2026:HHC:35212 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.138 of 2008 Reserved on: 12.08.2026 Date of Decision: 20.08.2026 Mahesh Chand (since deceased) through his legal representatives ...Appellants Versus Jaswant Singh …Respondent _____________________________________ Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the appellants : Mr Sanjeev Bhushan, Senior Advocate with Mr Rajesh Kumar, Advocate. For the respondent : Mr Sanjeev Kuthiala, Senior Advocate with Ms Tamanna Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 28.09.2007, passed by the learned Additional 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:35213 District Judge, Una, District Una, H.P. (learned Appellate Court vide which the judgment and decree passed by the Civil Judge, (Junior Division), Court No.1, Una, District Una, H.P. (learned trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for specific performance of the agreement of sale dated 24.10.1991, executed by defendant no. 1 in favour of the plaintiff regarding the suit land mentioned in the head-note and para 1 of the plaint or, in the alternative, for the recovery of ₹16,000. It was asserted that defendant No. 1 agreed to sell the suit land to the plaintiff for ₹60,750/-. The defendant No. 1 received ₹8,000/- as earnest money from the plaintiff and agreed to execute the sale deed on or before 30.06.1992. It was also agreed that the plaintiff would be entitled to the refund of ₹8,000/- as earnest money and ₹8,000/- as damages on failure to execute the sale deed. The plaintiff is ready and willing to perform his part of the contract by paying the balance consideration of ₹52,750/-. Defendant no. 1 filed a collusive suit 3 2026:HHC:35213 No.265 of 1991 titled Mahesh Sharma versus Suram Chand and obtained a decree on 22.03.1992. This decree does not affect the plaintiff’s rights. The plaintiff requested the defendant no. 1 to execute the sale deed as per the terms and conditions of the agreement, but in vain. Hence, the suit was filed to seek the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objections regarding the improper valuation, lack of maintainability, the suit being barred by limitation and the suit being barred for non-joinder of the other co-sharers. The plaintiff’s claim was denied on merits. It was asserted that the defendant no. 1, Suram Chand, was addicted to intoxicants and he had not executed any agreement to sell in plaintiff’s favour. The plaintiff obtained the agreement by way of fraud, coercion, misrepresentation and undue influence. The contents of the agreement were not binding upon the defendants. ₹8,000/- was not paid to Suram Chand. The suit land is joint Hindu family Coparcenary property, which cannot be transferred without the consent of the Coparceners. The previous suit was compromised before the Lok Adalat, and it was not collusive. Hence, it was prayed that the suit be dismissed. 4 2026:HHC:35213 4. A replication denying the contents of the written statement and affirming those of the plaint was filed. 5. Learned trial Court framed the following issues on 15.09.1998, and additional issues on 24.01.2003: 1. Whether Suram Chand entered into an agreement to sell with the plaintiff on 24.10.91 to sell the suit land as alleged? OPP 2. If issue no.1 is proved in the affirmative, whether the plaintiff is entitled for specific performance of contract on basis of alleged agreement to sell? OPD. 3. Whether the suit is not properly valued for the purpose of court fee? OPD. 4. Whether the suit is barred by limitation? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD. 6 Whether the suit is not maintainable in present form?OPD. 6-A. Whether the decree in Civil Suit No.265/91 is collusive?OPP 6-B Whether the suit land is joint Hindu Coparcenary property; if so, its effect?OPD 7. Relief. 6. The parties were called upon to produce the evidence and the plaintiff examined Kamal Nath (PW-1), Desh Raj (PW- 5 2026:HHC:35213 2), and himself (PW-3). The defendants examined Hari Dass (DW-1), Veena Sharma (DW-2) and Pawan Kumar (DW-3). 7. Learned trial Court held that the suit land was not proved to be Coparcenary property. The previous suit was collusive, and the decree passed in the previous suit did not bind the plaintiff. Suram Chand had executed an agreement to sell in his sound disposing state of mind. The plea taken by the defendants that the agreement was the result of fraud, coercion, misrepresentation and undue influence was not proved. The suit was properly valued for the purpose of court fee and jurisdiction. Hence, learned trial Court answered Issues No.1, 2 and 6A in the affirmative, the rest of the issues in the negative and decreed the suit. 8. Being aggrieved by the judgment and decree passed by the learned trial Court, the defendants filed an appeal, which was decided by the learned Additional District Judge, Una, District Una, H.P. (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned trial Court that Suram Chand had agreed to sell the suit land in his sound disposing state of mind. The defendants had 6 2026:HHC:35213 failed to prove the plea of fraud, coercion, and undue influence. The previous decree was collusive, which does not bind the plaintiff’s rights. The nature of the suit land was not proved to be ancestral. The agreement was executed with the plaintiff’s father, and the plaintiff was competent to get the agreement specifically performed. There was no infirmity in the judgment and decree passed by the learned trial Court. Hence, the appeal was dismissed. 