a notice was also given to Ram Chander through his father informing him about the execution of sale deed in favour of the plaintiffs. That was received by defendant NO.2 through his father on February 19, 1975. The plaintiffs pleaded that they were ready and willing to perform their part of the contract and were still ready and willing to do so and defendant No.2 had the notice and knowledge of the agreement in favour of the plaintiffs. As such, transfer of the land in favour of Ram Chande - defendant No. 2 is wrong, illegal and inoperative against the rights of the plaintiffs. On these allegations, the plaintiffs prayed that a decree for specific performance of the contract be passed against the defendants and in favour of the plaintiffs. They also made an alternative prayer that the earnest money advanced to Kishan Lal and damages amounting to Rs. 9,000/- be granted to them. The defendants refused to admit their claim which led them to file the suit.
3. The suit was contested by both the defendants. Kishan Lal took a preliminary objection that the plaintiffs had no locus standi to file the present suit. On merits, it was pleaded that he neither executed any agreement to sell in respect of the property in dispute in favour of the plaintiffs, nor did he receive the alleged amount of Rs. 11,000/- as advance. He denied that he ever agreed to execute the sale deed in favour of the plaintiffs. It was pleaded by him that the land in dispute was mortgaged with possession with Nanak Chand father and guardian of Ram Chander minor, defendant No. 2, for a sum of Rs. 8,000/- and the land in dispute was sold to Ram Chander against an ostensible consideration of Rs. 35,000/-, out of which a sum of Rs. 24,000/- was received before the Sub Registrar and the remaining amount was adjusted towards the payment of mortgage amount and the amount of loan taken against a pronote. He also denied having received any notice. According to him, he had no knowledge about the execution of any agreement to sell. He denied all other allegations.
4. Ram Chander defendant No.2 minor son of Nanak Chand filed a separate written statement. He took up the plea that Kishan Lal never entered into any agreement to sell the disputed property in favour of the plaintiffs and that he did not receive any earnest money amounting to Rs.11,000/-. He pleaded that the alleged agreement to sell is a fictitious and bogus document. It is also his case that the land in suit was purchased for a consideration of Rs. 35,000/- out of which a sum of Rs.8,000/- was adjusted against two mortgages and a sum of Rs. 6,000/- against the loan advanced to Kishan Lal against a pronote. He denied that the plaintiffs were entitled to any relief of specific performance or to get any damages for non-registration of the sale deed in their favour. According to him, the plaintiffs are not entitled to the relief of specific performance because he is a transferee for value in good faith and without notice of any agreement to sell. All other allegations were denied by him.
5. Replication was filed controverting the pleas taken in the written statement and reiterating the same mentioned in the plaint.
6. The pleadings of the parties gave rise to the following Issues;
1) Whether the defendant No.1 executed the agreement as alleged ? OPP
2) Whether the plaintiffs paid an amount of Rs. 11000/- to the defendant No.1 as alleged in para No.2 of the plaint ? OPP
3) If the above two issues are proved whether the plaintiffs have been ready and willing to perform their part of the contract ? OPP
4) Whether the defendant No.1 has been ready and willing to perform his part of the contract ? OPD 1
5) Whether the plaintiffs are entitled to recover anything on account of damages, if so how much ? OPP
6) Whether defendant No.2 is a purchaser for value in good faith without notice as alleged, if so to what effect ? OPD 2
7) Relief.
