1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 921 OF 2007 Gajanan Vithoba Garud. Since deceased through L.Rs. 1a. Smt. Sundarabai Gajanan Garud & ors......Appellants versus Vijay Mangaram Mulchandani. ....... Respondent. Mr. Dilip Bodake adv. for the Appellants. Mr. Priten P. Killedar adv. for the respondent CORAM: RANJIT V. MORE, J. DATED : 10th DECEMBER,2008. P.C.: 1. Heard Mr. Bodake learned counsel for the appellants and Mr. Killedar for the respondent. The appellants are original defendants and the respondent is the original plaintiff. The suit was filed for specific performance of an agreement dated 28-12-1982. The trial court decreed the suit and specific performance was granted in favour of the respondent. The appellant challenged this decree before lower appellate court by filing an appeal. However that appeal is also dismissed and hence the present Second Appeal. 2. Mr. Bodake learned counsel for the appellant has made two fold submissions. Firstly, the suit is not filed within 2 limitation and secondly the agreement is void as property belongs to joint family and the elder brother of the appellant/defendant and his two sisters were not party to the agreement. 3. I find no substance in the first submission of Mr. Bodake regarding limitation. The agreement was executed on 28-12-1982. The notice was given by the respondent/plaintiff requesting the appellant/defendant to execute sale deed on 4-12-1992 and therefore suit was filed on 11-1-1994. It is true that under the agreement the sale deed was to be executed within the period of one year. However, the appellants/defendants, the owners of the suit land were also obliged to obtain permission from competent authority to sell the land. Admittedly the appellants/defendants neither applied nor granted the permission to sell the land as undertaken in the agreement to sale. In my considered view the cause of action to file the suit will arise either after grant of necessary permission to the appellant or refusal of appellant to execute the sale deed by the competent authority. Merely because it is stipulated in the agreement, that the sale deed will be executed within the period of one year, that will not take the suit beyond limitation. In any case, in my opinion, the time was not the essence of contract. Mr. Bodake to substantiate this submission, relied upon a judgment of Division Bench in Pandit Wagh Vs. Padmvati reported in 2003(4) All.M.R. 103. In my view the ratio of this 3 judgment is not applicable to the present facts and circumstances of the case in as much as no permission was required to be obtained from the competent authority in that case. 4. That takes me to consider the second submission of Mr. Bodake that the agreement is void as property belongs to joint family and the elder brother of the appellant/defendant and his two sisters were not party to the agreement. I find no merit in this submission also. It is well settled principle of Hindu law that the co-parcener can dispose of his undivided share in the joint family property and therefore merely because brother and two sisters of the appellant are not party to the agreement , same will not be rendered void. 5. Both the lower courts below have concurrently held that the respondent/plaintiff proved the agreement to sale. It was further concurrently held that the respondent/plaintiff was and is ready and willing to perform his part of contract. It was also held that the time was not the essence of contract and the suit was filed within the period of limitation. All the above findings are recorded after appreciating the documentary as well as oral evidence on record. I do not find any error so as to enable me to interfere in exercise of section 100 of Cr.P.C. Second Appeal is devoid of any merit and is accordingly dismissed. 6. In view of the dismissal of the second appeal, civil application does not survive and the same is also dismissed. 7. At this stage, Mr. Bodake learned counsel seeks 4 extension of ad-interim relief granted on 5-12-2006 for sometime. The learned counsel for the respondent does not oppose this request seriously. In the facts and circumstances of the case and in the interest of justice, ad-inteirm relief granted earlier on 5- 12-2006 is continued for a period of four weeks from today. (R. V. More, J.)