9. Being aggrieved by the judgment and decree passed by the learned trial Court, the defendants have filed the present appeal, which was admitted on the following substantial questions of law on 29.04.2009: 1. Whether the suit of the plaintiff could have been decreed on the basis of agreement Ex P-1 which was not between the plaintiff and the predecessor of the appellants? 2. Whether the alleged agreement Ext. P-1 is the result of fraud, especially when at the time of execution of the same the age of Suram Chand was 95 years? 10. I have heard Mr Sanjeev Bhushan, learned Senior Advocate, assisted by Mr Rajesh Kumar, learned counsel for the appellants and Mr Sanjeev Kuthiala, learned Senior Advocate, assisted by Ms Tamanna, learned counsel for the respondent. 7 2026:HHC:35213 11. Mr Sanjeev Bhushan, learned Senior Advocate for the appellants, submitted that the learned trial Court erred in framing issue No.6A and 6-B, because no relief was claimed by the plaintiff regarding the invalidity of the previous judgment and decree. The agreement was executed between Wattan Singh and Suram Chand, and the plaintiff was not a signatory to it. He could not have enforced it, and the learned Courts below erred in decreeing the suit. The suit land was proved to be ancestral, and the finding to the contrary is dehors the record. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by learned courts below be set aside. 12. Mr Sanjeev Kuthiala, learned Senior Advocate for the respondent, submitted that the agreement was executed by Wattan Singh, plaintiff’s father, and the plaintiff is competent to enforce it. There was no evidence that Suram Chand had acquired the property from his father, grandfather or great- grandfather, and learned Courts below had rightly held that suit land was not proved to be ancestral in nature. The defendants had not raised any objection at the time of framing of the issues, and they cannot object to it in the present proceedings. The decree has been executed during the pendency of the appeal, and 8 2026:HHC:35213 the appeal has become infructuous. Therefore, he prayed that the present appeal be dismissed. 13. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial question of law No.1 14. The agreement (Ext.P-1) was executed between Suram Chand and the plaintiff Jaswant Singh; however, it was not signed by Jaswant Singh but by his father Wattan Singh. Jaswant Singh (PW-3) stated that he had agreed to purchase the suit land through his father vide agreement (Ext.P1). He admitted in his cross-examination that he was not present at the time of the execution of the agreement to sell. It was mentioned in the agreement (Ext.P-1) that his father was his power of attorney, and it was also mentioned that he was competent to purchase the property on his behalf. 15. It was submitted that the plaintiff had not signed the agreement and he cannot enforce it. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Rattan Singh v. Nirmal Gill, (2021) 15 SCC 300: 2020 SCC OnLine SC 9 2026:HHC:35213 936 that the signatures of the vendee are not mandatory in the agreement to sell. It was observed at page 329: 63. It is noteworthy that Defendant 4 had not signed the sale deed despite being a vendee. In Aloka Bose v. Parmatma Devi [Aloka Bose v. Parmatma Devi, (2009) 2 SCC 582], it has been held that the signature of the vendee is not mandatory in a sale deed. The relevant portion of the said decision is extracted hereunder : (SCC pp. 587-88, paras 18-22) “18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of the purchaser alone signing an agreement of sale. 19. The defendant next contended that the agreement of sale in this case (Ext. 2) was clearly in a form which required signatures of both the vendor and purchaser. It is pointed out that the agreement begins as: “Agreement for sale between Kanika Bose and Parmatma Devi” and not an “Agreement of sale executed by Kanika Bose in favour of Parmatma Devi”. Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which reads thus: “In witnesses whereof, the parties hereto have hereunto set and subscribed their respective hands and seals on these presents.” 