1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 413 OF 1991 (1) Baliram Sahebrao Tidke; (2) Madhav son of Sahebrao Tidke; Both under guardianship of real maternal uncle Nanasaheb ....Appellants. Bhausaheb Kande (Original plaintiffs) Versus (1) Saheba son of Patilba Tidke; (2) Sheshabai Saheba Tidke; (R.1 & 2 abated vide Registrars order dated 20/10/1993.) (3) Babu Rakhamaji Rupner; (4) Bapurao Rakhamaji Rupner; (5) Tukaram Rakhamaji Rupner; (6) Eknath Rakhamaji Rupner; (7) Rustum son of Daulatrao Kale; ....Respondents. (8) Vaijnath Eknath Mane (Original defendants) Shri. H.K. Mundhe, Advocate for the appellants. Shri. R.K. Ashtekar, Advocate for the respondents 3 to 8. CORAM : R.K. DESHPANDE, J. DATE : 13th August, 2009 ORAL JUDGMENT : 1. This appeal is preferred by the original plaintiffs, who have 2 instituted Regular Civil Suit No. 207/1982 through their next friend, who is their maternal uncle by name Shri. Nanasaheb Bhausaheb Kande. One Saheba Patilba Tidke was the father of the plaintiffs, who was joined as defendant No. 1 and the another Sheshabai wife of Saheba Tidke, the mother of the plaintiffs, was joined as defendant No. 2. The defendant No. 2 mother of plaintiffs agreed to transfer suit property, in favour of defendant Nos. 3 to 8 and hence, aforesaid suit was filed by the plaintiffs for perpetual injunction, restraining the defendant Nos. 1 to 3 from interfering and obstructing their possession in respect of lands survey Nos. 246, 248, 429, 252 and 255 situated at village Jahagir Maha, Taluka Keij, District Beed. The plaintiffs further claimed an injunction, restraining the defendant Nos. 1 and 2, father and mother of the plaintiffs, respectively from purchase and sale of the suit properties. It was further an injunction claimed against the defendants, not to change the revenue records. Pending the decision of the suit, the defendant No. 2, mother of the plaintiffs, executed two separate sale deeds dated 21.7.1983 at Exhs. 121 and 122, transferring the suit properties in favour of defendant Nos. 3 to 8. Hence, by way of amendment in plaint, a relief was also claimed to the effect that the sale deeds bearing registration Nos. 2026 and 2027 be declared as null and void and not binding upon the plaintiffs. Pending instant second appeal in this Court, the defendant Nos. 1 and 2 expired and therefore, as per order dated 20.10.1993 the appeal came to be abated against them. 3 2. This Court admitted the instant appeal on 11.10.1991 on the substantial questions of law formulated in ground Nos. 3, 4, 6 and 7 in the appeal memo of appeal which are reproduced below. "(3) When it was come on record that the deeds of agreement of sale were cancelled by the Defendants, then the learned Judge should have held that there is no agreement subsisting and therefore, the protection under Section 53-A should not have been granted. (4) When there is no authority to the natural guardians to sale or charge the minor's property without permission of the Court, then the learned Judge should have held that the agreement to sale is hit by Section 8(3) of the Hindu Minority and Guardianship Act and thus, it is not binding on the Plaintiffs. (6) When the father is not declared unfit as natural guardian the mother has no authority under law to deal with the property of the minors in the life time of the father and thus in the life time of the father and thus, the all transactions are therefore, void abinitio. (7) The learned Judge erred in law in not appreciating the documents at Exhibit 100 and 101 i.e. deeds of cancellation of agreements by saying those are irrelevant, and those are hit by Section 52 of the Transfer of Property Act." 4 3. This matter was heard for two days i.e. on 29.7.2009 and 31.7.2009. On 29.7.2009 itself it was made clear to the parties also to address upon the question of legal necessity to sell the suit properties of minors. Accordingly, arguments are advanced on that point also. 4. The further facts of the case are that the plaintiffs, who were minors, were the owners of the lands survey Nos. 246, 248, 249, 252, 253 and 255 situated at village Jahagir Maha, Taluka Keij, on the basis of a compromise dated 3.4.1982, passed in Regular Civil Suit No. 69/1982 by the defendant No. 2, the mother of the plaintiffs, against the defendant No. 1, the father of the plaintiffs. The said compromise decree is placed on record at Exh. 147. On 28.5.1982 two separate agreements of sale were executed by the defendant No. 2 in favour of defendant Nos. 3 to 8 bearing registration No. 1490 and 1491 marked at Exhs. 98 and 99, respectively. In view of this move on the part of defendants, the plaintiffs, who were minors, filed Regular Civil Suit No. 207/1982 on 13.8.1982 through their next friend, who was maternal uncle by name Nanasaheb Bhausaheb Kande. It seems that pending the decision of this suit, there was no injunction restraining the defendants from dealing with the properties. 5. That, on 21.7.1983 two separate deeds of cancellation of agreements to sale of lands in question were entered in to and the same 5 are marked as Exhs. 100 and 101, respectively. The two agreements to sale at Exhs. 98 and 99 were in respect of the entire properties and consequently, the cancellation vide Exhs. 100 and 101 was also in respect of the entire properties. However, on the very same day, the defendant No. 2 executed two separate sale deeds Exhs. 121 and 122 by which she transferred half of the share in the all the properties in favour of the defendant Nos. 3 to 8. Hence, the plaint was amended, claiming declaration that the sale deeds executed bearing registration Nos. 2026 and 2027 be declared as null and void and not binding upon the plaintiffs. 