RANDHIR KAUR versus PRITHVI PAL SINGH & ORS.

[2019] 9 S.C.R. 776

[2019] 9 S.C.R.

RANDHIR KAUR

PRITHVI PAL SINGH & ORS.

(Civil Appeal No. 5822 of 2019)

JULY 24, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Punjab Courts Act, 1918 – s.41 – Second appeals – Scope ofinterference – Appellant-plaintiff sought specific performance ofagreement to sell dtd. Nov. 5, 2004 in respect of land measuringC193 kanals 18 marlas @ Rs.1,27,000/- per acre – Rs.12,50,000/-and Rs.1,00,000/- was paid to defendant Nos.1 and 2 as earnestmoney at the time of execution of agreement to sale – Suit decreed –Appeal thereagainst – Dismissed – In the second appeal, the decreefor specific performance of the agreement was declined inter aliaDholding that ‘DS’, son of the appellant was not the attorney to acton behalf of the appellant – Held: In second appeal, the scope ofinterference within the Punjab and Haryana High Court would bethe same as CPC existed prior to 1976 amendment – Provisions ofs.41 of the 1918 Act and of s.100, CPC are pari materia – Jurisdictionin second appeal is not to interfere with the findings of fact on theEground that findings are erroneous, however gross or inexcusablethe error may seem to be – Findings of fact will also include thefindings on the basis of documentary evidence – Jurisdiction tointerfere in the second appeal is only where there is an error in lawor procedure and not merely an error on question of fact – HighFCourt could not interfere with the findings of fact recorded afterappreciation of evidence merely because the High Court thoughtthat another view would be better view – Readiness and willingnessto perform contract is finding of fact on the basis of oral anddocumentary evidence led by the parties – First appellate courtreturned finding that the plaintiff was ready and willing to performGthe contract and that the defendants cannot take plea that theywere not aware that ‘DS’ was the power of attorney holder – Findingsrecorded by the first appellate court cannot be said to be contraryto law which may confer jurisdiction on the High Court to interfere

with the findings of fact recorded by the first appellate court – HighCourt was not within its jurisdiction to interfere with the findings offact only for the reason that plaintiff failed to prove power ofattorney in favour of ‘DS’ – Judgment of the High Court set aside –Decree passed by the lower appellate court restored – Code of CivilProcedure, 1908 – s.100 – Code of Civil Procedure (Amendment)Act, 1976 – General Clauses Act, 1897 – s.10.

Allowing the appeal, the Court

HELD : 1.1 The jurisdiction of the High Court in secondappeal is circumscribed by the provisions of Section 41 of thePunjab Courts Act, 1918. Prior to amendment in the Code ofCivil Procedure vide CPC (Amendment) Act, 1976 w.e.f. February1, 1977, the scope of interference in second appeal under thePunjab Act as well as under the Code of Civil Procedureas it existed before the amendment was on similar grounds.[Para 10] [783-C-D]

1.2 The effect of the Constitution Bench judgment inPankajakshi case is that in second appeal, the scope of interferencewithin the Punjab and Haryana High Court would be the same asCode of Civil Procedure existed prior to 1976 amendment. Theprovisions of Section 41 of the Punjab Act and of unamendedSection 100 of the CPC were pari materia. The jurisdiction insecond appeal is not to interfere with the findings of fact on theground that findings are erroneous, however, gross or inexcusablethe error may seem to be. The findings of fact will also includethe findings on the basis of documentary evidence. Thejurisdiction to interfere in the second appeal is only where thereis an error in law or procedure and not merely an error on aquestion of fact. In view of the above, the High Court could notinterfere with the findings of fact recorded after appreciation ofevidence merely because the High Court thought that anotherview would be better view. perusal of the findings recordedshow that the first appellate court returned finding that theplaintiff was ready and willing to perform the contract and thatthe defendants cannot take plea that they were not aware that‘DS’ was power of attorney holder. Therefore, the findingsrecorded by the first appellate court cannot be said to be contrary

