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2009 Supreme(All) 1498

SANJAY MISRA
BABULLI (DECEASED) – Appellant
Versus
HAMIDUL BIBI (DECEASED) – Respondent


Advocates:
Counsel :
Sankatha Rai, Mohd. Moonis, Vinod Kumar Rai, Vinay Kumar Rai and Ashish Kumar Singh for the Appellant; Narendra Mohan and Wasim Ahmad for the Respondents.

Judgement Key Points

The judgment concerns a second appeal related to a suit for specific performance of an agreement of sale and the recovery of an advance paid. The court examined whether the agreement was enforceable and whether the property described in the agreement matched that in the plaint. It was found that the agreement involved the sale of a specific portion of a house, but the property described in the plaint was different, leading to uncertainty and the conclusion that the agreement could not be enforced for the entire property.

The court also considered the legal capacity of the natural guardian to alienate the shares of minor children under their personal law, ruling that such alienation or sale by the guardian was void. The minors' rights to resist such unauthorized alienation were acknowledged. The Court upheld the findings that the agreement was void concerning the minors' shares and that the property description was inconsistent, which barred enforcement of the specific performance.

Furthermore, the court emphasized that an agreement to sell does not create a legal interest in the property and that enforceability depends on the precise description of the property involved. It also clarified that the absence of a sale deed and the discrepancy in property description rendered the suit for specific performance untenable. The appeal was dismissed, and the cross-objection regarding the refund of the advance was rejected, affirming that the amount paid was to be refunded only to the extent supported by the evidence.

In conclusion, the court held that due to the uncertain and inconsistent description of the property and the legal incapacity of the guardian to alienate minor shares, the suit for specific performance could not be decreed. The appeal was dismissed, and the cross-objection was also rejected.


JUDGMENT

Honble Sanjay Misra, J.—Heard Sri Sankatha Rai learned senior counsel assisted by Sri Ashish Kumar Singh learned counsel for the plaintiff-appellant and Sri Narendra Mohan learned counsel for the defendant-respondent Nos. 9 and 10. This second appeal is being decided finally today itself with the consent of learned counsel for the parties.

2. The plaintiff-appellant had filed a suit for specific performance with an alternative relief for recovery of the amount given by her in advance under the agreement of sale dated 18.4.78 against respondent No. 1. The plaintiff-appellant’s case was that she had entered into an agreement of sale and given advance for purchase of the house situate in Mohalla-Dhuniyana Tola, Mirzapur City which was purchased by the predecessor-in-interest of the respondent by two sale-deeds in the year 1943 and 1947. The respondent No. 1 had accepted an advance of Rs. 2,000/- and the respondent No. 1 alongwith respondent Nos. 2 to 5 who were her major son and daughters had signed the agreement whereas the respondent Nos. 6 to 8 being minor children were represented through respondent No. 1 their natural mother Smt Hamidul Bibi. The agreement of sale was reg
























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