IN THE HIGH COURT OF DELHI
CS (OS) 1047/2008 and I.A. No. 19099/2013 (O.7 R.14 (3) CPC)
Decided On: 13.08.2014
Meera Narula Vs. G.G. Malvankar
Coram:
Mukta Gupta, J.
Mukta Gupta, J.
1. The plaintiff has filed the present suit, inter-alia, seeking a decree for specific performance of the agreement to sell dated 20th May, 2006 and addendum dated 8th May, 2007, to deliver the possession of suit property and execute all deeds, necessary documents in order to carry out and execute sale deed in respect of property No. 225, Gulmohar Enclave, New Delhi-49 along with car garage No. 46 and Scooter garage 104 (in short the suit property) in favour of the plaintiff; permanent injunction restraining the defendants from parting possession or creating any third-party right in the suit property or in the alternative a decree of damages and compensation against the defendants.
2. As per the plaint the defendant No.1 and her two daughters i.e. defendant No. 2 and 3 are the absolute owners of the suit property having inherited the same from late Dr. G.K.J. Malvankar. Defendant No.1 for the benefit of defendant No.2 and 3 intended to sell the suit property and thus defendant No.1 through defendant No.4 her lawful attorney and her brother- in-law entered into an agreement to sell dated 11th December, 2005 for the sale of the suit property with the plaintiff for a total sale consideration of `68 lakhs out of which a sum of `2 lakhs was paid vide cheques bearing No. 718261 and 718262 dated 30th November, 2005 and 1st December, 2005 respectively. The husband of the plaintiff sold two properties at Jamuna Nagar and Gurgaon to arrange the necessary funds so that the sale documents could be executed in favour of the plaintiff by 30th April, 2006. At this stage defendant No.4 approached the plaintiff and told that besides defendant No.1, Defendant No.2 and 3 were also the co-owners of the suit property and the two daughters being minor, permission of the Court was necessary. Thus, a fresh agreement was executed between the parties by defendant No.1 to 3 through their attorney defendant No.4 on 20th May, 2006 for the sale of suit property for the same consideration i.e. `68 lakhs out of which the plaintiff paid a further sum of `4 lakhs thus totaling to `6 lakhs. The balance sale consideration of `62 lakhs was to be paid at the time of registration of the sale deed and handing over the vacant possession of the suit property to the plaintiff. One of the terms of the agreement to sell was that the defendant No.1 would get the suit property converted into freehold from DDA before execution of the sale deed and since defendant No.2 and 3 were minor, defendant No.1 would also take necessary permission required to sell the property. The expenses were to be borne by defendant No.1. In this regard the plaintiff and her husband extended all the help and cooperation including getting a pay order of `20,820/- prepared for payment towards part conversion to DDA which pay order was prepared by the plaintiff from her own bankers. The plaintiff's husband deposited the application for freehold to DDA and made several visits. An application under Section 29 of the Guardians and Wards Act 1890 for seeking permission to sell the suit property was also filed on 30th October, 2006 before the learned District Judge, Tis-Hazari by the defendant No.1 through her attorney defendant No.4 which was also done by the plaintiff's husband. One of the requirements for permission for sale of immovable property in which minors had interest was to give a public notice in the newspaper which was also given by the plaintiff at the request of defendant No.4 with the assurance that the amount of `10,000/- given to the counsel, would also be reimbursed. The said amount of `10,000/- was later reimbursed by the defendant No.4 to the plaintiff vide the cheque No. 809349. Since neither defendant No.1 nor defendant No.4 were able to trace the original papers of the suit property as per the requirement, an advertisement was also issued in this regard in the national daily expense of which was also borne by the plaintiff. As the time for effecting the sale was coming to an end on 27th May, 2007 and the conversion of suit property to freehold, as also the permission of sale from the learned District Judge was under process, defendant No.1 requested plaintiff for extension of time till 31st October, 2007. Accordingly the plaintiff vide agreement to sell addendum dated 8th May, 2007 agreed that the sale will be completed by 31st October, 2007 by giving a notice of at least two months to the plaintiff. Further, as per the agreement dated 20th May, 2006 the sale price was increased by 5% thus taking the total sale consideration to `71,40,000/-. The balance amount of `65,40,000/- was to be paid at the time of execution of the sale documents. However, even after getting an enhanced sale price and extension of time, the defendants were delaying the execution of sale and taking no effective steps for conversion to freehold and completing other necessary formalities. Thus, the plaintiff issued a legal notice dated 7th September, 2007 thereby calling on the defendants to execute the sale deed in respect of the suit property failing which the plaintiff would file a suit for specific performance in the Court of law and get a sale deed executed in her favour through the Court. However, the plaintiff received a letter dated 24th September, 2007 from defendants No.2 and 3 through their counsel stating that they had no desire to sell their house and as no permission to sell the suit property had been obtained from the Court, defendants No.2 and 3 were not bound by the said agreement to sell. Defendant No.4 through his letter dated 23rd September, 2007 informed the plaintiff that defendants No.2 and 3 have refused to sell the property, however malafidely stated that the plaintiff did not want to take the permission from the Court for sale. The letter further stated that defendants No.2 and 3 had attained majority and thus he was no more the attorney of defendants No.2 and 3. Plaintiff and her husband again re-started the pending work of conversion and remaining formalities and in this regard defendants No. 1 to 3 sent their duly signed photographs to the plaintiff's husband in December, 2007 to be submitted in the DDA. These were received around 10th December, 2007 i.e. after defendant No.2 and 3 attained majority. However, defendant No.1 sent another letter dated 11th February, 2008 in the name of plaintiff's husband refusing to go ahead with the sale of suit property and to further talk to the defendant No.4 who was her attorney. Thus, the plaintiff got a public notice got issued through her lawyer on 27th February, 2008 and thereafter has filed the present suit.