Ato law which may confer jurisdiction on the High Court to interferewith the findings of fact recorded by the first appellate court. Therespondents have not raised any argument that the first appellatecourt has failed to determine some material issue of law whichmay confer jurisdiction on the High Court to interfere with thefindings of fact nor there is any substantial error or defect in theBprocedure provided by the Code of Civil Procedure or by anyother law for the time being in force which may possibly haveproduced error or defect in the decision on merits. Therefore,the High Court was not within its jurisdiction to interfere withthe findings of fact only for the reason that plaintiff has failed toCprove power of attorney in favour of ‘DS’. [Paras 11, 16-19][783-C-D; 787-G-H; 788-A-E]

1.4 The agreement to purchase the land was entered intoby the plaintiff through her son ‘DS’ when sum of Rs.13,50,000/- was paid to the defendants. The defendants could accept sumDof Rs.13,50,000/- from ‘DS’ but they disputed the authority of‘DS’ to enter into agreement to purchase on behalf of his mother.‘DS’ had appeared in the office of the Sub Registrar for executionof the sale deed on January 31, 2005 with the plea that he hasbrought the balance sale consideration but the defendants havenot turned up. In fact, the defendants relied upon their presenceEbefore the Sub Registrar on January 28, 2005 i.e. even beforeJanuary 30, 2005, i.e. the date on which the execution of saledeed was fixed. January 30, 2005 was Sunday. Therefore, interms of provisions of Section 10 of the General Clauses Act,1897, it will be the next working day i.e. January 31, 2005 whichFwill be deemed to be the date for performance of the agreementand on the said date, ‘DS’ appeared with balance sale considerationand marked himself present. In respect of financial capacity, ithas come on record that the sale deeds (Exh. P-15 and Exh. P-16) were executed by ‘RK’ prior to January 30, 2005 for makingpayment to the defendants to execute the sale deed as per termsGand conditions of the agreement. Therefore, the High Court wasnot within its jurisdiction to interfere in second appeal only forthe reason that on the date of agreement, there was no specificpower of attorney in favour of son of the plaintiff, ‘DS’. In view ofthe above, the judgment of the High Court is set aside and theHdecree passed by the lower appellate court is restored. The

appellant is granted two months’ time to pay balance saleconsideration to defendant Nos. 1 and 2 and upon receiving theamount, the defendants shall execute the sale deed in favour ofthe plaintiff. If the defendants fail to receive the amount, theplaintiff will be at liberty to deposit the amount with the executingcourt and seek execution of the decree in accordance with law.[Paras 20-22] [788-F-H; 789-A-D]

Pankajakshi (D) through LRs. & Ors. v. Chandrika &Ors. (2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed.

Deity Pattabhiramaswamy v. S. Hanymayya & Ors. AIR1959 SC 57 ; Kshitish Chandra Bose v. Commissionerof Ranchi (1981) 2 SCC 103 : [1981] 2 SCR 764 ;Gurdev Kaur & Ors. v. Kaki & Ors. (2007) 1 SCC546 : [2006] 1 Suppl. SCR 27 – relied on.

Kirodi (since deceased) through his LR v. Ram Parkash& Ors. 2019 SCC OnLine SC 759 ; Chand Kaur(D)through LRs. v. Mehar Kaur (D) through LRs 2019 SCCOnLine SC 426 ; Surat Singh(D) v. Siri Bhagwan &Ors. (2018) 4 SCC 562 : [2018] 1 SCR 1063 ; Sadhuv. Mst. Kishni 1980 AIR (Punjab) 85 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5822of 2019.

From the Judgment and Order dated 24.02.2015 of the HighCourt of Punjab and Haryana at Chandigarh in RSA No. 4928 of 2012(O&M).

