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Tripura High Court · body

2016 DIGILAW 202 (TRI)

Archana Rani Deb v. Kalpana Das

2016-08-19

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. Samarjit Bhattacharji, learned counsel appearing for the appellant as well as Mr. R.G. Chakraborty, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 10.04.2013 delivered in Title Appeal No. 52 of 2012 by the Addl. District Judge, No.5, West Tripura, Agartala. 3. At the time of admitting this appeal by the order dated 14.03.2014, the following substantial questions of law were formulated: (i) Whether the content of the registered instrument in respect of the alleged agreement of sale has not been properly construed by the trial Court and the appellate Court? (ii) Whether the registered agreement hit by Section 8(3) of the Hindu Minority and Guardianship Act, 1956? (iii) Whether the trial Court and the first appellate Court failed to properly construe the evidence on record and arrived at a perverse finding? 4. The suit was filed by the appellant, seeking specific performance of the registered agreement for sale No.18161 dated 09.12.2007 (Exbt.1) in respect of the land described in the schedule of the plaint, comprised in old Khatian No.3201 and old plot Nos.5103/11706 (corresponding to present plot No.4286) measuring 0.26 acres with definite boundaries as described in the said schedule. 5. The pleaded case of the appellant is that the defendants No.1,2 & 3 proposed to sale the suit land as they were in an urgent need of money and on their proposal, the plaintiff agreed to purchase the land and the consideration money was settled at Rs.3,00,000/- (Rupees Three lacs). It is also admitted by the plaintiff that the defendant No.4, namely Nidhu Das at the time of entering into the agreement was minor and for that reason, the registered sale deed could not be executed as the competent court did not grant the guardianship certificate in respect of the property of the said minor authorising to transfer the land. On 09.12.2007, the respondents No.1,2 and 3 had entered into the said registered agreement (Exbt.1) on payment of Rs.2,50,000/- (Rupees Two lacs Fifty thousand). It was further agreed by the said agreement that the remainder of the consideration money be paid within one year from the date of agreement and the defendants No.1,2 & 3 would be under obligation to execute the sale deed on receipt of the payment. It was further agreed by the said agreement that the remainder of the consideration money be paid within one year from the date of agreement and the defendants No.1,2 & 3 would be under obligation to execute the sale deed on receipt of the payment. The defendants No.1,2 & 3 by executing another agreement on 03.09.2008 extended the period for conveying the suit land by execution of the sale deed till 31.12.2010. According to the plaintiff, it was stated by the defendants No.1,2 & 3 that since the defendant No.4 was minor and without the guardianship certificate, it is not permissible in law to execute the sale deed. For this reason, the said extension was required. The plaintiff could learn that that the defendant No.1, namely Smt. Kalpana Das, mother of the defendant No.4 obtained the guardianship certificate with authorisation to sell the land of the defendant No.4 from the court of the Addl. District Judge, No.3, West Tripura, Agartala on 10.02.2009 but the defendant No.1 did not inform of it to the plaintiff. On 28.08.2009, a Lawyer’s notice was issued under the registered post to the defendants No.1,2 & 3 demanding to execute the sale deed on receiving Rs.50,000/- (Rupees Fifty thousand) but no response or any action came forth till the suit was filed. The plaintiff has stated that he was ready and willing to pay the balance amount. Finally, the plaintiff filed the suit and all the defendants by filing the written statement have stated that the plaintiff never paid Rs.2,50,000/- to the defendants as the part of sale consideration or earnest money for the suit land neither did they propose to sell the suit land to the plaintiff. However, the husband of the plaintiff was able to create a forged registered agreement dated 09.12.2007 and the agreement for extension of time dated 03.09.2008 fraudulently. According to those defendants, a sum of Rs.1,00,000/- (Rupees One lac) was taken as a loan from one Kishore Debbarma on condition that the defendants shall pay interest @10% per month on that amount. Since they could not pay the same, the defendants agreed to hand over the documents relating to the suit land. Even the agreement was not signed by the defendants. The content thereof was not disclosed to them before the registration. On the face of such denial, the trial court, the Civil Judge, Sr. Since they could not pay the same, the defendants agreed to hand over the documents relating to the suit land. Even the agreement