3. The stand of the defendant No.1 in the written statements is that the suit is not maintainable as it is based on concocted story and fabricated documents. The alleged agreements dated 11th December, 2005, 20th May, 2006 and 8th May, 2007 are either fabricated or without authorization or competence. The suit property was allotted to the husband of the defendant No.1 by DDA and after his death on 26th November, 1980 the same devolved on his legal heirs namely defendants No.1 to 3. Defendants No.2 and 3 being minor at the relevant time, the suit was not maintainable. The defendant No.4 had no power of attorney on behalf of the minors for sale of the suit property. The defendant No.1 had sufficient funds to meet the financial needs of the defendant No.2 and 3, thus there was no necessity to sell the suit property. In the absence of permission from the competent Court under Section 29 of the Guardians and Wards Act, the suit is not maintainable. It is stated that the defendant No.1 had never communicated any intention to sell either to the plaintiff or defendant No.4, nor defendant No.1 was competent to sell the same as defendant No.2 and 3 were co- owners. The power of attorney dated 22nd March, 2006 given by the defendant No.1 to defendant No.4 was meant for getting the property freehold and management of the property, however it appears that it included the clause of sale as performa. The power of attorney dated 22nd March, 2006 was sent in good faith and inclusion of the clause regarding sale in the document was of no consequence as defendants No.2 and 3 were minors and there was no permission from the competent Court. Plaintiff's husband made phone calls to the defendant No.1 expressing his interest to purchase the property, however defendant No.1 clearly stated that she was not interested in selling the property. However, on persuasion by the husband of the plaintiff defendant No.1 stated that if at all she considers to sell the suit property, she may consider to sell him being neighbor. The plaint is stated to be based on falsehood. The defendant No.1 had sent the photographs and signed papers to the plaintiff on the advice of defendant No.4 for the purpose of getting the property converted to freehold. Defendant No.4 seriously fell ill in the month of December, 2011, remained hospitalized for 10 days and has not been fully recovered thereafter. Since there was no valid agreement, there is no contractual obligation on the part of the defendants and hence the suit be dismissed.
4. The stand of the defendants No.2 and 3 in their written statement is that documents dated 11th December, 2005 and 20th May, 2006 are sham and bogus as the same did not mention that defendants No.2 and 3 were minor. Neither defendant No.1 nor defendant No.4 was competent to enter into agreement to sell the suit property as there was no need to sell the suit property for the benefit of the defendants No.2 and 3.
5. The stand of defendant No.4 is that no such agreements to sell dated 11th December, 2005, 20th May, 2006 and 8th May, 2007 were ever executed between the parties. The suit is not maintainable for fraud and misjoinder of parties. The husband of the plaintiff took the defendant No.4 into confidence as both had graduated from the same university and had evinced interest for use of garage space. At the outset defendant No.4 informed the husband of the plaintiff that he had no authority to give for use the garage space which belonged to defendants No.1 to 3, however looking into the factum that it was unlikely that defendants No. 1 to 3 would return to India in the near future to occupy their flat and the garage space which was lying unused, to take care of the interest of defendants No.1 to 3 and upon insistence of husband of plaintiff, the defendant No.4 acceded to the request of husband of the plaintiff to accept some payment towards security in lieu of permitting the use of garage space towards which an amount of `6 lakhs was paid by the husband of the plaintiff in due course. It is denied that an amount of `6 lakhs was given as earnest money for sale of the suit property. The agreements dated 11th December, 2005 and 20th May, 2006 were fabricated and could not have been executed as defendant No.2 and 3 were minor. The expenses of`10,000/- towards publication etc. have been denied. During the course of proceedings on 17th May, 2010 this Court recorded the following statement of defendant No.4 under Order 1 Rule 10 CPC:
"%17.05.2010
CS(OS) No. 1047/2008
Statement of Shri S.K. Malvankar, S/o late Shri J.Y. Malvankar, aged about sixty eight years, retired, R/o C-186, Sainik Nagar, Navada, New Delhi-59
On oath
After seeing the Agreement to sell of 11th December, 2005, I state that it bears my signatures at point-X. I had signed the aforesaid Agreement after reading its contents. (Vol. I am not able to recollect if it was for getting the property freehold. What I recollect is that it was for Rupees sixty eight lacs.) I have recently undergone cataract eye operation.