P. S. Patwalia, Sr. Adv., Ms. Natasha Dalmia, Vanshdeep Dalmia,A. Venayagam Balan, Advs. for the Appellant.

ANeeraj Kr. Jain, Anupam Lal Das, Sr. Advs., Siddharth Jain, UgraShankar Prasad, H. S. Jalal, Aniket Jain, Raktim Gogoi, Anirudh Singh,Sarvswa Chhajer, Gautam Talukda, Advs. for the Respondents.

The Judgment of the Court was delivered by

HEMANT GUPTA, J. 1. Leave granted.B

2. The appellant is plaintiff who has sought specific performanceof agreement to sell dated November 5, 2004 in respect of land measuring193 kanals 18 marlas at the rate of Rs.1,27,000/- per acre. sum ofRs.12,50,000/- and Rs.1,00,000/- was paid to defendant Nos. 1 and 2 asearnest money at the time of execution of agreement to sale. The dateCof registration of sale deed was fixed as January 30, 2005. The suit forspecific performance was filed on April 3, 2006.

3. The learned trial court vide judgment and decree dated April13, 2010 decreed the suit. The appeal against said judgment and decreeremained unsuccessful when such appeal was dismissed on August 11,D2012. However, in the second appeal, the decree for specific performanceof the agreement was declined but instead decree for recovery ofRs.13,50,000/- paid by the appellant along with interest at the rate of12% was granted. The High Court held that plaintiff was ready andwilling to perform the agreement and that Dhanwant Singh was not theEattorney to act on behalf of the appellant.

4. Learned counsel for the appellant-plaintiff argued that in viewof the judgment of this Court in Pankajakshi (D) through LRs & Ors.v. Chandrika & Ors.[1], substantial question of law may not be requiredto be framed but in second appeal, the finding of fact recorded cannotbe interfered with even in terms of Section 41 of the Punjab Courts Act,F1918[2].

5. It is argued that the High Court has not recorded any findingwhich satisfies the tests laid down in Section 41 of the Punjab Act. It isfurther argued that though the first power of attorney dated September29, 1999 was not in respect of land in question but in the subsequentGpower of attorney dated September 14, 2005, the appellant has ratifiedall the acts of the Attorney Dhanwant Singh including the purchase ofmovable and immovable property anywhere in her name. It is argued

1 (2016) 6 SCC 157

2 for short, ‘Punjab Act’

that the agreement dated November 5, 2004 was entered into by theappellant through her son Dhanwant Singh in whose favour registeredpower of attorney was executed on September 14, 2005. It is the saidDhanwant Singh who has paid the amount to the defendants. The pleaof the defendants that Dhanwant Singh was not authorised to act onbehalf of his mother is wholly untenable as the defendants having receivedthe amount from Dhanwant Singh. The finding that sum of Rs.13,50,000/- was paid by the appellant through Dhanwant Singh has been acceptedby the High Court when the Court recorded the following findings:

“17. Adverting to the facts of the case in hand, agreement of saledated November 05, 2004 (Ex.P-1) was executed by appellants/defendants No. 1 and 2 on their behalf as well as on behalf ofdefendants No. 3 and 4, on receipt of sum of `13.5 lacs asearnest money. Though, amount of earnest money has beendisputed by learned counsel for appellants-defendants No. 1 and2 but there is no cogent and convincing evidence in this regard.So, it cannot be safely concluded that agreement of sale (Ex.P-1)was executed by defendants No.1 and 2 on receipt of sum ofRs.13.5 lacs as an earnest money. Execution of document hasalso not been otherwise disputed by appellants-defendants andrespondent-plaintiff. Otherwise also, no amount of oral evidencecan be taken into consideration and pales into insignificance, in

view of recital contained in document.”

6. In view of the findings recorded, it is argued that the HighCourt committed material illegality in declining the relief of specificperformance on the ground that Dhanwant Singh was not authorised toact on behalf of the appellant and, that the appellant has not appeared asa witness herself.

7. It is also argued that defendants have not raised any plea in thewritten statement that Dhanwant Singh was not the authorisedrepresentative of the plaintiff to enter into agreement on her behalf.

