Braham Singh vs Sumitra & Ors.
2011 Latest Caselaw 3626 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on:   28.07.2011
                      Judgment Pronounced on: 01.08.2011

+            CS(OS) No. 1208/2011

BRAHAM SINGH                                  .....Plaintiff

                            - versus -

SUMITRA & ORS                                ....Defendants

Advocates who appeared in this case:
For the Plaintiff:      Mr. Pankaj Vivek and Mr. Atul
                        Tripathi, Advs.

For the Defendant:           Mr Sandeep Sethi, Sr. Adv, Mr
                             D.K. Devesh, Adv.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to the Reporter or not?               Yes

3. Whether the judgment should be reported
   in Digest?                                           Yes

V.K. JAIN, J

IA 8087/2011 (O. 39 R. 1&2 CPC)

1.           This is a suit for specific performance of an

agreement to sell dated 20th September, 2006, alleged to

have been executed by defendant No. 1 in favour of the

plaintiff.    Late Shri Kude Ram, father-in-law of defendant


CS(OS)No. 1208/2011                                Page 1 of 17
 No. 1, and grandfather of defendants No. 2 to 4, whose

agricultural land in village Kakrola of Delhi was acquired for

planned development of Delhi, applied for allotment of an

alternative plot under the scheme of Government for

allotting such plots to those whose land is acquired for

planned development of Delhi.        Late Shri Kude Ram,

however, died before any plot of land could be allotted to

him though a file had been opened by Land & Building

Department of Delhi Government in his lifetime. This is also

the case of the plaintiff that sometime in October, 2004,

Shri Rambir, husband of defendant No. 1 and father of

defendants No. 2 to 4, alongwith other sons of late Shri

Kude Ram, offered to sell yet to be allotted plot to him for a

consideration of Rs 12 lac and the cost of allotment. Some

legal heirs of Shri Kude Ram executed a relinquishment

deed in favour of Shri Rambir Singh, who executed a

receipt-cum-agreement in favour of the plaintiff on 25 th May,

2005, after taking the sale consideration of Rs 12 lac from

him. Shri Rambir expired on 11th August, 2005 and

thereafter other legal heirs of late Shri Kude Ram executed

the relinquishment deed in favour of the defendants,

thereby entitling them to obtain allotment in their favour.

CS(OS)No. 1208/2011                                 Page 2 of 17
 On     August         17,   2006,   Land   &   Building   Department

recommended allotment of a plot of 250 square yards to the

defendants. Defendant No. 1 then approached the plaintiff

and sought increase of the sale consideration. The parties,

therefore, agreed to a total sale consideration of Rs.12 lac

and a fresh agreement was executed by defendant No.1 in

favour of the plaintiff on 20th September, 2006 after taking a

sum of Rs 2 lac from him. The original recommendation

letter was handed over by her to the plaintiff. Another sum

of Rs 3 lac was paid by the plaintiff to defendant No 1. On

06th October, 2009. Plot bearing No. 61 in Pocket-9, Block-

B, Sector 23 of Dwarka, measuring 250 square yards, was

allotted to the defendants in a draw of lots.             The plaintiff

paid another sum of Rs 50,000/- to defendant No. 1 on 22nd

February,       2010        and   she   handed   over   demand-cum-

allotment letter to him in July, 2010. The plaintiff deposited

a sum of Rs. 3,93,200/- with DDA on 22nd July, 2010 and

another sum of Rs 9,83,000/- on 21st August, 2010.

According to the plaintiff, the defendants, thereafter, turned

dishonest and filed a suit for injunction claiming that the

agreement was obtained by fraud and that she had never

signed or delivered any blank documents to the plaintiffs.

CS(OS)No. 1208/2011                                          Page 3 of 17
 After filing of the aforesaid suit, the plaintiff paid the

remaining cost of plot on 21st December, 2010. The plaintiff

has now sought execution of the sale deed in his favour,

after converting the aforesaid plot into freehold. In the

alternative, the plaintiff has sought a decree for Rs

3,53,24,000/-.            IA 8087/2011 has been filed seeking

interim injunction against creation of third party rights in

the aforesaid plot.

2.          The suit has been contested and the application

was opposed by the defendants.

3.          The       plaintiff   in   the   suit   is   seeking     specific

performance of the agreement to sell dated 20th September,

2006, alleged to have been executed by defendant No. 1

Smt. Sumitra on her behalf as well as on behalf of

defendants No. 2 to 4, who are here minor children. It is an

admitted case that no specific plot of land had been allotted

to the defendants by the time this agreement purports to

have been executed, though a recommendation had been

made by Delhi Government to DDA on 17 th August, 2006 for

allotment of a plot measuring 250 square yards to them

against acquisition of agricultural land in Kakrola. The plot



CS(OS)No. 1208/2011                                                Page 4 of 17
 in question was allotted jointly to the defendants, vide

allotment letter dated 15.06.2010/25.06.2010.