I do not remember if I had gone to the District Court to file application Mark-Y on 13th /17th October, 2006.
After seeing application Mark-Y and the affidavit accompanying it, witness states that the signatures on these two documents are his signatures.
RO&AC
May 17, 2010"
6. After completion of pleadings, the following issues were settled:
"1. Whether the Agreements dated 11th December, 2005, 20th May, 2006 and 8th May, 2007 are concocted and fabricated documents? (OPD)
2. Whether defendant No.1 was not entitled to enter into an Agreement to sell on behalf of defendant Nos. 2 and 3 being minors? (OPD)
3. Whether defendant Nos. 2 & 3 on attaining majority by their conduct have consented to sell off the property? (OPP)
4. Whether the defendant No.1 never intended to sell the suit property? If so, its effect? (OPD)
5. Whether the plaintiff was ready and willing to perform her part of agreement? (OPP)
6. Whether the plaintiff is entitled to decree of specific performance as prayed for? (OPP)
7. Whether the plaintiff is entitled to damages in case relief of specific performance is not granted to her? If yes, to what extent? (OPP)
8. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? (OPP)
9. Relief."
7. Before adverting to the issues separately certain facts and documents which have been proved on record are required to be adverted to. Defendants No. 1 to 3 have placed on record a special power of attorney dated 22nd March, 2006 Ex.4/D1,D2,D3 executed by the defendant No.1 on her behalf and on behalf of two daughters who were minor at that time. This power of attorney dated 22nd March, 2006 executed by defendant No.1 in favour of defendant No.4 on behalf of herself and two daughters who were minor at that time is admitted by the defendants No.1 to 3 . The defendant No.1 in her evidence has even admitted that this document was typed by her and after getting it attested at the High Commission of India, London, she sent the same to defendant No.4 at Delhi. Clause 12 of this Special power of attorney authorizes the defendant No.4 to execute/ undertake/ sale of property and to follow the procedure in proper and lawful manner for such disposal. Thus, though there is no power of attorney proved in favour of defendant No.4 by defendant No.1 on her behalf and on behalf of minor daughters when the agreement to sell dated 11th December, 2005 i.e. Ex.PW1/2 was executed, however before the agreement to sell dated 20th May, 2006 Ex.PW1/4 was executed there was a valid power of attorney in favour of defendant No.4 by defendant No.1 on her behalf and on behalf of her minor daughters. Further this agreement to sell dated 20th May, 2006 superseded the first agreement i.e. agreement dated 11th December, 2005 entered into between the parties on the same subject. The agreement to sell dated 20th May, 2006 Ex.PW1/4 reads as under:
"AGREEMENT TO SELL
1. Mrs. Meera Narula w/o Mr. P.S. Narula R/o 220 Gulmohar Enclave New Delhi 110049- 1st Party
2. Mrs. G.G. Malwankar W/o late Dr. G.K.J. Malvankar resident of UK through her attorney Mr. S.K. Malvankar R/o C-186 Sainak Nagar Uttam Nagar New Delhi 110059- 2nd Party
Whereas the 2nd party and her two daughters are the absolute owners of Flat #225, Car Garage #46 and Scooter Garage #104, all located in Gulmohar Enclave, (Yusuf Sarai DDA SFS flats) New Delhi 110049. The properties are free from all encumbrances. 2nd party wishes to sell the mentioned properties. The 1st party wants to purchase these properties. The parties have agreed to the following terms and conditions of the sale.
1. The sale price has been settled at Rs. Sixty eight lakhs (Rs.68,00,000/-). Out of this the 1st party has paid Rs. 6,00,000/- (Rs. Six lakhs) to the 2nd party as part payment vide cheques #718261 dt. 30.11.05; #718262 dt. 01.12.05 and #345386 dt 20.05.06. The 2nd party confirms the receipt of this amount. The balance 62,00,000/- (with an increase of 5% per annum) will be paid at the time of the registration of the sale deed and when the vacant physical possession will be handed over to the 1st party. The registration of the sale deed will be executed within 12 months of this 20th day of May, 2006 in the name of the first party or her nominee. Considering the part payment made to the 2nd party vacant physical possession of car garage #46 has been made by the 2nd party to the 1st party.
