GURMEJ SINGH Vs. UJAGAR SINGH

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of District Judge, Patiala dated August 14, 1978 whereby appeal filed by Ujagar Singh defendant was accepted while reversing the judgment and decree of the trial Court The suit filed by Chetan Singh and others for specific performance of contract for exchange dated August 26, 197i in respect of agricultural land measuring 9 Bigas, 17 Bigas situated in village Lachhman was decreed by the trial Court on December 20. 1976. Initially the present appeal was filed by six plaintiffs, namely Gurmel Singh. Chatan Singh. Gurcharan Singh, Richhpal Singh, Karnail Singh and Sidhu Singh. During pendency of the appeal, Gurmel Singh, appellant died and his legal heirs were brought on the record. Those included his brothers and parents. Subsequently some of the appellants moved an application for dismissal of tie appeal as withdrawn leaving only Chetan Singh and Karnal Singh appellants in the field.

(2.) Vide agreement dated August 26, 1979 Nek Singh alias Harnek Singh defendant had agreed to exchange 9-Bigas, 17-Bigas of land with the plaintiffs. Po session of land was exchanged. Since Exchange Deed was not executed the present suit was filed Egaiost Nek Singh alias Harnek Singh. Ujagar Singh was also impleaded as a party, as Harnek Singh had sold the disputed land to him The suit was contests by Harnek Singh as well as Ujagar Sing by filing a joint written statement. They denied the exchange as well as delivery of possession. Ujagar Singh claimed to be a bonafide purchaser without any notice of the exchange Thus, he claimed protection. Alternatively, it was pleaded that even if agreement was entered into, all the plaintiffs were not parties to the contract The same was void and not enforcible according to law The plaintiffs repudiated the pleadings of the defendants in the replication. The trial Court framed the following issues :-

(3.) Under issue No. 1 the trial Court held that Harnek Singh had executed the agreement dated August 2.6, 1971 in favour of the plaintiffs for exchange of the suit land. Under issues No. 2 and 3 it was held that there was delivery of physical possession of the exchanged land. Under issue No. 4 it was held that the plaintiffs were. ready and willing to perform their part of the agreement. Under issue No. 5 it was held that Harnek Singh committed breach of the contract under issue No. 6 it has held that Ujagar Singh had failed to prove that he was bona fide purchaser for consideration without the notice of the agreement of exchange. Under issue No. 7 the plaintiffs were held entitled to specific performance of the agreement. Hence the suit was decreed. The lower Appellate Court held that the agreement was entered into between Nek Singh alias Harnek Singh on one side and Chetan Singh plaintiff on the other side Chetan Singh entered into agreement for Myself and on behalf of his brothers, namely Karnail Singh, Sadhu Singh, Gurcharan Singh and Richhal Singh. Gruroel Singh plaintiff's name was not mentioned in the agreement It was further held that Chetan Singh plaintiff and Harnek Singh defendant had physically exchanged the disputed land under the agreement Exhibit P/I. It was further held that subsequently Harnek Singh sold the said land in favour of Ujagar Singh The plaintiffs were ready and willing to get the exchange deed executed and registered, whereas Harnek Singh committed breach of the agreement. Ujagar Singh was not a bona fide purchaser of the suit land for valuable consideration and without notice of the agreement of exchange. The findings of the trial Court were affirmed Under issue No. 7 it was held that vide agreement Exhibit P/l which was executed by Chetan Singh plaintiff, he had agreed to give to Harnek Singh in exchange land which did not belong to him alone, but it was joint property of all the brothers. The agreement was entered into on behalf of his brothers except Gurmel Singh. At the time of the agreement, Gurmel Singh and Richhpal Singh plaintiffs were minors Chetan Singh did not obtain any permission from the Guardian Court before executing the agreement of exchange It was held that the transaction was not void ab initio but was voidable at the instance of the minors. Chetan Singh was not the natural guardian of Richhpal Singh and Gurmel Singh minors. The agreement was held to be void relating to the shares of the minors Richhpal Singh and Gurmel Singh and as such the contract as a whole was incapable of specific performance It was further observed that Harnek Singh could not have demanded the specific performance of the contract, because Chetan Singh could not enter into the contract on behalf of the two minors aforesaid, qua such appellants.