L.P.A. No.17/1991
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
LETTERS PATENT APPEAL NO.17 OF 1991 IN
FIRST APPEAL NO.953 OF 1980
(FIRST APPEAL NO.757 OF 1989) WITH
CIVIL APPLICATION NOS.3159/1991 2593/2003
Pandit Bajirao Wabale,
Adult, R/o Mhatar Pimpri,
Taluka Shrigonda,
District Ahmednagar,
Legal heirs brought on record of
the appellant as per order of this
Court dated 5.3.2003 in
Civil Application St.No.2347/2003
Pandit Bajirao Wabale,
Since deceased, through his Legal Heirs
1. Ashabai Pandit Wabale,
Age 65 years, Occu. Household,
R/o Mhatar Pimpri, Tq. Shrigonda,
District Ahmednagar,
(Died, Appellant Nos.2 to 5 and
respondent Nos.5-A to 5-C are
legal heirs of appellant No.1)
2. Balasaheb @ Kiran Pandit Wabale,
Age 40 years, Occu. Labour,
R/o Mhatar Pimpri, Tq. Shrigonda,
District Ahmednagar,
3. Bajirao Pandit Wabale,
Age 38 years, Occu. Rickshaw Driver,
R/o 7/203, P.M.C. Colony,
Sambhaji Nagar, Wakade Wadi,
Pune – 3
4. Smt. Usha Vasantrao Mane,
Age 45 years, Occu. Household,
R/o Flat No.23, Ridhi Sidhi Apartment,
Canara Bank Lane,
Bibawe Wadi, Pune – 37
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5. Smt. Mangal Jalindhar Bhosale,
Age 42 years, Occu. Household,
R/o Village Fakrabad, Tq. Jamkhed,
District Ahmednagar. … APPELLANTS
VERSUS
1. Smt. Padmawati Ganpatrao Hule,
(Since deceased), through her L.Rs.
1-A) Mandakini Ganpatrao Hule,
(Died on 18.7.2017 – No L.Rs.)
1-B) Urmila Ganpatrao Hule,
Age 62 years, Occu. Household,
R/o Nargis Cottage, Juhu Beach,
Mumbai
2. Smt. Salubai Najirao Wabale,
Since deceased, by her L.Rs.
2-A) Padmavati Ganpatrao Hule
Nargis Cottage, Juhu Beach,
Bombay – 54
2-B) Pandit Bajirao Wabale,
Mhatar Pimpri, Tq. Shrigonda,
District Ahmednagar.
2-C) Godavari Bhikoba Hule,
149, Guruwar Peth,
Bankar wada, Pune – 42
2-D) Gunwanti Shankar Poman,
Laxmabai Patil, Wadi,
Opp. Telephone Exchange,
Gokhale Road, Duda (North)
deceased through her L.Rs. on record
of R.No.2-D as per Court Order dated
5.3.2003 in C.A. No.2462/1997
2-D-1) Balkrishna Shankarrao Poman,
(Deceased through legal heirs :
2D-1A) Smt. Vandana w/o Balkrushna Poman,
Age 45 years, Occu. Household,
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R/o H.110, 146,
Ashtavinayak Society, Laxminagar,
Parvati, Pune -1
2D-1B) Anand s/o Balkrushna Poman,
Age 22 years, Occu. Education,
R/o as above.
2D-1C) Kum. Pooja d/o Balkrishna Poman,
Age 18 years, Occu.Education,
R/o as above
2-e) Damayanti Ramchandra Ghogare,
1229, Ravivar Peth,
Kachi Ali, Opp. Kammu Paliwan Talim,
Pune – 411 002
2-f) Suman Dattatraya Theukar
P.W.D. Store, Near Mental Hospital,
Alandi Road, Yerwade,
Pune – 411 006
3. Bajirao Pandit Wabale
4. Kiran Pandit Wabale
5. Sanjay Pandit Wabale
Respondents Nos.3 to 5 minors,
through their guardian mother
Sou. Ashabai Pandit wabale
Legal heirs brought on record of the
respondent No.5 as per order of this
Court dated 5.3.2003 in Civil
Application No.968/2003
5. Sanjay Pandit Wabale,
since deceased, through his L.Rs.
5-A) Sarika Sanjay Wabale,
Age 25 years, Occu. Household,
R/o Mhatar Pimpri, Tq. Shrigonda,
District Ahmednagar.