2. The cost of the registration will be borne by the 1st party. The 2nd party will pay property tax, all outstanding bills of the electricity and water supply agencies, the dues of the RWA, and any other dues pertaining to these properties till the date of the registration of the sale deed.
3. The properties were allotted to the husband of the 2nd party by DDA and have already been got mutated in the name of the 2nd party. The properties will be got converted into freehold properties by the 2nd party from the concerned authorities before the execution of the sale deed. The 2nd party will also take all other government permissions needed to sell the properties. These permissions will be duly taken before the execution of the sale deed. The expenses for the conversion to freehold and the permissions to be taken from the government will be the responsibility of the 2nd party.
4. Along with the vacant possession of the properties the following documents will be made over by the 2nd party to the 1st party:
the original DDA allotment papers of the properties, the papers connected with the conversion of the properties to freehold, the MCD property tax receipts, the electricity and water paid bill receipts, the RWA no objection/ no dues certificate, any other document(s) connected with the properties.
5. If the 1st party fails to arrange the payment of the balance amount as agreed upon within one year, or within two months of the 2nd party getting ready to sell and entitled to execute the sale deed whichever is later, the transaction will be considered as cancelled and the part payment will be forfeited. If the 2nd party fails to complete the bargain by the day mentioned above, the 1st party is entitled to get it completed through the specific performance of the court of law at the cost and expenses if any from the 2nd party under all circumstances. The 2nd party will also pay to the first party double the amount of the advance money paid to the 2nd party as damages.
6. This agreement made this 20th day of May, 2006 will supersede the first agreement between the parties on the same subject.
(Mrs. Meena Narula)
(S.K. Malwankar)
Attorney of Mrs. G.G. Malwankar."
8. This agreement was followed by an addendum dated 8th May, 2007 Ex.PW1/10 whereby at the request of the defendants the time for completion of sale was extended till 31st October, 2007 and the sale consideration was also increased from `68 lakhs to`71,40,000/- which reads as under:
"
"AGREEMENT TO SELL (Addendum)
1.Mrs. Meera Narula, w/o Mr. P.S. Narula, R/o 220 Gulmohar Enclave, New Delhi 110049 1st Party
2.Mrs. G.G.Malvankar, w/o Late Dr. G.K.J. Malvankar, Ms. Seema Malvankar and Ms. Smita Malvankar both daughters of late Dr. G.K.J. Malvankar, all resident of the UK through their attorney, Mr. S.K. Malvankar, R/o C-186 Sainik Nagar, Uttam Nagar, New Delhi 110059 2nd party
Whereas the 2nd party and her two daughters are the absolute owners of flat #225, car garage 46 and scooter garage 104, all located in Gulmohar Enclave, (Yusuf Sarai DDA SFS flats) New Delhi 110049. The properties are free from all encumbrances. 2nd party wished to sell the mentioned properties. The 1st party wanted to purchase these properties. The parties had agreed to the terms and conditions of the sale vide agreement to sell executed on 20th May, 2006.
And whereas the sale was to be completed within one year of the said date.
And whereas the 2nd party is not yet ready to complete the sale and has requested for extension of time till October 31, 2007.
And whereas the 1st party has agreed to grant the requested extension of time upto October 31, 2007.
Now, therefore it is agreed by both parties on this day of 8th May, 2007 that the sale will be completed by 31st October, 2007 by giving a notice of at least two months to the 1st party. It is also agreed that the TOTAL sale price will be Rs. 71,40,000/- (Rs. Seventy one lakhs forty thousand only). The 1st party has already paid by cheque Rs. 6,00,000/- (Rs. Six lakh) to the 2nd party. Thus a balance of Rs. 65,40,000/- (Rs. Sixty five lakhs forty thousand) is payable at the time of execution of the transaction.
Other terms and conditions of the sale will remain the same as agreed upon in the original agreement to sell dated 20th May, 2006.
(Mrs. Meera Narula)
(S.K. Malvankar)
Attorney of Mrs. G.G.
Malvankar
Ms. Seema Malvankar
Ms. Smita Malvankar."
9. Defendant No.1 in her evidence has admitted that till date she has not revoked the special power of attorney Ex.4/D1,D2,D3. The defendant No.1 also admits sending a letter dated 11th February, 2008 Ex.3/D1 to the husband of the plaintiff which reads as under:
"11th February, 2008To
Mr. P.S. Narula
R/o 220 Gulmohar Enclave
New Delhi 110049
Dear Mr. Narula
I hereby confirm that I do not intend to sell the flat (225, Gulmohar Enclave, New Delhi) any more.
