Punjab-Haryana High Court
Nishan Singh vs Paramjit Kaur Etc on 11 November, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.11.18 10:21
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.2222 of 2014 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2222 of 2014
Date of decision:11.11.2014
Nishan Singh ...Petitioner
Versus
Paramjit Kaur and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Ravish Bansal, Advocate,
for the petitioner.
Mr. K.B.Raheja, Advocate,
for the respondents.
*****
RAKESH KUMAR JAIN, J.
An interesting question begging for answer is "whether a minor, after attaining the age of majority, has a right to file an additional written statement, without repudiating the averments made in the written statement filed on his behalf by his guardian".
In brief, Navjot Kaur and Jaspal Kaur for themselves and on behalf of the petitioner Nishan Singh, who was a minor at that time, entered into an agreement to sell on 07.05.2007 with Gurbir Singh, Gurbinder Singh, Jaswinder Singh, Paramjit Kaur and Gurpreet Singh in respect of land measuring 65 kanals @ `30 lacs per acre and paid `20 lacs as advance and thereafter `30 lacs on two dates before the date of execution and VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [2] ***** registration of the sale deed which was fixed as 30.04.2008. The prospective vendees filed the suit for specific performance on 14.06.2008 against Navjot Kaur and Nishan Singh (minor at that time) as Jaspal Kaur, grandmother of the petitioner had already expired. They also challenged the sale deeds in favour of defendants no.3 to 5 executed on 20.02.2005 by Navjot Kaur and Jaspal Kaur pertaining to some portion of the suit land. Since Navjot Kaur did not appear on behalf of the petitioner, therefore, the trial Court appointed Shri Ajay Gandhi, Advocate as the Court Guardian on 09.09.2008, who filed the written statement on behalf of the petitioner on 18.11.2008.
The petitioner, who was involved in a criminal case and is in prison serving the life sentence, was born on 31.01.1993 and attained the age of majority on 31.01.2011. The Court Guardian moved an application dated 23.08.2013 to produce the petitioner in Court on production warrants and vide order dated 04.01.2014, the petitioner was produced on 14.01.2014. After his appearance, the petitioner moved an application for removal of the Court Guardian alleging that since he has become major, therefore, he wanted to pursue the suit on his own. His application was allowed on the same day, the petitioner appointed the same advocate and the case was adjourned to 21.01.2014 for filing of the written statement by the petitioner. On the said date, the respondents raised an objection that the petitioner cannot be allowed to file another written statement as the written statement on his behalf has already been filed by the Court Guardian on 18.11.2008. The petitioner then filed an application on 10.02.2014 seeking VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [3] ***** leave of the Court for filing additional written statement but the trial Court dismissed the application vide its impugned order dated 19.02.2014 and hence, the present revision petition.
Counsel for the petitioner has submitted that on 14.01.2014, the trial Court passed the following order:-
"Defendant No.2 is in custody in some other case who has been produced today by jail authorities from custody in the case in which he is lodged at Special Home, Ludhiana. He has moved an application to contest his own case as major. The application is allowed as defendant No.2 has attained the age of majority. Power of attorney on behalf of defendant No.2 filed.
Adjourned to 21.01.2014 for filing written statement, if any."
On 21.01.2014, the case was adjourned to 25.01.2014 on the request of the counsel for the plaintiffs who wanted to argue on the issue of the right of the petitioner to file additional written statement after attaining the age of majority. On 25.01.2014, counsel for the petitioner requested for an adjournment to file an application for seeking leave of the Court to file additional written statement which was moved on 10.02.2014 on the ground that after attaining the age of majority, some more facts, which were not within the notice of the Court Guardian, are required to be brought on record.
VINOD KUMAR2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [4]
***** Counsel for the petitioner has submitted that if a minor could file the suit after attaining the age of majority, he could also file additional written statement in terms of Order 8 Rule 9 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") and has relied upon the following judgments:-
1. Abhishek Suresh Umbarkar v. Prashant Vidyadharrao Deotalo and another, 2009(5) BCR 673;
2. Rajeev V. Devi Narain Mathur, 1997(3) RCR (Civil) 97;
3. Vanimisatti Anil Kumar and others v. Jayavarapu Krishna Murty and others, 1995 AIR (AP) 105;
4. Kaliammal v. G.N. Ramaswami Goundar, 1957 AIR (Madras) 629; and
5. Shiva Kumar Singh v. Kari Singh and others, 1962 AIR (Patna) 159.
On the other hand, counsel for the respondent has submitted that the petitioner cannot be allowed to file additional written statement and relied upon a judgment of this Court in the case of Ram Dhan v. Dalel and others, 1987(2) PLR 190. He has also submitted that the written statement could have been filed within 90 days and not only there is a huge delay in seeking permission of the Court but also there is nothing new which the petitioner now wanted to add in the additional written statement which has not been there in the written statement filed by the Court Guardian because after attaining the age of majority, the petitioner has retained the same Court Guardian as his advocate.
