1 sa252.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 252 OF 2010 Shivaji s/o Panjabrao Tawade, Age: 23 years, Occ: Agri., R/o. Talni, Taluka Hadgaon, District Nanded. ...APPELLANT VERSUS Vinayak s/o Rangnath Pande, Age: 67 years, Occ: Agri., R/o. Talni, Tal. Hadgaon, District Nanded & another. ...RESPONDENTS WITH CIVIL APPLICATION NO. 11635 OF 2010 ... Mr. S.B. Bhapkar, Advocate for appellant. Smt. S.G. Chincholkar, Advocate for respondent Nos. 1 and 2. ... CORAM: S.S. SHINDE, J. DATE : 17TH NOVEMBER, 2011 PER COURT : . Heard learned Counsel appearing for the appellant and learned Counsel appearing for the respondents. 2 sa252.10 2. Learned Counsel appearing for the appellant would submit that, the respondents did not enter into witness box, no evidence was led, however counter claim of the respondents has been accepted. It is further submitted that, agreement to sell is dated 16-04-1997 and the trial Court has wrongly held that, in a suit filed by the appellant, defendant No.2 should have been made party. Learned Counsel further submits that, the trial Court as well as lower appellate Court have not given any reasons to negate the contention of the appellant that, the suit filed by the respondents was collusive. Therefore, in absence of any reasons, contentions of the appellant should have been accepted that the suit filed by the respondents was collusive to defeat the interest of the appellant. Learned Counsel further submits that, the relief of declaration should not have been denied to the appellant. Learned Counsel further submits that, so far possession is concerned, both the Courts have held 3 sa252.10 that the appellant is in possession, even there is reference of handing over possession in the agreement to sell. It is submitted that, on the date of agreement to sell, defendant No. 2 was not owner of the suit property. Therefore, there was no question of asking any specific relief against defendant No.2. Learned Counsel for the appellant, in addition to oral argument, invited my attention to the grounds taken in the second appeal and submitted that, the appeal deserves consideration. 3. On the other hand, learned Counsel appearing for the respondents would submit that, on the date of agreement to sell i.e. 16-04-1997 the age of the plaintiff was 13 years. Said age was mentioned in the agreement to sell, therefore, the trial Court has taken a view that in view of the provisions of Section 11 of the Indian Contract Act, the agreement entered into between the parties is void ab initio. Therefore,such agreement to sell was not enforceable. It is 4 sa252.10 further submitted that, prayer for specific relief was only against defendant No.1 and not against defendant No.2. Therefore, according to learned Counsel for the respondents i.e. original defendants, appeal is devoid of any merits. Learned Counsel further submits that, in the year 1996 there was an agreement to sell in respect of the said property between the father of the appellant and it has come on record that the amount which was received from the father of appellant was returned back. Learned Counsel invited my attention to Para-14 from the judgment of the lower appellate Court and submitted that, the appeal deserves to be dismissed. . Learned Counsel for the respondents in support of her contention that in view of provisions of Section 11 of the Indian Contract Act, agreement to sell was void ab initio, placed reliance on the judgment of Privy Council in case of Ma Hnit and others vs. Hashim Ebrahim Meter and another reported in A.I.R. 1919 P.C. 129. 5 sa252.10 4. I have given due consideration to the rival submissions. At the outset, it would be relevant to reproduce herein-below the provisions of Section 11 of the Indian Contract Act, which reads thus : "11. Who are competent to contract : Every person is competent to contract who is of the age of majority according to law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject." 5. A bare perusal of the aforesaid provisions of Section 11 of the Indian Contract Act would make it clear that only major is competent to enter into contract. 6. The first submission of the Counsel for the appellant that, on the date of agreement to sell, defendant No.1 was owner to the extent of 6 6 sa252.10 Hectors 14 Ares and out of it, 4 Acre is the subject matter of the agreement to sell and therefore, the suit which was filed in the year 1999 and which came to be decreed, is a collusive one. The said suit was filed for 6 Hectors 14 Ares. 7. From the perusal of Para-16 of the judgment of the trial Court, the trial Court has considered the provisions of Section 11 of the Contract Act and held that, agreement dated 16-04-1997 is void ab initio and it is not enforceable. Therefore, though the Counsel for the appellant vehemently argued that, on the date of agreement, defendant No.1 was owner of the said property, from which 4 Acre was the subject matter of the agreement to sell, however, in view of the fact that, the appellant was minor (aged 13 years) on the date of agreement to sell, findings recorded by the trial Court in Para-16, and which is confirmed by the lower appellate Court, needs no interference. Therefore, defendant No.2 was 7 sa252.10 necessary party in the suit which was filed by the appellant in the year 2000. The suit which was filed by the defendants was decreed in the year 1999, and the suit filed by the appellant was in the year 2000. The appellant on the date of agreement to sell was not competent to enter into agreement in view of provisions of Section 11 of the Contract Act. The said agreement to sell is not valid in law. . It is also not in dispute that, father of the appellant entered into agreement to sell in the year 1996 with defendant No.1, and it has come on record that, the amount which was passed over to defendant No.1 in consideration was returned back to the father of the appellant. Therefore, the findings recorded by the lower appellate Court in Para-15, 16 and 17 of the impugned judgment needs no interference. 8. Therefore, taking overall view of the matter, the date on which agreement to sell was 8 sa252.10 entered, the appellant was aged 13 years, as argued by the Counsel for respondents and as evident from the document of agreement to sell itself and therefore, he was not competent to enter into said agreement to sell. As a result, such agreement to sell was void ab initio and therefore, everything subsequent to it becomes illegal and unsustainable in law. Therefore, second appeal does not raise any substantial question of law, same stands dismissed. Consequently, Civil Application stands rejected. . It is clarified that, so far direction of the Courts below to pay earnest amount alongwith interest is not disturbed. The appellant will be entitled to file appropriate proceedings in accordance with law. [S.S. SHINDE, J.] sut/NOV11