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1997 DIGILAW 366 (CAL)

SHEILA SENGUPTA v. SHIB NARAYAN ROY

1997-09-16

BHASKAR BHATTACHARYA, S.B.SINHA

body1997
S. B. SINHA,J. ( 1 ) THIS appeal is directed against a judgment and decree passed by Sri B. K. Lala, Subordinate Judge, 3rd Court, Alipore, in Title Suit No. 20 of 1981, dated March 8, 1984, whereby and whereunder the said learned court decreed a suit for specific performance of contract instituted, by the plaintiff/respondent. In view of the questions raised before this court it is not necessary to state the fact of the matter in great details. ( 2 ) THE admitted facts are as follows: ( 3 ) ONE Jitendra Nath Sengupta was admittedly the owner of the property in question. He executed an agreement for sale in favour of the plaintiff/respondent on 14. 12. 79. The said Jitendra Nath Sengupta died on 9. 1. 80. The plaintiff/respondent filed the aforementioned suit for specific performance of contract claiming, inter alia, the following reliefs:" (A)a decree may be passed against the defendants for specific performance of the contract for sale in respect of the suit premises dated 14. 12. 97 on payment to the defendants and/or depositing in court to the credit of the defendants to do all acts necessary and to put the plaintiff in full possession of the suit property and/or recovery of possession by due process of law. (b)a decree for costs including Rs. 51/-being the cost for demand notice. (c) injunction. (d)such further and other reliefs under equity and in law. ( 4 ) THE learned trial Judge upon consideration of the evidence on record has found that the plaintiff has been able to prove his case. ( 5 ) MR. Das, learned counsel appearing on behalf of the appellant has raised a short question in support of this appeal. Learned counsel submits that keeping in view the fact that in the plaint, cause of action for filing the suit was stated to have arisen on 18. 12. 88, by which date the property in question devolved upon the appellants, and in view of the fact that the appellant No. 2 at the relevant time was a minor, her mother could not have sold the property in view of the provisions of sections 5 and 8 of the Hindu Minority and Guardianship Act, 1956. Section 8 of the said Act reads thus :"8. Section 8 of the said Act reads thus :"8. Powers of natural guardian.- (1) The natural guardian, of a Hindu minor, has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate: but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court,- (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. " ( 6 ) HAVING heard the learned counsel for the parties, we are of the opinion that in the facts and circumstances of the case, provisions of the Hindu Minority and Guardianship Act, cannot be said to have any application whatsoever. When the aforementioned agreement for sale was executed on 14. 12. 79, the property belonged to the predecessor-in-interest of the appellants, the appellants at that point of time had no right, title and interest in relation thereto. In that view of the matter, it is not a case where a personal covenant was made by a guardian in respect of a property of a minor. It is also not a case where the guardian wanted to sell the property of a minor, and thus, it was obligatory on his part to obtain previous permission of court as is required under subsection (2) of section 8 of the said Act. Section 5 of the said Act merely contains a provision that the said Act have an overriding effect over other Acts. An agreement for sale although does not confer any title upon the prospective vendee, but he has a right to enforce the said agreement. The plaintiff/respondent filed the suit for specific performance of contract for the purpose of enforcement of the aforementioned agreement dated 14. 12. 79. An agreement for sale although does not confer any title upon the prospective vendee, but he has a right to enforce the said agreement. The plaintiff/respondent filed the suit for specific performance of contract for the purpose of enforcement of the aforementioned agreement dated 14. 12. 79. Section 19 of the Specific Relief Act provides that such a contract can be enforced against any other person claiming under the prospective vendor or a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. There cannot, therefore, be any doubt whatsoever that aforementioned agreement for sale dated 14. 12. 79 was binding upon the heirs and legal representatives of the aforementioned Jitendra Nath Sengupta. In that view of the matter, we are of the opinion that the provisions of sections 5 and 8 of the Hindu Minority and Guardianship Act cannot be said to have any application in the facts and circumstances of the case. Furthermore, in the suit itself, the appellant No. 2 was represented by her mother, who was her natural guardian. It is not the case of the appellants that there has been any violation of the provisions of Order 32 of the Code of Civil Procedure in the matter of representation of the minor dependant in the suit by her natural guardian. ( 7 ) FOR the reasons aforementioned, we do not find any merit in this appeal, which is dismissed, but in the facts and circumstances of this case, there will be no order as to costs. The judgment and decree passed by the learned trial Judge is affirmed. ( 8 ) IT appears that the learned trial Judge stayed the operation of the decree by an order dated 28. 3. 84. By an order dated 19. 6. 84, a Bench of this court passed an order of injunction restraining the respondent from putting the decree obtained in the suit into execution until disposal of the appeal. In this view of the matter, we are of the opinion that the time granted to the plaintiff/respondent for depositing the amount in question should be extended. The plaintiff/respondent may now deposit the amount in question in terms of the aforementioned judgment and decree by 15. 11. 97, before the learned trial Judge. B. Bhattacharya, J. I agree. Appeal dismissed.