4.          Some of the essential ingredients of an Agreement

to Sell an immovable property are (i) identity of vendor and

purchaser (ii) complete description of the property subject

matter of the agreement (iii) amount of consideration to be

paid by the purchaser to the seller (iv) time within which the

agreement is to be performed and (v) earnest money if any

paid to the vendor, if one of these essential ingredients are

missing, the agreement between the parties would not

amount to concluded contract.       A Division Bench of this

Court in Mirahul Enterprises & Ors. Vs. Mrs. Vijaya

Srivastava AIR 2003 Delhi 15 referring to the provisions

contained in Section 10 of Specific Relief Act, observed that

a true contract requires the agreement of the parties, freely

made with full knowledge and without any feeling of

restraint and the parties must be ad-idem on the essential

terms of the contract and in case it is an Agreement to Sell

of immovable property, the law requires that it must

certainly identify the property agreed to be sold and the

price fixed as consideration paid or agreed to paid.



CS(OS)No. 1208/2011                                    Page 5 of 17
 5.          In Aggarwal Hotels (P) Ltd. vs. Focus Properties

(P) Ltd., 63(1996) Delhi Law Times 52, this Court, inter alia,

observed as under:

              "The four ingredients necessary to make
              an agreement to sell are: (i) particulars of
              consideration; (ii) certainty as to party i.e.
              the vendor and the vendee; (iii) certainty
              as to the property to be sold; and (iv)
              certainty as to other terms relating to
              probable cost of conveyance to be borne
              by the parties, time, etc. If these
              ingredients are lacking in the agreement,
              the obligations contemplated under
              Section 16 for specific performance for
              Immovable property would not arise. It is
              in this background that the receipt dated
              June 17, 1995 has to be examined."

            This judgment was relied upon by this Court in

CS(OS) No. 82/1997, Sardar Gurbachan Singh and Ors.

vs. Sardar Avtar Singh and Ors. while deciding IA No.

5955/2004.

6.          The agreement, alleged to have been executed by

defendant No. 1 in favour of the plaintiff on 20 th September,

2006, does not identify and in fact could not have identified

the property subject matter of the agreement for the simple

reason that no plot of land had been allotted to the

defendants by that time. At the time this agreement is

alleged to have been executed in favour of the plaintiff, it

CS(OS)No. 1208/2011                                       Page 6 of 17
 was not known in which colony plot would be allotted to the

defendants, when the allotment would take place what

would be the size of the plot and which particular plot

would be allotted to the defendants. Therefore, the property,

subject      matter   of   the   agreement,   was   incapable      of

identification at the time the agreement is alleged to have

been executed. It is, therefore, difficult to deny that the

agreement dated 20 th September, 2006, does not constitute

a valid and concluded contract for sale of an immovable

property to the plaintiff.

7.          The learned Counsel for the plaintiff has relied

upon the provisions of Section 13 of Specific Relief Act,

which deal with right of purchaser or lessee against a

person, who at the time of contract has no title or has an

imperfect title but subsequently acquires an interest in the

property. The reliance on this provision is wholly misplaced

since in the case before this Court there was no valid

agreement to sell in favour of the plaintiff as at the time, the

agreement is alleged to have executed. The learned Counsel

has also relied upon Pundlik Daryaji v. Jainarayan

Maliram Shop & Ors AIR 1949 Nag 83, Round The Clock



CS(OS)No. 1208/2011                                     Page 7 of 17
 Stores Ltd. v. Aggarwal Entertainment Private Limited

MANU/DE/2147/2008 and Indraraj Singh v. Chaitram &

Anr. AIR 1929 Nag 194. None of these judgments deal with

the issue involved in this case and therefore these

judgments are of no help.

8.          It was also contended by the learned counsel for

the defendants that defendant No. 1, despite being natural

guardian of defendants No. 2 to 4 was not competent in law

to enter into an agreement to sell their immovable property,

without prior permission of the Court. In support of his

contention, he has relied upon Section 8(2) of Hindu

Minority and Guardianship Act, 1956, which, to the extent

relevant, provides that the natural guardian of a Hindu

minor shall not, without previous permission of the Court,

mortgage, charge or transfer by sale, gift, exchange or

otherwise, any part of the immovable property of the minor

and any disposal of immovable property in contravention of

this requirement, would be voidable at the instance of the

minor or any person claiming under him.