5-B) Aniket Sanjay Wabale,
Age 5 years
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5-C) Shrinath Sanjay Wabale
Age 3 years,
Respondents No.5B to 5C are minors,
u/g of their mother i.e.
respondent No.5-A … RESPONDENTS
…..
Shri R.N. Dhorde, Senior Counsel with
Shri V.R. Dhorde, Advocate for appellants
Shri P.B. Shirsath, Advocate for respondent No.1-B
…..
CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
Date of Reserving judgment : 13th February, 2018.
Date of pronouncing judgment : 23rd February, 2018
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. This Letters Patent Appeal is directed against the
judgment and order of learned Single Judge of this Court in First
Appeal No.953/1980 (First Appeal No.757/1989), wherein the
judgment and decree passed by the Civil Judge, Senior Division,
Ahmednagar in Special Civil Suit No.220/1976 was quashed and
set aside and instead, decree for specific performance of the suit
property was passed. Being aggrieved with this judgment and
order, the original defendant No.1 filed Letters Patent Appeal
No.17/1991, challenging the judgment and order passed in First
Appeal No.953/1980 (First Appeal No.757/1989). On 2.5.2003,
Letters Patent Appeal No.17/1991 was allowed only on the
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ground that the suit is not within limitation. Being aggrieved, the
plaintiff filed Civil Appeal No.7456/2003 before the Hon’ble
Supreme Court. On 15.12.2016, the Hon’ble Supreme Court
allowed the Civil Appeal No.7456/2003, stating that the suit is
not barred by limitation and remanded the matter to this Court
by deciding the other issues.
2. Facts in nutshell are that, the plaintiff filed Special
Civil Suit No.220/1976 against the defendants No.1 to 5 for
specific performance of contract of sale dated 22.1.1972, and in
the alternate, for refund of earnest amount paid to the
defendants. The agricultural land bearing Survey no.69 (Gat
No.71), admeasuring 11 acres and 1 guntha, situated at village
Mhatarpimpri, Taluka Shrigonda, District Ahmednagar together
with well, electric motor pump and right to take water from the
well situated in Gat No.72 is the suit property. Defendant no.1 is
brother of plaintiff. Defendant No.2 is mother of defendant No.1
and defendants No.3 to 5 are minor sons of defendant No.1, who
ere represented by their mother Ashabai Pandit Wable.
Defendant No.1 was in need of money for payment of loans
borrowed from Society as well as from Scheduled Banks.
Therefore, on his request, on 22.1.1972, written agreement of
sale was executed by defendants No.1 to 5 in favour of plaintiff
and agreed to sell the suit land for total consideration of
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Rs.40,000/-. The registered sale deed was to be executed within
three months from 22.1.1972. On the date of agreement,
amount of Rs.32,200/- was paid to the defendants and out of this
amount, amount of Rs.13,751/- was paid to Co-operative Credit
Society, Mhatarpimpri, amount of Rs.2096/- was paid to the
Union Bank of India, amount of Rs.4900/- was paid to the
Ahmednagar District Co-operative Land Development Bank and
amount of Rs.3394/- was paid for satisfaction of the decree
passed against defendant No.1. The balance amount of
Rs.7800/- was to be paid at the time of registration of the sale
deed. Possession of the suit land was handed over to the plaintiff
on the date of agreement of sale. However, at that relevant
time, plaintiff used to stay at Bombay with her children, and
taking advantage of this fact, defendant No.1 tried to raise loan
from various agencies. Plaintiff was always ready and willing to
perform her part of the contract. However, defendants avoided
to execute the sale deed despite repeated requests by plaintiff.
On 29.1.1972, plaintiff issued public notice in respect of
execution of agreement of sale, calling objections from third
persons as defendants were not ready to execute registered sale
deed after receiving the balance consideration of Rs.7800/-,
plaintiff was constrained to file the suit for specific performance
of contract of sale.
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3. By filing written statement Exhibit 21 and Exhibit 36,
defendant No.1 countered the suit claim contending that the
agreement of sale dated 22.1.1972 was in the nature of security
of loan of Rs.32,200/- borrowed from the plaintiff to wipe off
liabilities that were incurred by the defendants. Defendant No.1
has repaid amount of Rs.27,500/- to the plaintiff out of the said
loan. Even possession of the suit land was never delivered to the
plaintiff.
4. Next contention of defendant No.1 is that, suit is
barred by limitation and the alleged agreement of sale is void as
plaintiff was not agriculturist at the time of execution of
agreement.
