(PER: HON'BLE MR. JUSTICE RAVI V HOSMANI)
O.S.no.37/2019, this appeal is filed.
2. Sri Brijesh Patil, learned counsel submitted that
appeal was by unsuccessful plaintiff in suit for specific
performance etc. Said suit was filed stating that during year
3. Brief facts as stated were, defendant's mother
incurred for treatment of her husband. For said purpose, she
intended to sell suit property. As plaintiff offered highest price,
suit property to plaintiff for total sale consideration of
Rs.50,000/- at time of execution of sale deed. Said agreement
was executed in presence of village elders/witnesses.
4. Thereafter, though plaintiff approached with balance
amount, she kept postponing execution of sale deed. And on
19.09.2013, defendant's mother died. As on said date,
defendant was still a minor. She attained age of majority about
two years prior to suit. It was also stated that plaintiff
sale deed. However, she postponed same and failed to respond
upon her to execute sale deed. Stating that same amounted to
5. And as despite service of summons, defendant did
1. Whether the plaintiff proves the due
execution of agreement of sale dated
25.2.2010 by the mother of the defendant on
her behalf and on behalf of the defendant?
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2. Whether the plaintiff proves that she has
always been ready and willing to perform her
part of contract?
3. Whether the suit is barred by limitation?
4. Whether the plaintiff is entitled for the relief
claimed in the suit?
5. What order or decree?
6. Thereafter, plaintiff got examined herself and one
witness as PWs.1 and 2 and got marked Exs.P1 to P5.
7. On consideration of same in light of arguments on
behalf of plaintiff, trial Court answered points no.1 and 3 in
affirmative, points no.2 and 4 in negative and point no.5 by
dismissing suit. Aggrieved plaintiff was in appeal.
8. It was submitted, after filing of present appeal,
defendant executed Gift Deed in respect of suit property on
19.10.2020 in favour of her husband. Therefore, he was
arrayed as respondent no.2. It was submitted, said alienation
would be hit by Section 52 of Transfer of Property Act, 1882.
9. It was submitted, admittedly suit property was
jointly owned by defendant and her mother. As defendant was
still a minor, agreement of sale was executed by defendant's
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mother on behalf of defendant also, as her guardian. It was
submitted, agreement contained express condition that sale
deed was to be executed by defendant also after she attained
age of majority and loans on suit property were cleared.
Thereafter, defendant's mother died leaving behind defendant
as sole legal heir. It was submitted, defendant attained age of
majority on 04.09.2017 and plaintiff, who was none other than
her grandmother called upon defendant to come forward to
execute sale deed in terms of agreement of sale.
10. After making several oral requests, which failed to
yield result, on 03.01.2018, she got issued legal notice
demanding defendant to come forward to execute sale deed by
receiving balance sale consideration of Rs.50,000/-. In view of
failure, which amounted to refusal, suit was filed on
06.03.2019.
11. It was submitted, admittedly defendant was placed
ex-parte. While passing impugned judgment, trial Court held
that plaintiff had referred to her deposition and scribe of Ex.P1
- Agreement of sale, to hold it as proved. But, on erroneous
conclusion about requirement of defendant's mother having
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failed to obtain permission under Section 8 of Hindu Minority
and Guardianship Act, 1956 ('HMGA', for short), and therefore
agreement of sale was not binding on minor defendant, it
dismissed suit.
12. It was submitted, trial Court proceeded on a wrong
notion about applicability of Section 8 of HMGA, even though it
was inapplicable in view of express clause in agreement of sale
that sale deed was to be executed only after defendant attained
age of majority and therefore, there was no necessity for
defendant's mother to seek permission. In support of said
submission, learned counsel relied on decision of this Court in
A. Chidananda and Ors. v. Smt.Lalitha V. Naik and Ors.,
reported in AIR 2006 KAR. 128.