6. The defendant Nos. 1 and 2 filed their common written statement and have accepted the ownership of the plaintiffs over the suit properties on the basis of compromise decree passed in Regular Civil Suit No. 69/1982. The defendant Nos. 1 and 2 also accepted that the plaintiffs were in actual possession of the properties. They also accepted that the plaintiffs, who were the minors, were being looked after by their maternal uncle, who was also looking after the properties belonging to the minors. The defendant Nos. 1 and 2 accepted the agreement to sale dated 28.5.1982. It was accepted that the defendant No. 1 was having bad vices and under his pressure the defendant No. 2 executed the agreements. 7. The defendant Nos. 3 to 8 filed their separate written statement, 6 virtually accepting the ownership of the plaintiffs, minors, pursuant to the compromise decree passed in Regular Civil Suit No. 69/1982. However, they claimed their right through the agreements of sale Exhs. 98 and 99 dated 28.5.1982. According to the defendant Nos. 3 to 8, the agreements were for total consideration of Rs.40,000/- and on 28.5.1982 itself they had paid earnest money of Rs. 15,000/- and got the agreements registered bearing Nos. 1490 and 1491. It was also the stand of the defendant Nos. 3 to 8 that they were put in possession of the properties on 28.5.1982 itself on the basis of which they got the entries in the records of right and 7/12 extract changed for the year 1982-83 onwards. It was the stand taken by the defendant Nos. 3 to 8 that the defendant No. 2 was the natural guardian of the plaintiffs and in that capacity, she has executed the agreements in question and the defendants were ready and willing to take the properties transferred in their name by paying balance consideration of Rs.25,000/-. 8. The learned Judge of the trial Court framed the issues and answered as under :- "1 Do the Plaintiff prove their absolute title to the suit lands ? Yes 2 Do the Plaintiffs prove their absolute possession over the suit lands ? Yes 3 Do the Defendant Nos. 3 to 8 prove that the Defendant No. 2 agreed to sell the suit lands for No 7 a consideration of Rs.40,000/- and in pursuance of the said contract Defendant No. 1 executed registered agreement for sale being No. 1490 and 1491 after obtaining an amount of Rs. 15,000/- as per consideration ? 4 Do the defendant Nos. 3 to 8 prove that they were put in possession of th suit lands by Defendant No. 1 on behalf of Plaintiff on the date of execution of agreement for sale, Dated 28th May 1982 ? No 5 Whether any dealings of the parties of this suit regarding suit property during the pendency of the suit without permission of the suit are illegal and void ? No 6 Do the Defendant Nos. 3 to 8 are entitled to protect their possession as per Section 52 of Transfer of Property Act ? No 7 Are the plaintiffs entitled for declaration as prayed in respect of registered sale deeds bearing No. 2026 and 2027 executed by the Defendant No. 2 in favour of Defendant Nos. 3 to 8 during the pendency of this suit ? Yes 8 Are the Plaintiffs entitled for injunction as prayed Yes 9 What order Decree ?" As per final order" 9. The plaintiffs have examined P.W. 1 Nanasaheb, maternal uncle, P.W. 2 Kisan, P.W. 3 Gopinath on the point of possession of the plaintiffs over the suit properties. The defendant No. 2 Sheshabi, the mother, 8 examined herself. The defendants also examined D.W. 2 Madhav, the stamp vendor, D.W. 3 Ram Ekne, the scribe of the document, D.W. 4 Kisan, D.W. 5 Ashruba, D.W. 6 Mahadevrao and three more witnesses namely Vaijnath, Narayan and Laxman. The parties also filed 7/12 extract of the relevant years, entry in the Namuna No. 14 and the agreements and sale deeds as are referred to earlier. 10. So far as the issue No. 1 regarding the title to the suit lands was concerned, there was virtually no dispute and it was admitted position that the properties belonged to the plaintiffs and they were the absolute owners of the properties. The trial Court recorded a finding that on the date of filing of the suit i.e. on 13.8.1982 the plaintiffs were in possession of the property and the claim of the defendant Nos. 3 to 8 regarding possession pursuant to the agreement dated 28.5.1982 was negatived. In respect of the authority of the mother, the defendant No. 2, it was held by the trial Court that she had no authority to alienate the properties of the plaintiffs, in the absence of requisite permission of the Court under section 8 of the Hindu Minority and Guardianship Act. It was also specific finding recorded that the agreement to sale Exhs. 98 and 99 were not for the benefit of the minors and the same were not binding on the minors. In respect of the claim of the defendants regarding protection under section 53 (A) of the Transfer of Property Act, it was held that the contract to sell the properties in question was not enforceable in law on two grounds that the agreements were in breach of the mandatory 9 provisions of section 8(3) of the Hindu Minority and Guardianship Act and that the two agreements at Exhs. 98 and 99 were cancelled by deeds of cancellation on 21.7.1983 at Exhs. 100 and 101. The trial Court held that for want of possession of the defendant Nos. 3 to 8 over the suit properties, the protection under section 53 (A) of the Transfer of Property Act was not available. The objection raised on behalf of the defendants that the institution of the suit by the minors through the next friend was not maintainable, was repelled. The suit was, therefore, decreed in its entirety. 