5. On behalf of minor defendants No.3 to 5, their
mother filed written statement and adopted the written
statement filed by defendant No.1. These defendants contended
that the defendant No.1 Pandit Bajirao Wable had left the
authority of Karta of his joint family and as such, he had no
authority to execute the sale agreement in question. Defendants
No.3 to 5 are having their undivided share in the suit property
and it being a minor’s property, it cannot be sold without
permission of the District Court. Defendant No.1 is addicted to
liquor and in that state of mind, he had executed the said
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agreement in question.
6. Learned trial Court framed issues at Exh.48. After
considering the evidence placed on record, trial Court answered
almost all the issues in favour of plaintiffs except Issue No.4 of
limitation. Trial Court dismissed the suit claim only on the
ground that it is barred by limitation.
7. In First Appeal No.953/1980 (First Appeal
No.757/1989), the learned Single Judge allowed the appeal and
passed decree for specific performance of the agreement of sale.
Therefore, this Letters Patent Appeal arises.
8. As observed above, the issue of limitation has been
finally determined by the Hon’ble Apex Court and it is held that
the suit is well within limitation. Therefore, in this Letters Patent
Appeal we need not consider the issue of limitation.
9. At the outset, we must observe that, the judgment
and findings of learned Single Judge, passing decree of
specific performance of contract is challenged only by
defendant No.1, who is the father of original defendants No.2,
3 and 5, who were minor at the time of above said agreement
of sale. Due to passage of time, the minor defendants No.3 to
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5 have attained majority in the year 1989, when the First
Appeal was filed by original plaintiff in the year 1990. Even
after attaining majority, defendants No.3 to 5 have not
challenged the decree for specific performance of the contract
which was passed in the year 1991 – on 12/13.9.1991.
10. Undisputedly, Regular Civil Suit No.7/1966 for
partition of suit lands was filed in the Court of Civil Judge,
Junior Division, Shrigonda by original defendants No.3 and 4
through their mother against present defendant No.1 (father)
and others. In that suit, compromise decree (Exh.106) was
passed and one fourth share in the present suit land was
allotted to the defendant No.1 and 3/4 th share was allotted to
the share of defendants No.3 and 4 and to their mother.
From the record, it appears that, that decree was not
executed by effecting division of the suit land by metes and
bounds. However, as per trite law, on the date of institution
of Regular Civil Suit No.7/1966 for partition by defendants
No.3 and 4 the joint family status of the joint family of
defendants No.1, 3 and 4 had come to an end. After 1966,
neither defendant No.1 can act as Karta of the joint family of
defendants No.3 to 5 and their mother nor he can represent
or defend the interest of defendants No.3 to 5 in the suit
property. Therefore, while deciding this Letters Patent
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Appeal, the defences which were available to defendants No.3
to 5 as minor sons, are not available to the defendant No.1.
The defendant No.1 has to stand on his own legs. On the
other hand, as original defendants No.3 to 5 have not
challenged the judgment and decree for specific performance
of the contract, passed in First Appeal No.757/1989, that
decree has reached to finality, so far as it pertains to rights of
defendants No.3 to 5 in the suit property.
11. Shri Dhorde, learned Senior Counsel for appellant
submitted that, the agreement of sale dated 22.1.1972 was
obtained by plaintiff as a security for hand loan borrowed by
defendant No.1 from the plaintiff, to clear the outstanding Bank
loans. He took us through the oral evidence led by both the
parties and submitted that, though registered sale deed was to
be executed within three months from the date of execution of
agreement of sale, no positive steps were taken by plaintiff to
obtain registered sale deed of the suit land from defendants.
This indicates that, the true nature of the agreement was only
security for loan. He pointed out our attention towards public
notice (Exh.98) and made last submission that, as defendants
would become landless due to passing of decree for specific
performance, considering hardship to the defendants, Court
shall exercise discretion in favour of the defendants and not in
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favour of plaintiff who is a financially sound woman. He fairly
admits that, at present the original plaintiff is in possession of
the suit land. He placed reliance on the cases of Hemanta
Mondal and others Vs. Ganesh Chandra Naskar reported in
[(2016) 1 SCC 567] , Ramesh Chand (dead) through Legal
Representatives Vs. Asruddin (Dead) through Legal
Representatives and another , reported in [(2016) 1 SCC
653] and Satish Kumar Vs. Karan Singh and another
reported in [(2016) 4 SCC 352].
12. Per contra, Shri P.B. Shirsath, learned counsel for
respondent No.1 (original plaintiff) submitted that, in the
pleadings, plaintiff has averred in clear words her readiness
and willingness to perform her part of the contract. He
pointed out our attention towards para 6 of the plaint as well
as deposition of plaintiff recorded before the trial Court.