10 2026:HHC:35213 It is, therefore, contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable. 20. We have carefully examined the agreement (Ext. 2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. The parties no longer “subscribe their respective hands and seals”. It is true that the format obviously contemplates signature by both parties. But it is clear that the intention of the parties was that it should be complete on signature by only the vendor. This is evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself (7-9-1979) by the vendor acknowledging the receipt of Rs 2001 as advance, it also contains a second endorsement (which is also duly witnessed) made on 10-10-1979 by the vendor, acknowledging the receipt of a further sum of Rs 2000 and confirming that the total earnest money received was Rs 4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment. If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgement thereon on 10-10- 1979. 21. Apart from the above, the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded clearly demonstrated that it was intended to be executed only by the vendor alone. 11 2026:HHC:35213 22. Thus, we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.” (emphasis supplied) 16. In the present case, the agreement was signed on behalf of the plaintiff by Wattan Singh. Suram Chand acknowledged in the agreement (Ext.P-1) that he had received ₹8,000/- at the time of the execution of the agreement. Desh Raj (PW-2) stated that ₹8,000/- was paid as earnest money to Suram Chand in his presence and Suram Chand agreed to execute the sale deed on or before 30.06.1992. Kamal Nath Sharma (PW-1), Deed Writer, also stated that the agreement was executed at the instance of Suram Chand in Jaswant’s favour, which was read over and explained, and he made an entry in his register. Learned Courts below have accepted the testimonies of these witnesses as correct. Thus, the conduct of Suram Chand showed that the agreement was executed by Suram Chand voluntarily and he accepted ₹8,000/- pursuant to the agreement, and he is bound by the terms and conditions of the agreement. Hence, the plea that the agreement is not enforceable, because it has not been signed by Suram Chand, is not acceptable, and learned Courts below have rightly enforced it 12 2026:HHC:35213 at the plaintiff’s instance. Hence, this substantial question of law is answered accordingly. Substantial question of law No 2. 17. Veena Devi (DW-2) stated in her proof affidavit that she and another co-sharer were not aware of the agreement to sell dated 24.10.1995. Thus, there is an admission that the agreement was not executed in the presence of Veena Devi, and she is not competent to depose that the agreement was executed by practising fraud, undue influence or misrepresentation. Nothing was suggested to Kamal Nath Sharma (PW-1) or Desh Raj that some fraud was practised upon Suram Chand or that he was intoxicated at the time of the execution of the agreement to sell. Therefore, learned Courts below have rightly held that the defendants had failed to prove the fraud. The fraud cannot be inferred because a person was aged 95 years. Therefore, there is no misappreciation of the evidence by the learned courts below, and this substantial question of law is answered accordingly. Additional Submissions: 18. The submissions made by Mr Sanjeev Bhushan, learned Senior Advocate for the defendants, regarding the 13 2026:HHC:35213 ancestral nature of the property and the framing of the issues, do not pertain to the substantial questions of law framed by the Court. It was laid down by the Hon’ble Supreme Court in Nek Pal v. Nagar Palika Parishad, (2024) 12 SCC 347: 2024 SCC OnLine SC 1873 that the High Court can only hear the regular second appeal on the substantial questions of law framed. It was observed at page 348: 2. The aforesaid paragraph indicates that at the time of admitting the second appeal under Section 100CPC, substantial questions of law were not formulated. Unless substantial questions of law are formulated at the time of admission of the appeal or at any time subsequent thereto, a second appeal cannot be finally heard. The reason is that a second appeal can be finally heard only on a substantial question of law formulated earlier. In fact, the act of finally hearing a second appeal without framing any substantial question of law is itself illegal. 3. There is nothing on record to show that the High Court formulated the substantial questions of law and gave an opportunity to the parties to argue on the basis of those substantial questions of law. All that the High Court says is that the Court has confined itself to three substantial questions of law. 4. The High Court did not put the rival advocates to notice before the commencement of the hearing that it was proposing to hear the appeal on specific substantial questions of law. The High Court could have framed substantial questions of law and heard the appeal after a few days, so that the advocates had notice that the appeal would be heard on specific substantial questions of law. 14 2026:HHC:35213 5. Therefore, the procedure followed by the High Court is completely illegal and contrary to Section 100CPC…. 