The execution of a sale agreement by a mother's guardian on behalf of a minor is not void but voidable, and the plaintiff's readiness and willingness to perform must be established throughout the contract's duration.

JUDGMENT :

RAVI V. HOSMANI, J.

Challenging judgment and decree dated 15.06.2020 passed by Senior Civil Judge and JMFC, Muddebihal, in O.S.no.37/2019, this appeal is filed.

2. Sri Brijesh Patil, learned counsel submitted that appeal was by unsuccessful plaintiff in suit for specific performance etc. Said suit was filed stating that during year 2010, land bearing Sy.no.40/2B measuring 04 Acres 03 guntas situated at Balawat village, Muddebihal Taluk, Vijayapura District (for short ‘suit property’), jointly belonged to minor defendant and her mother - Prabhavati wife of Shankaragouda Yalawar.

3. Brief facts as stated were, defendant’s mother needed money for legal necessities and to discharge loans incurred for treatment of her husband. For said purpose, she intended to sell suit property. As plaintiff offered highest price, acting on her own behalf and on behalf of defendant, she executed agreement of sale dated 25.02.2010, agreeing to sell suit property to plaintiff for total sale consideration of Rs.12,00,000/-, by receiving Rs.11,50,000/- as advance on same day and agreeing to receive balance amount of Rs.50,000/- at time of execution of sale deed. Said agreement was executed in presence of village elders/witnesses.

4. Thereafter, though plaintiff approached with balance amount, she kept postponing execution of sale deed. And on 19.09.2013, defendant’s mother died. As on said date, defendant was still a minor. She attained age of majority about two years prior to suit. It was also stated that plaintiff approached with balance amount calling upon her to execute sale deed. However, she postponed same and failed to respond to legal notice dated 03.01.2018 got issued by plaintiff calling upon her to execute sale deed. Stating that same amounted to refusal to perform her part of contract giving rise to cause of action, suit was filed.

5. And as despite service of summons, defendant did not appear and was placed ex-parte, trial Court framed following points for consideration:

1. Whether the plaintiff proves the due execution of agreement of sale dated 25.2.2010 by the mother of the defendant on her behalf and on behalf of the defendant?

2. Whether the plaintiff proves that she has always been ready and willing to perform her part of contract?

3. Whether the suit is barred by limitation?

4. Whether the plaintiff is entitled for the relief claimed in the suit?

5. What order or decree?

6. Thereafter, plaintiff got examined herself and one witness as PWs.1 and 2 and got marked Exs.P1 to P5.

7. On consideration of same in light of arguments on behalf of plaintiff, trial Court answered points no.1 and 3 in affirmative, points no.2 and 4 in negative and point no.5 by dismissing suit. Aggrieved plaintiff was in appeal.

8. It was submitted, after filing of present appeal, defendant executed Gift Deed in respect of suit property on 19.10.2020 in favour of her husband. Therefore, he was arrayed as respondent no.2. It was submitted, said alienation would be hit by Section 52 of Transfer of Property Act, 1882 .

9. It was submitted, admittedly suit property was jointly owned by defendant and her mother. As defendant was still a minor, agreement of sale was executed by defendant’s mother on behalf of defendant also, as her guardian. It was submitted, agreement contained express condition that sale deed was to be executed by defendant also after she attained age of majority and loans on suit property were cleared. Thereafter, defendant’s mother died leaving behind defendant as sole legal heir. It was submitted, defendant attained age of majority on 04.09.2017 and plaintiff, who was none other than her grandmother called upon defendant to come forward to execute sale deed in terms of agreement of sale.

10. After making several oral requests, which failed to yield result, on 03.01.2018, she got issued legal notice demanding defendant to come forward to execute sale deed by receiving balance sale consideration of Rs.50,000/-. In view of failure, which amounted to ref