ANKIT Vs. KANWAR PAL & ORS

JUDGEMENT

(1.) Defendant no.1-appellant is in the regular second appeal against the judgment passed by the learned first appellate court decreeing a suit for symbolic possession by way of specific performance of the agreement to sell dtd. 26/10/2005. Appellant, a minor at that time, entered into an agreement to sell through his mother Smt. Suman, who was defendant no.2 in the suit agreeing to sell the property in dispute in favour of the plaintiff for a sum of Rs.70,000.00 vide agreement to sell dtd. 26/10/2005. Total payment was paid and possession of the property was delivered. As per the agreement to sell, the mother, a natural guardian, was required to take permission from the Guardian Judge before execution and registration of the sale deed. It is undisputed that such petition under Sec. 8 of the Hindu Minority and Guardian Act, 1956 (hereinafter referred to as 'the Act of 1956') was filed and the permission was granted subject to certain conditions. However, the sale deed was not executed which forced the plaintiff to file the present suit. Learned first appellate court after appreciating the evidence has decreed the suit while reversing the judgment of the trial court.

(2.) This court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the courts below. Learned counsel for the appellant submitted that as per Sec. 8(2) of the Act of 1956, no guardian without previous permission of the court is entitled to mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor. He submitted that in the present case the agreement to sell would fall within the scope of otherwise and, therefore, the agreement to sell itself was void and not permissible. This court has considered the submission, however, find no substance therein.

(3.) A reading of Sec. 8 of the Act of 1956 clearly proves that before a document is executed, which either creates charge on the property or amount to conveying/transferring the immovable property, prior permission of the Guardian Judge is necessary. Sub-sec. (3) of Sec. 8 of the Act of 1956 provides that if such disposal of the immovable property as made in contravention of sub-sec. (1) or sub-sec. (2), such disposal of the property shall be voidable and not void. Sec. 8 of the Act of 1956 is extracted as under:-