was not signed by the defendants. The content thereof was not disclosed to them before the registration. On the face of such denial, the trial court, the Civil Judge, Sr. Division, No.2, West Tripura, Agartala for purpose of adjudicating the suit being Title Suit No.02 of 2010, framed the following issues: (i) Whether the suit is maintainable in its present form? (ii) Whether the registered agreement No.11861 dated 09.12.2007 is valid in the eye of law? (iii) Whether the plaintiff is willing to perform the provision of Section 53A of the Act? (iv) To what other reliefs the parties are entitled to get? 6. After analysing the evidence, the trial court has observed as under: “On perusal of the exhibited documents it may also safely be presumed that the defendants No.1 to 3 were also very much aware about their legal position in entering into a written agreement for sale with the plaintiffs in respect of the land which is owned by one minor boy and in spite of having such knowledge of both the parties to this suit on 09.12.2007, the plaintiff and the defendant No.1 to 3 entered into a written agreement for sale including the share of a minor boy in the said landed property and none of the defendants No.1 to 3 put their respective signatures on Exbt.1 for himself or herself and also for an on behalf of the defendant No.4, a minor boy and thereby both the parties made the said deed of agreement (Exbt.1) void ab initio in the eye of law.” 7. The said judgment dated 29.09.2012 was questioned by filing a first appeal under Section 96 of the CPC in the court of the District Judge, West Tripura, Agartala being Title Appeal No.52 of 2012. For purpose of hearing, the said appeal was transferred to the court of the Addl. The said judgment dated 29.09.2012 was questioned by filing a first appeal under Section 96 of the CPC in the court of the District Judge, West Tripura, Agartala being Title Appeal No.52 of 2012. For purpose of hearing, the said appeal was transferred to the court of the Addl. District Judge, No.5, Agartala, West Tripura and after hearing, by the impugned judgment dated 10.04.2013, the first appellate court while affirming the finding of the trial court has observed as under: “Another important point which cannot escape the notice of this Appellate Court is that the defendants having clearly denied in the written statement that no agreement to sell the property was entered into by them and they did not receive Rs.2,50,000/- as advance, the onus was upon the plaintiff to prove that such an agreement was actually made and in consequence thereof Rs.2,50,000/- was paid as advance. Scanning the evidence of the only independent witness of the plaintiff that is Deed Writer, it would reveal that nowhere in his affidavit-in-chief he stated that he witnessed the handing over of Rs.2,50,000/- but the plaintiff to the defendants. Rather, his deposition reveals that he only recited the contents of the agreement and nothing more. There were three witnesses to the agreement and one of them was Sri Bijoy Debbarma, husband of the plaintiff examined as PW2 in the case. None of the remaining two witnesses being examined, in the backdrop of the case of the defendants as revealed in the written statement already mentioned above, corroboration of the deposition of the plaintiff by her husband is not enough and it is not virtually proved that an amount of Rs.2,50,000/- in fact was received as consideration money by the defendants. At this juncture, I am of reminded of the argument of the learned Counsel for the respondents that it was highly improbable that out of the total consideration money of Rs.3,00,000/-, Rs.2,50,000/- was paid as advance keeping the time limit for execution of the sale deed open for one year. At this juncture, I am of reminded of the argument of the learned Counsel for the respondents that it was highly improbable that out of the total consideration money of Rs.3,00,000/-, Rs.2,50,000/- was paid as advance keeping the time limit for execution of the sale deed open for one year. It cannot be disputed that Civil suits are decided preponderance of probability and this goes against the probability theory that out of the total consideration of Rs.3,00,000/-, Rs.2,50,000/- was paid as advance because, normally, it is 10% of the consideration amount which is paid as advance and we cannot remain oblivious of the fact that the plaintiff, going by his case, handed over the 83% of the consideration money without getting possession of the land. For all these reasons, they very execution of the agreement paying the consideration money is not proved. Consequently, appellant is not entitled to get specific performance of the agreement to the exclusion of even minor’s share.” This Court has anxiously read the entire judgment and verified the records. 