13. Next limb of arguments of learned counsel for the
respondent is that, concurrent findings have been given by
trial Court as well as first appellate Court that defendant No.1
failed to prove that the document in question is security for
loan borrowed by defendant No.1. He submitted that,
otherwise also, no substance has been brought on record by
defendant No.1 to establish that true nature of the impugned
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document was document of security for loan. He took us
through the contents of the entire agreement of sale and
pointed out that the contents of agreement of sale indicate
that defendants agreed to sell out the suit land for total
consideration of Rs.40,000/- for the legal necessity of their
family, i.e. repayment of various outstanding Bank loans.
14. On query made by this Court regarding bar under
Section 8(2) of the Hindu Guardians and Wards Act, 1956, he
submitted that, conjoint reading of Section 8 and Section 12
of the Guardians and Wards Act makes it clear that, father
being natural guardian of the minor sons can alienate even
the property of minor sons for the benefit of the minor. He
placed reliance on Narayan Vs. Uday Kumar reported in
[1993(2) Mh.L.J. 1653]; Shri Narayan othrs Vs.
Shridhar reported in [(1996) 8 SCC 54]; Vishwanath Vs.
Kisan reported in [2004(2) Bom.C.R. 399]; Shripati Vs.
Goroba reported in [2008(6) Mh.L.J. 707]. Designers Co-
operative Housing Society Vs. Uddhav reported in
[2010(6) Mh.L.J. 40], Ramnath Vs. Shamrao reported in
[2010(6) Mh.L.J. 737], Hiralal and others Vs. Bhikari
and others , reported in [1973 Mh.L.J. 500] .
15. In the case at hand, undisputedly plaintiff is elder
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sister of defendant No.1. Defendant No.2 is their mother and
defendants No.3 to 5 were minor sons of defendant No.1.
Even the execution of agreement of sale dated 22.1.1972
(Exh.104) is not disputed in between the parties. After going
through the evidence of plaintiff Padmavati (P.W.1), it
becomes clear that, she has led sufficient foundation for
leading secondary evidence on the ground that original
document of agreement was lost before filing of the suit. Only
because plaintiff did not publish notice in newspaper or she
did not lodge report to police station, her testimony regarding
loss of document during travel cannot be doubted.
16. After going through the agreement of sale
22.1.1972 (Exh.104), it emerges that, it was executed by
defendants No.1 to 5 for total consideration of Rs.40,000/-
and out of that amount, an amount of Rs.32,200/- was paid
by plaintiff by depositing Rs.20,74755 in the Loan Account of
defendant No.1 in three different Banks and by depositing
Rs.339477 in Regular Darkhast No.27/1991 pending before
the Civil Judge, Senior Division, Shrigonda in execution
petition filed by Anusayabai Shahajirao Wable against the
defendant No.1. Amount of Rs.805768 was paid to the
defendant No.1 in cash. The balance amount of Rs.7800/-
was to be paid before the Sub-Registrar at the time of
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registration of the sale deed, which was to be executed within
three months from the date of execution of the agreement.
This agreement was signed by defendants No.1, 2 and on
behalf of defendants No.3 to 5, their mother Ashabai
Panditrao Wable as guardian.
17. Plain reading of this agreement of sale (Exh.104)
clearly indicates that it was only agreement of sale and not a
document of security for hand loan. Therefore, onus shifts on
defendant No.1 to prove that the document was obtained by
plaintiff as security for hand loan.
18. However, except bare allegation in deposition,
defendant No.1 has not brought on record any reliable
circumstance, which even remotely indicates that the true
nature of the transaction was loan transaction and the
document was obtained as security for hand loan. On the
other hand, by examining Laxman Thopte (P.W.2), plaintiff
has also proved Nokarnama dated 23.1.1972 executed by
defendant No.1 in favour of plaintiff (Exh.89). Even
defendant No.1 Pandit Wable (P.W.1) has admitted the
execution of “Nokarnama” (Exh.89) in his cross-examination.
After going through the Nokarnama (Exh.89), it reveals that,
under this document, the defendant No.1 has also admitted
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the delivery of possession of the suit land to the plaintiff with
standing crop and under the terms of this document, he
agreed to look after the suit property as servant of plaintiff in
lieu of payment of Rs.500/-. Execution of this Nokarnama
supports the case of plaintiff that the nature of the transaction
was only agreement of sale. Was the document (Exh.104)
obtained as security for loan, then execution of Nokarnama
(Exh.89) would have become redundant. Thus, this
Nokarnama (Exh.89) also falsifies the contention of defendant
No.1 that true nature of the transaction was hand loan
transaction and agreement of sale was executed as security
for loan.
19. In the circumstances, after going through the
entire oral and documentary evidence, we are fully satisfied
that the defendant No.1 miserably failed to prove that the
plaintiff obtained the agreement of sale dated 22.1.1972 as a
security for loan. On the other hand, plaintiff has duly proved
that defendants No.1 to 5 agreed to sell the suit land for total
consideration of Rs.40,000/- and on the date of agreement
received earnest amount of Rs.32,200/-. As learned Advocate
for the appellant has fairly admitted possession of plaintiff
over the suit land, we need not consider that point again.
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20. To get decree of specific performance, plaintiff has
to comply Section 16(C) of Specific Relief Act, 1963. Section
16(C) of Specific Relief Act reads as under :
“16. Personal bars to relief:- Specific
performance of a contract cannot be enforced in
favour of a person :-
(a) . .. . . . . .. . . . . .. . . . . .
(b) . .. . . . . .. . . . . .. . . . . .
(c) who fails to aver and prove that he has
performed or has always been ready and willing
to perform the essential terms of the contract
which are to be performed by him, other than
terms the performance of which has been
prevented or waived by the defendant.
21. Bare glance at Section 16(c) of the Specific Relief
Act makes it clear that plaintiff must aver and prove that she
was all along ready and willing to perform her part of the
contract or she has already performed her part of contract.
22. In the case at hand, in para 6 of the plaint, plaintiff
has averred in clear words that, she was always ready and
willing to perform her part of the contract. In the oral
evidence also Padmavati (P.W.1) has deposed that, for
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number of times she requested the defendant No.1 to execute
registered sale deed, however, he avoided for one and other
reason. The attitude of defendant No.1 that he obstructed
possession of plaintiff over the suit land so also he claimed
possession of the suit land by denying the true nature of
agreement of sale indicates that he was not ready to execute
registered sale deed as agreed. Even before institution of the
suit, plaintiff issued two public notices in newspapers. In the
first notice, she called objections from third persons after
execution of agreement of sale and in second notice, she
expressed readiness and willingness to obtain registered sale
deed and made aware third persons not to make any
transaction with defendant No.1 in respect of the suit land
(Exh.90 and Exh.91). In addition to this, as per terms of the
agreement, the part to be played by plaintiff in the said
transaction is to make payment of Rs.7800/- to the
defendants only on the date of execution of the sale deed.
Thus, till execution of the sale deed, no duty lies on plaintiff
to be performed as part of her contract. In the
circumstances, we have no hesitation to hold that plaintiff has
duly proved that she has averred and proved her readiness
and willingness to perform her part of the contract and
thereby complied Section 16(C) of the Specific Relief Act.
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23. In view of the discussion, the plaintiff has duly
proved that on 22.1.1972, defendants agreed to sell the suit
land to the plaintiff after receiving earnest amount of
Rs.32,200/- out of agreed consideration of Rs.40,000/-.
Plaintiff has also proved her readiness and willingness to
perform her part of contract. Therefore, now question to be
answered is whether discretion of granting decree for specific
performance can be exercised in favour of plaintiff or not? No
doubt, in the evidence of defendant No.1 Pandit Wable
(D.W.1), by way of answer to Court Question, defendant No.1
has brought on record that except the suit land no other land
is available for him. As observed above, learned counsel for
the appellant heavily relied on this contention of defendant
No.1 and requested this Court not to exercise discretion in
favour of the plaintiff.
24. However, it cannot be ignored that, plaintiff, who is
sister of defendant No.1, has paid substantial large amount of
Rs.32,200/- to the defendant No.1 on 22.1.1972 when he was
heavily under the pressure of Bank loans and decree passed
by Civil Court. Defendant No.1 has also admitted in his cross-
examination that, his one third share in the suit land would
have been sold out in the Court auction which was asked by
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Anusayabai Wable in Execution Petition filed in Civil Court,
Shrigonda. He also admits that, “It is true that, if at that time
the suit agreement had not taken place, one fourth share from
suit land would have been sold through Court and the Banks
and Society were also insisting for repayment of loan”. Thus,
by accepting the proposal of defendant No.1 regarding sale of
the suit land, the plaintiff had in fact saved the suit land from
Court auction for repayment of various loans borrowed by
defendant No.1. However, circumstances indicate that,
defendant No.1 did not keep his word and even denied the
true nature of the agreement of sale transaction. Defendant
No.1 is the person who had conveniently forgotten the helping
hand extended by his sister when he was in dire need of
money due to indebtness. Thus, considering this overall
unfair conduct of defendant No.1 and long standing
possession of plaintiff over the suit land, even the balance of
hardship tilts in favour of plaintiff and not in favour of
defendant No.1.
