POPAT NAMDEO SODANVOR Vs. JAGU PANDU GOVEKAR

JUDGEMENT

(1.) THIS is an appeal on behalf of a minor whose suit for specific performance of a contract to purchase irnmoveable property has been dismissed by both the courts. Survey No. 40/a in village Koregaon belonged to one Namdev, On 20th April 1954, Namdev sold six acres out of this survey number to the defendant Jagu Pandu Govekar for a consideration of Rs. 1500. The plaintiff is the minor son of Namdev and he filed the present suit against the defendant for a declaration that the sale-deed in respect of the six acres in favour of the defendant was obtained by the defendant by fraud and without adequate consideration It was also alleged that advantage was taken of Namdev as he was vicious and given to drink. When the guardian-mother came to know of the transaction, she gathered panchas in whose presence the defendant expressed regrets about the transaction and agreed to return the land. Accordingly on 24th December 1954, the defendant gave a writing to the plaintiff represented by his mother agreeing to reconvey the land on payment of Rs, 1500. That document is Ex. 50. On these allegations, the plaintiff wanted the sale-deed to be set aside, or, in the alternative,specificperformance of the contract dated 24th December 1954.

(2.) THE trial Judge held against the plaintiff on the issues of fraud and inadequacy of consideration. He also held relying upon the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mohorned Chowdhuri, (1912) ILR 39 Cal. 232, that the minor's contract to purchase the property could not be specifically enforced. Consequently, he dismissed the suit. In appeal to the District Court, the contentions with regard to fraud and inadequacy of consideration were given up and the principal point which survived was with regard to specific performance. The learned District Judge after discussing the various rulings on the point agreed with the view taken by the trial court that the minor's contract for purchase of land was not capable of being specifically enforced. The appeal was therefore, dismissed.

(3.) THE plaintiff has now come in second appeal, and, it is contended on behalf of the plaintiff by Mr. Walawalkar that both the courts were in error in holding that the contract could not be enforced. The view of the lower courts was supported by Mr. Chitale on behalf of the respond dent-defendant. He further argued that the plaintiff's guardian-mother could not be deemed to be either the de jure or de facto guardian of the minor since the minor's father was living, and hence for that reason also the suit was not competent.