11. Being aggrieved by the judgment and decree passed by the learned trial Court, the defendant Nos. 3 to 8 preferred an appeal Regular Civil Appeal No. 181/1985 which was decided by the learned Additional District Judge, Ambajogai on 28th of June 1991. The appeal was allowed and the judgment and decree passed by the trial Court on 13th of June 1985 in Regular Civil Suit No. 207 of 1982 was quashed and set aside. The appellate Court adverted to two points only and the same were framed and answered as under :- "1 Does the Appellants show that the Respondent Nos. 1 and 2 are not in the possession of suit property on the day of filing of suit. Yes 2 Does the Appellants show that the Respondent Nos. 1 and 2 are not entitled for a relief of permanent injunction as granted by the trial Judge ? Yes 3 What order relief and costs ? As per final order" 10 Although, the learned Judge of the appellant Court accepted the findings of the trial Court in respect of the authority of the defendant No. 2 to sell the properties of the plaintiffs minors, held that there was no scope to decide these issues as it was simply a suit for permanent injunction and the plaintiffs had not laid any foundation in the pleadings about the authority of the defendant No. 2 to sell the properties. It was held that section 8 of the Hindu Minority and Guardianship Act applies to transfer of the property of the minors by sale, gift or otherwise without permission of the Court It was held that the provision did not apply to the agreements of sale at Exh. 98 and 99 which is not the transfer of property. It was further held that no reliance could be placed upon deeds of cancellation of agreement at Exhs. 100 and 101 dated 21st of July 1983, as the same were hit by the doctrine of lis pendens under section 52 of the Transfer of Property Act. It was also held that the sale deeds executed at Exhs. 121 and 122 also could not be taken in to consideration as the same were also hit by the provisions of section 52 of the Transfer of Property Act. It was held that as per the agreements to sale at Exhs. 98 and 99, the defendant Nos. 3 to 8 were put in possession of the properties and hence, they were entitled to protection under section 53(A) of the Transfer of Property Act. With these findings, the appeal was allowed. 11 12. The learned counsel for the appellants/plaintiffs has urged that if the agreements at Exhs. 98 and 99 are held to be illegal and without any authority of law then the defendant Nos. 3 to 8, assuming to be in possession of the properties, are not entitled to protection under section 53(A) of the Transfer of Property Act. It was urged that the appellate Court has in terms accepted the findings recorded by the trial Court that there cannot be dual opinion that the alienation by the de facto guardian of the minors' property without legal necessity is void and that the previous permission of the Court must be obtained before alienating the property of the minors. The learned counsel further urged that the trial Court has recorded a specific finding that in view of sub-section (1) of section 8 of the Hindu Minority and Guardianship Act, natural guardian is entitled to alienate the property of the minors only for the benefit of the minors and that there was no evidence adduced by the defendant Nos. 3 to 8 to establish that the execution of agreement was for the benefit of the minors. This finding recorded by the trial Court, according to the learned counsel for the plaintiff, has not been dealt with by the appellate Court and it has not been set aside. It was further urged that the learned Judge of the appellate Court failed to see that the agreements at Exhs. 98 and 99 were not subsisting as the same were cancelled by deeds of cancellation at Exhs. 100 and 101 and hence, the provisions of section 53 (A) of the Transfer of Property Act were not attracted. It was urged that when the appellate Court has ignored the deeds of cancellation at Exhs. 98 and 99 and sale deeds at Exhs. 121 and 12 122, it could not have granted protection of section 53 (A) of the Transfer of Property Act to the defendant Nos. 3 to 8 without examining the question whether the agreements to sale at Exhs. 98 and 99 were for legal necessity and for the benefit of minors. 