7. After perusal of oral as well as documentary evidence, under Issue No.1, it was held that execution of the agreement of sale Exhibit P1 was admitted by Kishan Lal while appearing as DW1 and it was further held that receipt Exhibit P2 was definitely executed between the plaintiffs and defendant No.1. Accordingly, this Issue was decided against the defendants. Under Issue No.2, it was observed that onus regarding non-receipt of the consideration was heavily on defendant No.1, namely, Kishan Lal but he failed to discharge that heavy onus. Consequently, it was held that the plaintiffs paid an amount of Rs. 11,000/- to defendant No.1 as part payment, at the time of execution of the agreement to sell Exhibit P1 and this Issue was decided in favour of the plaintiffs. Issues 3 and 4 were taken up together and it was held that the plaintiffs had been ready and willing to perform their part of the contract and are still ready and willing to do so. Accordingly, Issue No.3 was decided in favour of the plaintiffs and Issue No.4 against the defendants. Issue No.5 was not pressed before the trial Court. Hence, it was decided in favour of the defendants. Under Issue No.6, it was held that defendant No.2 had a valid notice about the execution of agreement to sell by defendant No.1 in favour of the plaintiffs. It was conceded before the trial Court by the learned counsel for the plaintiffs that they were ready to pay the whole of the consideration amount of Rs. 35,000/- plus expenses of stamp and registration to the subsequent vendees. Thus, defendant No.2 was held to be a purchaser for consideration. This Issue was accordingly decided against the defendants and in favour of the plaintiffs. In the result, a decree for specific performance of the agreement to sell, dated February 11, 1975, of the land in suit directing the defendants to execute the sale deed and get it registered after recovering the balance sale consideration of Rs. 24,000/- plus the expenses of stamp and registration, within two months, was passed. In case the defendants failed to execute the sale deed, the sale deed was ordered to be executed through Court and the plaintiffs were held entitled to the costs of the suit.
8. Before the first appellate Court during the pendency of appeal, an application under Order VI, Rule 17, Code of Civil Procedure, was filed by the appellant. After contest, that application was dismissed. Findings on Issue No.6 were affirmed. Findings on other Issues were not contested. Consequently, the appeal was dismissed with costs, vide judgment and decree, dated September 27, 1979, as mentioned in Para 1 of this judgment.
9. I have heard the learned counsel for the parties and have perused the record. It was argued by the learned counsel for the appellant that in the written statement, execution of agreement for sale dated February 11, 1975, in favour of the plaintiffs was denied but Kishan Lal defendant No.1 examined himself as DW1. It was elicited from him in cross-examination that he had not received Rs. 11,000/- from Sher Singh etc. and he had not executed receipt Exhibit P2. In view of this part of the statement of Kishan Lal, an application under Order VI, Rule 17, of the Code was filed during the pendency of the appeal and written statement was sought to be amended by incorporating the pleas that agreement in favour of the plaintiffs was a sham transaction, without consideration and void. It was obtained deceitfully, fraudulently and by misrepresentation; and that it was learnt that Kishan Lal had filed a complaint Under Sections 420, 468 and 471, Indian Penal Code, against Sher Singh and Man Singh father of the plaintiffs and one Vir Bhan on February 21, 1975. It appears that Sher Singh etc. by exercising influence and pressure or by giving inducement to Kishan Lal managed to get the said complaint dismissed in default on November 20, 1975. These facts were not within the knowledge of the defendant-appellant at the time of filing the written statement. These facts came to the knowledge of the appellant after the institution of the appeal and so these pleas should be allowed to be added in the written statement which are relevant for the correct and effective decision of the case. An alternative plea was also sought to be taken that in case the suit is to be decreed, the defendant-appellant should be restored with a sum of Rs. 35,000/- and the cost of stamp and registration expenses. It was argued by the learned counsel that the amendment sought to be made in the written statement was necessary to effectively adjudicate the controversy between the parties, but the first appellate Court disallowed that prayer without due application of mind. It was further submitted that the Courts are expected to be more liberal in granting permission to amend the written statement than towards the amendment of plaint or petition, especially when no new case is sought to be set up and does not affect the original cause of action. Moreover, defendant is well within his rights even to take contrary or contradictory stand in the written statement and mere delay is no ground to refuse the amendment if it is essential for setting the controversy between the parties at rest. As such, the first appellate Court ought to have allowed the amendment of written statement, especially when no fresh evidence was to be adduced. In support of his arguments, he has placed reliance on a decision of this Court in Har Lal v. Manbhar, (1987-2)92 P.L.R. 162 and contended that if the amendments sought were allowed, the plaintiffs were not going to suffer any irreparable loss. They at the most could be compensated with costs.
