Madras High Court
J.Sukumar (Died) vs K.S.P.Pandian (Deceased) on 7 December, 2023
S.A.No.862 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.862 of 2017
and
CMP.No.21703 of 2017
1.J.Sukumar (Died)
2.J.Ganesamurthy
3.J.Srinivasan
4.J.S.Rajeswari ...Appellants
(A1-died, A4 brought on record as
legal heirs of the deceased A1 vide
Court order dated 19.04.2022 made
in CMP.No.5251/2022 in S.A.No.862/2017)
Vs.
K.S.P.Pandian (Deceased)
1.P.Gnanaselvi
2.Venkatasubramanian
3.Subbiah
4.Sundaram
5.Suresh
6.Subash ... Respondents
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1/16
S.A.No.862 of 2017
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree passed in A.S.No.77 of 2010 by
the VI Additional City Civil Court, Chennai dated 31.01.2011 reversing the
judgment and decree passed in OS.No.4005 of 1996, dated 14.07.2009 by the
IV Assistant City Civil Court, Chennai.
For Appellants : Mr.S.Saravanakumar
for Mr.I.Abrar MD. Abdullah
For Respondents : Mr.K.Ravi
Senior Counsel
for M/s.Rugan and Arya
JUDGMENT
The unsuccessful plaintiffs in the suit for specific performance
are the appellants. The suit for specific performance filed by the plaintiffs was
decreed by the trial Court and the findings of the trial Court was reversed by
the First Appellate Court. Aggrieved by the same, the plaintiffs have come up
with this Second Appeal.
2. For the sake of convenience the parties are referred to in this
Second Appeal as per their ranking in the suit.
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3. According to the plaintiffs, they were in occupation of
agreement mentioned property as a tenant. Later on plaintiffs, agreed to
purchase the said property for a sale consideration of Rs.6,00,000/- and
agreement was entered on 11.02.1985 and on the date of agreement an
advance of Rs.1,00,000/- was paid by the plaintiffs. As per the terms of
agreement the defendants agreed to treat the possession of the plaintiffs as the
one under agreement. The defendants also agreed to adjust the rental advance
of Rs.40,000/- towards the balance sale consideration. It was also agreed in the
agreement that necessary permission from the Court shall be obtained for
selling the agreement mentioned property to the plaintiffs in sofar as the share
of minor defendants 4 to 7. The time fixed for performance was 11.05.1986.
The plaintiffs issued a notice on 12.08.1985 reminding the defendants their
obligation under the agreement. The defendants issued a reply on 16.09.1985
stating that as per terms of agreement, the plaintiffs had to pay a further sum of
Rs.1,00,000/- to the defendants on 11.05.1985 and the same was not paid.
Subsequently, the plaintiffs paid further amount of Rs.1,00,000/- on
10.02.1986 and entered into another agreement incorporating the new terms
under Ex.A12. The time fixed for performance was six months from the date
of 2nd agreement entered on 10.02.1986. As the defendants failed to perform
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their part of contract the plaintiffs issued a lawyer's notice on 31.03.1987. The
defendants filed Rent Control proceedings against the plaintiffs seeking their
eviction. In these circumstances, the plaintiffs were constrained to file a suit
seeking specific performance of the sale agreement expressing their
willingness and readiness for paying the balance sale consideration of
Rs.3,60,000/-.
4. The defendants filed their written statement and additional
written statement stating that on the date of execution of rental agreement the
defendants 3 to 7 were minors. It was further averred by the defendants that
the agreement mentioned property originally belonged to the first defendant
and he executed a settlement deed on 13.07.1977 granting life estate in favour
of the second defendant with vested remainder to the defendants 3 to 7, in
respect of a portion of the property. Again the first defendant executed another
settlement deed on 14.07.1977 settling remaining portion of the property to the
defendants 3 to 6. Therefore, the first defendant had no right over the
agreement mentioned property on the date of agreement. The second
defendant had only life estate in respect of a portion of the property. The
defendants 3 to 7 have got vested remainder in respect of major portion of the
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property and with regard to remaining portion, the defendants 3 to 6 acquired
title under the second settlement deed executed by the first defendant on
14.07.1977.
