The central legal point established is that the sale of a minor's share of immovable property without court permission under Section 8 of the Hindu Minorities and Guardianship Act, 1956 is voidable at the instance of the minor, and the minor's failure to challenge the disposal upon attaining majority renders the permission unnecessary.

1. Appellant’s suit for specific performance in respect of sale of half-undivided share of entire second floor of plot B-11, Housing Society, N.D.S.E. Part-I, measuring 370 sq. yards stands dismissed by trial court vide impugned order of 24th May, 2005 while holding that the two Agreements to Sell of 27th November, 1995 in respect of half-undivided share of defendant No.1/respondent No.1, who was a minor, cannot be enforced. Although on the pleadings of the parties, seven issues were framed, but trial court vide impugned order has decided the main issue No. V by relying upon Section 8 of the Hindu Minorities and Guardianship Act, 1956 (hereinafter referred to as ‘the Act’). Impugned order holds that statutory permission under Sub-section (2) of Section 8 of the Act has not been taken and so, specific performance has been declined.

2. The factual matrix of this case, as noted in the impugned order, is reproduced hereunder:-

“In brief, facts material for the consideration are that the plaintiff has filed this suit for specific performance of the Agreement to Sell. It is the case of the plaintiff that he had been introduced to defendant No.2 for negotiation of the sale of a residential flat for himself in October/November, 95. The defendant no.2 represented that his minor son namely defendant no.1 was the sole and absolute owner of 1/2 undivided share of the entire second floor along with proportionate undivided ownership rights in the land on the plot measuring 370 sq. yds bearing No.B-11, Housing Society N.D.S.E. Part I, New Delhi and the remaining 1/2 share was owned by Smt. Harwant Kaur and Smt. Harjeet Kaur having 1/4th undivided share each in the said property. Accordingly, four Agreements to Sell dated 27.11.95 were executed in favour of plaintiff i.e. one by Smt. Harwant Kaur; defendant no.3; one by Smt.Harjeet Kaur; defendant no.4; and two by defendant no.2 on behalf of defendant no.1 as his father and natural guardian. Each Agreement to Sell was for sale of 1/4th undivided share of the entire second floor alongwith proportionate share rights in the land beneath. Each agreement was for a sale consideration of Rs.2.10 Lacs each, totaling to Rs.8,40,000/-. As per the agreement, a sum of Rs.6 Lacs (Rs.1.5 Lacs for each share) were to be paid by way of four cheques, thereafter, the actual physical vacant and peaceful possession of the suit property was to be handed over to the plaintiff.”

3. The challenge to the impugned order by learned counsel for appellant is on the ground that Sub-section (3) of Section 8 of the Act makes it abundantly clear that the sale of a share of a minor by the guardian without permission from the court, is voidable at the instance of the minor or any person claiming under him. It is contended that the minor has to come forward within three years of attaining the majority to challenge the sale of his share, but he has not done so and therefore, the bar under Sub-section (2) of Section 8 of the Act is not attracted to the instant case and so, the impugned order deserves to be set aside and appellant’s suit ought to be decreed as appellant is in possession of the suit property since the date of the agreement i.e. November, 1995. In support of the above submissions, reliance is placed upon Supreme Court’s decisions in Vishwambhar & Ors. v. Laxminarayana (Dead) through LRs and Anr., JT 2001 (5) SC 539, V. Lakshmanan v. B.R. Mangalagiri & Ors., 1 (1995) DMC 213 (SC) and Nagappan v. Ammasai Gounder and Others, (2004) 13 SC 480. Lastly, it is submitted by appellant’s counsel that Sub-section (3) of Section 8 of the Act makes it clear that it relates to conveyance of immovable property, be it may by a sale or any other instruments, like agreement to sell, GPA, etc..

4. On the contrary, it is submitted by learned senior counsel for contesting respondent No.1 that the sale of the share of a minor without the requisite permission of the Court is directly hit by the bar provided under Sub-section (2) of