For further talks contact Mr. S.K. Malvankar, my power of attorney. (G.G. Malvankar)"
Issues No.1 & 4
10. The reading of the letter dated 11th February, 2008 Ex.3/D1 clearly shows that though initially defendant No.1 intended to sell the flat to the plaintiff, however subsequently she changed her mind. Though defendant No.1 in her evidence by way of affidavit denies the knowledge of alleged agreement to sell dated 11th December, 2005, 20th May, 2006 and 8th May, 2007, however her letter dated 11th February, 2008 addressed to Mr. P.S. Narula, the husband of the plaintiff as reproduced above clearly shows that the defendant No.1 had the intention to sell the property to the plaintiff though she changed her mind subsequently. It is the admitted case of defendant No.1 that defendant No.2 and 3 became major on 23rd September, 2007 after the above noted sale agreement were entered into and at the time of the agreement, the defendants No.2 and 3 were minor and the defendant No.1 was their lawful guardian. It is further admitted by defendant No.1 that on the request of defendant No.4 she sent her and her daughters' photographs duly pasted on blank papers with signatures of each of them directly to the husband of the plaintiff at his address as he was helping defendant No.4 for getting the property transferred to freehold. Though defendant No.1 in her evidence has stated that she had never requested defendant No.4 to make an application under Section 29 of the Guardian and Wards Act for seeking permission to sell the property because she was never interested to sell the suit property nor it was in the interest of her daughters, however this is belied by the special power of attorney dated 22nd March, 2006 Ex.4/D1,D2,D3 which has been admitted by the defendants and in Clause 12 whereof it authorizes defendant No.4 to execute/ undertake/ sale of property and to follow the procedure in proper and lawful manner for such disposal. Thus, the authorization was not only for sale of the property but also to carry out all lawful exercises required for the purpose. As a matter of fact the earnest amount of `6 lakhs given by the plaintiff to the defendant No.1 was duly deposited in her account and the same was sought to be returned later. Further, as a matter of fact after 8/9 months of the receipt of notice from the plaintiff, defendant No.1 vide her letter dated 27th May, 2008 offered to return the money. The plaintiff had sent a notice dated 7th September, 2007 to the defendants No.1 to 3 through defendant No.4 and at their address at London. In reply to the said notice Ex.1/D4, the defendant No.4 does not deny execution of the sale agreement and has only stated that after the receipt of notice he contacted his brother's wife and daughters and since the brother's daughters had then attained majority and were emotionally attached to the house they did not want to sell the same. It is also stated that the defendants No.2 and 3 have also refused to sign the documents for conversion of the property to freehold and that since defendants No.2 and 3 have attained majority he was no more their attorney. There is no denial of the agreements to sell even on behalf of defendants No.2 and 3 and it is only stated that defendants No.2 and 3 were minors and no permission of the Court was taken for the sale of immovable property of the defendants No.2 and 3 and thus they were not bound by the agreements. There is no reply to this notice by defendant No.1 and hence there is no denial of the agreements to sell as noted above.
11. From the evidence on record, the plaintiff has clearly proved that three agreements to sell dated 11th December, 2005, 20th May, 2006 and 8th May, 2007 were executed between the plaintiff and defendant No.4 The agreement to sell dated 20th May, 2006 superseded the agreement to sell dated 11th December, 2005 and was executed after special power of attorney by defendant No.1 on her behalf and on behalf of defendants No.2 and 3 was duly executed in favour of defendant No.4 authorizing him to sell the property which was followed by addendum dated 8th May, 2007. The intention to sell the property has never been denied by defendant No.1 and the stand taken now in the written statement and the evidence by way of affidavit is clearly an after-thought and cannot be accepted. Statement of defendant No.1 was recorded by this Court on 16th February, 2010 wherein she admitted the execution of general power of attorney dated 22nd March, 2006 in favour of defendant No.4 and that she had authorized defendant No.4 to deal with the suit property as she was a citizen of United Kingdom and authorized him to even sell the property if it was required. She further stated that she had not revoked the power of attorney, however executed another power of attorney in favour of Smt. Meena Yadav in the year 2008. Thus, there was a legal and valid agreement to sell dated 20th May, 2006 entered into between the plaintiff and the defendant No.4 as duly authorized lawful attorney of defendants No.1 to 3, followed by the addendum dated 8th May, 2007 with a clear intention to sell. Thus, issues No. 1&4 are decided in favour of the plaintiff and against the defendants.