VINOD KUMAR2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [5]
***** Counsel for the petitioner has submitted that the same advocate was retained as there is no allegation of any misconduct on his part and the additional written statement is sought to be filed in order to bring to the notice of the Court that his mother was not competent to enter into the agreement to sell the entire property in dispute on her behalf as well as on behalf of the petitioner because the property stood in the name of his mother was also having the share of the petitioner as it was wrongly mutated in her name alone and since this fact was not within the knowledge of the Court Guardian, therefore, he wanted to file the additional written statement.
I have heard learned counsel for the parties and examined the record.
As per Section 3 of the Majority Act, 1875, every person domiciled in India attains the age of majority on his completing the age of eighteen years and not before and for the purpose of computing the age of any such person, the day on which he was born is included as a whole day and is deemed to have attained majority at the beginning of the eighteenth anniversary of that day.
Article 60(a) of the Limitation Act, 1963, provides a period of 3 years, after attaining the age of majority, to a ward to challenge any transfer of the property made by his guardian.
Order 8 Rule 9 of the CPC provides that no pleadings subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim can be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [6] ***** any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
According to the aforesaid provisions, a minor, after attaining the age of majority, can challenge the alienations/transfers made on his behalf by his guardian within a period of 3 years and the Court can also allow additional written statement.
Learned counsel for the petitioner has relied upon various judgments in support of his contention. In Abhishek Suresh Umbarkar's case (supra), the Bombay High Court has made the following observations:-
"7. The only contention that is required to be considered is whether the defendant/minor, upon attaining majority, has right to put defence which may not be in consonance with the earlier written statement. It was contended that the defendant on attaining majority has no right to take different stand superseding the earlier written statement filed by the guardian on his behalf. This contention cannot be accepted. Every minor has a right to repudiate any action of the guardian upon attaining the majority by way of additional written statement. He has certainly a right to repudiate such action and to file his separate statement and his own defence which he may think appropriate. In this case VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [7] ***** particularly the minor on attaining majority has such right. If a minor has a right to challenge the alienation made by the guardian, there is no reason why he can resist such transfer to be effected soon after attaining majority.
8. In the above circumstances, I find that the restriction, put by the learned Civil Judge that additional written statement should not contain statement superseding earlier statement should not be filed, is not correct. Further, it may be mentioned here that every defendant has right to take inconsistent defence in his written statement. If defendant has right to take inconsistent pleas, there is no reason why a minor upon attaining majority be restrained from filing written statement which may not be in consonance with the earlier written statement."
In Rajeev's case (supra), following observations have been made by the Rajasthan High Court:-
8. In support of his contention advanced at the bar, learned counsel for the respondents has placed reliance upon the judgment of the Madras High Court in the matter of Verkataswami v. U.V. Vilasa NIdhi, AIR 1935 Madras 117 and in the matter of Ramakhelawan Singh v. Ganga Prasad, AIR 1937 Patna 625 and the VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [8] ***** judgment of this Court in the matter of Milkiyat Singh and another v. Om Prakash and others, 1995(1) WLC Raj. 191. I have gone through the ratio of the above judgments and in my opinion the ratio of the Patna High Court as well as of the Madras High Court in the aforesaid judgments are distinguishable and not applicable to this case. I am further of the opinion that the ratio of the decision of this Court in Malkiyat Singh and another v. Om Parkash and others (supra), is applicable to this case and it helps in advancing the case of the petitioner rather than that of the respondent. In the said judgment, learned Single Judge of this Court has observed with respect as to what safeguards should be adopted by the trial Court while allowing permission to file additional written statement when the minor attains the age of majority. It was guardian ad-litem, on attaining the majority pending litigation there is no prohibition or bar to his filing additional written statement by advancing such pleas which earlier could not be raised on his behalf by his guardian. What the Court has to safeguard is that the application for leave of the Court to file a fresh written statement should not be ordinarily declined but the Court has to see that the application has been moved bona fide and has not been VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [9] ***** moved with ulterior motives."