10. There is no quarrel with the legal proposition sought to be projected. The plea which was sought to be taken in the written statement by way of amendment is that the agreement in favour of the plaintiffs was without consideration and result of fraud, misrepresentation and it was obtained deceitfully; and, as such, the agreement is void and not enforceable. If any fraud was committed and an agreement to sell was got executed from Kishan Lal in some deceitful manner, without payment of earnest money, it was Kishan Lal who could be the aggrieved party. Therefore, this plea could only be taken by him alone and not by subsequent vendees, but no such plea was taken by him in the written statement nor he himself had sought any amendment. Not only that, he did not file any appeal or cross-objections against the findings recorded by the trial Court and first appellate Court. This shows that he was fully satisfied with the findings recorded against him. It is also not the case of Ram Chander appellant that any fraud was committed upon him by the plaintiffs in any manner. The plea sought to be taken by way of amendment of written statement in view of the provisions of Section 16 of the Specific Relief Act, 1963 (for short, the Act) is available only to the vendee and not to the subsequent purchaser. Only plea available to the subsequent purchaser is provided Under Section 19(b) of the Act that he is a transferee for value in good faith and without notice of the original contract and he has to prove that the transfer was for value; that the money was paid; that the purchase was done in good faith; and that the purchase including payment of money was without notice of the original contract. In Har Lal's case (supra), the amendment was sought by Manbhar defendant who himself entered into an agreement of sale with Har Lal. He himself had sought the amendment. No amendment was sought by any subsequent vendee, there being none. Therefore, Har Lal's case (supra) is not of any help to the appellant. Hence, I am of the view that the first appellate Court was right in rejecting the prayer for seeking amendment in the written statement.
11. Adverting to the merits of the case, it was argued by the learned counsel for the appellant that no doubt initial burden is on the subsequent purchaser to prove that he had purchased the property for value in good faith and without notice of the original contract, but as soon as he denies the receipt of any notice, burden shifts on to the plaintiffs to prove that the defendant had the notice or that he knew about the existence of original contract; and that the subsequent vendee had not purchased the suit property in good faith. According to the learned counsel, the appellant was minor and the property was purchased by his father in his name. He being minor was not expected to have any knowledge of the agreement of sale in favour of the plaintiffs. It was further argued that no notice was served on the appellant. Moreover he being minor, was not expected to receive any notice. Notice, if any, was given to his father and grandfather. That cannot be considered to be a notice to the minor. The sale being in favour of a minor, no decree for specific performance could be passed. It was further contended that the relief of specific performance is equitable and discretionary as provided Under Section 20 of the Specific Relief Act. There being no equity in favour of the plaintiffs, the relief should not have been granted. In support of his arguments, reliance ha been placed on Dhadi Dalai v. Basudeb Satpathy and Ors., A.I.R. 1961 Orissa 129, Rameshwar Singh v. Hari Narayan Singh and Ors., A.I.R. 1984 Patna 277 and Pandit Krishna Chandra Sharma v. Set Bishabha Kumar, A.I.R. 1939 Nagpur 265.
12. In order to refute the contentions of the learned counsel for the appellant, learned counsel for the respondents has made reference to the oral as well as documentary evidence and has submitted that it is clearly proved that the appellant had the notice of the prior agreement executed between Kishan Lal defendant No.1 and Sher Singh etc. plaintiff. Mere denial by Nanak Chand father of the minor appellant and Kishan Lal vendor in respect of the Notice served upon them by the plaintiffs on February 17, 1975 and February 19, 1975 respectively is not sufficient to discharge the onus. The plaintiffs-respondents brought cogent and convincing, oral as well as documentary, evidence to show that Nanak Chand father of the appellant had the knowledge and notice of the prior contract in favour of the plaintiffs. He referred to Notice, Exhibit P9, and contended that it was duly received by Kishan Lal on February 19, 1975 which is corroborated and established by A.D. Receipt Exhibit P5. Not only this, evidence of R.P. Singh (PW4) Handwriting and Finger print Expert examined the thumb-impressions on Exhibit P5 with the admitted thumb-impressions of Kishan Lal and found to tally with each other. This evidence conclusively shows that Notice, Exhibit P9, had been received by Kishan Lal defendant No.1. He has endeavoured to support the findings recorded by both the Courts below. According to him, the case-law relied upon by the learned counsel for the appellant is not applicable to the facts and circumstances of the instant case.
