Mahender Pal Tyagi vs Sh. Shiv Kumar Tyagi
2014 Latest Caselaw 5937 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Date of Decision: November 18, 2014

+     RSA 347/2014
      MAHENDER PAL TYAGI                                ..... Appellant
                  Through:             Mr. Rakesh Kumar & Mr. Prabhat
                                       Kaushik, Advocates

                          versus

      SH. SHIV KUMAR TYAGI                                 ..... Respondent
                   Through:            Nemo.

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% ORAL

C.M.No.18916/2014 (u/S 151 CPC)

Allowed subject to all just exceptions.

C.M.No.18917/2014 (u/S 151 CPC)

For reasons stated in the application delay of 164 days in re-filing the accompanying appeal is condoned.

Application is disposed of.

RSA No. 347/2014 The appellant and the first respondent are real brothers and respondent no. 2 in this appeal is the real sister of appellant. Appellant‟s

suit for declaration of being owner of the suit property stands dismissed by the Trial Court and the said dismissal is affirmed in the first appeal.

The factual narration of this case already stands noticed in the impugned judgment and needs no reproduction.

According to the appellant, out of love and affection, he had purchased the suit property in his own name and in the name of his younger brother respondent no. 1, who was a minor in the year 1977 and in the year 1987, father of the parties was appointed as General Power of Attorney in respect of 100 square yards of the suit property.

The stand of the respondents is that the suit property measuring 200 square yards was purchased by their father in the joint name of appellant and first respondent out of his own funds while agreement to sell etc. of 27.4.1998, 100 square yards, out of the suit property, was sold by the father of the parties to first respondent and remaining 100 square yards of the suit property was jointly owned by the appellant and second respondent.

At the hearing of this appeal, it was vehemently contended by learned counsel for the appellant that the question of law which arises in this appeal is whether a property through Agreement to Sell, General Power of Attorney etc., can be purchased by a minor?

Appellant‟s counsel concedes that it is not stated in the second appeal that the aforesaid question of law was raised before the First Appellate Court and was not dealt with.

The aforesaid question of law has been dealt with by the trial court in the following manner:-

„26. It is true that minor is not sui juris, however it is

equally true that a contract by a minor is not void ab initio where operates for the benefit of the minor. Contract by a minor can be classified into two categories- one where the minor is charged with obligations and the other contracting party seeks to enforce those obligations against the minor and the other where the minor is a beneficiary. In the latter category of cases where the minor is the beneficiary it cannot be said that the contract is void ab initio and the minor can get the contract enforced. Reference may be made to the judgment titled as Vijayakumar Motilal v. Newzealand Insurance Co. Ltd. reported as FIR 1954 Bombay 347.

27. Further there is nothing in the Transfer of Property Act according to which it can be said that a minor is disqualified to be a transferee. Section 11 of the Indian Contract Act, 1872 would not come in the way of transfer of property in favour of the minor. Reference may be made to the judgment titled as Jaykant Harkishandas Shah V. Durgashanker Valji Pandya reported as AIR 1970 GUJARAT 106. Thus there is no legal bar that a minor cannot purchase property or that a property cannot be purchased in the name of a minor.'

However, it is submitted by learned counsel for the appellant that even if the aforesaid question of law was not raised before the first appellant Court but still it could be raised in the second appeal before this Court and that the judgment of the Courts below are erroneous and deserves to be set aside.

The finding returned by the First Appellate Court reads as under:-

"The perusal of trial court record shows that plaintiff during his cross-examination admitted the documents and assertions of the defendant no. 1 to the effect that plaintiff and defendant no. 1 together executed the transfer document in favour of their father with respect to half portion of suit property i.e. 100 sq. yards. The finding of the trial court on this issue is detailed, correct and does not require any interference from this Court."

Upon hearing and on perusal of impugned judgment, trial Court judgment and the material on record, I find that there is no legal bar to purchase of a property in the name of the minor, which in fact, operates on the benefit of the minor. Therefore, there is no substance in the contentions raised by learned counsel for the appellant in the second appeal.

In the considered opinion of this Court, the finding returned by both the courts below to the effect that appellant has failed to prove that he is the owner of the entire suit property cannot be said to be perverse.

No substantial question of law arises in the second appeal. Consequently, this appeal is dismissed with no order as to costs.

(SUNIL GAUR) JUDGE

NOVEMBER 18, 2014 r/sd