Smt. Bajabai W/O Ramkrishna ... vs Sunil Damodhar Potdukhe
2021 Latest Caselaw 12640 Bom

sa.295.16.jud                                1

    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.
        Amendment               2)    Govinda Ramkrushna Warrarkar,
       carried out as
                                      Aged about 54 years.
        per Court's
        order dated
       04/10/2017.              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 -




 ::: Uploaded on - 06/09/2021                         ::: Downloaded on - 07/09/2021 06:03:41 :::
 sa.295.16.jud                              2

Respondent               :      Sunil Damodhar Potdukhe,
                                Aged 40 years, Occupation : Business,
                                R/o Ward No.27, Wani, District Yavatmal.

             =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                Mrs. Vijaya P. Thakre, Advocate for the Appellants.
               Shri Anand Deshpande, Advocate for the Respondent.
             =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                         CORAM                  : S.M. MODAK, J.

                         RESERVED ON            : 6th AUGUST, 2021.
                         PRONOUNCED ON          : 6th 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,

(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.

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 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

07] 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 :

(a) Execution of a sale-deed by deceased Pandhari on 26/07/1995 -

Answered in favour of the plaintiff and also affirmed by the first appellate Court.

(b) Readiness and willingness on the part of the plaintiff -

Answered in the affirmative.

(c) On the point of possession of the land -

The defendants were held to be in possession by the trial Court.

(d) The plaintiff being the agriculturist -

Answered in favour of the plaintiff by both the Courts.

(e) Refusal to perform the part of the contract -

Answered by the first appellate Court in favour of the plaintiff.

EXECUTION OF AGREEMENT FOR SALE BY DECEASED-PANDHARI ON 26/07/1995 :

08] This Court did not find any room for arriving at different

conclusion so far as the execution of agreement for sale. Apart from

the plaintiff, the scriber of the agreement by name Jaideo Atram and

attesting witness Namdeo Dadaji Aswale were examined. Though

the defendants have disputed the execution by their predecessor-in-

title, both the Courts below found the above evidence sufficient to

prove the execution.

09] It is the matter of record that the agreement was

executed by the predecessor-in-title of the defendants, whereas the

suit is filed against the defendants being the legal heirs. In order to

buttress his submission that the suit for specific performance is also

maintainable against the legal heirs of the parties to the agreement,

learned Advocate Shri Deshpande for the respondent has relied

upon a judgment in the case of Ram Baran Prasad vs. Ram

Mohit Hazra & others [AIR 1967 SC 744]. Who can be the

necessary party in a suit for specific performance, he relied upon

the judgment in the case of Kasturi vs. Iyyamperumal & others

[(2005) 6 SCC 733]. The law on this point is very clear. As per

Section 19(b) of the Specific Relief Act, a specific performance suit is

maintainable against those persons, who claimed title from one of

the executants of the agreement. So, as such, the suit against the

legal heirs of Ramkrishna Warrarkar is maintainable.

SPECIFIC PERFORMANCE AGAINST MINORS

10] The issue will come "whether the agreement is executed

by predecessor-in-title, whether Court can grant specific

performance against his legal representatives when some of them

are minors?" It is true that as per Section 54 of the Transfer of

Property Act, any agreement for sale does not create any interest.

The issue of obtaining permission of the Court under Section 8(2) of

the Hindu Minority and Guardianship Act, 1956 (hereinafter referred

to as "the Act of 1956" for brevity) is certainly required to be gone

into by the Court when the decree for specific performance is to be

passed. Reason is simple. Ultimately, Court has to consider the

situation prevailing at the time of taking decision on suit. So,

certainly the appellants are entitled to agitate that point when the

issue of specific performance had arisen before the Court.

OBTAINING PERMISSION OF THE COURT BY THE GUARDIAN

11] Admittedly, defendant No.3-Ku. Ranjana Warrarkar,

defendant No.4-Ku. Manisha Warrarkar, defendant No.5-Vithalrao

Warrarkar and defendant No.6-Ku. Anjana Warrarkar were minors

when the suit was instituted on 12/06/1996. Admittedly, the

appellants have not obtained any permission from the Court as

contemplated under Section 8(2) of the Act of 1956. Such

permission has to be obtained by the natural guardian. As per

Section 6(a) of the Act of 1956, the natural guardian for a boy or an

unmarried girl is the father, and after him, the mother. So,

appellant No.1-Bajabai is the natural guardian of defendant Nos.3

to 6.

12] The grievance of the appellants is that even though this

objection was taken in the written statement, neither the trial Court

nor the appellate Court has framed issue in that respect. It may be

true that both the Courts have neither framed issue nor given a

finding on that aspect.

