- 1 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 79 OF 2021 (SP) BETWEEN: SARITHA P SHETTY 52 YEARS, W/O J PRABHAKARA SHETTY, RESIDING AT ALTHAR OF YADTHADI VILLAGE, PO YADTHADI - 576 214, UDUPI TALUK AND DISTRICT. …APPELLANT (BY SRI. VYASA RAO K.S, ADVOCATE) AND: 1. K. SHRINIVASA BHANDARY 57 YEARS, S/O LATE K RAJU BHANDARY, SHREE SHARADA, NEAR SUBRAMANYA TEMPLE, KOME ROAD, THEKKATE VILLAGE, PO THEKKATTE - 576 231, KUNDAPURA TALUK, UDUPI DISTRICT. 2. PRAKHYATH SHETTY 24 YEARS, S/O J PRABHAKARA SHETTY, RESIDING AT ALTHAR OF YADTHADI VILLAGE, PO YADTHADI - 576 214, UDUPI TALUK AND DISTRICT. …RESPONDENTS (BY SRI. CHANDRANATH ARIGA K, ADVOCATE FOR C/R1; R2 - PRAKHYATH SHETTY - SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.11.2020 R Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 PASSED IN RA.No.04/2015 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (SITTING AT KUNDAPURA), KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING AND UPHOLDING THE JUDGMENT AND DECREE DATED 03.08.2015 PASSED IN OS.No.32/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Vyasa Rao K.S., learned counsel for the appellant and Sri.Chandranath Ariga K., learned counsel for contesting respondent No.1. Respondent No.2 is served with the notice and remained absent. 2. Present second appeal came to be admitted on the following substantial question of law: “Whether the Trial Court and the First Appellate Court is justified in decreeing the suit for specific performance and ignoring the fact that defendant No.2 is a minor and no permission has been sought by the plaintiff as required under Section 8 of the Hindu Minority and Guardianship Act, 1956?” - 3 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 3. Facts in brief which are utmost necessary for disposal of the appeal are as under: 3.1. Appellant being the mother of respondent No.2, entered into an agreement to sell with respondent No.1 for sale of the immovable property which is morefully described hereunder and hereinafter referred to as suit property (Ex.P.5): ‘A’ SCHEDULE Immovable property situated at Yadthadi village, Udupi Talul Survey No.43/7 (Northern Portion) – 0.60 Acre (70 Hance Gadde) Boundaries: West – land of Rajarama Shetty and Sunil Shetty South – land of Sowmini S Shetty – Hire land North- Sy.No.41 East – Sy.No.43/6.21, Sy.No.41 3.2. When there was no specific performance of agreement to sell, respondent No.1 was required to issue a legal notice (Ex.P.2) calling upon the appellant to - 4 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 execute the sale deed in his favour. Despite such notice, since there was no compliance, suit came to be filed. 3.3. Suit on contest came to be decreed holding that agreement is proved and so also the readiness and willingness on the part of respondent No.1 stands established. 4. Being aggrieved by the same, defendant No.1 alone filed RA No.04/2015 on the file of Additional District and Sessions Judge, Udupi (Sitting at Kundapura), Kundapura. 5. Pertinently, appellant’s minor son at the time of execution of Ex.P.5, was arraigned as respondent No.2 in the appeal. 6. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material evidence on record, dismissed the appeal filed by the present appellant - 5 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 who was defendant No.1 and natural guardian of defendant No.2 in Ex.P.5. 7. Being further aggrieved by the same, present appeal came to be filed. 8. As referred to supra, at the time of admitting the appeal, this Court framed the substantial question of law to the effect that non-obtaining the permission under Section 8 of the Hindu Minority and Guardianship Act, 1956 whether Ex.P.5 could have been specifically enforced? 9. Pursuant to the said question, learned counsel for the appellant contended that agreement at Ex.P.5 was incapable for performance inasmuch as without obtaining the permission from the Competent Court, appellant had no right whatsoever to bind the share of her minor son who is also a party to agreement at Ex.P.5 resulting in document non-enforceable agreement. Ignoring the same and decreeing the suit of the plaintiff by the Trial Court and mechanically confirming the same by the First - 6 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 Appellate Court has thus resulted in miscarriage of justice and sought for allowing the appeal by answering the substantial questions of law in favour of the appellant. 10. To buttress the arguments, he has placed reliance on the principles of law enunciated in the case of Kallathil Sreedharan and Another v. Komath Pandyala Prasanna and Another reported in (1996) 6 SCC 218. 11. In the said decision, learned counsel for the appellant invited the attention of this Court to paragraph No.7 of the judgment wherein it is held as under: 7. The question then is whether the High Court committed any error of law warranting interference by refusing to exercise discretion? The High Court after elaborate consideration and appreciation of the evidence recorded the findings as under: “Obviously, the irresistible inference is that the defendant did not want to part with the property and did not intend to get the auction-sale set aside solely for the benefit of a third party, namely, the plaintiffs. We are of the view that taking advantage of the situation in which the defendants as judgment- debtors were placed, the plaintiffs tried to secure, for themselves the properties, not negotiating for them on equal terms. There can be no dispute that the price obtained at the court auction was not the fair - 7 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 market price of the properties. The valuation of the property for Rs 26,13,415 given by DW 3, a retired Assistant Executive Engineer, PW 2, is of course disputed on the ground that the plaintiffs had no notice when he valued the property; nor was he appointed by the Court to do the same. Of course, there