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1985 Supreme(AP) 501
Andhra Pradesh High Court
Judges : P.KODANDA RAMAYYA, RAMA RAO
B.Ramender Reddy - Appellant
Versus
B.V.Satyanarayana Reddy - Respondent
CCC A. Nos. 181 & 249/1982
Decided On : 12-28-85
Advocates Appeared :
Mr. P. Ramachandra Reddy,Mr. P. M. Gopal Rao
Headnote:HINDU MINORITY AND GUARDIANSHIP ACT, 1956, Secs 6 (a) and 8 (3) - Mother cannot as the natural guardian of a minor when father is alive enter into a sale transaction on behalf of the minor Such sale transition being void cannot be enforced against the minor - Minor after attaining majority can avoid the contract.
Held: The right of the mother to act as a guardian during the life time of the father comes into play only when the father was disabled physically or mentally or abandoned or neglected his duties and in the absence of such exceptional circumstances the mother cannot act as a guardian. Among natural guardians the father takes precedence ever mother and the mother Shall be treated as not a guardian at all in the presence of the father and any representation made by her in respect of the person or property of the minor is Wholly void and inoperative. After the Act came into force any agreement entered into by the guardian without the sanction of court cannot be enforced against the minor or his estate and no question of the court examining the beneficial nature of the transaction and the requisite Capacity of the minor to so would arise and hence under subsection (3) of Sec 8 the minor can avoid the Contract. Such power is given not only to the minor but also persons claiming under him.
C. C. C. As. Dismissed
( 1 ) THESE two appeals arise out of a suit and a counter suit filed by the parties. C C C A 181/82 is filed against the judgment and decree in 0 S No,1052/80. This suit is laid for possession against the defendents. It is averred in the plaint that the defendants who obtained a nominal agreement to sell dated 11-4-72 from the mother of the plaintiff, purporting to represent the plaintiff when he was a minor for purchasing the suit land belonging to the plaintiff of an extent of acs. 4-01 guntas, comprised in survey no. 115 in Thokatta Village Secunderabad taluk, Hyderabad District, trespassed on the land in the second week of october, when the plaintiff refused to accept their claim to convey the title in the property. There are three defendants in the suit. The 1st defendant is the husband of the 2nd defendant and the 3rd defendant is their son.
( 2 ) THE defence is that the agreement is true and valid and the representation of the mother as guardian to the plaintiff is valid and the defendants took possession of the property, in pursuance of the agreement, and improved the same and the plaintiff, who could not obtain the necessary permission due to the prohibition of alienation of vacant lands in Urban Area Act, 1972 went back on the promises when he ultimately obtained permission under urban Land (Ceiling and Regulation) act, 1976 and the trespass is not true and the suit is liable to be dismissed. The suit was filed on 25-10-1980. The defendants, who contested the suit, filed a counter suit on 20-11-1980 for specific performance of agreement to sell for the very agreements which the plaintiff in the earlier suit described as nominal. Virtually the defence in 0 S 1052/80 is the plaint in 0 S No. 1181/80-the suit for specific performance. In 0 S No. 1052/80, common evidence was recorded for both the suits and the plaintiff in 0 S 1052/80 was described as plaintiff and the defendants in that suit were described as defendants for purpose of both the suits, while assessing the evidence. In 0 S 1052/80 the following issues are framed: 1) Whether the plaintiff is entitled to evict the defendant from the suit land? 2) Whether the plaintiff is entitled to future mesne profits, if so at what rate ? 3) Whether this suit has no cause of action ? 4) Whether this court has no jurisdiction to try the suit ? 5) To what relief ? the issues framed in 0 S 1181/80 are : 1) whether the agreement of sale dt. 11-4-72 is valid and enforceable ? 2) Whether the plaintiff is entitled for specific performance of the agreement of sale dt. 11-4-72 ? 3) Whether the plaintiff is entitled to protection of Section 53-A of the Transfer of Property Act ? 4) Whether the plaintiff is entitled to compensation and demages, amounting to Rs. 2 lakhs as alleged ? 5) To what relief ?
( 3 ) IT is seen there is no issue whether the suit agreement Ex B-1 is nominal or not. But, the court below gave all pertinent findings for that conclusion and dismissed the suit, holding that the suit agreement is void and it is executed by the mother of the plaintiff, while the father of the plaintiff is alive and consequently dismissed the suit for specific performance and decreed the suit for possession. Againt the said judgment and decree, the defendants in 0 S 1052/80, who are also the plaintiffs in 0 S 1181 80 filed appeals against the judgments and decrees in both the suits
( 4 ) LT is clear that, if the suit for specific performance is decreed, the suit for possession does not lie and hence it has to be dismissed and hence the court below also concentrated on the question whether the suit for specific preformance is liable to be decreed. We are also of the same opinion that, once the title of the plaintiff in the possession suit is admitted the sole question for determination is whether the agreement set up by the appellants is true, valid and enforceable against the owner.
( 5 ) SRI P Ramachandra Reddy, the learned counsel for the appellants, urged that