9.          In my view, entering into an agreement to sell an

immovable property does not constitute mortgage, charge or



CS(OS)No. 1208/2011                                 Page 8 of 17
 transfer of the property by sale, gift, exchange or otherwise

and therefore, is not covered without the prohibition

contained        in   Section   8(2)   of   Hindu   Minority     and

Guardianship Act. An agreement to sell, by itself, does not

transfer ownership in the immovable property. It only gives

a right to the purchaser to obtain execution of a sale deed of

the immovable property in his favour. But, there is no sale

or transfer as such till the sale deed is actually executed in

favour of the purchaser. It also cannot be said that entering

into an agreement to sell an immovable property amounts to

a mortgage or a charge. In my view, it is within the

competence of the natural guardian of Hindu minor to enter

into an agreement to sell the immovable property of the

minor provided the transaction is for the benefit of the

minor or in the realization, protection or benefit of his

estate, but, the guardian cannot execute a sale deed in

favour of the purchaser, without prior permission of the

Court. Of course, such an agreement if entered into by the

guardian on behalf of the minor would be voidable at the

instance of minor, who will be entitled to show that the

contract was not for his benefit but it is difficult to accept

that a guardian cannot enter into an agreement to sell the

CS(OS)No. 1208/2011                                      Page 9 of 17
 immovable property of the minor even if such a transaction

is for the benefit of the minor or in the realization,

protection or benefit of his estate.

10.         In Biswanath Charit v. Damodar Patra & Ors.

AIR 1982Cal199, the plaintiff/respondent instituted the suit

on the allegation that defendant No.1, the mother and as

such natural guardian of minor defendant Nos. 2 to 7

entered into an agreement with the plaintiff for self and on

behalf of the minors to sell the suit property to meet certain

antecedent debts during the last illness of her deceased

husband, the father of defendants No. 2 to 7. Later on the

defendants suffered a collusive compromise decree

purporting to surrender possession of the suit land in

favour of defendant No. 8 for defeating the right of the

plaintiff. Defendants No. 1 to 7 not only refused to execute

the sale deed but defendant No.8 threatened to disturb

plaintiff's possession of the suit land. Hence the plaintiff

sued for specific performance of the contract for sale and for

injunction restraining the defendant No.8 from interfering

with his possession of the suit property. The suit was

contested by defendant No.8 who not only denied the

agreement but further pleaded that such an agreement

being contingent upon permission of the Court and being

otherwise invalid and void is not enforceable. He further

claimed that in any event such an agreement is not

enforceable against him. The two Courts on evidence

concurrently found that defendant Nos. 1 to 7 did execute

and register the agreement for sale which was for legal

necessity and for the benefit of the minors and that the

plaintiff was put into possession of the suit property on the

basis of a settlement. Both the Courts overruled the plea

that the defendant No.8 was a bona fide transferee for

consideration without notice. The trial Court found the

decree which was entered into a few days after the plaintiff's

agreement to be collusive. So far as the contract was

concerned, the two Courts held that it was competent for

the natural guardian mother to enter into such a contract,

made for the benefit of the minors and though it may be

voidable at the instance of the minors, it is not otherwise

void or invalid and is specifically enforceable when the

minors are not coming forward to avoid it.

It was contended before the Division Bench of the

High Court that Hindu Minority and Guardianship Act,

1956, having introduced material change by way of

restricting the powers of the natural guardian to effect any

mortgage or charge or transfer by sale, gift, exchange or

otherwise the immovable property of the minor, no court

could specifically enforce an agreement for sale said to have

been executed by the natural guardian for and on behalf of

the minor. The Division Bench took the following view in

the matter.

"Section 8 of the said Act has rendered the powers of the natural guardian substantially the same and subject to the same limitations as are imposed on the powers of a guardian declared or appointed by a court under the Guardians and Wards Act. Sub-Section (2) has taken away the independent power of alienation originally possessed by the natural guardian under the Hindu Law and forbids mortgage or charge or transfer by sale, gift, exchange or otherwise or even lease for a term exceeding 5 years or for a term extending one year beyond the date on which the minor will attain majority, any part of the immovable property of the minor except with the previous permission of the court. We feel no hesitation in agreeing with and accepting the view that it was competent for the natural guardian to enter into and execute an agreement for sale as in the present case for the benefit of the minors and such an agreement will not be void