13] Learned Advocate Shri Deshpande for the respondent

has relied upon a judgment in the case of Nangali Amma Bhavani

Amma vs. Gopalkrishnan Nair & others [(2004) 8 SCC 785],

whereas learned Advocate Mrs. Thakre has relied upon the

judgment in the case of Saroj vs. Sunder Singh & others

[(2013) 15 SCC 727]. In those cases, there was a suit for

cancellation of the document by the minor. The issue was, whether

after attaining the majority, the suit was filed within the time limit of

three years as contemplated under Article 60 of the Limitation Act?

They were held perfectly maintainable. Section 8(3) makes the

agreement voidable at the instance of the minor or the person

claiming under him. Mean to say that it is the choice of the minor,

whether to get rid of the said agreement or to continue with the

obligation created by the agreement. Certainly, the suit has to be

filed within three years on attaining the majority.

INACTION OF MINORS ON ATTAINING MAJORITY

14] According to the learned Advocate Shri Deshpande,

there was an inaction on the part of defendant Nos.3 to 6 in

challenging the agreement after attaining the majority. The suit was

filed on 31/03/2000. He invited my attention to the respective age

of these defendants in the cause title of the plaint. According to

him, they have not taken any action within the prescribed period

after attaining the majority and, as such, they are estopped from

taking a plea by way of written statement. Whereas, according to

learned Advocate for the appellants, they cannot be estopped when

they want to avoid the obligations created by the agreement in

question. It will be material to consider the observations of the first

appellate Court on those aspects.

15] In paragraph 24, the first appellate Court

• "has taken a note of signing on the written statement by

defendant No.2-mother for and on behalf of minor

defendant Nos.3 to 5". The first appellate Court

observed "that minor defendants were represented by

defendant No.2, who is the legal guardian. Therefore, the

submissions are absolutely devoid of substance and

without any meaning".

Whereas, the trial Court

• "has taken a note of filing of written statement by

defendant No.2 on behalf of her minor children through

the lawyer. It was further observed that the interest of

defendant No.2 is not adverse to the interest of minors".

• Hence, the trial Court also refused the grievance about

appointment of the guardian for the minors.

16] From these findings, it is very well clear that there is no

observation about requirement of Section 8(2) of the Act of 1956.

17] I do not think that any of the citations filed by learned

Advocate Shri Deshpande will be useful to him. When the property

consists of a joint family property, in that case, there was no

necessity of requiring permission of the Court under Section 8 of the

Act of 1956, if minors' share is to be sold. The reason is, his share is

undetermined. Here this is not the case. Property sought to be sold

is the separate property of deceased vendor.

18] It is very well true that both the Courts below have not

considered the provisions of Section 8(2) of the Act of 1956. They

have restricted themselves in accepting the act of defendant No.2

to sign on a written statement as natural guardian of the minors.

No doubt, the mother is their natural guardian. Does it mean to say

that the natural guardian-mother on behalf of the minor children

can give a consent for execution of sale-deed on the basis of

agreement for sale executed by their predecessor-in-title?. No

doubt, if the natural guardian will agree to execute a sale-deed on

behalf of the minor children, it can certainly be executed. It is not

illegal. It will be a choice of the minor to challenge it on attaining

majority on the ground of not obtaining permission from the Court.

19] It is very well true that the minor defendant Nos.3 to 6

have not filed the suit thereby challenging the agreement for sale.

Their natural guardian-mother has confined herself in filing the

written statement on her behalf and on behalf of the minor children,

in which she has agitated the grievance about not obtaining

permission from the Court. So, the grievance, which is not made by

filing a suit within the prescribed period of limitation, can it be made

by way of written statement? The answer will be in positive. It is

for the reason that if the provisions of the Limitation Act are

perused, we can find that it prescribes the period of limitation for

filing the proceedings either suits, applications or appeals. So, if

those proceedings are not taken within the prescribed period, the

remedy is lost. It does not mean that the right is extinguished. It

survives. The Limitation Act does not prescribe the period of

limitation for filing of written statement. It is governed as per Order

VIII of Code of Civil Procedure i.e. procedural in nature. This has

precisely been held by the Hon'ble Supreme Court in the case of

Shrimant Shamrao Suryavanshi & another vs. Pralhad

Bhairoba Suryavanshi [Dead] by L.Rs. & others [(2002) 3

SCC 676]. The issue involved was, whether a plea on the basis of

part performance under Section 53-A of the Transfer of Property Act

can be taken in the written statement, particularly when that right is

not agitated by filing of a suit. It has been observed in the

aforementioned judgment. For ready reference, paragraph 20 is

reproduced below.

"It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action."

20] In view of that, I hold that such grievance can be taken

by way of written statement and not filing a suit challenging the

agreement by the minors after attaining the majority, does not

come in their way.

21] When the written statement was filed, they were

admittedly minors. Even, their evidence was given by defendant

No.2 - mother. She has agitated this point. This is sufficient

manifestation of the intention to avoid the contract. In view of the

above discussions, I am not inclined to accept the contention of

learned Advocate Shri Deshpande in that respect. Hence, question

Nos.1, 2 & 3 have to be answered in the negative. When defendant

No.3 to 6 are minors, decree for specific performance directing them

to execute a sale-deed cannot be granted.