8. Mr. Samarjit Bhattacharji, learned counsel appearing for the appellant has strenuously argued before this Court that the finding of the first appellate court is contrary to provision of Section 91 of the Evidence Act inasmuch the agreement to sale being a registered instrument its contents is to be presumed to have been admitted in the evidence. He has referred a decision of the apex court in Roop Kumar vs. Mohan Thedani, reported in (2003) 6 SCC 595 , where the apex court has observed as under: “13. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thaver's Preliminary Law on Evidence p. 397 and p. 398; Phipson Evidence 7th Edn. It is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thaver's Preliminary Law on Evidence p. 397 and p. 398; Phipson Evidence 7th Edn. p. 546; Wigmore's Evidence p. 2406.) It has been best described by Wigmore stating that the rule is no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of providing it is merely the dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all the rule of prohibition does not become a rule of evidence merely because it comes into pay when the counsel offers to "prove" it or "give evidence" of it; otherwise any rule of law whatever might reduced to a rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effects sale, contract etc. there are specific requirements varying according to the subject. On contrary there are also certain fundamental elements common to all and capable of being generalised. Every jural act may have the following four elements: (a) the inaction or creation of the act. (b) its integration or embodiment in a single memorial when desired; (c) its solemnization on fulfilment of the prescribed form. if any; and (d) the interpretation or application of the act to the external objects affected by it. * *** 15. The inaction or creation of an act is concerned with the question whether any jural act of the alleged tenor has been consummated; or if consummated, whether the circumstances attending its creation authorise its avoidance or annulment. if any; and (d) the interpretation or application of the act to the external objects affected by it. * *** 15. The inaction or creation of an act is concerned with the question whether any jural act of the alleged tenor has been consummated; or if consummated, whether the circumstances attending its creation authorise its avoidance or annulment. The integration of the act consists in embodying it in a single utterance or memorial commonly, of course, a written one. This process of integration may be required by law. or it may be adopted voluntarily by the actor or actors and in the latter case, either wholly or partially. Thus, the question in its usual form is whether the particular document was intended by the parties to cover certain subjects of transaction between them and, therefore, to deprive of legal effect all other utterances. 16. The practical consequence of integration is that its scattered parts, in their former and inchoate shape, have no longer any jural effect; they are replaced by a single embodiment of the act. In other words, when a jural act is embodied in a single memorial all other utterances of the parties on the topic are legally immaterial for the purpose of determining what are the terms of their act. This rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the Courts to defeat this object. When persons express their agreement in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon (SIC) statements. Written occurs presume deliberation or the part of the contracting parties and it is natural they should be treated with careful consideration by the courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties. (see Mc Kelvey's Evidence p. 294). Written occurs presume deliberation or the part of the contracting parties and it is natural they should be treated with careful consideration by the courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties. (see Mc Kelvey's Evidence p. 294). As observed in Greenlea's Evidence page 563, one of the most common and important of the concrete rules presumed under the general notice that the best evidence must be produced and that one with which the phrase "best evidence" is now exclusively associated is the rule that when the contents of a writing are to be proved, the writing itself must be produced before the Court or its absence accounted for before testimony to its contents is admitted. * *** 18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. having regard to the jural position of Sections 91 and 92 and the deliberation omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing. 19. Sections 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document which limitation improved by Section 92 relatives only to the parties to the document. If after the document has been produced to prove its terms under Section 91 provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradiction, varying, adding or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91.” [Emphasis supplied] 9. Mr. Bhattacharji, learned counsel has also referred another decision of the apex court in this regard in Faquir Chand and Anr. