MUSHTAQ AHMAD MASHKI Vs. MOHD SHAFI BHAT
HIGH COURT OF JAMMU AND KASHMIR
MUSHTAQ AHMAD MASHKI
MOHD. SHAFI BHAT
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Kotwal, J. -
(1.) This is a minor defendant's appeal, against a decree for specific performance of an executory sale in respect of immovable property, passed by the trial court in a suit brought against him and his father, the father being shown therein as the guardian of his minor son, the appellant.
(2.) Respondents 1 & 2, who are the plaintiffs in the suit out of which this appeal has arisen, sued the appellant and respondent No. 3, his real father, in the court of District Judge at Sri-nagar for specific performance of an agreement to sell a building situated at Maisuma, Srinagar, for a total consideration of Rs. 30,000/-, said to have been executed by respondent No. 3 in their favour on 19-2-1970, on his own behalf, as well as on behalf of the appellant as his natural guardian, alleging therein that respondent no. 3 was the sole owner of the suit property and that the appellant was only a benamidar. It was further alleged that out of the total consideration of Rs. 30,000/- only Rupees 10,000/remained to be paid to the vendors. On the institution of the suit, summons was issued to respondent No. 3 alone, both in his individual capacity, as well as the natural guardian of the appellant. This summons was duty served upon him who appeared in the court and also filed the written statement, both on his behalf as well as on behalf of the appellant, defending the suit inter alia on the grounds that the appellant was not a benamidar: taut owned half of the suit property: that even though respondent No. 3 had executed the aforesaid agreement to sell the suit property on his own behalf as well as on behalf of the appellant as his natural guardian, yet, he could not have done so under law and the agreement was. as such, not binding on the minor, and since the suit property was joint and undivided between him and the appellant the agreement was not binding even on respondent No. 3: and that the agreement was without consideration, as respondent No. 3 had received a sum of Rs 10,000/only out of total consideration of Rs. 30,000/-
(3.) This controversy gave rise to a number of issues. The parties joined the issues and also led evidence on them. The trial court on consideration of the same eventually de-creed the suit on payment of the balance of Rs. 10,000/-to respondent No. 3, holding: that he was the exclusive owner of the suit property and that the appellant was only his benamidar; that the appellant being merely a benamidar, the agreement that had been ostensibly executed on his behalf as well, did not suffer from any legal infirmity; and that out of the total sum of Rs. 30,000/-, respondents l and 2 had paid a sum of Rs. 20,000/- to respondent No. 3.;
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