8. On the other hand, Mr. Neeraj Kumar Jain, learned seniorcounsel appearing for the defendants, submitted that first power ofattorney dated September 29, 1999 registered on January 18, 2000 doesnot relate to land in question nor it empowers Dhanwant Singh to purchaseany other land. The power of attorney executed in favour of DhanwantSingh on September 14, 2005 empowering him to purchase movable or

Aimmovable property but such power of attorney relates to purchase infuture and not in respect of the agreement already executed. It is arguedthat plaintiff has never intimated the defendants about Dhanwant Singh,as being the attorney of the plaintiff. The High Court was justified ininterfering in the second appeal as the decision of the courts below wascontrary to law as the findings recorded by the trial court and the appellateBcourt is not based upon facts on record.

9. This Court in Kirodi (since deceased) through his LR v. RamParkash & Ors.[3]has held that judgments in Chand Kaur(D) throughLRs. v. Mehar Kaur(D) through LRs[4] and Surat Singh(D) v. SiriBhagwan & Ors.[5], are contrary to the Constitution Bench judgment inCPankajakshi case, therefore, not correct law. It, thus, transpires that interms of the Constitution Bench judgment, substantial questions of laware not required to be framed in second appeal but, the jurisdiction of theHigh Court is not to reverse the finding of facts in terms of Section 41 ofthe Punjab Act. The jurisdiction of the High Court in second appeal isDcircumscribed by the provisions of Section 41 of the Punjab Act. Thefirst ground is that decision being contrary to law or to some custom orusage having the force of law. The argument of Mr. Jain is that decisionof the first appellate court is contrary to law as the plaintiff has failed toprove readiness and willingness to perform the agreement. The readinessand willingness to perform contract is finding of fact on the basis ofEoral and documentary evidence led by the parties. The first appellatecourt has recorded the following findings on the question of readinessand willingness of the plaintiff:

“19. … Now what is to be seen if both the parties appeared to beat fault because when the agreement to sell has been provide andFthe defendant Nos. 1 and 2 have also shown that they are enteringinto an agreement on behalf of defendant Nos. 3 and 4 being theirpower of attorney but till date the defendant Nos. 1 and 2 failed toproduce any power of attorney in their favour on behalf ofdefendant Nos. 3 and 4 and defendant Nos. 3 and 4 had contestedGthe bonafide of defendant Nos. 1 and 2 to enter into an agreementto sell on their behalf when there is no general power of attorneyin favour of defendant Nos. 1 and 2. It appears that both the

3 2019 SCC OnLine SC 759

4 2019 SCC OnLine SC 426

H5 (2018) 4 SCC 562

parties were playing hide and seek. Thus, the defendants nowcannot take the plea that they had no knowledge that plaintiffRandhir Kaur had executed any power of attorney in favour ofDhanwant Singh. The plaintiff approached the Advocate,purchased the stamp for filing the suit and filed the suit for specificperformance and there is no counter claim on behalf of thedefendants and the plaintiffs were entitled either to money decreeor forfeiture of their earnest money as per agreement becausethere was no readiness and willingness on the part of the plaintiff.Therefore, it has to be held that the plaintiff was ready and willingto perform her part of contract.”