Issue No.2
12. The defendants have stated that since the defendant No.2 and 3 were minors the defendant No.1 was not entitled to enter into an agreement to sell on behalf of defendant No.2 and 3. It is thus to be ascertained whether defendant No.1 was entitled to sell the property in terms of Section 8 and 12 of the Hindu Minority and Guardianship Act, 1956. The main plank of argument of the learned counsel for the defendant is that there was no necessity of funds and hence in the absence of necessity of funds, defendant No.1 could not have sold the undivided interest of the minors in the suit property. The plaintiff has placed on record photocopy of the Suit No. 410/2006 filed by the defendant No.1 through her attorney defendant No.4 before the learned District Judge, Tis Hazari under Section 29 of the Guardianship and Ward Act, 1890 read with Order 32 of the CPC seeking permission to sell the suit property. One of the averments in the petition is that the defendant No.1 along with her husband shifted to United Kingdom and after his death the defendant No.1 is living there with the two minor girls i.e. defendants No.2 and 3. The defendants No.2 and 3 were then 16 years old and had just finished class 10th Board examination. The defendant No.1 was then working as Administrator in Dr. J. Demellow's Surgery, 1, King Edward Driveway, Grays, Essex, since October 2004. She was earning £650 per month with which she was able to make both ends meet. However, the said income was not sufficient for higher education of defendants No.2 and 3. So that defendants No.2 and 3 could join medical or chartered accountancy programme and to arrange for their higher education, the defendant No.1 required funds and thus decided to sell the flat owned jointly by the defendant No.1 and defendants No.2 and 3. Defendant No.4 the power of attorney of defendant No.1 in his statement under Order 10 Rule 2 recorded by this Court has stated that the signatures on the application mark 'Y' and the affidavit accompanying the same were his. Thus, the factum of filing the application and the supporting affidavit by defendant No.4 on behalf of defendant No.1 and defendants No. 2 and 3 has been admitted. From this admission it is clear that when the parties entered into the agreement to sell dated 20th May, 2006 the defendant No.1 was in need of money for the higher education of defendant No.2 and 3. In the light of this finding, it has now to be seen whether the defendant No.1 was entitled to enter into agreement to sell on behalf of defendant No.2 and 3 being minor.
13. Learned counsel for the defendants have relied upon Section 8 of the Hindu Minority and Guardianship Act, 1956 (in short the Act) to contend that the defendant No.1 though the natural guardian could not have entered into an agreement to sell in respect of the undivided interest of the defendants No. 2 and 3 in the joint family property. Reliance is placed by learned counsel for defendant No.1 on M. Veera Raghaviah Vs. M. China Veeriah & Anr. MANU/AP/0136/1975 : AIR 1975 Andhra Pradesh 350and Shilpi Jain & Ors. Vs. Anil Kumar Bansal (HUF) & Ors. MANU/DE/3641/2009 : 2009 (110) DRT 357. Learned counsel for the Defendants No.2 and 3 on the other hand has relied upon Saroj Vs. Sunder Singh & Ors. MANU/SC/1191/2013 : 2013 (14) SCALE 356 and Rangammal Vs. Kuppuswami & Anr. MANU/SC/0620/2011 : (2011) 12 SCC 220.
14. Learned counsel for the plaintiff relying upon Section 6 and 12 of the Hindu Minority and Guardianship Act, 1956 states that Section 8 of the Act has no application to the facts of the present case. Reliance is placed on Shri Narayan Bal & Ors. Vs. Sridhar Sutar & Ors. MANU/SC/0598/1996 : (1996) 8 SCC 54; Smt Bhagyamma & Ors. Vs. Smt. Ningarama & Ors. MANU/KA/0497/2008 : 2009 (4) KarL.J. 404 and Gangoji Rao & Anr. Vs. H.K. Channappa & Ors. MANU/KA/0159/1983 : AIR 1983 Karnataka 222. Section 6, 8 & 12 of the Act reads as under:
"Section 6 - Natural guardians of a Hindu minor.- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband:Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.--In this section the expressions "father" and "mother" do not include a step-father and a step-mother.
Section 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 realization, 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,--
(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 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2) and (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 natural 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 4A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the 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.
Section 12 - Guardian not to be appointed for minors undivided interest in joint family property.- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."
15. As per Section 12 in case where a minor has undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian is required to be appointed for the minor in respect of the undivided interest. Further, as noted above Section 6 permits the natural guardian of a Hindu minor to act in respect of the minor's property excluding his or her undivided interest in joint family property. Section 8 deals with the power of the natural guardian which provides that the natural guardian without the previous permission of the Court cannot mortgage or charge, or transfer by sale, gift, exchange or otherwise, part with the possession of the immovable property. In Narayan Bal (supra) the Supreme Court held:
"4. Section 6 of the Act inter alia provides that the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are -- in the case of a boy or an unmarried girl -- the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 8 thereof inter alia provides that 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 realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. Furthermore the natural guardian shall not, without the previous permission of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor or 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. 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 on behalf of the minor. Section 12 provides that where a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need to be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the joint Hindu family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.