13. Refuting contention of defendant disputing legal
necessity etc., it was submitted, admittedly there was no
challenge against finding of trial Court that Ex.P1 - agreement
of sale was proved. Even if agreement were voidable, defendant
had ample opportunity to question same after she attained age
of majority or after service of suit summons. Having remained
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ex-parte, she had lost such opportunity and estopped from
urging such contention.
14. Insofar as finding of trial Court about suit being
barred by limitation, it was submitted, same was absolutely
baseless and contrary to material on record. It was submitted,
there was no dispute about Ex.P1 - agreement of sale
containing specific clause that sale deed was to be executed
only after defendant were to have attained age of majority.
There was no dispute about defendant attaining age of majority
on 04.09.2017. Article 54 of Limitation Act, 1963, stipulates
period of three years for filing suit for specific performance from
date of refusal to perform as per agreement. Plaintiff got issued
legal notice - Ex.P2 on 03.01.2018 calling upon defendant to
perform her part of contract, which was not responded to by
defendant. Exs.P3 and P4 - established deemed service of
Ex.P2. In pursuance of same, defendant failed to come forward
to execute sale deed. On said cause of action, suit was filed on
06.03.2019. Same was well within three years from date of
accrual of cause of action. Therefore, finding of trial Court on
point no.3 was contrary to law calling for interference.
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15. Insofar as finding on point no.2 about lack of
readiness and willingness by plaintiff to perform her part of
contract, it was submitted, observation of trial Court that
plaintiff did not take any steps either during lifetime of
defendant's mother or after her death, was contrary to clause in
agreement which stipulated that sale deed was to be executed
after defendant attains age of majority.
16. It was submitted, trial Court misread itself while
observing that plaintiff failed to take steps against defendant
after death of her mother, ignoring fact that defendant was still
a minor. And on death of defendant's mother in year 2013 and
defendant having attained age of majority, conditions contained
in Ex.P1, there was no need to clear 'Minor' entry in revenue
records. It was further submitted, when plaintiff had paid
Rs.11,50,000/- out of total sale consideration of Rs.12,00,000/-
as on date of agreement in year 2010, leaving only small
amount of Rs.50,000/- as balance and suit was filed paying
Court fee of nearly 1.5 Lakhs, finding that plaintiff was not
ready and willing would be contrary to material on record,
calling for interference. On above grounds, learned counsel
sought for allowing appeal with costs.
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17. On other hand, Sri V.K. Nayak, learned counsel for
respondent no.2 opposed appeal. It was submitted, according
to plaintiff, late Prabhavati - defendant's mother executed
agreement of sale dated 25.02.2010 in respect of suit property
including share of minor-defendant by receiving sale
consideration of Rs.11,50,000/- (Rupees Eleven Lakhs Fifty
thousand only) and agreeing to sell suit property after receiving
balance amount of Rs.50,000/-. According to plaintiff,
defendant's mother died on 19.09.2013 and defendant
succeeded to her mother's share also. Thereafter, when
defendant attained age of majority, plaintiff approached her and
requested to execute sale deed by receiving balance sale
consideration of Rs.50,000/-. And that defendant postponed
execution of sale deed. Therefore, she got issued legal notice on
03.01.2018, returned as 'refused'. Therefore, suit was filed for
relief of specific performance of contract. And as defendant
remained ex-parte, trial Court framed points for consideration
and recorded evidence, answered point no.1 in favour of
plaintiff, but dismissed by answering remaining points against
her.
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18. It was submitted, since suit was dismissed mainly
on ground that agreement of sale executed was during minority
of defendant by her mother on behalf of defendant also, but
without obtaining permission under Section 8 of HMGA, point
about agreement of sale being in contravention of Section 8 (2)
and (3) of HMGA would arise for consideration.
19. It is submitted, on death of her father leaving
behind defendant and her mother, share of defendant in
property would be definite. Moreover, name of defendant was
mutated in revenue records along with her mother. Therefore,
Section 8(2) and 8(3) of HMGA would apply and any sale in
contravention of mandatory provision would be null and void.
Learned counsel sought to support his submission by relying
upon decision of Hon'ble Supreme Court in Saroj v. Sunder
Singh and Ors., reported in (2013) 15 SCC 727.