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91.” [Emphasis supplied] 9. Mr. Bhattacharji, learned counsel has also referred another decision of the apex court in this regard in Faquir Chand and Anr. vs. Sudesh Kumari, reported in (2006) 12 SCC 146, where the apex court had occasion to hold as under: “2. The unsuccessful defendant is the appellant before us. The respondent herein filed a suit for specific performance or in the alternative for damages. All the three courts below, on a consideration of the entire materials placed, both oral and documentary, decreed the suit for specific performance. Before us, Mr. Amar Vivek, learned Counsel for the appellants argued that in the absence of pleadings to readiness and willingness to execute a sale deed; the suit for specific performance of an agreement cannot be decreed. We have carefully gone through the judgments rendered by the three courts below. The High Court on a consideration of the entire material placed before it was of the view that no interference was called for in the second appeal. * *** 4. The language under Section 16(c) of the Act, in our view, does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the contract. Therefore, the compliance with the readiness and willingness has to be in spirit and substance and not in letter and form. The continuous readiness and willingness could very well be seen in the instant case from the conduct of the plaintiff as a whole. The first agreement was entered into between the parties on 17.6.1985 and the last date to execute the sale deed was 14.11.1985. The second agreement was executed on 9.4.1987 and the last to execute the sale deed was 13.6.1987. Again, the time was extended at the instance of the defendant up to 30.10.1987. Since the sale deed was not executed, the respondent herein was compelled to file the suit on 26.11.1987. Thereafter, the appellant herein issued a notice to the plaintiff, respondent herein, on 7.1.1988 and at Exhibit 'P5'. It is also not in dispute that the respondent herein has deposited the entire sale consideration into the Court on 18.5.1999. Since the sale deed was not executed, the respondent herein was compelled to file the suit on 26.11.1987. Thereafter, the appellant herein issued a notice to the plaintiff, respondent herein, on 7.1.1988 and at Exhibit 'P5'. It is also not in dispute that the respondent herein has deposited the entire sale consideration into the Court on 18.5.1999. He was also present in the Registrar's office for registration of the document. However, the appellant-defendant was not present at the Registrar's Office. A careful perusal of the pleadings, the evidence and the documents filed in this case would only go to show that the respondent-plaintiff was ever ready and willing to perform his part of the obligation under the agreement. The decree passed by the High Court confirming the decree of the lower courts does not suffer from any infirmities. We, therefore, have no hesitation to dismiss the appeal.” 10. Mr. Bhattacharji, learned counsel appearing for the appellant has raised a unique point that the agreement cannot be declared void or voidable abinitiounless the minor raises such challenge based on his ownership over the joint property. To bolster his submission, Mr. Bhattacharji, learned counsel has relied on a decision of the apex court in V. Lakshmanan vs. B.R. Mangalagiri and Ors, reported in 1995 Supp (2) SCC 33. Thereafter, Mr. Bhattacharji, learned counsel has submitted that the total land under the joint ownership of the defendants is 0.34 acres. Out of that, only 0.26 acres have been segregated for consideration under the agreement. Thus, the minor’s share has been excluded from the consideration money and thus, there is no illegality in execution of this agreement by the plaintiff and the defendants No.1,2 & 3. Hence, the findings of the trial court as well as of the first appellate court are not legally correct. In support of such contention, he has referred a decision of the apex court in Aniglase Yohannan vs. Ramlatha and Ors., reported in (2005) 7 SCC 534 , where the apex court has enunciated as under: “12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 13. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey and Ors., AIR 1994 SC 542 that the plaintiff had substantiated his plea.” 11. Mr. Bhattacharji, learned counsel appearing for the appellant has further relied on a decision of the apex court in Alka Bose vs. Parmatma Devi and Ors., reported in (2009) 2 SCC 582 , where the apex court held as under: “22. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser. 23. The trial Court as well as the Division Bench of the High Court on the analysis of the materials in the form of oral and documentary evidence concluded that the vendee had performed her part by paying the earnest money and sent a notice conveying her willingness and readiness to pay the balance of sale consideration. The said notice was acknowledged by the defendant. The clauses in the agreement clearly show that the vendor had to perform and fulfill the terms of agreement by executing the sale deed on receipt of the consideration. We have already adverted to the fact that the vendee had performed her part of the contract.” 12. Mr. Bhattacharji, learned counsel has however, has explained further how the plaintiff has averred and proved the requirement of Section 16(C) of the Specific Performance Relief Act, 1963 having reference to the plaint, particularly to the Para-9 of the plaint. We have already adverted to the fact that the vendee had performed her part of the contract.” 12. Mr. Bhattacharji, learned counsel has however, has explained further how the plaintiff has averred and proved the requirement of Section 16(C) of the Specific Performance Relief Act, 1963 having reference to the plaint, particularly to the Para-9 of the plaint. He has asserted that such averments stand to show that the plaintiff was very much ready and willing to pay the balance amount of Rs.50,000/- to the defendants No.1, 2 & 3. He has further stated that from the examination-in-chief of the plaintiff, it would be seen that such averment has been proved. 13. From the other side, Mr. R.G. Chakraborty, learned counsel appearing for the respondents has submitted that this Court should be loath to interfere the concurrent finding of fact. Both the courts below, after having inquired into the fact observing the requirement of the procedure, has come to certain finding and as such, the court should not make a fresh inquiry unless it is shown that such finding was tainted by perversity. He has referred a decision of the apex court in Manicka Poosali and others vs. Anjalai Ammal and another, reported in AIR 2005 SC 1777 , where the apex court has observed that the high court had overstepped in the exercise of its jurisdiction while reversing the concurrent findings of fact recorded by the courts below in a second appeal filed under Section 100, CPC. 14. This Court, however, has a serious reservation the way of Mr. Chakraborty, learned counsel has interpreted the said judgment. The said judgment is a contextual exposition having regard to the facts of that case. In the jurisdiction under Section 100 of the CPC the court is not stripped of power to interfere even with the concurrent finding of fact if it is established before the court that that finding is perverse, for applying canons of appreciation wrongly and or it was emanating from non-reading and misreading of the evidence. Perhaps Mr. Chakraborty, learned counsel appearing for the respondents is substantially correct when he asserted in this case that there is no such situation what Mr. Perhaps Mr. Chakraborty, learned counsel appearing for the respondents is substantially correct when he asserted in this case that there is no such situation what Mr. Bhattacharji, learned counsel appearing for the respondents has contended that the fact of payment of Rs.2,50,000/- as the earnest money has been proved by PWs1 & 2 and by the content of the agreement to sale (Exbt.1) or that the findings as returned by the first appellate court on preponderance of probability may not be correct. 15. This court having appreciated the findings is to some extent in agreement with the submission made by Mr. Bhattacharji, learned counsel that when a registered agreement is admitted following the procedure under Section 67 of the Evidence Act, the content thereof, is the part of the evidence and it is a legal evidence and on the basis of that evidence, it can be inferred. No contrary finding visavis the context can be returned by the court as the documentary evidence carries its substantive probative value under the best evidence rule. But in this case, after perusing the substantial questions of law as formulated by this Court, the fundamental question that arises for decision is whether the agreement to sale (Exbt.1) is a valid agreement under Section 10 of the Indian Contract Act, which provides as under: “10. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.” 