6. In the instant case the finding recorded by the courts below is that Jag Bandhu, the eldest male member in the family acted as a Karta in executing the sale and had joined with him the two widows for themselves and as guardians of the minor members of joint Hindu family, as supporting executants. That act by itself is not indicative of the minors having a divided interest in the joint Hindu family property commencing before or at the time of the sale. In this view of the matter, Section 8 of the Act can be of no avail to the appellant's claim to nullify the sale."
16. In the present case, the suit property has devolved on defendant Nos. 1 to 3 under Section 8 of the Hindu Succession Act and the same cannot be termed as joint Hindu family property. Defendant No.1 through defendant No.4 had agreed to sell the property of defendants No. 2 and 3 for necessity as is evidence from the petition filed before the Court under Section 29 of the Guardians and Wards Act by defendant No.4 on the basis of a lawful power of attorney executed in his favour Ex.4/D1,D2,D3. Thus defendant No.1 could have entered into an agreement to sell with the plaintiff in view of the necessity subject to the permission of the Court which was duly applied for though the same could be avoided by the minors on attaining majority. Issue No.2 is also decided in favour of the plaintiff and against the defendants.
Issue No.3
17. Indubitably as per various sub-Sections of Section 8 of the Hindu Minority and Guardianship Act, any transfer of the nature mentioned in sub- Section 2 of Section 8 of the minor's immovable property without the permission of the Court is not binding on the minor irrespective of the fact whether it was necessary or for an evident advantage to him/her and that such a transfer even made with Court's permission shall be voidable at the instance of the minor if he/she can show it does not fall in the category of acts which were necessary or reasonable or proper for the benefit of the minor or for realization, protection or benefit of the minor's estate.
18. Despite the letter dated 23rd September, 2007 expressing their intention not to ratify the agreement sent by learned counsel for the defendant No.2 and 3 to the plaintiff, the defendants No.1 to 3 sent their photographs on blank papers with signatures to the husband of the plaintiff on 10th December, 2007 i.e. after attaining the majority by defendants No.2 and 3. The four photographs each of defendants No.1 to 3 pasted on blank papers with their signatures having been sent to the husband of the plaintiff have been admitted by the defendants No.1 to 3. Their case is that these documents were sent for the purpose of conversion. Be that as it may, the factum of sending these documents by post on 10th December, 2007 shows that even after writing letter to the plaintiff for not continuing the agreement to sell, the defendants still had an intention to deal with the plaintiff for the property. Thus by their conduct the defendants No.2 and 3 again agreed to sell the property. This fact is further ratified by the letter of defendant No.1 dated 11th February, 2008 stating that she did not intend to sell the flat any more, thus for the first time expressing a clear intention not to sell the flat. In B. Laxmanan Vs. B.R. Mangalam Giri & Ors. 1995 1 SCALE 14 Supreme Court held that the conduct of the respondent therein who attained majority during the pendency of the suit by adopting the written statement filed by the other defendants clearly showed that by conduct the party had consented to sell off the property. It was noted:
"4. It is true that in the written statement filed by the defendants, defendant Nos. 1, 2, brothers and 4 being the mother representing defendant No. 3-minor, as a natural guardian, had pleaded in paragraph 12 that the agreement to the extent of the share of the minor, is void. Under Section 8(3) of the Hindu Minority and Guardianship Act, 1956, Act 32 of 1956 (for short, 'the Act'), it is only voidable at the instance of the minor or any person claiming under him. The guardian has to obtain permission from the court under Section 8. In this case, admittedly, during the pendency of the suit, the third respondent-minor after becoming the major on July 31, 1975, was duly declared as major and the mother was discharged from guardianship. Thereafter he filed a memo adopting the written statement filed by the defendants 1 and 2, his brothers. In their written statement and also in the reply notice got issued by them, respondents No. 1, 2 and 4 expressly averred and was testified in the evidence of the first defendant that they are "ready and willing to perform their part of the contract", When the minor became major, he had adopted their written statement, it would certainly mean, as rightly pointed out by the High Court, that the minor was also willing to perform his part of the contract along with his brothers. He thereby elected to abide by the terms of the contract. It is not the case that the appellant had called upon the respondents in writing to obtain permission from the court as required under Sub-section (2) of Section 8 of the Act and that they refused to obtain such a sanction. In the suit notice also he did not call upon them to get the sanction of the court. On the other hand, he asked them to return the advance amount. When the minor had attained majority pending the suit and had elected to abide by the terms of the agreement of sale, the need to obtain sanction from the court became unnecessary. Under these circumstances, the necessity to obtain permission from the court under Sub-section (2) of Section 8 of the Act became redundant. It is seen, from the conduct of the appellant, that he is not willing to perform his part of the contract and he wants to wriggle out of the contract. It is also seen that time is the essence of the contract. Sale deed was required to be executed on or before February 23, 1973, the appellant is the defaulting party and he has not come to the court with clean hands."