5. It was also contended by the defendants that on the date of
execution of suit sale agreement the defendants 3 to 7 were minors and there
was a clause in the agreement stipulating that the first defendant who
represented the defendants 4 to 7 in the agreement, as natural guardian, should
obtain permission from the Court for selling property. It was also contended by
the defendants that the amount received by the first defendant towards
advance was not utilized for the benefit of minors. The claim of the plaintiffs
that they were in possession of the suit property in pursuance of the agreement
was also denied by the defendants. On these pleadings, the defendants sought
for dismissal of the suit.
6. Before the trial Court, the first plaintiff was examined as PW1
and 20 documents were marked on behalf of the plaintiffs as Ex.A1 to Ex.A20.
On behalf of the defendants, the third defendant was examined as DW1 and
six documents as Ex.B1 to Ex.B6.
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7. The trial Court on appreciation of oral and documentary
evidence available on record, came to the conclusion that the suit property was
mortgaged even prior to the execution of settlement deed and only to
discharge mortgage debt, the first defendant entered into an agreement of sale
with the plaintiffs and therefore, the agreement was entered into by the first
defendant on behalf of the minors only for their benefit.
8. Aggrieved by the same, the defendants preferred an appeal in
A.S.No.77 of 2010 on the file of the VI Additional City Civil Court, Chennai.
The first Appellate Court found that sale agreement entered into by the first
defendant on behalf of the minors defendants 4 to 7 was unenforceable, as he
failed to get permission from the Competent Court to sell minors property.
Therefore the first appellate Court reversed the findings of the trial Court and
allowed the appeal. Aggrieved by the said judgment and decree, the plaintiffs
have come up with this Second Appeal.
9. The learned counsel for the appellant submitted that trial Court
based on the evidence available on record came to the conclusion that earlier
suit property was mortgaged and only to discharge the mortgage debt, the first
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defendant entered into suit sale agreement with the plaintiffs on behalf of the
minor defendants 4 to 7. In such circumstances, the agreement was entered
into for the benefit of minors and therefore, the same is binding on the minors.
The said legal position was not properly appreciated by the first Appellate
Court and the suit was dismissed only on the ground that the first defendant
failed to obtain Court's permission for selling minors' property and therefore,
the agreement entered into for selling minor share was enforceable.
10. The learned counsel for the appellant further submitted that as
per agreement there is a stipulation which compels the first defendant to
obtain necessary permission from the Court. The person who failed to perform
the obligation under the agreement cannot take advantage of the same and
resist the suit for specific performance on that ground.
11. As per admitted facts of the case originally the suit property
belonged to the first defendant. He executed a settlement deed on 13.07.1977
under Ex.B1 in respect of 2727 sq.ft., of agreement mentioned property
granting life estate in favour of the second defendant and absolute estate in
favour of the defendants 3 to 7. Likewise, with regard to the remaining portion
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of the agreement mentioned property namely 2273 sq.ft., he executed another
settlement deed on 14.07.1977 in favour of defendants 3 to 6.
12. Thus, the first defendant has no right over the agreement suit
property on the date of agreement. The defendants 3 to 6 have got absolute
right over the portion of the suit property 2273 sq.ft., under Ex.B2 and with
regard to the remaining extent namely 2727 sq.ft., the same was settled in
favour of the second defendant with life estate and vested remainder in favour
of male issues namely the defendants 3 to 7. Therefore, the second defendant
settlee as life estate holder is in possession of the suit property during her life
time and has been collecting rent and enjoying the income.
13. Thus, it is clear that the defendants 3 to 7 have got vested
remainder in respect of 2727 sq.ft., agreement mentioned property and the
defendants 3 to 6 have got absolute right over 2273 sq.ft., in this property. The
suit agreement have been entered into by the first defendant on behalf of the
minor defendants 4 to 7. The third defendant signed agreement as if he was
major on the date of agreement. However, in the written statement a plea was
raised that the third defendant also was minor on the date of plaint. In order to
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prove that the third defendant was a minor on the date of agreement the
transfer certificate of third defendant was produced as Ex.B3 wherein his Date
of Birth has been mentioned as 28.04.1968. Therefore, he attained majority on
28.04.1986. Both the sale agreements namely Ex.A5 dated 07.03.1984 and
Ex.A12 dated 10.02.1986 were prior to the said date. Therefore, it is clear that
on the date of agreement the third defendant was a minor.