16. The substantive issue that is involved in this case, is that when admittedly the property is jointly owned by the defendants No.1,2,3 & 4 and when the defendants by filing their written statement have denied the payment of the earnest money and when they have extended an alternative version that the defendant No.1 had obtained a loan of Rs.1,00,000/- on consideration of payment of interest @7% per annum at the mediation of one Kishore Debbarma and above all the parties have agreed that the defendant No.4 participated in the formation of contract in lawful manner whether the contract can be held to be valid or the transfer can be asked. There are two elements to be noticed in the contract under reference (Exbt.1). There are two elements to be noticed in the contract under reference (Exbt.1). Whether the contracting defendant had the competent to contract or not in respect of an unpartitioned partition land or unless the joint owners conceded whether any transfer can validly be made. It is also well settled that one of the cosharers without reference to any specific boundary or to any specific part and parcel of the joint property, can transfer his or her share. In that case, in terms of Section 44 of the Transfer of Property Act, the said person purchasing such ‘share’ (the trnansferee) shall have the right to even claim for the partition of the joint property. But after reading of the agreement, what has surfaced that a land measuring 0.26 acres has been agreed to be sold by the questioned agreement to the plaintiff. 17. What Mr. Bhattacharji, learned counsel appearing for the appellant has contended that the minor’s share has been kept aside also cannot be accepted by this Court as out of 0.34 acres of land, the minor’s share shall be more than 0.08 acres as equal and equitable share. The defendants No.1,2 & 3 cannot by acting and by exercising their preference cannot cause partition to the joint property having distinct and separate boundaries. Moreover, they cannot also claim for the land measuring 0.26 acres in terms of the Partition Act and having considered the equitable share to which the minor is entitled to. Two important rights of the minor have been sacrificed in the process, if the court approved the validity to such transaction, viz. (i) his right to prefer the particular part of the land and (ii) his equitable share in terms of the of the area of the land. When the law is well settled that a copersoner is competent to exercise both the rights, no contract can be allowed to come into being in defiance thereof. As such, this Court is of the considered opinion that the agreement to sale (Exbt.1) was not contracted by the persons who were competent to so execute and hence, this Court cannot mandate for the specific performance of an unlawful contract. Moreover, in this regard, Mr. As such, this Court is of the considered opinion that the agreement to sale (Exbt.1) was not contracted by the persons who were competent to so execute and hence, this Court cannot mandate for the specific performance of an unlawful contract. Moreover, in this regard, Mr. Chakraborty, learned counsel appearing for the respondents has referred a decision of the apex court in Vimaleshwar Nagappa Shet vs. Noor Ahmed Sheriff and Ors., reported in AIR 2011 SC 2057 , where the apex court has held unequivocally as under: “7. It is pertinent to point out that Plaintiff was aware that Defendant No.3 who was a minor had a share in the property and the application made by the other Defendants before the Civil Court for appointment of Defendant No.2 as guardian of the said minor was not pursued and in fact it was dismissed, consequently, his share remained unsold to the Plaintiff. 8. As a matter of fact, agreement of sale dated 02.05.1988 does not refer to Defendant No.3 at all or his share in the property. However, in the plaint, the Plaintiff clearly admitted the share of Defendant No.3 who was a minor and the fact that no guardian was appointed for the minor and Defendant No.2 was not his natural guardian. Without Defendant No.3 joining the other cosharers, no agreement of sale could be entered with the Plaintiff for the entire property including the minor's share. Consequently, the agreement of sale covering the entire property was void and ineffective.” 18. Mr. Bhattacharji, learned counsel appearing for the appellant has raised another question that this agreement may be held valid so far the share of the defendants No.1, 2 & 3 is concerned in terms of Section 44 of the Transfer of Property Act. Section 44 of the Transfer of Property Act has no relevance in this context. As such, this contention as raised by Mr. Bhattacharji, learned counsel appearing for the appellant is rejected. Section 44 of the Transfer of Property Act has no relevance in this context. As such, this contention as raised by Mr. Bhattacharji, learned counsel appearing for the appellant is rejected. The person whose participation in formation of the contract is essentially required, if not participated in executing the contract either by way of authorisation or under appointment of guardian, when one of the contracting parties is a minor, such contract cannot be held valid in the eye of law and as such, this Court does not find any infirmity in the judgment as returned by the courts below and accordingly, this appeal being devoid of merit is dismissed. Prepare the decree accordingly. Send down the LCRs thereafter.