1 sa33-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO. 33 OF 2011 WITH CIVIL APPLICATION NO.70 OF 2011 Smt. Mahirajabi Hasan Patait & Ors. .. Appellants V/s. Shri Tatyasaheb Pirgonda Patil .. Respondent ..... Mr. Umesh R. Mankapure for the appellants. Mr. N. J. Patil for respondent. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 16, 2011. P.C.: Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. The appellants are the original defendants and the respondent is the original plaintiff. The respondent filed a suit for specific performance of the agreement for sale executed on 23rd January, 1981 by late Hasan Dadu Patait in respect of his 1/4th share in the suit property. Under the said agreement, admittedly a sum of Rs.4,800/- which was the total consideration fixed was paid to the deceased Hasan Dadu Patait. The said agreement provided that as the suit property was “Inam Land”, after obtaining necessary permission for sale from the competent authority, the sale deed was to be executed within a period of one month. 2 sa33-11 Agreement records that the suit property was placed in possession of the respondent in part performance of the suit agreement. The said Hasan Dadu Patait executed a mortgage by conditional sale on 23rd March, 1983 in favour of the respondent in respect of the remaining ¼th share and placed the respondent in possession of the ¼th share. The said Hasan Dadu Patait died on 28th June, 1994. The case of the respondent is that on 3rd July, 1984 the first and second appellants (widow and a son of deceased Hasan Dadu Patait) for themselves and on behalf of the third to fifth appellants who were the minors at that time executed an agreement for sale which was duly registered which records receipt of consideration of Rs.8,000/-. The third to fifth appellants are the children of the deceased Hasan. Written statement was filed by the respondent containing denial. The Courts below have held that execution of the suit agreements was duly proved and total consideration agreed of Rs.8,000/- was also duly paid by the respondent. Finding on all issues have been recorded by the Courts below in favour of the respondent. 2. First submission of the learned counsel appearing for the appellants is that the second agreement the execution of which was disputed by the appellants was executed on behalf of the third to fifth defendants who were admittedly 3 sa33-11 minors at that time and it was not proved that the transaction was in the interests of the said minors. He submitted that thought the trial Court framed an issue regarding proof of legal necessity for executing the second agreement, no finding has been recorded on that issue. He submitted that for the specific performance of the agreements allegedly executed in the years 1981 and 1984, the suit was filed in the year 1997 after issuing a notice in December, 1996. He submitted that there is a gross delay and latches. He submitted that there was no evidence of readiness and willingness. 3. I have given careful consideration to the submissions. The finding on both the Courts below is that total consideration amount of Rs.8,000/- has been paid by the respondent. The Courts below have accepted that execution of agreement dated 3rd July, 1984 has been proved which was a registered document. Execution of first agreement dated 23rd January, 1981 was also established. In fact, the appellants were bound by the agreement dated 23rd January, 1981 which was executed by deceased Hasan Dadu Patait who was their predecessor-in-title. Even third to fifth respondents who were minors at that time were also bound by the said agreement dated 23rd January, 1981. Moreover, 4 sa33-11 the appellants filed a common written statement in which there is no contention raised that the agreement dated 3rd July, 1984 was not in the interests of minors or that the same was void. The only contention raised was of denial of the execution of the said document. 4. As far as the readiness and willingness is concerned, the concurrent finding is that the entire consideration was paid by the respondent and that the respondent was placed in possession. Nothing further was required to be done by the respondent and the only part of the agreement which remained to be performed was by the appellants of the execution of the sale deed. Therefore, there is no merit in the contention that the respondent has not proved readiness and willingness and that the discretionary relief ought not to have been granted on the ground of delay and latches. 5. In view of the concurrent findings of fact recorded by the Courts below, no substantial question of law arises. Second Appeal is accordingly dismissed. 6. Civil Application No.70 of 2011 does not survive and the same is dismissed. (A.S.OKA, J.)