sa.295.16.jud

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

SECOND APPEAL NO.295 OF 2016

Appellants

: 1] Smt. Bajabai w/o Ramkrishana Warrarkar (Dead),

Lrs of Applicant No.1 Bajabai w/o Ramkrishna Warrarkar

1)

Pandurang Ramkrushna Warrarkar,

Aged about 55 years.

2)

Govinda Ramkrushna Warrarkar,

Aged about 54 years.

3)

Mangala Keshav Kalekar,

Aged about 53 years.

4)

Jyoti Namdeo Khamankar,

Aged about 55 years.

2] Smt. Manda wd/o Pandhari Warrarkar,

Aged 35 years, Occupation : Nil.

3] Ku. Ranjana d/o Pandhari Warrarkar,

Aged 18 years, Minor.

4] Manisha d/o Pandhari Warrarkar,

Aged about 18 years, Minor.

5] Vithalrao s/o Pandhari Warrarkar,

Aged 8 years, Minor.

6] Anjana d/o Pandhari Warrarkar,

Aged 12 years, Minor.

Deft. Nos. 3 to 6 Minor through natural

guardian mother Deft. No.2.

All r/o Chikhalgaon, Tq. Wani,

District Yavatmal.

-- Versus –

Amendment

carried out as

per Court’s

order dated

04/10/2017.

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Respondent

:

Sunil Damodhar Potdukhe,

Aged 40 years, Occupation : Business,

R/o Ward No.27, Wani, District Yavatmal.

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Mrs. Vijaya P. Thakre, Advocate for the Appellants.

Shri Anand Deshpande, Advocate for the Respondent.

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C ORAM

: S.M. MODAK, J.

RESERVED ON

: 6 ^th AUGUST, 2021.

PRONOUNCED ON

: 6 ^th

SEPTEMBER, 2021.

J U D G M E N T :-

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,

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(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

02]

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.

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03]

The property devolved on heirs of deceased Pandhari

after his death. The details are as follows :

1

Smt. Bajabai w/o Ramkrushna Warrarkar

Mother

2

Smt. Manda wd/o Pandhari Warrarkar

Wife

3

Ku. Ranjana d/o Pandhari Warrarkar

Daughter

4

Manisha d/o Pandhari Warrarkar

Daughter

5

Vithalrao Pandhari Warrarkar

Son

6

Anjana d/o Pandhari Warrarkar

Daughter

04]

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

05]

As described above, defendant Nos.3 to 5