14. It is settled law, when a minor entered into an agreement
during minority representing himself as a major, the agreement is void
ab initio and unenforceable. (Mohori Bibee Vs. Dharmodas Ghose, reported
in [1903 ILR 30 Cal 539 (P.C)]).
15. Therefore, suit agreement entered into with the third
defendant during his minority is void ab initio and unenforceable, as far as 3rd
defendant's share is concerned. The view of privy council in Mohori Bibee
Vs. Dharmodas Ghose (cited supra) was quoted with approval by Apex Court
in Mathai Mathai Vs. Joseph Mary and Ors., reported in
MANU/SC/0473/2014=AIR 2014 SC 2277. The relevant observation of Apex
Court reads as follows:
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“9.The first point is required to be answered against the
appellant for the following reasons:-
It is an undisputed fact that Exh. A1 is the mortgage deed
executed by the uncle of the appellant and the first respondent in
favour of the deceased mother of the appellant as collateral
security towards the dowry amount. At the time of execution and
registration of the document, it is an undisputed fact that the age
of the mortgagee, the deceased mother of the appellant was 15
years as mentioned in the mortgage deed itself. Therefore, she
had not attained the majority under the Indian Majority Act, 1875.
To acquire the competency to enter into a contract with the uncle
of both the appellant and the first respondent the parties should
have been of age of majority as required under Section 11 of the
Indian Contract Act, 1872. The aforesaid aspect fell for
interpretation before the Privy Council in the case of Mohori
Bibee v. Dharmodas Ghose[1], wherein the Privy Council after
interpretations of relevant provisions of Section 11 of the Indian
Contract Act, 1872, has held that the contracting parties should be
competent to contract as per the above provision and the minor’s
contract was held to be void as he cannot be the mortgagor, the
relevant paragraphs referred to in the aforesaid decision are
extracted hereunder :-
“Looking at these sections their Lordships are satisfied that
the Act makes it essential that all contracting parties should
be “competent to contract,” and expressly provides that a
person, who by reason of infancy is incompetent to
contract, cannot make a contract within the meaning of the
Act”
In the later part of the same paragraph, it is stated,
“The question whether a contract is void or voidable
presupposes the existence of a contract within the meaning
of the Act, and cannot arise in the case of an infant. Their
Lordships are therefore of opinion that in the present case
there is not any such voidable contract as is dealt with in
section 64.”
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Thus, it was held that a minor cannot be a contracting party, as a
minor is not competent to contract as per Section 11 of the Indian
Contract Act. At this juncture, it is also necessary to extract
Sections 2 and 11 of the Indian Contract Act, 1872 which read as
under:-
“2.Interpretation-clause. In this Act the following words
and expressions are used in the following senses, unless a
contrary intention appears from the context :-
(a) When one person signifies to another his
willingness to do or to abstain from doing anything,
with a view to obtaining the assent of that other to such
act or abstinence, he is said to make a proposal;
(b) When the person to whom the proposal is made
signifies his assent thereto, the proposal is said to be
accepted. A proposal, when accepted, becomes a
promise;
(c) The person making the proposal is called the
“promisor” and the person accepting the proposal is
called the “promisee”;
(d) When, at the desire of the promisor, the promisee or
any other person has done or abstained from doing, or
does or abstains from doing, or promises to do or to
abstain from doing, something, such act or abstinence
or promise is called a consideration for the promise;
(e) Every promise and every set of promises, forming
the consideration for each other, is an agreement;
(f) Promises, which form the consideration or part of
the consideration for each other, are called reciprocal
promises;
(g) An agreement not enforceable by law is said to be
void;
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(h) An agreement enforceable by law is a contract;
(i) An agreement which is enforceable by law at the
option of one or more of the parties- thereto, but not at
the option of the other or others, is a voidable contract;
(j) A contract which ceases to be enforceable by law
becomes void when it ceases to be enforceable.