20. Learned counsel further submitted that provision of
Order XLI Rule 22 of Code of Civil Procedure, 1908 ('CPC' for
short) enabled challenging finding on any issue, without need
for filing appeal. In furtherance of said contention, it was
submitted, when Ex.P1 - agreement of sale was attested by
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four witnesses, none of whom were examined and same would
be fatal to plaintiff's case, trial Court was not justified in its
finding on point no.1 and therefore proposed same as point for
consideration.
21. Heard, learned counsel for parties, perused
impugned judgment and decree and record.
22. This is plaintiff's appeal in suit for specific
performance etc. There is no dispute about suit property
originally belonging to defendant's father and succeeded to by
defendant along with her mother - Prabhavati on his death.
While plaintiff claims that on account of ill-health of her
husband, which had led her to borrow money for his treatment
and for legal necessities after his death, defendant's mother
executed agreement of sale - Ex.P1 on 25.02.2010, on behalf of
herself and her minor daughter (defendant), agreeing to sell
suit property for total sale consideration of Rs.12,00,000/- after
receiving Rs.11,50,000/- as advance and agreeing to receive
balance amount of Rs.50,000/- at time of execution of sale
deed and alleges there was refusal on plaintiff making oral
request and issuance of Ex.P2, leading to filing of suit,
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respondent no.2 seeks to challenge finding of trial Court about
proof of Ex.P1, without examination of any of attesting
witnesses. Trial Court dismissed suit by holding that suit was
barred by limitation, plaintiff had failed to establish readiness
and willingness and that Ex.P1 being in violation of Section 8 of
HMGA, which are challenged by plaintiff in this appeal.
23. Therefore points that arise for consideration herein
are:
1. Whether finding of trial Court about failure of
plaintiff to prove readiness and willingness is
contrary to material on record and calls for
interference?
2. Whether finding of trial Court about suit being
barred by limitation is contrary to law and calls
for interference?
3. Whether trial Court was justified in holding that
Ex.P1 was hit by Section 8 of HMGA?
4. Whether finding of trial Court about proof of
Ex.P1 by plaintiff calls for interference?
5. If so, whether judgment and decree passed by
trial Court calls for modification?
24. Since, plaintiff had filed suit for specific performance
of Ex.P1, even though defendant was placed ex-parte, burden
would be on plaintiff to establish that Ex.P1 was lawfully
executed in favour of plaintiff. As noted above, plaintiff got
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marked original agreement of sale as Ex.P1. And there was no
express denial of Ex.P1 as defendant was placed ex-parte.
While Section 68 of Evidence Act, stipulates that a document is
required by law to be attested, cannot be used as evidence until
one of attesting witnesses is examined in proof of execution,
while its proviso provides exception that said requirement
would stand dispensed until said document is specifically
denied. Admittedly, there is no specific denial of Ex.P1. There is
also no provision of law requiring an agreement of sale to be
attested. Therefore, plaintiff cannot be non-suited merely on
account of non-examination of attesting witnesses to Ex.P1. As
noted above, plaintiff not only examined herself, but also
examined scribe of Ex.P1 as PW.2. Their deposition is consistent
about due execution of Ex.P1 in their presence and about
payment of consideration. Therefore, finding of trial Court on
point no.1 would be in accordance with law and not call for
interference. Point no.4 is answered in negative.
25. Insofar as suit being barred by limitation, it is not in
dispute that Ex.P1 is dated 25.02.2010 and suit is filed on
06.03.2019. Period of limitation for filing suit for specific
performance prescribed under Art.54 of Limitation Act is:
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Art.54. For specific Three The date fixed for
performance years. the performance,
of a contract. or, if no such date
is fixed, when the
plaintiff has notice
that performance is
refused.
