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A.S.No. 103 of 2013
A.S.No. 103 of 2013
A.S.No. 103 of 2013
IN THE COURT OF V ADDITIONAL DISTRICT JUDGE :: TIRUPATI.
Present: Sri G.Anwar Basha,
V Additional District Judge,
Tirupati.
Wednesday, the Twenty Seventh (27th) day of July,
Two Thousand Twenty Two
A.S.No. 103 of 2013
Between
1. Sompalli Dhananjeyulu Naidu
2. Sompalli Prakash Naidu @ Prakash Rao .. Appellants/
Plaintiffs
and
M.Kusumamba alias Kusuma .. Respondent
On Appeal from the Judgment and decree, dated 17.07.2013 passed by the
Principal Junior Civil Judge, Tirupati and made in
O.S.No.1035/2008
Between
1. Sompalli Dhananjeyulu Naidu
2. Sompalli Prakash Naidu @ Prakash Rao .. Plaintiffs
and
M.Kusumamba alias Kusuma .. Defendant
This Appeal suit coming before me for hearing on 06.07.2022 in the
presence of Sri P.Prabhakara Naidu, Advocate for appellants and of
Sri K.Bala Chandra Mouli, Advocate for respondent, upon hearing on
both sides and having stood over for consideration till this day, this court
delivered the following:
:: J U D G M E N T ::
This is an appeal filed under Order XLI Rule 1 of C.P.C., and Sec 96 of
C.P.C., by the unsuccessful plaintiffs against the Judgment and decree
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Junior Civil Judge, Tirupati.
2. The appellants herein are the plaintiffs in the suit. They had filed the
suit for specific performance of agreement for sale dated 19.6.1977, for suit
costs and other reliefs.
3. The brief averments made in the plaint are that the plaint schedule
properties were self acquired properties of defendant having got the same
advance amount and she had executed suit agreement of sale agreeing to
consideration of Rs.17,000/ to the defendant and she received the same
possession to them. Since the date of endorsement, the plaintiffs are in
defendant’s father A.Vengama Naidu had also sent an application to Deputy
Tahsildar Chandragiri for transfer of patta in their names. That after
execution of suit agreement, the plaintiffs and one Duthuluru Chengalraya
S.No.418/6, covered by the suit agreement of sale and the plaintiffs had
Naidu and the defendant along with her minor children executed sale deed
on 3.8.1984 in favour of D.Chengalraya Naidu with regard to lands covered
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registered sale deeds dated 17.10.1984 for their lands in favour of the
plaintiffs. The defendant is close relative of plaintiff and in view of close
relationship the plaintiffs had not taken registered sale deed for suit
execution of agreement of sale. The plaintiffs had given proper and fitting
reply to the said caveat and they had also issued a legal notice on
17.05.2008 to the defendant with an annexure, dated 21.05.2008, calling
received the same, but did not comply with. She had given reply for the
said notice on 2.6.2008 with false and untenable allegations . Hence, this
suit.
4. The respondent herein is the defendant in the suit. The brief
averments made in the written statement are that, the allegations in para 3
of the plaint are true . The allegations in para 4, para 5, para 6, para 7,
para 8 have to be strictly proved by the plaintiffs. There was no cause of
action to file the suit. The cause of action ie. 19.6.1977, 5.10.1977,
Athuluru Vengama Naidu, who got two daughters namely A.Munemma,
and this defendant and he, out of love and affection towards this defendant
handed over possession and since that date, this defendant was in
possession and enjoyment of said properties as absolute owners. That she
was given in marriage to M.Ramamurthy Naidu of Mungilipattu Kothapalli
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village and residing with her husband. That her elder sister Munemma
was given in marriage to Srinivasulu Naidu of Venkatapuram village and
she had been residing with her family. That after her marriage, her elder
sister i.e., mother of plaintiffs approached this defendant and requested
her to permit them to cultivate the plaint schedule lands and to enjoy the
yield from it. This defendant out of love and affection accepted her request
and permitted her family members to cultivate her lands and the land was
properties whenever this defendant requires. She was not facing any
between this defendant and her elder sister S.Munemma. As the properties
are in remote village, there were no complications and she had not made
any efforts to mutate her name in revenue records. That due to abnormal
increase of prices and taking advantage of absence of this defendant, her
sister in collusion with her family members to knock away the properties
allegations, for which she had given suitable reply. That she never entered
into agreement of sale with plaintiffs and not received Rs.3,000/ and also
plaintiffs were minors on the date of alleged agreement of sale and any
transaction by minors is void in law. This defendant never entered into
agreement of sale with plaintiffs. That her father had not given any
application to the Deputy Tahsildar, to transfer his lands, it is also created
document. The plaint schedule properties are not tallied with the alleged
sale agreement dated 19.06.1977. The defendant had reliably learnt that
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they had filed the above suit in collusion with the parents to knock away
the properties of this defendant. The plaintiffs and their family members
permission. Hence, the suit is liable to be dismissed with exemplary costs.