13. The learned counsel appearing for the respondents/original defendants has urged that the civil suit itself was not maintainable at the instance of the next friend of the minors in view of provisions of Order 32, Rule 7 of the Civil Procedure Code. It was urged that the claim of the defendants is based upon the agreements at Exhs. 98 and 99 and the appellate Court has recorded a finding on fact that the defendants were put in possession of the suit property on 28.5.1982 itself and hence, the protection under section 53 (A) of the Transfer of Property Act was available to the defendants. It was urged that there were no proper pleadings in the plaint and therefore, the trial Court had committed an error in framing all the issues. It was urged that the suit was collusive and the provisions of section 8 of the Hindu Minority and Guardianship Act did not apply to the agreements to sell. It was urged that the learned Judge of the appellate Court has recorded the findings on facts and no substantial questions of law arise as are framed and the appeal is, therefore, liable to be dismissed. 14. It is not in dispute that on the date of the filing of the civil suit on 13.8.1982, there was no sale deed executed by the defendant No. 2 in 13 favour of defendant Nos. 3 to 8. The plaintiffs claimed that they are in possession of the suit property on the date of filing of the suit and hence, there was no question of claiming possession of the suit property. The plaintiffs were apprehending that the sale deed in respect of the suit property will be executed and their possession will be disturbed and hence, the suit in question was filed simplicitor for perpetual injunction, restraining the defendant Nos. 1 and 2 from transferring the property in favour of the defendant Nos. 3 to 8. Further, the perpetual injunction was claimed, restraining the defendants from disturbing the possession of the plaintiffs over the suit property on the basis of the agreements of sale dated 28.5.1982, executed by the defendant No. 2 in favour of defendant Nos. 3 to 8 at Exhs. 98 and 99. During the pendency of the suit, the deeds of cancellation of agreements of sale dated 28.5.1982 (Exhs. 100 and 101) were executed by the defendant Nos. 3 to 8 on 23rd July 1983 in favour of defendant No. 2. Although, during the pendency of civil suit, the sale deeds dated 23rd of July 1983 at Exhs. 121 and 122 were executed, the learned counsel for the defendant Nos. 3 to 8 did not rely upon the same, to claim the title by the defendant Nos. 3 to 8, as the transfer was hit by the doctrine of lis pendence under section 52 of the Transfer of Property Act. Although, the trial Court recorded the finding that on the date of filing of the suit, the plaintiffs were in possession of the suit property, the appellate Court reversed the said finding and it was held that the defendant Nos. 3 to 8 were in possession of the suit property. 14 15. In the background of the aforesaid undisputed and disputed factual position, the substantial questions of law framed by this Court by order dated 11.2.1991 which are reproduced earlier will have to be considered. The questions of law so formulated in ground Nos. 3, 4, 6 and 7 need to be reformulated in abridged form as under :- (1) Whether the defendant No. 3 to 8 are entitled to claim protection of their possession as per section 53 (A) of the Transfer of Property Act on the basis of the agreement of sale dated 28.5.1982 at Exhs. 98 and 99 in respect of the suit properties ? (2) Whether the deeds of cancellation dated 21.7.1983 at Exhs. 100 and 101, executed by the defendant Nos. 3 to 8, are also hit by the doctrine of lis pendence under section 52 of the Transfer of Property Act ? 16. In order to decide the question regarding protection of section 53(A) of the Transfer of Property Act, 1882, it is necessary to reproduce the said provision as under :- "[ 53-A. Part performance.- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, 15 and the transferee, has in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressed provided by the terms of the contract. Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.] A transferee, in a contract of transfer can claim protection under section 53 (A) of the Transfer of Property Act only in a suit filed by the transferor with whom the transferee has a privity of contract. Such a protection can also be claimed in a suit filed by a person, who claims the property through transferor against the transferee. However, such a protection cannot be claimed by the transferee, in a suit filed by a true 16 owner of the property with whom the transferee has no privity contract. The protection is available only as a shield against a transferor or any person claiming though him and disentitles the transferor or such person from disturbing the possession of the transferee, who is put in possession pursuant to such agreement. 17. The transferee, taking possession of the land in part performance of contract in terms of section 53 (A), does not acquire title in the property sought to be transfered to him, but he merely becomes entitled to specific enforcement of an agreement, as equitable relief. It is the transferee who wants the Court to believe that he is entitled to get specific performance of an agreement. Hence, the provisions of section 103 of the Indian Evidence Act, 1892 are attracted and it states that the burden of proof as to any particular fact lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall lie on any particular person. Hence, in order to claim protection under section 53(A), the transferee pursuant to an agreement, must establish his entitlement for specific performance of contract. He must further establish that the transferor, who is not the owner of the property, was a person competent to transfer. This question of competency to transfer,