In Vanimisatti Anil Kumar's case (supra), the Andhra Pradesh High Court has held as under:-
"20. It is settled law that, a minor, after he becomes major, is always entitled to question the transactions, done on his behalf during his minority, by his guardian, by filing a separate suit. In the instant case, the 2nd defendant attained majority during the pendency of the suit itself. Therefore, there is no illegality or irregularity in filing a separate written statement by the 2nd defendant, contrary to the averments already made by the 1st defendant in the written statement filed by him for himself and on behalf of his minor son - the 2nd defendant."
In Shiva Kumar Singh's case (supra), the Patna High Court has observed as under:-
"A minor defendant when he attains majority can file another written statement with the leave of the Court granted under Order 8, Rule 9 of the Code; but that is subject to the provisions of Order 6, Rule 17. He can also amend his written statement, but that is also subject to the provisions of Order 6 Rule 17 and to the well established principles of law in the matter of allowing amendment of pleadings."
Learned counsel for the respondents has also submitted that in VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [ 10 ] ***** Vanimisatti Anil Kumar's case (supra), the Court has held that the written statement could be filed within 90 days, whereas in the present case, it is sought to be filed almost after 3 years, after attaining the age of majority. It is further submitted by him that in Rajeev's case (supra), there was no delay in filing of the application and in Ram Dhan's case (supra), this Court has made the following observations:-
"4. After hearing the learned counsel for the parties, I do not find any merit in this petition. It was held in case Ramkhelawan Singh v. Ganga Prasad, AIR 1937 Patna 625, that except for the special provisions in Order 32 Rule 12 to 14 which governs the relations between minor and his next friend, the Civil Procedure Code does not make any difference between minors and others so far as general rule of pleadings are concerned. The provisions of Order 8 Rule 9 and Order 6 Rule 17 apply to minor also. Hence, where a guardian ad litem representing the minor defendant files a written statement and the minor attains majority during the pendency of the suit, he cannot claim to file a fresh written statement so as to supersede that filed by his guardian ad litem. Similarly in the present case, the minor defendant who had now become major during the pendency of the suit was not entitled to file any fresh written statement taking additional pleas unless the VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [ 11 ] ***** written statement filed earlier was sought to be amended under Order 6 Rule 17 Civil Procedure Code. Apart from that, there was no allegation against the guardian that he had acted adversely to the interest of the minor in any manner. In the absence of any such allegation the minor-defendant having become major later on was not entitled to file any fresh written statement particularly when the amendment in the plaint was made at his own instance."
As a matter of fact, Order 8 Rule 9 provides that the subsequent pleadings can be filed with the leave of the Court which also includes an additional written statement for which the Court may grant the permission and fix the time for presentation of the additional written statement/pleadings within a period of 30 days and not beyond that.
From the resume of the various judgments, I have come to the conclusion that if a minor has a right to repudiate any action of his guardian upon attaining the age of majority by filing a suit within a period of 3 years, he would certainly have a right to take extra pleadings after attaining the age of majority which were not taken by the Court Guardian/Guardian due to ignorance and which could adversely affect the interest of such a person who could not plead his case on his own due to his legal disability at that time.
In the present case, the petitioner, after attaining the age of majority, wanted to add some averments in para 2 of the written statement in VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [ 12 ] ***** which originally the following averments were made by the Court Guardian:-
"2. That para No.2 of the plaint is wrong and incorrect, hence denied. The defendant No.1 could not enter into agreement to sell, on behalf of defendant No.2. In any case, the alleged agreement is against the interest of defendant No.2, who is minor, the same is illegal, null and void, and cannot be enforced against the interest of the minor. In fact the entire holding of the minor defendant alleged to have been sold, without any legal necessity and evident advantage of the minor/defendant No.2. The terms and conditions of the alleged agreement are specifically denied. The sub para No.(a) to (i) are also specifically denied."