altogether but only voidable at the instance of the minor if it can be shown to be not for his benefit. But in our view the mere fact that the agreement is not void would not by itself render it straightway specifically enforceable at the instance of the purchaser by the natural guardian. It could have been so enforceable if, as the law stood before, the natural guardian himself could have fulfilled the contract by executing the conveyance. But that power has since been made subject to the previous permission of the court. Complying with a decree for specific performance as made in the present case would constitute contravention on the part of the natural guardian of Sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act, and it is settled principle that no court should compel a person to contravene the law. The matter can be looked at from another angle, namely, that even where the court grants such a decree and the natural guardian, executes the conveyance in terms of that decree, that transfer can be set at naught at the instance of the minor merely on the ground that such transfer is in contravention of Sub-section (2). No court is expected to pass such an infructuous decree. But the question still remains what would happen to such an agreement, particularly when as has been found in the present case the agreement is within the competence of the natural guardian and is for the benefit of the minor. Would it remain an agreement not enforceable in law? In our view the legal position is that such an agreement is enforceable but only upon a previous permission being obtained from the court. Where the natural guardian in

exercise of his powers under Sub-section (1) of Section 8 of the said Act enters into such an agreement for the benefit of the minor he by necessary implication enjoins himself to take the necessary permission from the court and then execute the conveyance which would not contravene in any manner Sub-section (2) thereof. The decree in such a case, therefore, should be in terms similar to the one as the Supreme Court indicated in the case of Messrs. Chandnee Widyavati Madden v. Dr. C.L. Katial, MANU/SC/0257/1963 : [1964]2SCR495 .

              The decree must direct the natural
              guardian     to    seek    the    necessary
              permission      from     the    court     as

contemplated by Sub-section (6) of Section 8 and such permission being obtained to effect the conveyance."

11. In Darbara Singh Vs. Karminder Singh and Ors.

AIR 1979 Punjab & Haryana 215, a judgment relied upon by

the defendant, the Court referring to the provisions of sub-

Section 8(1) of Hindu Minority and Guardianship Act, which

provides that the guardian can, in no case, bind the minor

by a personal covenant, inter alia, observed as under:

"The provision of sub-section (1) of Section 8 of the Act makes it expressly clear in unqualified terms that no personal covenant of the guardian shall be binding on the minor. It means only this that, when looked from the stand point that the aforesaid interdiction is added at the fag-end of Section 8(1) by way of proviso to the clause that preceded

it, a guardian though well within his right to enter into a contract for the benefit of the minor, but the said contract would not be enforceable against the minor even when it was entered for his benefit and would be voidable at his instance.

Learned counsel for the appellant also placed reliance on a Single Bench decision of this Court reported in Paras Ram v. Bhal Singh 1973 RLR 37.

The decision in Paras Ram's case does not go any farther than this that the provision of sub-section (1) of Section 8 of the Act does not prevent a guardian to enter into a contract regarding the property of a minor for his benefit without the prior permission of the Court but that is not the same thing as saying that such a contract would be binding upon the respondent. That was a case in which the decree was sought against the guardian and not against the minor and the decree was not the decree for specific performance but for the return of earnest money received by the guardian and damages envisaged in the contract, in the failure of the contracting party to fulfill its own part of the contract."

This judgment does not support the proposition

that in no case can a guardian enter into an agreement to

sell the immovable property belonging to the minor. There

is no legal bar to the guardian entering into such a

transaction provided it is for the benefit of the minor though

he cannot complete the transaction by executing a sale

deed/transfer deed in favour of the purchaser, without

permission of the Court. Of course, such a contract being

voidable at the instance of the minor, it would be open to

him to show that the contract was not for his benefit and

therefore does not bind him.

12. The learned Counsel for the plaintiff has referred to

Roomal & Ors. v. Siri Niwas AIR 1985 Delhi 153, Sri

Narayan Bal & Ors. v. Sridhar Sutar & Ors. AIR 1996 SC

2371 and Ansal Properties & Industries Pvt. Ltd. v.

Anand Nath & Ors. ILR 1992 Delhi 540. In Roomal & Ors.

(supra), the Court held that the guardian of a minor is

competent to enter into an agreement to purchase property

on his behalf and his authority and competence can be

challenged only by the minor and not by the vendor, who is

not the keeper of the minor. In Sri Narayan Bal (supra), it

was held that Hindu joint family being a separate entity can

dispose of the family property including undivided interest

of the minor in it. In Ansal Properties & Industries Pvt.

Ltd. (supra), the Court was not required to deal with the

power of a natural guardian to transfer the immovable

property belonging to the minor. The Court in this case was

of the view that Hindu Minority and Guardianship Act, 1956

does not extend to the administration of an undivided

interest of a minor in a joint family which can continue to

be administered by a de facto guardian. This judgment also

does not help the plaintiff in any manner.

13. For the reasons given in the preceding paragraphs

I am of the view that since prima facie there was no valid

and concluded contract between the parties, no case for

grant of injunction against creation of third party interest in

the suit property is made out. The application is

accordingly dismissed. The observations made and the view

taken in this order will not affect the final decision of the

suit on merit.

(V.K. JAIN) JUDGE AUGUST 01, 2011 BG/VN