5. Basing on the above said pleadings, the learned Principal Junior
Civil Judge, Tirupati, had framed the following issues for trial:
1. Whether the sale agreement dated 19.06.1977 is void?
2. Whether the plaintiff is entitled to get the registered sale
deed in process of sale agreement dated 19.06.1977?
3. To what relief?
6. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A.1 to
A.10 were marked. On behalf of defendant, D.Ws.1 and 2 were examined
and Exs.B.1 was marked.
7. On considering the material brought on record and on hearing the
Tirupati, found that the plaintiffs miserably failed to prove that the
defendant received consideration amount and executed Exs.A.1 and A2 and
the defendants were incapable to execute Ex.A.1 and A.2 and dismissed the
suit directing the parties to bear their own costs. Hence, this appeal.
8. The learned Senior counsel for the appellants advanced his arguments
basing on the pleadings in the plaint, the oral and documentary evidence
adduced by the plaintiffs.
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9. The learned counsel for the respondent advanced his arguments in
documentary evidence adduced by the defendant
10. The main contention of the learned counsel for the appellants is that
a contract can be entered into by the minors for their benefit and that there
is no bar for enforcing such contract, whereas the learned Senior Counsel
contract and any such contract entered into is void and unenforceable.
11. Now, the points for consideration are:
1. Whether Ex.A.1 and Ex.A.2 are enforceable at the instance of
plaintiffs who were minors or not?
2. Whether the execution of Ex.A.1 and Ex.A.2 was proved by
the plaintiffs and they are entitled to the relief of specific
performance of agreement under Ex.A.1 or not?
3. Whether the Judgment and decree passed by the trial Court
are factually and legally sustainable or not?
POINTS 1 to 3:
12. The plaintiffs had filed the suit for specific performance of
agreement for sale dated 19.6.1977. The case of the plaintiffs is that
having got the same from her father. That on 19.06.1977 the plaintiffs
paid Rs.3,000/ as advance amount and she had executed suit agreement
of sale agreeing to receive the balance sale consideration of Rs.17,000/ on
or before 19.11.1977. That on 5.10.1977 the plaintiffs paid the balance of
same and an endorsement was made on the back side of suit agreement,
possession to them. Since the date of endorsement, the plaintiffs are in
defendant’s father A.Vengama Naidu had also sent an application to Deputy
Tahsildar Chandragiri for transfer of patta in their names. That after
execution of suit agreement, the plaintiffs and one Duthuluru Chengalraya
S.No.418/6, covered by the suit agreement of sale and the plaintiffs had
Naidu and the defendant along with her minor children executed sale deed
on 3.8.1984 in favour of D.Chengalraya Naidu with regard to lands covered
registered sale deeds dated 17.10.1984 for their lands in favour of the
plaintiffs. The defendant is close relative of plaintiff and in view of close
relationship the plaintiffs had not taken registered sale deed for suit
execution of agreement of sale. The plaintiffs had given proper and fitting
reply to the said caveat and they had also issued a legal notice on
17.05.2008 to the defendant with an annexure, dated 21.05.2008, calling
received the same, but did not comply with. She had given reply for the
said notice on 2.6.2008 with false and untenable allegations .
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13. To prove the case of the plaintiffs, P.Ws.1 to 3 were examined and
Exs.A.1 to A.10 were marked. The second plaintiff was examined as
P.W.1. In the crossexamination of P.W.1, it was elicited that they got filed
the suit basing on the agreement dated 19.6.1977. It was also elicited that
by the date of agreement, they were minors. It was further elicited that
himself and his elder brother attained majority in 1981 and 1984. It was
numbers only out of five survey numbers. P.W.1 has admitted that as per
the recitals in Ex.A.1, para 1, agreement was entered into by minors and
defendant. He has also admitted that the name of defendant is mentioned
that he does not know who scribed the endorsement dated 5.10.1977. He
has further admitted that the defendant got issued notice, and he got
issued reply notice. It was suggested that as per recitals in Ex.A.1 sale deed
should be obtained on or before 19.11.1977. It was also suggested that
defendant never made any endorsement dated 5.10.1977 and endorsement
was created one. It was further suggested that the transaction with minors
was not valid transaction. It was further suggested that his mother was
elder sister of the defendant, and she had given lands to his mother for
was executed by defendant in his favour. No suggestion was put to P.W.1
that Ex.A.1 was a forged and fabricated document.
