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Andhra Pradesh High Court
Peri Bhaskararao - Appellant
Versus
Sathi Adilakshmi - Respondent
Decided On : 08-20-05
Indian Contract Act 1872 – Section 45 – Hindu Succession Act 1956 – section 6, Section 9 – Hindu minority and Guardianship Act 1956 – Section 8 – Civil Procedure Code – Order 34 Rule 1 – Transfer of Property Act – Section 67 – Arbitration – Coparcener – Immorality – Illegality – Delivery of possession – Ground of implied agency – Discretionary relief – This Appeal is preferred by unsuccessful defendants in o. S. on file of II Additional Subordinate Judge – Respondent herein, plaintiff in suit filed suit for specific performance of agreement alternative relief of refund of an amount of and for costs – Learned Judge on strength of respective pleadings of parties having settled Issues, recorded evidence of PW-1 and PW-2, DW-1 to DW-3, marked Exs. A-1 to A-7 and Exs. B-1 to B-9 and recorded findings that condition relating to approval of plan or approval of layout had not been complied with by appellants/defendants and hence there was some delay and respondent/plaintiff was ready and willing to perform her part of contract and further findings had been recorded relating to condition of cancellation of agreement and capacity of respondent/plaintiff to purchase property and a further finding had been recorded that recital relating to delivery of possession is neither an addition nor interpolation and alienation is for legal necessity and hence minors also are bound by same and a further finding had been recorded in relation to rights of defendants 4 to 6 that either on ground of ratification or on ground of implied agency in light of conduct of parties and evidence available on record they are also bound by agreement of sale Ex. A-1 and accordingly decreed suit with costs – Held, This Court cannot arrive at any other conclusion in light of peculiar facts and circumstances that plaintiff was unable to establish legal necessity on the part of natural fathers to enter into this transaction on behalf of minors so as to bind minors also – Mere casual recital is not sufficient – Some more evidence is needed – As already referred to supra, no attempt had been made to let in any convincing or acceptable evidence in this direction – Hence, this Court is of considered opinion that relief of specific performance in relation to respective shares also cannot be granted in view of fact that relief is a discretionary relief and also in view of fact that absolutely there is no evidence in relation to legal necessity so as to bind minors shown in Ex. A-1 at relevant point of time who had attained majority subsequent thereto and had elected to dispute Ex. A-1 transaction – Appeal is Allowed
( 2 ) SUBMISSIONS of Sri V. L. N. G. K. Murthy : Sri V. L. N. G. K. Murthy, the learned counsel representing the appellants made the following submissions. The learned counsel would maintain that the concept of agency and the implied agency or the ratification are conflicting stands since they do not co-exist. Even otherwise there is no specific plea in this regard except one sentence in the pleading and hence this may not be sufficient to infer implied agency and this cannot be taken as a foundation for ratification. The learned Counsel also pointed out to para-9 (a) which had been introduced by amending the pleading and had taken this court through the respective pleadings of the parties, Issues settled and also the findings recorded, the notices between the parties and the contents thereof. The learned Counsel also made elaborate submissions in relation to implied agency and ratification while drawing the attention of this Court to the relevant provisions of the Indian Contract Act 1872. The learned Counsel also would maintain that at the time of the execution of the agreement the same was proceeded on the ground that the executants alone are the owners of the property and hence there cannot be a change of stand now so as to fasten the obligation even on the non-parties to the agreement of sale. The learned Counsel with all emphasis would contend that in the light of the facts and circumstances the non- parties to Ex. A-1 cannot be made liable under Ex. A-1 either on the ground of implied agency or on the ground of ratification and these findings are totally unsustainable. The learned Counsel also pointed out that the minors had attained majority and the question of karta representing may not arise. The learned counsel also would contend that the 8th defendant may be competent to alienate representing defendants 14 and 15 also. Likewise, the 1st defendant as Karta may enter into such transactions on behalf of the minors in the event of the transaction being supported by legal necessity. Even otherwise, 18th defendant is a non-party to Ex. A-1. The learned Counsel also explained the minors had attained majority and had chosen to contest the litigation. The learned Counsel also made certain submissions on the aspect of succession of the respective shares under the provisions of the Hindu Succession Act 1956 as amended subsequent thereto. The learned Counsel also pointed out that the 24th defendant was not a part
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