26. A bare perusal of Ex.P1 would reveal that there is
no specific date fixed for performance. One of conditions or
obligations imposed on sellers is to get entry about defendant
being minor, removed from revenue records and to clear bank
loans on suit property. It is not case of respondent no.2 that
either of said events occurred earlier and plaintiff had
knowledge of same and suit is filed beyond period of limitation
from said date. Ex.P1 also stipulates that sale deed was to be
executed both by defendant as well as her mother by receiving
balance sale consideration of Rs.50,000/-. Attainment of age of
majority of defendant being a definite date asserted to be
04.09.2017. Admittedly, suit is filed within three years of said
date. Further, plaintiff produced Ex.P2 notice got issued calling
upon defendant to come forward for performance of agreement.
Same is dated 03.01.2018. Ex.P3 - postal receipt for despatch
and Ex.P4 - returned postal cover containing Ex.P2 would
establish deemed service on defendant. Even if notice of failure
to perform were to be computed from date of Ex.P2, suit would
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be well within period of limitation. While passing impugned
judgment, trial Court computed period of limitation from date of
agreement which would be contrary to Art.54 of Limitation Act
and contrary to law calling for interference. Hence, point no.2 is
answered in affirmative.
27. Insofar as readiness and willingness, Hon'ble
Supreme Court in its recent decision in case of Sangita Sinha
v. Bhawana Bhardwaj, reported in 2025 SCC OnLine SC
723, held:
"17. It is trite law that 'readiness' and
'willingness' are not one but two separate
elements. 'Readiness' means the capacity of the
Respondent No. 1-buyer to perform the
contract, which would include the financial
position to pay the sale consideration.
'Willingness' refers to the intention of the
Respondent No. 1-buyer as a purchaser to
perform his part of the contract, which is
inferred by scrutinising the conduct of the
Respondent No. 1-buyer/purchaser, including
attending circumstances.
18. Continuous readiness and willingness on the
part of the Respondent No. 1-buyer/purchaser
from the date of execution of Agreement to Sell
till the date of the decree, is a condition
precedent for grant of relief of specific
performance. This Court in various judicial
pronouncements has held that it is not enough
to show the readiness and willingness up to the
date of the plaint as the conduct must be such
as to disclose readiness and willingness at all
times from the date of the contract and
throughout the pendency of the suit up to the
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decree. A few of the said judgments are
reproduced herein below:--
A. In Gomathinayagam Pillai v. Palaniswami
Nadar, (1967) 1 SCR 227, it has been held as
under:--
"6. But the respondent has claimed a
decree for specific performance and it
is for him to establish that he was,
since the date of the contract,
continuously ready and willing to
perform his part of the contract. If he
fails to do so, his claim for specific
performance must fail. As observed by
the Judicial Committee of the Privy
Council in Ardeshir Mama v. Flora
Sassoon, 1928 SCC OnLine PC 43:
"In a suit for specific performance, on
the other hand, he treated and was
required by the Court to treat the
contract as still subsisting. He had in
that suit to allege, and if the fact was
traversed, he was required to prove a
continuous readiness and willingness,
from the date of the contract to the
time of the hearing, to perform the
contract on his part. Failure to make
good that averment brought with it the
inevitable dismissal of his suit."
The respondent must in a suit for
specific performance of an
agreement plead and prove that he
was ready and willing to perform
his part of the contract
continuously between the date of
the contract and the date of
hearing of the suit...."
(emphasis supplied)
B. In Vijay Kumar v. Om Parkash, 2018 SCC
OnLine SC 1913, it has been held as under:--
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"6. In order to obtain a decree for
specific performance, the plaintiff
has to prove is readiness and
willingness to perform his part of
the contract and he readiness and
willingness has to be shown
throughout and has to be
established by the plaintiff...."
(emphasis supplied)
C. In J.P. Builders v. A. Ramadas Rao, (2011) 1
SCC 429, it has been held as under:--
"27. It is settled law that even in
the absence of specific plea by
the opposite party, it is the
mandate of the statute that the
plaintiff has to comply with
Section 16(c) of the Specific
Relief Act and when there is non-
compliance with this statutory
mandate, the court is not bound
to grant specific performance and
is left with no other alternative
but to dismiss the suit. It is also
clear that readiness to perform
must be established throughout
the relevant points of time.