is some force in this objection. Nevertheless, the property, according to us, cannot be valued at less than rupees 15 lakhs. It is true that, that by itself is no ground to refuse the enforcement of the contract. But, this has some significance when it is taken along with other factors, namely, the situation in which the defendants were placed, that is to say, unless they could find the necessary money for depositing into court to set aside the auction-sale and to conduct the proceeding for this purpose, they had no prospect of regaining title to the properties. Hence we hold that it would not be just and proper to direct the defendants to execute the sale deed in pursuance of Ext. A-1 agreement. Point 3 is, therefore, answered in favour of the defendants. But, however, the plaintiffs would be entitled to claim the alternative relief asked for in the plaint. This consists of the return of Rs 2,10,391 given as an advance with interest at 6 per cent per annum. Since admittedly the defendants regained the property on payment of the aforesaid amount by the plaintiffs treating the same as advance towards the price of the property agreed to be sold, the defendants are bound to refund the same to the plaintiffs.” 12. Per contra, learned counsel for contesting respondent No.1 – plaintiff supports the impugned judgments. - 8 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 13. Having heard the parties in detail, this Court perused the material on record meticulously. 14. On such perusal of the material on record, to better appreciate the rival contentions of the parties with regard to the substantial question of law raised above, it is just and necessary for this Court to cull out Section 8 of the Hindu Minority and Guardianship Act, 1956 which reads as under: 8. Powers of natural guardian.—(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court,— (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub- - 9 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 section (2), is voidable at the instance of the minor or any person claiming under him. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub- section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under Section 29 of that Act, and in particular— (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof; (b) the court shall observe the procedure and have the power specified in sub-sections (2), (3) and (4) of Section 31 of that Act; and (c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court. (6) In this section “court” means the city civil court or a district court or a court empowered under Section 4- A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate. - 10 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 15. On careful reading of the above provision especially sub-section (2) of the Section 8 of the Hindu Minority and Guardianship Act, 1956, it is crystal clear that said provision would make it incumbent on the part of the guardian not to meddle with the rights of the minor unless the guardian obtains the permission from the District Court. 16. However, what is also to be seen is sub-section 3 of the Section 8 of the Hindu Minority and Guardianship Act, 1956, wherein such a contract if entered by the guardian without the permission of the jurisdictional Court, is voidable at the instance of the minor when the minor attains the age of majority. 17. In the case on hand, admittedly, the appellant being the beneficiary under Ex.P.5, cannot take the advantage of her own wrong. 18. It is pertinent to note that soon after the minor attained the age of majority, he did not challenge the - 11 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 validity of Ex.P.5 either in the pending suit or in the appeal or by filing a separate suit. 19. Even assuming for a moment that the minor had not resorted to such a contingency, at the most, his ½ share could have only be avoided under Ex.P.5 but not the entire agreement as is sought to be canvassed on behalf of the appellant. 20. Since the sub-section 3 of Section 8 of the Hindu Minority and Guardianship Act, 1956, would make it clear that it is voidable at the instance of the minor, when the minor attains the majority and in the absence of any positive action, the contract of agreement to sell marked at Ex.P.5 cannot be treated as ab initio void. 21. It is settled principles of law and requires no emphasis that when a contract is ab initio void, such a contract cannot be specifically enforced. But if it is voidable at the instance of the party and if there is no positive action on the part of the party who is required to avoid the contract, the agreement shall be enforced. - 12 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 22. Now adverting to the decision in the case of Kallathil Sreedharan and Another referred to supra, it is crystal clear that the facts involved in the said case are all together different in the case on hand. 23. In the case on hand, the minor is arraigned as respondent No.2 both in the first appeal and the second appeal filed by the appellant who was defendant No.1 before the Trial Court. 24. Admittedly, in Ex.P.5 itself, there is a specific mention as to what made the appellant to enter into agreement to sell. 25. The agreement having been established by the plaintiff and in the reply notice, there was no mention as to the non-executability of the agreement at Ex.P.5, this Court can safely conclude that inaction on the part of the minor after attaining the majority, the plea raised by the guardian of the minor that Ex.P.5 was unenforceable agreement cannot be countenanced in law. - 13 - HC-KAR NC: 2025:KHC:33748 RSA No. 79 of 2021 26. In view of the above discussions, substantial question of law raised referred to supra is answered in negative. 27. Hence, the following: ORDER i. Appeal is meritless and hereby dismissed. ii. No order as to costs. Sd/- (V SRISHANANDA) JUDGE KAV/List No.: 1 Sl No.: 103/CT: BHK