1 sa 190.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 190 OF 2011 Vijaya d/o Manoharrao Kulkarni .. Appellant Versus 1. Manchikrao S/o Nivrati Khose and another .. Respondents Shri U. B. Bilolikar, Advocate for the Appellant. Shri A. B. Tele, Advocate for the Respondent No. 2. CORAM : S. V. GANGAPURWALA, J. DATE : 03RD MAY, 2011. PER COURT : . This is an appeal by the original defendant. The plaintiff had filed a suit for specific performance of contract. The Trial Court decreed the suit. The defendant preferred an appeal. The Appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. Aggrieved thereby the defendant has filed the present second appeal. 2. Shri Bilolikar, the learned counsel for the appellant 2 sa 190.11 strenuously contended that in fact, the agreement was not executed by the present defendant. It was executed by Manoharrao, the father of the defendant. The father of the defendant had not taken permission to sale the said property, as the defendant was minor at the relevant time. In absence of permission, the Manoharrao could not have dealt with the property. According to the learned counsel, even there was no legal necessity to sale the said property. The learned counsel further contended that the property being the separate property of Vijaya, the said agreement was voidable, but the Courts below have not taken into consideration this aspect. The suit property was allotted to the defendant in partition. According to the learned counsel the consideration amount shown is also below the market rate which shows that the plaintiff was doing the money lending business and the said agreement was not a genuine agreement of sale. 3. Per contra, Shri Tele, the learned counsel for the respondent No. 2 submits that both the Courts have concurrently come to the conclusion that the father of the plaintiff had executed the agreement for legal necessity on account the encumbrances over the property. There was no partition by 3 sa 190.11 metes and bounds. The defendant has a share in the ancestral property and the said share was sold. When a share in ancestral property is being sold, no permission is required. 4. With the assistance of the learned counsel I have gone through the judgments. Though the plaintiff had come forward with a case that there was no legal necessity for the father to sale the suit property, the same is against the record in as much as the defendant herself deposed that the land was encumbered with the loan of Co-operative Society, so also the loan of Land Development Bank. Her sister has already executed sale deed in respect of land of her share. The market rate shown therein is also the same. As such, it cannot be held that the agreement does not depict the real transaction. The registered sale deed executed by the sister of the plaintiff of an adjoining piece of land Exhibit 52 shows that the prevailing market rate was the same. The Courts have also discussed about the record of the various encumbrances. 5. There is nothing on record to show that there was any partition by metes and bounds. The defendant had share to the extent of 10 Acres in the said land and same was agreed to be 4 sa 190.11 sold. When a share is sought to be sold, then no permission U/Sec. 8 of the Hindu Minority and Guardianship Act is required to be taken. If sale is of separate absolute property of minor, at that time only the permission to sale would be required. 6. The Courts have discussed that there is nothing on record to show that the partition had taken place. The said aspect has been discussed in para 10 by the District Court. The Courts on appreciation and evaluation of evidence have concurrently come to the conclusion that there was legal necessity to sale the property and that the father Manohar was managing the property. The plaintiff was residing with her father at Hyderabad and she was maintained by her father. All these evidence has been taken into consideration. The plaintiff was found to be ready and willing to perform his part of contract. Even it has been brought on record that Manohar was in need of money for marriage of Saroj and education of other daughters and expenses of the family. The registered agreement of sale was executed. 7. All the above facts have been properly considered by the Courts. The same is based on appreciation of evidence. There is 5 sa 190.11 no perversity in the appreciation of the evidence of the Courts below. The second appeal as such being sans substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/May 11