19. This position was reiterated in U. Sudheera v. C. Yashoda, (2025) 4 SCC 215: 2025 SCC OnLine SC 104, wherein it was observed: 7. As per Section 100, a High Court can proceed to hear a second appeal only if the case involves a substantial question of law, implying that when the appeal is taken up for admission, it must satisfy itself that a substantial question of law is involved. Thereafter, the High Court must frame such a question and direct the parties to submit their arguments on such a question. The scheme of the Code also enables the High Court to hear the parties on any other substantial question of law, not framed by it at the first hearing, but during the course of the hearing, for the reasons to be recorded. Again, if the Court is not satisfied at the first hearing that the case does not involve a substantial question of law, it cannot proceed further. Once such an additional question of law is framed during the course of hearing, the parties must be given the opportunity to submit their arguments on the other substantial question of law(s). 20. Therefore, the jurisdiction of the Court deciding the Regular Second Appeal is restricted to the substantial questions of law formulated by the Court, and it is impermissible to adjudicate any other question which may be raised by any party. Even otherwise, for the completeness of the judgment, the plea of previous decree being collusive was specifically taken in para 4 and was denied in the written statement. Thus, a material fact 15 2026:HHC:35213 was asserted and denied which gave rise to an issue. The documents (Ext.D-5 to Ext.D-11) only showed Suram Chand to be the owner and do not show that the property was acquired by him from his ancestor, and these jamabandies do not prove the ancestral nature of the land. Hence, there is no infirmity in framing the issues and holding that the suit land was not proved to be ancestral. 21. The plaintiff has also filed an application claiming that the decree has been executed, and the appeal has become infructuous. This plea is not acceptable. The mere execution of the decree will not make the judgment infructuous, because the rights of the parties are to be determined as they existed on the date of the filing of the suit and not on the date of adjudication of the appeal2. Order 41 Rule 5 provides that mere filing of an appeal does not amount to the stay of the decree, which shows that the legislature has specifically provided for the execution during the pendency of the appeal. This is also evident from Section 144 of the CPC, which provides that when the decree is reversed or varied in appeal, a party who had got the benefit under the decree is liable for restitution. Thus, the legislature 2 Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256: 2002 SCC OnLine SC 96 16 2026:HHC:35213 contemplated that the decree can be executed during the pendency of the appeal, and that is why it provided for restitution. It was laid down by the Karnataka High Court in Sanjeevamma and Ors. vs. G. Krishna and Ors. (21.02.2004 - KARHC): MANU/KA/0117/2004 that the Appellate Court is bound to hear the appeal on merits even after the execution of the decree. It was observed: 9. The facts of this case are not in dispute. It is not in dispute that after granting a decree by the Trial Court, respondents, by filing an execution, have removed the construction put up by the appellants/ defendants on the MNOP portion. It is no doubt true that the decree has been executed, but the question is whether the Appellate Court, on the said ground, can dismiss the appeal of the appellants without considering the case of the appellants on merits. Appellate Court, without considering the provisions of Section 144 of CPC, has disposed of the appeal. If the Appellate Court, on merits, had come to the conclusion that the judgment and decree granted by the Trial Court shall require to be set aside, in such an event, the Appellate Court had every power to allow the appeal and dismiss the suit of the plaintiffs by reversing the judgment and decree of the Trial Court. In such an event, appellants were entitled to invoke the provisions of Section 144 of CPC and request the Court for restitution. But in the instant case, the Appellate Court, without considering the provisions of Section 144 of CPC and the case of the appellants on merit, has dismissed the appeal as having become infructuous. Therefore, this Court is of the opinion that the procedure followed by the Appellate Court is bad in law and requires to be set aside. 17 2026:HHC:35213 22. Hence, the appeal cannot become infructuous by execution of the decree and the plaintiff’s application is dismissed. Final order. 23. In view of the above, there is no infirmity in the judgments and decrees passed by learned Courts below; hence the present appeal fails, and it is dismissed, so also the pending application(s), if any. 24. A copy of the judgment, along with the record of the learned Courts below, be sent back forthwith. (Rakesh Kainthla) Judge 20th August, 2026 (ravinder)