Now the petitioner wanted to add the following averments in the additional written statement:-
"2. That para No.2 of the plaint is wrong and incorrect, hence denied. The defendant No.1 could not enter into agreement to sell on behalf of defendant No.2. In any case, the alleged agreement is against the interest of defendant No.2. the same is illegal, null and void, and cannot be enforced against the interest of the answering defendant. In fact, the entire holding of the answering defendant alleged to have been sold, without any legal VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [ 13 ] ***** necessity and evident advantage of the defendant No.2. The terms and conditions of the alleged agreement are specifically denied. The sub para No.(a) to (i) are also specifically denied. Father of defendant No.2 namely Sukhjeet Singh s/o Ajit ISngh r/o Faridkot was co-sharer to the extent of 1/3 share of the suit land measuring 82 Kanal 15 Marlas comprising Khewat No.765, Khatauni No.1504 comprising Khasra Nos.10770/2916/1-2, 10774/9909/2920/4-19, 13247/10796/2933/1-2, 13250/2934/8-0, 2938/16-0, 2939/16-0, 2941/9-16, 2942/9-16, 2943/16-0 situated within the revenue estate of Faridkot Agwar Chhila, Hadbast No.75 and co-sharer to the extent of 131/588 share of land measuring 9 Kanal 16 Marlas, comprising Khewat No.703/1, Khatauni No.1447, Khasra No.2940/9-16 situated within the revenue estate of Faridkot Agwar Chhila, Hadbast No.75 as per Jamabandi for the year 2009-2010. Said Sukhjeet Singh died on 23.01.2003 intestate, leaving behind defendant No.2 as son, defendant No.1 as widow, Smt. Jaspal Kaur as mother and Simran Kaur as daughter. All the four heirs inherited the estate of Sukhjeet Singh deceased in equal share. The answering defendant was minor at the time of death of his father Sukhjeet Singh. Defendant No.1 got sanctioned mutation No.9098 of VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [ 14 ] ***** inheritance of Sukhjeet Singh deceased in her favour on the basis of Will alleged to be executed by Sukhjeet Singh deceased in her favour. The alleged mutation is illegal and passed in the absence of answering defendant. As referred above, Sukhjeet Singh deceased did not execute any Will. He has died intestate. The Will, if any, must be a forged and fabricated document. The mutation No.9098 on the basis of alleged Will is also forged and fabricated document. The alleged mutation is illegal, null & void, ineffective and inoperative, qua the rights of answering defendant.
That similarly, grand mother of answering defendant namely Jaspal Kaur has expired. Her estate was inherited by Navjot Kaur defendant on the basis of the Will, alleged to be executed by Jaspal Kaur in her favour. The alleged Will, if any, must be forged and fabricated one. Said Jaspal Kaur also died intestate. Simran Kaur d/o Sukhjeet Singh deceased has also died. She died issueless. The answering defendant is entitled to get her share also. The estate of Jaspal Kaur deceased goes to the answering defendant as well as defendant No.1 in equal share.
As such, the answering defendant has become co- sharer to the extent of 1/3 share of the estate left by VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [ 15 ] ***** Sukhjeet Singh deceased and as such, he has become co- sharer to the extent of 1/9 share in the land measuring 82 Kanal 15 Marlas and 131/588 share of land measuring 9 Kanal 16 Marlas as referred above.
The defendant No.1 has no right to enter into any agreement to sell regarding the share of land of the answering defendant. The defendant No.1 alleged to have entered into an agreement to sell in question on the basis of alleged mutation. The alleged mutation does not confer any valid title upon the defendant No.1 regarding the share of land of the answering defendant. The defendant No.1 has not spent any money, alleged to be received by way of earnest money on the welfare of the answering defendant. The alleged agreement to sell qua the share of answering defendant is illegal, ineffective, inoperative and does not effect the rights of the answering defendant in any manner. Earlier, the Hon'ble Court was pleased to appoint Court Guardian on the behalf of answering defendant, but the Court Guardian did not take these material pleas in the written statement filed by him on behalf of answering defendant. The answering defendant has already filed civil suit against the defendant No.1 for declaration regarding the share of land. Said suit is pending in the Court of Sh. Satish VINOD KUMAR 2014.11.18 10:21 I attest to the accuracy and authenticity of this document Chandigarh CR No.2222 of 2014 [ 16 ] ***** Kumar, Civil Judge (JD) Faridkot and is fixed for 31.01.2013."
The learned Court below has erred in dismissing the application only on the ground that there was a delay on the part of the petitioner to file the application for filing additional written statement, whereas the petitioner, who attained the age of majority on 31.01.2011, was in prison and the Court Guardian had moved the application on his behalf on 23.08.2013 to produce him in the Court in which the Court had passed the order on 04.01.2014. Thereafter, the case was adjourned but the petitioner was not produced on that date and when he was produced on 10.02.2014, the application was moved for filing the additional written statement. If the petitioner was not produced on 21.01.2014 in the Court despite the order passed by the trial Court, the jail authorities are to be blamed and not the petitioner who had filed the application immediately on 10.02.2014 and because of the fact that he was in custody, serving life sentence, the application could not be moved earlier, therefore, in these circumstances the ground of delay does not survive.
Thus, the question posed in the beginning of the judgment is answered accordingly, the revision petition is hereby allowed and the impugned order is set aside.
November 11, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE