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Pandit Bajirao Wable vs Padmawati Hule on 23 February, 2018

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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L.P.A. No.17/1991
(( 22 ))

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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