22] There is also an argument that the provisions of Order 32

Rule 3 of C.P.C. were not followed. My attention is also brought to

the last paragraph of the written statement to that effect. The

judgment in the case of K.P. Natarajan & another vs.

Muthalammal & others [2021 SCC Online SC 467] is relied

upon on behalf of the appellants. Whereas, learned Advocate Shri

Deshpande contended that defendant No.2, being the mother, is a

natural guardian and there is no material irregularity.

23] It is true that the trial Court has refused to give benefit

to the defendants for the reason that no prejudice has been caused

to the interest of minors (paragraph 23). Whereas, the first

appellate Court has given weightage to defendant No.2, being the

legal guardian.

24] Certainly, the provisions of Order 32 Rule 3-A of C.P.C.

will not be applicable, because there is no grievance that guardian

of the minors had interest in the subject matter of the suit adverse

to that of minors. It is true that defendant No.2 is the natural

guardian of the minors as per the provisions of the Act of 1956. In

the case of K.P. Natarajan, the High Court of Madras set aside the ex

parte decree. One of the grievances, was that the provisions of

Order 32 Rule 3 of C.P.C. were not followed. Though the issue

before the High Court was about correctness of the order refusing to

condone the delay, ex parte decree itself was set aside. The said

order was confirmed by the Hon'ble Supreme Court. Though the

plaintiff applied for appointing second responden-father as a

guardian of a minor, the trial Court observed that "Batta served.

Vakalat by guardian to minor filed. Hence this petition is closed".

The Hon'ble High Court considered the difference between the

provisions of Order 32 Rule 3 of C.P.C. and the amendments made

by Madras High Court therein. So, the ratio laid down therein is

restricted to the facts of that case.

25] This Court has already observed about non-compliance

of the provisions of Section 8(2) of the Act of 1956. The provisions

of Order 32 Rule 3 of C.P.C. are general in nature and they are

applicable to all kinds of suits including the suit for specific

performance. Whereas, the provisions of Section 8(2) of the Act of

1956 come into picture only when the natural guardian has to deal

with the property of a minor in the manner laid down therein. This

Court feels that in the facts before us, the representation by

defendant No.2-mother for defendant Nos.3 to 6, is sufficient

compliance.

FINAL CONCLUSION

26] For the above discussions, the impugned judgment

cannot be sustained. Even though, the issue of obtaining

permission of the Court under Section 8(2) of the Act of 1956 had

arisen at the stage of suit for specific performance, still the Court

has to see that the provisions of Section 8(2) of the Act of 1956 are

complied or not. We do agree that the respondent is not to be

blamed for early death of Pandhari i.e. without executing sale-deed.

Be that it may, Court cannot give go bye to the provisions of Section

8(2) of the Act of 1956. As they are not complied, the decree for

specific performance as granted by the trial Court cannot be

confirmed by this Court. It needs to be set aside. At the same time,

the defendants cannot be directed to obtain the leave of the Court

as contemplated under Section 8(2) of the Act of 1956. Because

that was not the condition either on the original agreement and it

cannot be by way of subsequent agreement.

27] The plaintiff has made alternative prayer for refund of

earnest money of Rs.20,000/- and to create a charge on the suit

land for the said amount, till the time it is repaid. There is a

concurrent observations about payment of earnest money of

Rs.20,000/-. So, the plaintiff is certainly entitled for refund of the

earnest money. Section 22(1)(b) of the Specific Relief Act, 1963

empowers the Court to order for refund of the earnest money when

the specific performance is refused. So, that order can certainly be

passed. Even the direction to create a charge of the amount on the

suit land can also been created. The amount has to be refunded

and that too along with the interest at the rate of 6%. Hence, the

following order is passed :

ORDER

i. The appeal is partly allowed.

ii. The judgment passed by the Civil Judge Senior Division,

Yavatmal in S.C.S. No.98/1996, dated 31/03/2000 and the

judgment passed by the Additional District Judge,

Pandharkawada, District Yavatmal in R.C.A. No.131/2002,

dated 18/07/2006 are hereby set aside.

iii. The suit of the plaintiff is partly decreed.

iv. Defendant Nos.1 to 6 are hereby directed to refund earnest

money of Rs.20,000/- at the rate of 6% interest from the

date of receipt i.e. 26/07/1995, until the date of repayment.

v. It is hereby directed that there will be charge of the

decretal amount on the suit land till the time the amount is

deposited before the trial Court.

vi. If the respondent has deposited Rs.10,000/- as per the

judgment of the trial Court, it be refunded to him.

vii. The parties to bear their own costs.

(S.M. MODAK, J.) *sandesh