Point of Law: Suit for specific performance - Performance against Minors - Natural guardian - Court cannot give go bye to provisions of S. 8(2) of Act of 1956 - As they are not complied, decree for specific performance as granted by trial Court cannot be confirmed by this Court, hence set aside - At same time, defendants cannot be directed to obtain leave of Court as contemplated under S. 8(2) of Act of 1956 because there was no condition in Agreements

JUDGMENT :

Heard Mrs. Vijaya Thakre, learned Advocate for the appellants-original defendants and Shri Anand Deshpande, learned Advocate for the respondent-original plaintiff. While condoning the delay, the Hon’ble Supreme Court has expedited the hearing of the appeal. While admitting the appeal, this Court has framed the substantial questions of law on 03/12/2018. They are reproduced as under :

(i) In view of the finding of fact recorded that the suit property was the self acquired and independent property of deceased Pandhari and in view of the admitted position on record that the suit for specific performance is instituted against the minor son and daughters of Pandhari,

(ii) Whether the decree of specific performance could have been granted?

(iii) Whether in the absence of permission under Section 8(2) of the Hindu Minority and Guardianship Act, 1856, the agreement of sale is capable of being specifically enforced?

(iv) Whether in view of the evidence on record, the respondent is entitled to specific performance?

BACKGROUND OF THE LITIGATION

2] One Pandhari Ramkrushna Warrarkar was the owner of an agricultural land (converted into non-agricultural land) bearing Survey No.51/3, admeasuring 1 hectare 42 ares, situated at Village Wadgon Teep, Tahsil Wani, District Yavatmal. It was his exclusive property. He expired in the month of August, 1995. Prior to his death, he agreed to sell the suit land to the plaintiff for consideration of Rs.30,000/- (his legal representatives claims the consideration is an inadequate). Rs.20,000/- was paid on the date of the agreement, whereas, Rs.10,000/- was agreed to be paid on the date of execution of sale-deed. The sale-deed was to be executed on 26/02/1996. The agreement to that effect was executed by deceased-Pandhari on 26/07/1995.

3] The property devolved on heirs of deceased Pandhari after his death. The details are as follows :

4] The plaintiff informed to the heirs to execute a sale-deed by issuing notice. As they have failed, the suit for specific performance and for possession was filed before the Yavatmal Court.

SUIT

5] As described above, defendant Nos.3 to 5 are the minor children of deceased Pandhari. They were described in the title cause of the plaint as minors represented through the natural guardian, defendant No.2-mother. They have filed a written statement thereby denying execution of the agreement by Pandhari and also expressing ignorance about the said transaction. They have pleaded the consideration was inadequate considering the location of the land and its use. They have also objected for selling of the land without permission of the Court as defendant Nos.3 to 5 are minors. The objection on the ground of non appointment of guardian for defendant Nos.3 to 5 was also taken. Defendant No.6 was served separately through the mother. She has not filed separate written statement.

06] The plaintiff gave evidence and also examined

• Namdeo Aswale (attesting witness to the agreement),

• Scriber of the agreement Jaideo Atram.

Whereas, defendant No.2 Manda also entered into the witness box. The trial Court was pleased to decree the suit on 31/03/2000 and directed the defendants to execute the sale-deed on payment of balance consideration of Rs.10,000/-.

APPEAL

7] The original-defendants took the matter to the first appellate Court by filing the first appeal. They failed there and that is how, the present appeal is filed. The findings of the trial Court and by the first appellate Court are as follows :