10. The first and the foremost question arises in respect of scopeof interference in second appeal in Punjab and Haryana is governed bySection 41 of the Punjab Act. Prior to amendment in the Code of CivilProcedure vide CPC (Amendment) Act, 1976 w.e.f. February 1, 1977,the scope of interference in second appeal under the Punjab Act as wellas under the Code of Civil Procedure as it existed before the amendmentwas on similar grounds. Section 41 of the Punjab Act and Section 76 ofCPC as it existed prior to April 1, 1977 reads as under:Section 41 of Punjab Act Section 76 of CPCSecond appeals—(1) An appeal 100 (1). Save where otherwise shall lie to the High Court from expressly provided in the body of every decree passed in appeal by this Code or by any other law for any Court subordinate to the the time being in force, an appeal High Court on any of the shall lie to the High Court from following grounds, namely : every decree passed in appeal by (a) the decision being contrary to any court subordinate to High law or to some custom or usage Court on any of the following having the force of law; grounds, namely: (b) the decision having failed to (a) the decision being contrary to determine some material issue of law or to some usage having the law or custom or usage having force of law; the force of law; (b) the decision having failed to (c) substantial error or defect determine some material issue of in the procedure provided by the law or usage having the force of Code of Civil Procedure 1908 [V law; of 1908], or by any other law for (c) substantial error or defect in the time being in force which the procedure provided by this Code may possibly have produced or by any other law for the time error or defect in the decision of being in force, which may possibly the case upon the merits; have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this (2) An appeal may lie under this section from an appellate decree Section from an appellate decree passed ex parte. passed ex parte.

11. The effect of the Constitution Bench judgment in Pankajakshiis that in second appeal, the scope of interference within the Punjab andHaryana High Court would be the same as Code of Civil Procedureexisted prior to 1976 amendment. The provisions of Section 41 of thePunjab Act and of Section 100 of the CPC are pari materia.

12. Some of the judgments of this Court dealing with the scope ofthe old Section 100 are required to be discussed. In judgment reportedin Deity Pattabhiramaswamy v. S. Hanymayya & Ors.[6] – ThreeJudges, while examining the scope of Section 100 of CPC, held as under:

“15. The finding on the title was arrived at by the learned DistrictCJudge not on the basis of any document of title but on aconsideration of relevant documentary and oral evidence adducedby the parties. The learned Judge, therefore, in our opinion, clearlyexceeded his jurisdiction in setting aside the said finding. Theprovisions of Section 100 are clear and unambiguous. As early as1891, the Judicial Committee in Durga Chowdhrani v. JawahirDSingh [17 IA 122] stated thus:

“There is no jurisdiction to entertain second appeal on theground of erroneous finding of fact, however gross the errormay seem to be”. The principle laid down in this decision hasbeen followed in innumerable cases by the Privy Council asEwell as by different High Courts in this country. Again theJudicial Committee in Midnapur Zamindari Co. v. UmaCharan [29 CWN 131] further elucidated the principle bypointing out:

“If the question to be decided is one of fact it does not involveFan Issue of law merely because documents which are notinstruments of title or otherwise the direct foundation of rightsbut are merely historical documents, have to be construed.”

16. Nor does the fact that the finding of the first appellate court isbased upon some documentary evidence make it any the less aGfinding of fact (See Wali Mohammad v. Mohammad Baksh, 11Lahore 199). But, notwithstanding such clear and authoritativepronouncements on the scope of the provisions of Section 100 ofthe CPC, some learned Judges of the High Courts are disposingof second appeals as if they were first appeals. This introduces,

apart from the fact that the High Court assumes and exercises ajurisdiction which it does not possess, gambling element in thelitigation and confusion in the mind of the litigant public. This caseaffords typical illustration of such interference by Judge of theHigh Court in excess of his jurisdiction under Section 100 of theCPC. We have, therefore, no alternative but to set aside the decreeof the High Court on the simple ground that the learned Judge ofthe High Court had no jurisdiction to interfere in second appealwith the findings of fact given by the first appellate Court basedupon an appreciation of the relevant evidence. In the result, thedecree of the High Court is set aside and the appeal is allowedwith costs throughout.”