14. P.W.2, D.Chengalraya Naidu, has spoken about exchange of lands by
plaintiffs and themselves. It is the case of the plaintiffs that two items in
Ex.A.1 were exchanged with D.Chengalraya Naidu and that the defendant
had executed sale deed for those two items in favour of D.Chengalraya
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Naidu in the year 1984. In the crossexamination of P.W.2, it was elicited
that the land belongs to Kusuma Kumari and she sold it to Prakash and
Dhananjaya Naidu under an agreement of sale in the year 1977. It was
0.04 cents of Venkatapuram village and of Vemuru village accounts were
further elicited that in consideration of land executed by him, sale deed
was executed by Kusuma Kumari for Ac. 1.09 cents of land and Kusuma
Kumari delivered the lands in the year 1984 itself. It was specifically
elicited that since the plaintiffs were having agreement of sale only, they
got registered sale deed from the defendant in his favour. It was further
elicited that the lands covered by the sale deeds executed by the defendant
in his favour were part of the property in the suit agreement of sale. It
was suggested that the suit agreement of sale was not executed by the
defendant in favour of the plaintiff and being the neighbourer of plaintiffs
sale deed under Ex.A.3 in favour of D.Chengalraya Naidu by the defendant
on 3.8.1984.
15. The son of one of the attestors to Ex.A.1 by name A.V. Lokesh Naidu
was examined as P.W.3. In the crossexamination of P.W.3, it was elicited
that he had not produced any document containing the signature of his
father. It was also elicited that there were no documents containing the
signature of the attestor to Ex.A.1 in his possession. It was suggested that
he did not know the signatures on Ex.A.1 and he could not identify. It was
also suggested that he was showing the signature as his father’s signature
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only at the instance of plaintiff and it was not the signature of father and
he had no acquaintance with the signature of father.
16. The case of the defendant is that she never entered into agreement
of sale much less, the alleged suit agreement dated 19.06.1977 with
plaintiffs and not received Rs.3,000/ and also Rs.17,000/ on 5.10.1997
documents and the alleged signatures do not belong to this defendant and
this defendant never signs as “ Kusuma Kumari. The case of the defendant
is total denial and also disputing the style of the signature and has taken a
plea of creation.
17. In the written statement filed by the defendant, she has signed in
“Kusumamba @ Kusuma” in the plaint.
18. The defendant was examined as D.W.1. She had filed chief
examination of D.W1, she says that she signs in Telugu and does not sign
in English. She has denied the signatures in vakalat and written statement
has admitted that A.V.Lokesh Naidu is son of her maternal uncle Venu
Naidu. She has pleaded ignorance stating that she does not know
A.V.Lokesh Naidu had given evidence as a witness. She says that her name
in school record was shown as “Kusuma”. She has denied the sale of land
in favour of D.Chengalraya Naidu under Ex.A.3. She has also denied the
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execution of Ex.A.1 and A.2. In the chiefaffidavit and deposition of the
defendant she has signed in Telugu with initial ‘M’.
filed affidavit stating that he did not lend his signature as attestor in any
contains his signature or not till today. He has admitted that the scribe
C.Narasimhulu Naidu is their villager and he has left the village about 20 or
30 years back. He has also admitted that Munirathnam Naidu is the son of
Nagulu Naidu. The witness after going through Ex.A.1 had stated that his
signatures were not there. The above said witness is said to be an attestor
to the endorsement under Ex.A.2, but the said endorsement was not
confronted with him.
20. The relationship between the parties to the suit is an admitted fact.
The plaintiffs are sons of elder sister of defendant. It is also admitted fact
lands. Of course, the plaintiffs are contending that they are in possession
by virtue of sale agreement and the defendant is contending that she had
permitting them to cultivate the lands. Here, it is significant to note that
the defendant has not taken any steps to mutate her name in the revenue
records and the same is mentioned in her written statement itself. The
suggestion to P.W.2.