"Readiness and willingness" to
perform the part of the contract
has to be determined/ascertained
from the conduct of the parties."
(emphasis supplied)
D. In Umabai v. Nilkanth Dhondiba Chavan
(Dead) By LRs., (2005) 6 SCC 243, it has
been held as under:--
"30. It is now well settled that the
conduct of the parties, with a view to
arrive at a finding as to whether the
plaintiff-respondents were all along
and still are ready and willing to
perform their part of contract as is
mandatorily required under Section
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16 (c) of the Specific Relief Act must
be determined having regard to the
entire attending circumstances. A
bare averment in the plaint or a
statement made in the
examination-in- chief would not
suffice. The conduct of the
plaintiff- respondents must be
judged having regard to the
entirety of the pleadings as also
the evidence brought on records."
(emphasis supplied)
E. In Mehboob-Ur-Rehman (Dead) through
Legal Representatives v. Ahsanul Ghani
(supra), it has been held as under:--
"16. Such a requirement, of
necessary averment in the plaint, that
he has already performed or has
always been ready and willing to
perform the essential terms of the
contract which are to be performed
by him being on the plaintiff, mere
want of objection by the defendant in
the written statement is hardly of any
effect or consequence. The essential
question to be addressed to by
the Court in such a matter has
always been as to whether, by
taking the pleading and the
evidence on record as a whole,
the plaintiff has established that
he has performed his part of the
contract or has always been
ready and willing to do so..."
(emphasis supplied)
F. In C.S. Venkatesh v. A.S.C. Murthy (Dead)
by Legal Representatives (supra), it has been
held as under:--
"16. The words "ready and willing"
imply that the plaintiff was prepared
to carry out those parts of the
contract to their logical end so far as
they depend upon his performance.
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The continuous readiness and
willingness on the part of the plaintiff
is a condition precedent to grant the
relief of performance. If the plaintiff
fails to either aver or prove the same,
he must fail. To adjudge whether the
plaintiff is ready and willing to
perform his part of contract, the court
must take into consideration the
conduct of the plaintiff prior, and
subsequent to the filing of the suit
along with other attending
circumstances. The amount which he
has to pay the defendant must be of
necessity to be proved to be
available. Right from the date of
the execution of the contract till
the date of decree, he must prove
that he is ready and willing to
perform his part of the contract.
The court may infer from the facts
and circumstances whether the
plaintiff was ready and was
always ready to perform his
contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao
[N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995)
5 SCC 115], it was held that
continuous readiness and willingness on the part of
the plaintiff is a condition precedent to grant of the
relief of specific performance.This circumstance is
material and relevant and is required to be
considered by the court while granting or refusing
to grant the relief. If the plaintiff fails to either
aver or prove the same, he must fail. To adjudge
whether the plaintiff is ready and willing to
perform his part of the contract, the court
must take into consideration the conduct of
the plaintiff prior to and subsequent to the
filing of the suit along with other attending
circumstances. The amount of consideration
which he has to pay to the defendant must
necessarily be proved to be available.
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18. In Pushparani S. Sundaram v. Pauline
Manomani James [Pushparani S.
Sundaram v. Pauline Manomani James, (2002) 9
SCC 582], this Court has held that inference
of readiness and willingness could be drawn from
the conduct of the plaintiff and the totality of
circumstances in a particular case. It was held
thus: (SCC p. 584, para 5)
"5. ... So far these being a plea that
they were ready and willing to
perform their part of the contract is
there in the pleading, we have no
hesitation to conclude, that this by
itself is not sufficient to hold that the
appellants were ready and willing in
terms of Section 16(c) of the Specific
Relief Act. This requires not only such
plea but also proof of the same. Now
examining the first of the two
circumstances, how could mere filing
of this suit, after exemption was
granted be a circumstance about
willingness or readiness of the
plaintiff. This at the most could be the
desire of the plaintiff to have this
property. It may be for such a desire
this suit was filed raising such a plea.