13. After having heard learned counsel for the parties and going through the oral as well as documentary evidence, I find that the contentions raised by the learned counsel for the appellant have no persuasive force and being not well-founded, deserve to be rejected. Dhadi Dalia's case (supra) came to be considered by a Division Bench of this Court in Gurmukh Singh Vir Singh and Ors. v. Sohan Singh Bela Singh and Anr., A.I.R. 1963 Punjab 470. Placing reliance on Bhup Narain Singh v. Gokul Chand, A.I.R. 1934 P.C. 68 and Shankarlal Narayandas v. New Mofussil Co. Ltd., A.I.R. 1946 P.C. 97, it was held that this onus can only be discharged by evidence led in the case. Mere denial by the transferees to the effect that they had no notice of the previous contract for sale will not discharge the onus that rests on them. Each case will have to be examined on its own facts to find out whether the onus which rests on the transferees in view of Section 27 of the Specific Relief Act is discharged or not. In view of the Division Bench decision of this Court in Gurmukh Singh Vir Singh's case (supra), the Single Bench decision in Rameshwar Singh's case (supra) loses its rigor. In Pandit Krishna Chandra Sharma's case (supra), it was held as under:
"The review of the authorities shows that barring Wort J., all the High Courts are unanimous on the view that a guardian's contract for sale or purchase made on behalf of the minor is not enforceable by or against the minor. The principle underlying the review enunciated by their Lordships of the Privy Council evidently appears to be that a minor is not personally bound by any contract made on his behalf by his guardian as was laid down by their Lordships of the Privy Council in Waghela Rajsanji v. Shekh Masludin, (1887) 11 Bom. 551: see also Ramajogayya v. Jagannadham, (1919) 6 A.I.R. Mad 641 = 42 Mad 185. A contract for sale of immovable property does not of itself create an interest in or charge on such property: see Section 54, T.P. Act. If it is a contract of purely personal nature and no personal liability can be imposed on the minor it must logically follow that the minor cannot be compelled to perform the contract; for the same reason he cannot take advantage of the contract and ask for specific performance. There is another aspect to the question: can the purchaser recover compensation from the minor for a breach of contract by the guardian? In every case when there is refusal to implement the contract of sale by the guardian the breach is committed by the guardian and never by the minor. The purchaser therefore can only claim compensation against the guardian and not against the minor or his property except in the case where the guardian uses the money obtained from the purchaser for the improvement of the minor's estate, a case which stands on a separate footing. The purchaser is not entitled to hold the minor personally responsible for the breach of contract of sale made by his guardian and he is not therefore entitled to claim compensation from him. If that is so, Section 24-A, Specific Relief Act debars the purchaser from claiming the relief of specific performance against the minor."