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THE LAW OF CONTRACTS AND THE MINORS:
21. Section 10 of the Contract Act requires that the parties must be
competent to contract. Competency to contract is defined in Section 11:
“ 11. Who are competent to contract. Every person is competent to
contract who is of the age of majority according to the 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.”
Thus, the section declares the following persons to be incompetent to
contract –
(1) Minors
(2) Person of unsound mind, and
(3) Persons disqualified by law to which they are subject.
AGE OF MAJORITY
“Minor” means a person who has not attained his majority within
the meaning of Section 3 of the Indian Majority Act, 1875.
The age of majority is generally eighteen years, except when a
guardian of a minor’s person or property has been appointed by the
court, in which case it is twenty one. The age of majority of a person
is to be determined “ according to the law to when he is subject.”
The Indian Majority Act, 1875, Section 3, which reads:
eighteen years, and not before. In the case, however, of a minor of
whose person or property or both a guardian has been appointed by a
Court of wards, before minor has attained the age of eighteen years,
when he has completed the age of 21 years.”
NATURE OF MINOR’S AGREEMENT:
competent and Section 11 declares that a minor is not competent.
But neither section makes it clear whether, if a minor enters into an
controversy was only resolved in 1903 by the Judicial Committee of
the Privy Council in their well known pronouncement in Mohoribibi
v. Dharmodas Ghose. Sir Lord North observed:
“ Looking at Section 11 their Lordships are satisfied that the Act
makes it essential that all contracting parties should be competent to
infancy is incompetent to contract cannot make a contract within
the meaning of the Act. The question whether a contract is void or
voidable presupposes the existence of a contract within the meaning
of the Act, and cannot arise in case of an infant.”
The ruling of the Privy Council is the Mohoribibi case has been
generally followed by the courts in India and applied both to the
advantage and disadvantage of minors. Another decision of the Privy
Council in line is Mir Sarwarjan v. Fakhruddin Mohd. Chowdhury.
“ A contract to purchase certain immovable property had been
made by a guardian on behalf of a minor, and the minor sued the
possession. His action was rejected.”
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The Court said that it was not within the competence either of
the manager of minor’s estate or of guardian of the minor, to bind the
immovable that as the minor was not bound by the contract, there
was no mutuality ; and that consequently the minor could not obtain
specific performance of the contract.
In its subsequent pronouncement in Subramanyam v. Subba Rao,
AIR 1948 PC 25, the Privy Council over ruled earlier decisions and
entertained no doubt that it was within the powers of the mother of a
minor as guardian to enter into a contract or sale for the purpose of
competence of the guardian and it is for the benefit of minor it is
specifically enforceable.
In the modern circumstances of society it does not seem to be
possible and much less desirable for law to adhere to the categorical
Minors are appearing in public life today more frequently than ever
Lordships in Srikakulam Subramanyam v. Kurra Sabha Rao, (1949)
minor and within the power of the guardian and it was binding upon
him.
The law declared by Privy Council in the Mohoribibi’s case that
followed, but it has been growingly confined to cases where a minor
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is charged with obligations and the other contracting party seeks to
enforce those obligations against the minor. In Raghava Chariar v.
Srinivasan, (1916) 40 Mad. 308, the following question was referred
for the decision of a Full Bench of the Madras High Court:
Whether a mortgage executed in favour of a minor who has
advanced the whole of the mortgage money is enforceable by him or
by any other person on his behalf?
from being the promisee. The law does not regard a minor as
incapable of accepting a benefit.
DISGUISING OF SIGNATURES:
22. In the written statement filed by the defendant, she has signed in
English as “ M.Kusuma. In her crossexamination, she has stated that she
signs in Telugu and not in English. In the chief affidavit and deposition
of witness, she has signed in Telugu with initial “M”. The defendant has
From this it is clear that the defendant is a person of disguising signatures.
situation where defendant denies her own signatures in vakalatnama and
written statement, the trial court should have probed into the matter. On
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observed that
“7. A piquant situation had developed before the trial Court when
the first defendant denied his signatures on the written statement and
vakalatnama in favour of his counsel. Trial Court should have
immediately probed into the matter. It should have recorded statement of
the counsel for the first defendant to find out if vakalatnama in his favour
and written statement were not signed by the first defendant, whom he
represented. It was apparent that the first defendant was trying to get out
of the situation when confronted with his signatures on the vakalatnama
and the written statement and his having earlier denied his signatures on
Exh.P.1 and Exh.P.2 in order to defeat the claim of the plaintiff. Falsehood
of the claim of the first defendant was writ large on the face of it. Trial
Court could have also compared the signatures of the first defendant as
provided in Section 73 of the Indian Evidence Act.”