13. Later, in judgment, reported in Kshitish Chandra Bose v.Commissioner of Ranchi[7] - three Judges, of this Court held that theHigh Court has no jurisdiction to entertain second appeal on findings offact even if it was erroneous. The Court held as follows:-

“11. On perusal of the first judgment of the High Court we aresatisfied that the High Court clearly exceeded its jurisdiction underSection 100 in reversing pure concurrent findings of fact given bythe trial court and the then appellate court both on the question oftitle and that of adverse possession. In the case of KharbujaKuer v. Jangbahadur Rai [AIR 1963 SC 1203 : (1963) 1 SCR456] this Court held that the High Court had no jurisdiction toentertain second appeal on findings of fact even if it was erroneous.In this connection this Court observed as follows:

“It is settled law that the High Court has no jurisdiction toentertain second appeal on the ground of erroneous findingof fact.

As the two courts approached the evidence from correctperspective and gave concurrent finding of fact, the HighCourt had no jurisdiction to interfere with the said finding.”

To the same effect is another decision of this Court in the caseof R. Ramachandran Ayyar v. Ramalingam Chettiar [AIR 1963SC 302 : (1963) 3 SCR 604] where the Court observed as follows:

7 (1981) 2 SCC 103

“But the High Court cannot interfere with the conclusions offact recorded by the lower appellate court, however erroneousthe said conclusions may appear to be to the High Court,because, as the Privy Council observed, however, gross orinexcusable the error may seem to be there is no jurisdictionunder Section 100 to correct that error.”

14. In another judgment reported in Gurdev Kaur & Ors. v. Kaki& Ors.[8], the rationale behind permitting second appeal on question oflaw after the amendment was considered. It was held that after the1976 amendment, the scope of Section 100 has been drastically curtailedand narrowed down. The Court held as under:C

“71. The fact that, in series of cases, this Court was compelledto interfere was because the true legislative intendment and scopeof Section 100 CPC have neither been appreciated nor applied. Aclass of judges while administering law honestly believe that, ifthey are satisfied that, in any second appeal brought before themDevidence has been grossly misappreciated either by the lowerappellate court or by both the courts below, it is their duty tointerfere, because they seem to feel that decree following upona gross misappreciation of evidence involves injustice and it is theduty of the High Court to redress such injustice. We would like toEreiterate that the justice has to be administered in accordancewith law.

73. The Judicial Committee of the Privy Council as early as in1890 stated that there is no jurisdiction to entertain second appealFon the ground of an erroneous finding of fact, however gross orinexcusable the error may seem to be, and they added note ofwarning that no court in India has power to add to, or enlarge, thegrounds specified in Section 100.”

15. The Division Bench of Punjab and Haryana High Court in aGjudgment reported in Sadhu v. Mst. Kishni[9] set aside the judgment ofthe learned Single Bench in an intra court appeal in terms of the provisionsof law as it existed prior to 1976, and held as under:

8 (2007) 1 SCC 546

9 1980 AIR (Punjab) 85

“12. The scope of second appeal as envisaged by section 100 ofthe Civil Procedure Code and section 41 of the Punjab CourtsAct has been matter of judicial scrutiny number of times bythis court as well as by the final court, that is, the Suprems Courtof India. The learned counsel for the appellant has actually madea reference in this regard to Detty Paitabhiramaswami v. S.Hanymayya [AIR 1959 SC 57.], Madamanchi Ramappav. Muthaluru Bojjappa [AIR 1962 SC 1933.], Bithal DassKhanna v. Hafiz Abdul Hai [1969 S.C. Notes 481.] and AfsarShaikh v. Soleman Bibi [(1976) 2 SCC 142 : AIR 1976 SC 163.]. These pronouncements; in nutshell, lay down that there is nojurisdiction to entertain second appeal on the ground of aerroneous finding of fact, however gross or inexecusable the errormay seem to be. Nor does the fact that the finding of the firstappellate Court is upon some documentary evidence make it anythe less finding of fact. Judge of the High Court has, therefore,no jurisdiction to interfere in second appeal with the findings offact given by the first appellate court based upon an appreciationof the relevant evidence. Their Lordships have further observedthat the only ground on which such an appeal can be said to becompetent is where there is an error in law or procedure and notmerely on an error on question of fact.Top of Form

xxxx

14. In view of the above discussion, we are clearly of the viewthat the learned Single Judge exceeded his jurisdiction in settingaside the findings of the fact on issue No. 2. The provisions ofsection 100 being clear and unambiguous, there was no scope forinterference with those findings. We thus allow the appeal andset aside the judgment of the learned Single Judge and affirm thejudgment and decree passed by the District Judge. The partiesare, however left to bear their own costs.”