But Section 16(c) of the said Act
makes it clear that mere plea is not
sufficient, it has to be proved."
(emphasis supplied)
19. Consequently, the readiness and willingness
of the buyer to go ahead with the sale of the
property at the time of the institution of the suit
loses its relevance, if the Respondent No.1-buyer is
unable to establish that the readiness and
willingness has continued throughout the pendency
of the suit."
28. It is not in dispute, in plaint, Ex.P2 - legal notice as
well as in deposition of plaintiff as PW.1, there is specific
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assertion about plaintiff being ready and willing to perform her
part of contract. Reasons assigned by learned trial Judge while
arriving at it's conclusion on point no.2 are that plaintiff did not
take any steps for having sale deed executed during lifetime of
defendant's mother and from defendant after death of her
mother, being misled by suit being filed nine years after
agreement of sale. As rightly pointed out by learned counsel for
plaintiff, said finding clearly militates against specific conditions
in agreement of sale. Firstly, it was clearly stipulated in Ex.P1
that sale deed was to be executed both by defendant as well as
her mother and defendant would be eligible only after attaining
age of majority. Moreover, payment of Rs.11,50,000/- as
advance out of total sale consideration of Rs.12,00,000/-, which
is more than 95% of total sale consideration leaving balance of
Rs.50,000/- to be paid at time of final sale deed after defendant
were to clear loans on suit property and have entry of minority
of defendant from revenue records, which could be only after
defendant attaining age of majority, consideration of date of
agreement of sale instead of date of defendant attaining age of
majority for determining readiness and willingness would be
contrary to law.
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29. Admittedly, plaintiff got issued Ex.P2 on 03.01.2018
less than months of defendant attaining age of majority and
filed suit a little more than a year thereafter. There is nothing to
infer lack of diligence or lack of financial capacity of plaintiff to
make payment of balance sale consideration, especially, when
she had paid Court fee nearly three times more than balance
sale consideration. Therefore, finding of trial Court on point
no.2 about lack of readiness and willingness of plaintiff would
be clearly contrary to law and material on record and as such
capricious. In view of above conclusion, point no.1 herein is
answered in affirmative.
30. And for examining whether Ex.P1 was hit by Section
8(2) and (3) of HMGA, as specifically contended by learned
counsel for respondent no.2, it would be appropriate to refer to
said provision, which reads as under:
8. Powers of natural guardian.--(1) The natural
guardian of a Hindu minor has power, subject to
the provisions of this section, to do all acts which
are necessary or reasonable and proper for the
benefit of the minor or for the realisation,
protection or benefit of the minor's estate; but the
guardian can in no case bind the minor by a
personal covenant.
(2) The natural guardian shall not, without the
previous permission of the court,--
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(a) mortgage or charge, or transfer by
sale, gift, exchange or otherwise, any
part of the immovable property of the
minor, or
(b) lease any part of such property for a
term exceeding five years or for a term
extending more than one year beyond
the date on which the minor will attain
majority.
(3) Any disposal of immovable property by a
natural guardian, in contravention of sub-section
(1) or sub-section (2), is voidable at the instance
of the minor or any person claiming under him.
(4) No court shall grant permission to the natural
guardian to do any of the acts mentioned in sub-
section (2) except in case of necessity or for an
evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall
apply to and in respect of an application for
obtaining the permission of the court under sub-
section (2) in all respects as if it were an
application for obtaining the permission of the
court under Section 29 of that Act, and in
particular--
(a) proceedings in connection with the
application shall be deemed to be
proceedings under that Act within the
meaning of Section 4-A thereof;
(b) the court shall observe the procedure
and have the power specified in sub-
sections (2), (3) and (4) of Section 31
of that Act; and
(c) an appeal shall lie from an order of the
court refusing permission to the
natural guardian to do any of the acts
mentioned in sub-section (2) of this
section to the court to which appeals
ordinarily lie from the decisions of that
court.