25. Before parting with the judgment, we must make it
clear that, the technical objection raised by plaintiff that on
the date of agreement of sale, plaintiff was not agriculturist,
holds no water as in the cross-examination of defendant
(D.W.1), it emerges that since 1952 plaintiff is in possession
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of agricultural land purchased from Fattesing Wable. The
three authorities relied on by learned counsel for appellants
are distinguishable on facts because, in “Hemant Vs. Ganesh”
(cited supra), possession was not delivered to the plaintiff and
even the area of the land to be sold was not clear. There was
no substantial act from plaintiff and even there was no
financial loss to the plaintiff. Under those peculiar
circumstances, the decree for specific performance was
refused by the Apex Court.
26. In “Ramesh Vs. Asruddin” (cited supra), neither
there was pleading nor evidence regarding readiness and
willingness of plaintiff to perform his part of the contract.
Considering that circumstance, the specific performance was
refused.
27. In “Satish Kumar Vs. Karan Singh” (cited supra),
the genuineness of the contract was doubtful and it was
unenforceable, therefore, specific performance was refused.
Rherefore, ratio of these authorities is not applicable in the
case at hand because plaintiff was all along ready and willing
to perform her part of contract and she is in possession of the
suit land for more than 20 years. Therefore, obviously
discretion exercised by learned Single Judge in favour of
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plaintiff in First Appeal is just and proper.
28. Before parting with the judgment, we must refer
the authorities relied by learned counsel for the respondent
No.1 in “Narayan Vs. Uday Kumar” (supra); “Shri Narayan
others Vs. Shridhar” (supra); “Vishwanath Vs. Kisan” (supra);
“Shripati Vs. Goroba” (supra); “Designers Co-operative
Housing Society Vs. Uddhav” (supra); “Ramnath Vs. Shamrao”
(supra) and “Hiralal and others Vs. Bhikari and others”
(supra). In these cases, the Division Bench of this Court,
Single Bench of this Court and even the Apex Court have
explained trite law that the transaction entered into by natural
guardian on behalf of minor is not void ab initio, it can be
avoided by minor if he can establish that guardian has
exceeded his authority. The joint Hindu family by itself is a
legal entity, capable of acting through its Karta and other
members of the family in management of Joint Hindu Family.
Section 8, in view of express terms of Section 6 and 12 of
Hindu Minority and Guardianship At, 1956 would not be
applicable where Joint Hindu Family property is sold/ disposed
of by Karta involving undivided interest of minor in the said
Joint Hindu Family.
29. However, the ratio of all these authorities is not
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applicable in the case at hand for the simple reason that in
written statement of defendants No.3 to 5, they have denied
that defendant No.1 is Karta of their joint family. On the
other hand, as observed above, in the year 1966, suit for
partition was filed by defendants No.3 and 4 against their
father defendant No.1 and in 1969, even decree for partition
was passed. Therefore, defendant No.1 cannot act as Karta of
the joint family of defendants No.3 to 5. Thus, the authorities
relied on by Shri Shirsath, learned counsel for the respondent
are not applicable in the case at hand under these
distinguishable facts and circumstances of this case.
30. However, as observed above, at the first part of
the judgment that defendants No.3 to 5 have not challenged
the decree for specific performance of the contract passed by
first appellate Court and it has reached to finality against
them. Thus, otherwise also, the defence which is available to
defendants No.3 to 5 cannot be availed by defendant No.1 in
this Letters Patent Appeal.
31. In the result, we hold that the decree passed by
learned Single Judge in First Appeal No.953/1980 (First
Appeal no.757/1989) for specific performance of the contract
of sale is correct, proper and needs no interference. This
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L.P.A. No.17/1991
(( 23 ))
Letters Patent Appeal being devoid of merit, deserves to be
dismissed. Hence, we pass the following order:
ORDER
(i) The Letters Patent Appeal is dismissed with costs.
(ii) In view of dismissal of the Letters Patent Appeal,
Civil Applications are disposed of.
( SUNIL K. KOTWAL ) ( T.V. NALAWADE )
JUDGE JUDGE
fmp/
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