HAZARI LAL Vs. JUGAL KISHORE

JUDGEMENT

(1.) This is a defendant's second appeal against the judgment and decree, dated 10-1-1994, passed in Civil Appeal No. 77-A/88 by Additional District Judge, Guna, affirming the judgment and decree, dated 27-7-1987 passed in Civil Suit No. 283-A of 1986 by Civil Judge, Class I, Guna.

(2.) The facts giving rise to this appeal are thus: The plaintiffs/respondents No. 1 and 2 instituted a civil suit on 26-11-1982 for declaration, possession and mesne profits at the rate of Rs. 10/- per month for the date of institution of the suit on the averments that the suit property consisting of 30 x 30 a small Kachcha house thereon situate in village Dhaneriya, Tahsil and District Guna, shown in the map annexed with the plaint was purchased by their father Laxmi Narayan in the presence of their grandfather, in an auction held by Gram Panchayat. After the death of Laxmi Narayan, the defendant No. 1 the mother of the plaintiffs entered into an agreement to sell Ex. D. 1 on 8-12-1977 for consideration of Rs. 370/- with the defendant No. 3 (the appellant herein). The suit property was ancestral property of which the plaintiffs (the respondents No. 1 and 2), the defendant No. 1, and the defendant No. 2/the respondent No. 4 were co-owners. At the time of execution of the agreement to sell the plaintiffs were minor, their mother in her own capacity was not entitled to enter into an agreement to sell/transfer the share of the plaintiffs, i.e., one half of the plaintiffs and one fourth of the defendant No. 2, hence, the agreement to sell is ineffective which does not create any right, title or interest in the suit property. The defendant No. 3 unauthorisedly is in illegal possession of the suit property. The defendants 1 and 2 in their written statement admitted the property being ancestral. In additional plea, it was stated by them that the defendant No. 1 viz. Mishribai who entered into agreement to sell Ex. D. 1 clearly stated that the plaintiffs were minor at the time of execution of Ex. D. 1. Defendant No. 2's stand was that he was not a party to the agreement Ex. D. 1. Defendant No. 3 denied the averments in plaint and contended that Ex. D. 1 was executed by the mother of the plaintiffs to the knowledge of the plaintiffs and other defendant. After execution of Ex. D. 1 the defendant No. 3 took the possession and raised construction worth Rs. 6000/-. The amount of consideration as agreed in Ex. D. 1 was paid by him Rs. 250/- to the defendant No. 2 and Rs. 120/- to the defendant No. 1, the executant. The suit is liable to be dismissed for non-payment of the requisite Court-fee.

(3.) The trial Court on the evidence adduced, recorded a finding that at the time of execution of Ex. D. 1, the plaintiff No. 2 Ramswaroop was a minor, Ex. D. 1 was not executed by adult members of the family, i.e., the plaintiff No. 1 and the defendant No. 2 nor they were consenting party to Ex. D. 1. From the reading of the document it is apparent that defendant No. 1 did not execute the document Ex. D. 1 after taking consent from her major sons nor executed Ex. D. 1 for and on behalf of minor. Ex. D. 1 was also not executed by the natural guardian the mother after obtaining previous permission of the Court as required by Section 8 of the Hindu Minority and Guardianship Act, 1956 (HMG Act) nor the agreement to sell was for the benefit of minor or for protection or benefit of the minor's estate. The trial Court found that the construction raised was after about four years of the institution of the suit. Therefore, it cannot be said that the plaintiffs acquiesced to the construction as the suit was instituted in 1982, hence declared the agreement to sell ineffective to the rights to the plaintiffs which they had to the extent of one-fourth each and passed a decree for possession and for the mesne profits at the rate of Rs. 10/- per month.