16. perusal of the aforesaid judgments would show that thejurisdiction in second appeal is not to interfere with the findings of facton the ground that findings are erroneous, however, gross or inexcusablethe error may seem to be. The findings of fact will also include thefindings on the basis of documentary evidence. The jurisdiction tointerfere in the second appeal is only where there is an error in law orprocedure and not merely an error on question of fact.

A17. In view of the above, we find that the High Court could notinterfere with the findings of fact recorded after appreciation of evidencemerely because the High Court thought that another view would be abetter view. The learned first appellate court has considered the absenceof clause in the first power of attorney to purchase land on behalf of thePlaintiff; the fact that the plaintiff has not appeared as witness.B

18. perusal of the findings recorded show that the learned firstappellate court has returned finding that the plaintiff was ready andwilling to perform the contract and that the defendants cannot take pleathat they were not aware that Dhanwant Singh was power of attorneyholder. Therefore, the findings recorded by the first appellate courtCcannot be said to be contrary to law which may confer jurisdiction onthe High Court to interfere with the findings of fact recorded by the firstappellate court.

19. Learned counsel for the respondents have not raised anyargument that the first appellate court has failed to determine some materialDissue of law which may confer jurisdiction on the High Court to interferewith the findings of fact nor there is any substantial error or defect in theprocedure provided by the Code of Civil Procedure or by any other lawfor the time being in force which may possibly have produced error ordefect in the decision on merits. Therefore, the High Court was notEwithin its jurisdiction to interfere with the findings of fact only for thereason that plaintiff has failed to prove power of attorney in favour ofDhanwant Singh.

20. The agreement to purchase the land was entered into bythe plaintiff through her son Dhanwant Singh when sum ofFRs.13,50,000/- was paid to the defendants. The defendants could accepta sum of Rs.13,50,000/- from Dhanwant Singh but they disputed theauthority of Dhanwant Singh to enter into agreement to purchase onbehalf of his mother. Dhanwant Singh had appeared in the office of theSub Registrar for execution of the sale deed on January 31, 2005 withthe plea that he has brought the balance sale consideration but theGdefendants have not turned up. In fact, the defendants relied upon theirpresence before the Sub Registrar on January 28, 2005 i.e. even beforeJanuary 30, 2005, i.e. the date on which the execution of sale deed wasfixed. January 30, 2005 was Sunday. Therefore, in terms of provisionsof Section 10 of the General Clauses Act, 1897, it will be the next workingHday i.e. January 31, 2005 which will be deemed to be the date for

performance of the agreement and on the said date, Dhanwant Singhappeared with balance sale consideration and marked himself present.

21. In respect of financial capacity, it has come on record that thesale deeds (Exh. P-15 and Exh. P-16) were executed by Randhir Kaurprior to January 30, 2005 for making payment to the defendants to executethe sale deed as per terms and conditions of the agreement. Therefore,the High Court was not within its jurisdiction to interfere in second appealonly for the reason that on the date of agreement, there was no specificpower of attorney in favour of son of the plaintiff, Dhanwant Singh.

22. In view of the above, the judgment of the High Court is setaside and the decree passed by the lower appellate court is restored.The appellant is granted two months’ time to pay balance sale considerationto defendant Nos. 1 and 2 and upon receiving the amount, the defendantsshall execute the sale deed in favour of the plaintiff. If the defendantsfail to receive the amount, the plaintiff will be at liberty to deposit theamount with the executing court and seek execution of the decree inaccordance with law.

23. The appeal is allowed. No costs.

Divya Pandey

Appeal allowed.