19. Thus, the issue No.3 is also decided in favour of the plaintiff and against the defendants.
Issue No.5
20. The plaintiff has stated in the plaint about her readiness with the funds and willingness to perform the contract/ purchase the property. In the deposition before the Court the husband of the plaintiff and her duly constituted power of attorney holder stated that he was dealing with the defendants with regard to purchase of suit property on behalf of plaintiff, his wife. He has stated about the manner in which the payments of`6,00,000/- was done by cheques. The cheque amount of `6,00,000/- having been accepted by the defendant No.1 has not been denied. PW1 further showed the statement of account of his bank for the relevant period and referred to credit entry dated 30th March, 2006 and three entries dated 15th April, 2006, 17th April, 2006 respectively with regard to sale of his Yamuna Nagar and Gurgaon properties. PW1 in his further deposition before the Court has stated that he sold the Yamuna Nagar property for `10,50,000/- + `2,84,000/- and the Gurgaon property for `6,25,000/- +`13,50,000/- + `6,25,000/-. The suggestions in the cross-examination are that the properties at Yamuna Nagar and Gurgaon were sold as they were useless for him and not in connection with the purchase of the suit property, which suggestion has been denied by PW1. From the evidence placed on record by the plaintiff, the plaintiff has been able to prove that the plaintiff was ready and willing to perform her part of the agreement. The readiness and willingness of the plaintiff for performing the agreement is further evident from the fact that not only the plaintiff had money available in the accounts, however since defendants were not performing their part of the contract the plaintiff gave a legal notice and immediately thereafter filed the present suit. There is no delay on the part of the plaintiff who is pursuing every step pursuant to entering into the agreement to sell diligently. In Azhar Sultana Vs. B. Rajamani & Ors. MANU/SC/0231/2009 : AIR 2009 SC 2157 the Supreme Court noted that to show readiness and willingness to perform the contract it is not necessary that the plaintiff should file proof in respect of the entire amount being available with him. In R.C. Chandiok & Anr. Vs. Chuni Lal Sabharwal & Ors. MANU/SC/0033/1970 : AIR 1971 SC 1238 the Supreme Court held that the readiness and willingness cannot be treated in a straight jacket formula. The same has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
21. Thus, the issue No.5 is decided in favour of the plaintiff and against the defendants.
Issue No.6
22. As noted above, the defendant No.4 on behalf of defendants No.1 to 3 was entitled to enter into a lawfully enforceable agreement with the plaintiff to sell off the suit property and accordingly a part payment of `6,00,000/- had been taken. Not only part payment had been taken, the defendants had partly performed the contract in as much as possession of the garage which is part of the flat was also handed over to the plaintiff. Defendant No.4 also initiated proceedings before the Court and filed a petition under Section 29 of the Hindu Minority and Guardianship Act. The agreement between the parties is enforceable. Even after attaining majority though initially defendants No. 2 and 3 refused to continue with the agreement, however by their conduct they ratified the terms of the agreement. The case of the plaintiff does not fall in the illustrations in Section 20(2) of the Specific Relief Act which would warrant this Court not to grant a decree of specific performance. No compensation would be an adequate compensation for the immovable property. In P.S. Ranakrishna Reddy Vs. M.K. Bhagyalakshmi & Anr. MANU/SC/7148/2007 : 2007 10 SCC 231 the Supreme Court noted that the rise in the price of an immovable property itself is not a ground for refusal for enforcement of a lawful agreement for sale. Thus, the plaintiff is entitled to the relief of decree of specific performance. Issue No.6 is also decided in favour of the plaintiff. Issue No.7
23. In view of the issue No.6 being decided in favour of the plaintiff this Court is not required to decide issue No.7
Issue No.8
24. As regards issue No.8 since a valid agreement has been entered into between the parties, the plaintiff is entitled to a decree of permanent injunction as prayed for. Consequently, the suit is decreed in favour of the plaintiff and against the defendants and a decree of specific performance of the agreements dated 20th May, 2006 and 8th May, 2007 is passed in favour of the plaintiff and against the defendants. The plaintiff will pay the balance sale consideration of `65,40,000/- along with interest @ 18% per annum till date to the defendants No.1 to 3 within two months upon which the defendants No.1 to 3 will execute a sale deed in favour of the plaintiff regarding the suit property and hand over all necessary documents. The plaintiff is also granted the decree of permanent injunction as prayed for.
I.A. No. 19099/2013 (O.7 R. 14(3) CPC
25. While final hearing of the suit was going on, learned counsel for the plaintiff filed IA No. 19099/2013 for taking on record the bank documents showing the financial position/ capacity of the plaintiff as of date. The defendants filed their reply to the same. However, in view of the evidence already available on record, this Court does not find it fit to allow adducing of additional evidence at this stage.
26. Application is thus dismissed.
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