11. Who are competent to contract- Every person is
competent to contract who is of the age of majority
according to the law to which he is subject, and who is of
sound mind and is not disqualified from contracting by any
law to which he is subject.”
This important factual and legal aspect has been conveniently ignored
by the authorities including the High Court while adverting to Exh.A1,
the mortgage deed. A strong reliance was placed upon it by both the
Land Tribunal and the Appellate Authority in allowing the claim
application of the appellant holding that he is a deemed tenant under
Section 4A of the K.L.R. Act without noticing the aforesaid relevant
factual aspect of the matter. Therefore, we have to hold that the
mortgage deed-Ex. A1 executed by the uncle of the appellant and the
first respondent, in favour of the deceased mother of the appellant, is not
a valid mortgage deed in respect of the property covered in the said
document for the reason that the deceased mother at the time of
execution and registration of the document was a minor, aged 15 years,
and she was not represented by her natural guardian to constitute the
document as valid as she has not attained majority according to law.
Many courts have held that a minor can be a mortgagee as it is transfer
of property in the interest of the minor. We feel that this is an erroneous
application of the law keeping in mind the decision of the Privy Council
in Mohori Bibee’s case (supra).
10.As per the Indian Contract Act,1872 it is clearly stated that for
an agreement to become a contract, the parties must be competent to
contract, wherein age of majority is a condition for competency. A deed
of mortgage is a contract and we cannot hold that a mortgage in the
name of a minor is valid, simply because it is in the interests of the
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minor unless she is represented by her natural guardian or guardian
appointed by the court. The law cannot be read differently for a minor
who is a mortgagor and a minor who is a mortgagee as there are rights
and liabilities in respect of the immovable property would flow out of
such a contract on both of them. Therefore, this Court has to hold that
the mortgage deed-Ex.A1 is void ab initio in law and the appellant
cannot claim any rights under it. Accordingly, the first part of first point
is answered against the appellant.”
Therefore, suit agreement entered into with the third defendant during his
minority is void ab initio and unenforceable, as far as his share is concerned.
16. As far as the other defendants namely 4 to 7, admittedly they
were minors on the date of suit sale agreement and they were represented by
the natural guardian first defendant. It was submitted by the learned counsel
for the appellant that under Hindu Law the natural guardian of minors have
got power to sell the property of the minors for legal necessity and for the
benefit of minors and such agreements are enforceable against the minors. In
the case on hand, in the plaint filed by the appellants/plaintiffs there is no plea
regarding legal necessity or benefit of minors. When the appellants/plaintiffs
failed to plead that the suit sale agreement was entered into for legal necessity
and for the benefit of minors it is not open to them to argue that the suit sale
agreement was entered into for the legal necessity and for the benefit of
minors and hence the same was enforceable against the minors/defendants.
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17. The trial Court observed that even before execution of
settlement by the first defendant the agreement mentioned property were
subjected to mortgage debt and the suit sale agreement was entered into only
for discharging the said mortgage debt and in such circumstances, the
agreement shall be treated as one entered into for the benefit of minors. I am
unable to accept the said conclusion of the trial Court for the simple reason
that there is no plea by the appellants/plaintiffs that agreement was entered
into for legal necessity or for the benefit of the minors. When there is no plea
by the plaintiffs that the suit sale agreement was entered into by the first
defendant on behalf of the minors for legal necessity and for the benefit of
minors, the appellants/plaintiffs are not entitled to lead any evidence and argue
that the agreement was for legal necessity and for the benefit of minors.
18. In such circumstances, the conclusion reached by the first
Appellate Court that the suit sale agreement entered into by the guardian
without obtaining Court permission is not specifically enforceable is in
accordance with law. The said conclusion requires no interference by this
Court. Finding no substantial question of law arising for consideration in this
Second Appeal, the same is dismissed.
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19. a) In the result, the Second Appeal stands dismissed by
confirming the judgment and decree passed by the First Appellate Court.
b) In the facts and circumstances of the case, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
07.12.2023
Index : Yes
Internet : Yes
Neutral Citation Case : Yes
dna
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S.SOUNTHAR, J.
dna
To
1.The VI Additional City Civil Court, Chennai.
2.The IV Assistant City Civil Court, Chennai.
and
07.12.2023
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