THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL NO.111 OF 1999 DT.26.08.2010 Between: Smt.Gajula Nagaratnam and another ……………….Appellants Vs. Sri Yedavalli Satyanarayana ……….Respondent Counsel for the appellants: Sri E.V.S.S.Acharyulu Counsel for the respondent: Sri A.Ramalingeswara Rao The Court made the following: JUDGMENT: This appeal is directed against the judgment and decree passed in A.S.No.84 of 1991 on the file of II Additional District Judge, West Godavari District, Eluru, dated 17.03.1997 reversing the judgment and decree in O.S.No.356 of 1984 dated 07.02.1991 passed by District Munsif, Eluru. The appellant is the defendant and the respondent is the plaintiff in the original suit. The parties will be referred as they are arrayed in the original suit for the sake of convenience. The plaintiff filed the suit for specific performance of agreement of sale, dated 14.03.1983 said to have been executed by the defendants in respect of the plaint schedule property of Ac 2.15 cents. It is not in dispute that defendants are the original owners of the suit schedule property. The case of the defendants as seen from the written statement is that the plaintiff was a tenant and paid net cash of Rs.1,000/- on two occasions towards rent but subsequently stopped paying the rent from the year 1982-83, 1983-84 and 1984-85 and committed default. The defendants denied the execution of the agreement of sale and receiving consideration of Rs.7,175-50ps. The defendants have also denied the endorsement of receiving of certain amounts towards part payment of consideration. The trial court framed the necessary issues and on behalf of the plaintiff, the plaintiff himself was examined as PW-1 and PWs.2 to 7 were examined on his behalf and Exs.A-1 to A-12 were marked. On behalf of the defendants, the first defendant was examined as DW-1 and one Ukkusuri Nageswaramma was examined as DW-2 and Exs.B-1 to B-7 were marked. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the plaintiff herein was not ready and willing to perform his part of consideration till he received the notice from the defendant and that the conduct of the plaintiff in not filing the suit or issuing any notice soon after the expiry of the stipulated period as shown in agreement of sale and not making any attempt to deposit the balance amount into court reveals that the plaintiff is not ready and willing to perform his part of contract and holding so, dismissed the suit. The plaintiff, aggrieved by the judgment of the trial court carried the matter in appeal. It appears that the suit filed by Ukkusuri Nageswaramma in O.S.No.162 of 1983 for recovery of money was decreed and the plaintiff herein was third defendant in that suit and a common judgment was pronounced by the trial court in O.S.No.162 of 1983 and in O.S.No.356 of 1984. Challenging that judgment in O.S.No.162 of 1983 the appellant herein filed A.S.No.85 of 1991 and challenging the judgment in O.S.No.356 of 1984, the respondent filed A.S.No.84 of 1991. The appellate court re-appreciated the entire oral and documentary evidence. The appellate court held that there is no evidence to show that the defendants 1 and 2 in collusion with plaintiff in O.S.No.162 of 1983 brought into existence Exs.B-1, B-2 and B-5 and finally decreed the suit in O.S.No.356 of 1984 and consequently A.S.No.85 of 1991 was dismissed and A.S.No.84 of 1991 was allowed. As far as this case is concerned, the appellate court held that the agreement of sale in Ex.A-1 is true and valid and that plaintiff has proved the same by the evidence of PW-2 who is an attestor of Ex.A- 1. The appellate court has also accepted the evidence of PW-3 who is the scribe of Exs.A-1 and A-2. The appellate court also considered the evidence of DW-1, who admitted his signatures in Ex.A-1 as that of herself, so also in Ex.A-3 and A-4. In these circumstances, the appellate court came to the conclusion that the burden shifted to the defendants to prove that the agreement of sale was obtained by mis- representation. The appellate court also considered the evidence of DW-1 that he had not issued any demand notice to the plaintiff to vacate the land for non-payment of maktha. The appellate court found fault with the defendants for non-examination of the second defendant to deny the recitals in Ex.A-2 and that there was no evidence to show that the second defendant was a minor by the date of execution of Ex.A-1. The appellate court also came to the conclusion that time is not the essence of the contract and finally held that the evidence of PWs.2 and 4 clinchingly establishes that the plaintiff was always ready and willing to perform his part of contract. It was also held that the plaintiff proved that he offered the remaining balance of sale consideration to the first defendant through PWs.2 and 4. The court also took into consideration the conduct of the plaintiff in depositing the balance of sale consideration amount into the court and finally came to the conclusion that the plaintiff is entitled for specific performance of contract. The substantial question of law that arises for consideration is whether the minor’s property could be sold without obtaining permission from the court as contemplated under Section 8 (2) of the Hindu Minority and Guardianship Act. Before considering the substantial question of law, first of all, it has to be seen whether the appellant herein who is the defendant in the lower court proved that the second defendant was a minor on the date of execution of the agreement of sale. Since there is concurrent finding of the courts below that defendant No.2 was not a minor as on the date of execution of the agreement of sale and both the courts below held that the defendants failed to prove the same, now that question would not arise for consideration in this appeal. The learned counsel for the respondent submitted that before the second appeal was admitted, the decree of the lower court was executed through process of the court and the sale deed was executed on 20.10.1998 through process of the court. It appears that no cause of action remains and the appeal has become infructuous. Accordingly, the appeal is dismissed. No order as to costs. ________________________ B.CHANDRA KUMAR J., Dt.26.08.2010 tjs