14 In the instant case, neither the guardian of the minor entered into an agreement tor sale of immovable property with the plaintiffs, nor the plaintiffs sought the specific performance of such an agreement against the minor. Therefore Pandit Krishna Chandra Sharma's case (supra) is not of any assistance to the appellant Reference may also be made to Joginder Singh v. Nidhan Singh and Anr., (1996-1)112 P.L.R. 431. As per terms of the agreement, Exhibit P1, entered into between Kishan Lal and Sher Singh etc. sale deed was to be executed in their favour on May 3, 1975. It is proved on the record that Kishan Lal defendant sold the land in question in favour of Ram Chander minor on February 28, 1975 through registered sale deed, Exhibit D1. Registered Notice, dated February 17, 1975, Exhibit P9 was served upon Kishan Lal vendor on February 19, 1975 and that fact is corroborated by A.D. Receipt Exhibit P5. Not only this, the plaintiffs also examined R.P. Singh (PW4), Handwriting and Finger print Expert who examined the thumb-impression of Kishan Lal on Exhibit P5 with his admitted thumb-impressions and it was found to tally with each other. This conclusively proves that Notice, Exhibit P9, was received by Kishan Lal defendant, whereby he was called upon to execute the sale deed in favour of the plaintiffs in terms of the agreement, dated February 11, 1975 executed by him. He was also apprised that the plaintiffs had come to know that he was selling the land, subject-matter of agreement, to Nanak Chand son of Ghansham and Ghansham son of Hira Lal or any other person on their behalf. He was also told that in case he sold the land in question to them or to any other person, the plaintiffs would be constrained to file a suit for specific performance of the contract. On the same day, that is, February 17, 1975 they also served a Registered Notice Exhibit P10, upon Nanak Chand father of Ram Chander minor appellant and also to his rather Ghansham, the A.D. Receipts of which are Exhibits P3 and P4. This shows that this Notice was received by Nanak Chand on his own behalf and on behalf of his father Ghansham. The signatures of Nanak Chand father of the minor appellant were also got compared from PW4 and he gave his opinion that disputed signatures tallied with the admitted signatures of Nanak Chand. No doubt, Veer K. Sakhuja (DW3) was examined to rebut the evidence of PW4, but evidence of DW3 pales into insignificance in view of the statement of Kishan Lal himself admitting that he had told Nanak Chand father of Ram Chander minor appellant that Sher Singh etc. had played fraud upon him by not making the payment of Rs. 11,000/- to him. It goes to show that the prior agreement executed between Kishan Lal and Sher Singh etc. was brought, to the notice of Nanak Chand father of Ram Chander minor appellant It was also stated by Kishan Lal that Nanak Chand told him that he would get the land registered in his favour and he (Nanak Chand) would fight out the matter with the plaintiffs. That clearly goes to show that the prior agreement was in the notice of the father of the appellant. Admittedly, at the time of execution of sale deed in favour of Ram Chander son of Nanak Chand, he was living with his father. The amount was paid by Nanak Chand and he took active part in the execution of the sale deed in favour of his minor son. Therefore, notice to Nanak Chand has to be considered as sufficient notice to the minor as well. Therefore, the appellant cannot contendt that he being a minor had no notice of the prior agreement. In this regard, reference may be made to Ras Muni Dibiah v. Pran Kishan Das, 4 Moore's Indian Appeals 392 (P.C.). It was held that the guardian represents the minors and notices which must be served in order to affect minor's property, as for instance notices of foreclosure, may be validly served on the guardian of the minors' estate if there be one. Ram, Chander minor was living with his father Nanak Chand. He was representing the minor as his guardian. He paid the sale consideration on behalf of minor and took active part in execution of sale deed in favour of his minor son. He even went to the extent to hold out that he would fight out the matter. At every stage, Nanak Chand was effectively representing the minor as his guardian. He paid the sale consideration on behalf of minor and took active part in execution of sale deed in favour of his minor son. He even went to the extent to hold out that he would fight out the matter. At every stage, Nanak Chand was effectively representing the minor as his guardian. Principle enunciated in Ras Muni Dibiah's case (supra) is fully applicable to the case in hand. Therefore, notice on the father and guardian of Ram Chander minor appellant was sufficient notice to the appellant. Therefore, the contention of the learned counsel that the minor had no notice of the prior agreement has to be rejected and is hereby rejected.
No other point has been urged.
For the reasons recorded above, the appeal being without merit is dismissed. The judgment and decree of the lower appellate Court are affirmed.
It may be mentioned here that in view of the order, dated December 18, 1979, passed in Civil miscellaneous Nos. 2343-C of the 1979 and 2479-C of 1979 (in RSA No. 2638 of 1979), the plaintiff-respondents were permitted to withdraw the sum of Rs. 24,000/- deposited by them. Therefore, the respondents are directed to deposit Rs. 24,000/- alongwith stamp and registration charges within two months from the date of delivery of the certified copy of the judgment. No costs.