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2021 Supreme(Bom) 326

S.M.MODAK
Bajabai w/o Ramkrishana Warrarkar (Dead) – Appellant
Versus
Sunil Damodhar Potdukhe – Respondent


Advocates:
Advocate Appeared:
For the Appellant :Mrs. Vijaya P. Thakre, Advocate
For the Respondent:Shri Anand Deshpande, Advocate

Judgement Key Points

The judgement concerns a dispute over a property sale agreement involving minors and the legal requirements for specific performance. The Court examined whether the sale agreement executed by the deceased vendor could be specifically enforced against the minors' heirs without prior permission from the Court, as mandated by law. It was found that the agreement was made with the vendor's self-acquired property and the minors were represented through their natural guardian, the mother. However, the Court observed that neither the trial nor the appellate Court had properly considered the necessity of obtaining Court permission under the relevant law when dealing with minors' interests, and this non-compliance invalidates the decree for specific performance. Despite the minors' representation by their mother, the Court clarified that such representation does not substitute for the required permission, and the decree cannot be confirmed.

The Court also noted that the minors had not challenged the agreement after reaching majority within the prescribed period, and their conduct did not prevent the enforcement of the agreement, but the procedural lapse regarding permission is critical. The Court set aside the decrees for specific performance and directed the defendants to refund the earnest money with interest, and to create a charge on the land for the amount until repayment. The parties were to bear their own costs. Overall, the judgement emphasizes the importance of compliance with statutory provisions when dealing with minors in property transactions and clarifies that non-compliance affects the enforceability of specific performance orders.


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 wa

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