(6) In this section "court" means the city civil
court or a district court or a court empowered
under Section 4-A of the Guardians and Wards Act,
1890, within the local limits of whose jurisdiction
the immovable property in respect of which the
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application is made is situate, and where the
immovable property is situate within the
jurisdiction of more than one such court, means
the court within the local limits of whose
jurisdiction any portion of the property is situate."
31. Bare perusal of sub-Section (2) above would reveal
that same would not apply to transaction of agreement of sale.
Moreover, sub-Section (3) renders such transaction voidable at
instance of minor or any person claiming under him.
Admittedly, there is no material placed on record that
defendant at any point of time had sought to void Ex.P1 -
agreement of sale. Moreover, Ex.P1 contains specific condition
that sale deed was to be executed by defendant along with her
mother which could only be after defendant were to have
attained age of majority when bar against transaction would
have automatically ceased. Inclusion of such condition would
distinguish plaintiff's case from facts in Saroja's case (supra).
In fact, Hon'ble Supreme Court in case of Nangali Amma
Bhavani Amma v. Gopalkrishnan Nair, reported in (2004) 8
SCC 785, has held:
"8. In view of the express language used, it
is clear that the transaction entered into
by the natural guardian in contravention of
sub-section (2) was not void but merely
voidable at the instance of the minor. To
hold that the transaction in violation of
Section 8(2) is void would not only be
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contrary to the plain words of the statute
but would also deprive the minor of the
right to affirm or ratify the transaction
upon attaining majority. This Court
in Vishwambhar v. Laxminarayan [(2001) 6 SCC
163] has also held that such transactions are
not void but merely voidable. It was also held
that a suit must be filed by a minor in order to
avoid the transaction within the period
prescribed under Article 60 of the Limitation
Act. The High Court did not consider the issue
of limitation at all in view of its finding on the
effect of a violation of Section 8(2) of the Act.
As the conclusion of the High Court on this
aspect of the matter is unsustainable, the
impugned decision must be set aside."
(emphasis supplied)
32. Said ratio is reiterated in Murugan v. Kesava
Gounder, reported in (2019) 20 SCC 633 and squarely apply
to instant case. In A. Chidananda's case (supra), while
deciding on legality of alienation of properties of Hindu minor,
this Court took note of fact that properties were inherited from
father during minority and mother acting in capacity as
manager had alienated them. Mother was held to possess legal
competence to alienate property as a whole, in capacity of
minor guardian or as manager. Thus, finding of trial Court
would be contrary to law and call for interference. Hence, point
no.3 herein is answered in negative.
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33. In view of findings of points no.1 to 4 herein,
dismissal of suit by trial Court would be on findings which are
erroneous/contrary to law. And as Ex.P1 is held to be proved in
accordance with law, and it is not established that consideration
mentioned in Ex.P1 was grossly lower than market value or
defendant would suffer grave hardship by granting specific
performance, plaintiff would be entitled to succeed. At same
time, taking note of fact that agreement of sale in instant case
was executed 15 years ago and value of suit property would
have appreciated, it is found appropriate to direct plaintiff to
pay additional sale consideration of Rs.5,00,000/- to defendant.
Point no.5 is accordingly answered in affirmative. Consequently,
following:
ORDER
i. Appeal is allowed with costs; impugned
judgment and decree dated 15.06.2020
passed by Senior Civil Judge and JMFC,
Muddebihal, in O.S.no.37/2019 is set-aside.
ii. Plaintiff's suit is decreed; defendants are
directed to execute registered sale deed in
respect of suit property in favour of plaintiff,
within three months by receiving additional
sum of Rs.5,00,000/- and balance sale
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consideration of Rs.50,000/-, which shall be
deposited by plaintiff before trial Court
within two months.
iii. In case of failure of defendant to execute
sale deed as ordered above, plaintiff would
be entitled to have decree executed through
Court Commissioner.
iv. On deposit of amount as ordered above,
same to be released in favour of plaintiff.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