The trial Court ultimately held that –
The Hon’ble Supreme Court observed that Courts below fell into
error in going into the question of privity of contract and lost sight of basic
issue involved in the case.
24. The learned counsel for the appellants also contended that a person
who was a minor at the time of execution of agreement of sale can seek
specific performance of said agreement after attaining majority. On this
point he relied on a decision in Sri C.Anantha Kishan v. K.Ramesh Kumar
and another, 1993 (1) ALT 708, wherein the Hon’ble High Court of A.P.,
held that
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“ 6. In view of this binding authority, I have no hesitation in holding
that the minor can seek specific performance of the contract in his favour.
I am also fortified in this view of mine by a recent bench decision of Orissa
High Court reported in Durga Thakurani v. Chinthamani Swain.”
25. The Hon’ble High Court also observed that the word ‘void’ when
understood in the sense of void as against the minor and not vice versa.
26. The learned counsel also relied upon the decisions in K.Balakrishnan
Sinha and others v. Tirbeni Prasad, AIR 1936, Patna 153, Bharat Bhai v. Jai
Narain, AIR 1928 Allahabad 102,
and The Collector of Meerut in charge,
Court of Wards, Meerut, and Special Manager of Estate of Bibi Naushaba
Begum v. Lala Hardian Singh and others, AIR (32) 1945 Allahabad 156,
on the same point.
was entered into directly by the minors without there being a guardian and
such agreement is not enforceable. He has relied upon the decision in .
Supreme Court held that
“10 As per the Indian Contract Act 1872 it is clearly stated that for an
agreement to become a contract, the parties must be competent to contract,
wherein age of majority is a condition for competency. A deed of mortgage
is a contract and we cannot hold that a mortgage in the name of a minor is
valid, simply because it is in the interest of minor unless she is represented
by her natural guardian or guardian appointed by the Court. The law
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cannot be read different for a minor who is a mortgagor and a minor who
is a mortgagee as there are rights and liabilities in respect of the immovable
property would flow out of such a contract on both of them. Therefore,
this Court has to hold that the mortgage deed Ex.A.1 is void abnitio in law
and the appellant cannot claim any rights under it.”
The Hon’ble Supreme Court relied upon Mohoribibi’s case and has not
considered the subsequent judgments.
28. In Bharat Bhai’s case, the Hon’ble High Court of Allahabad relying
upon a Full Bench of Hon’ble Madras High Court held that a mortgage in
favour of a minor is valid.
State of U.P. Thru. Prin.Secy. Home Deptt., Lucknow & Ors, Haebeas
Corpus Petition No. 9996 of 2021, 15.4.2021, wherein the Hon’ble High
effect.
30. From the decision in Raghavachariar’s case, it is clear that the
unanimous opinion of the Full Bench was that the transaction was
enforceable by or on behalf of the minor. The position of minor is that
he is capable of purchasing immovable property. A minor may enforce a
promissory note in his favour. There is nothing in the Contract Act to
prevent an infant from being promissee. The law does not regard a minor
as incapable of accepting a benefit.
their evidence with regard to execution of Ex.A1 and A.2 and further the
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execution of Ex.A.3 in favour of P.W.3 confirms the execution of Ex.A.1
and A.2 and the defendant having entered into an agreement of sale and
having received the total consideration of Rs.20,000/ from the plaintiffs
and acting upon such agreement of sale having executed Ex.A.3 in favour
of P.W.3, now cannot go back and say that she had not executed Ex.A.1
and A.2 and she is estopped from saying so in view of execution of Ex.A.3
in favour of P.W.3. Therefore, the plaintiffs are entitled to the relief of
decree passed by the trial Court are not sustainable. These points are
answered in favour of the appellants.
32. In the result, the appeal suit is allowed with costs, by setting aside
the Judgment and decree dated 17.7.2013 passed in O.S.No.1035/2008 by
the Principal Junior Civil Judge, Tirupati and the suit is decreed with costs
plaintiffs for the plaint schedule lands within 30 days from the date of this
Judgment , failing which the plaintiffs are at liberty to approach the lower
court to get sale deed through the process of court.
V Additional District Judge,
Tirupati.
Appendix of Evidence
NIL
V ADJ.
TPT.