The legal guardianship of the property of the minor is vested only in the father or grandfather and not mother

In the matter of G. Premjee Trading Pvt. Ltd Vs. Abdul Kader Haji Noormohammad & Ors. Bearing Suit No. 1754/1994, decided by the Bombay High Court on 08.06.2021.

Facts of the case-
The Defendant No. 1 to 6 executed an agreement dated 26.06.1993, to sell the suit premises to the plaintiff for a consideration of Rs. 4 crores (which was to be paid in instalments) subject to compliance of the provisions contained in Chapter XXC of the Income Tax Act, 1961. D/f No. 4 to 6 were minors at the time of execution of the said agreement and D/f No. 2 (being their mother) executed the agreement on their behalf in the capacity of their natural guardian as well as being executor of the Will of Late Aboobaker (who was the previous owner of the suit premises). The contingency of the agreement was that the Defendants would get vacant the suit premises from the persons who were in occupation of its different portions, on the plaintiff depositing a sum of Rs. 45 lakhs with the solicitors of the Defendants.
The plaintiff claimed that he had complied with his part of the contract but the defendants wilfully neglected and failed to perform their part of the obligations including making out a marketable title and to obtain clear and vacant possession of the suit premises. Hence, the plaintiff filed the present suit for specific performance of the contract.
The suit was resisted by the defendants on the ground that D/f No. 4 to 6 were minors and so the agreement was void ab initio as the D/f No. 2 had no competence under Mohammedan law to convey the interest of the minors. Further, the plaintiff introduced untenable conditions on the usage of Rs 45 Lakhs submitted by him which reflects that the Plaintiff was never ready and willing to perform his part of the contract.

Observation of the Court-
The Court decided the present matter mainly in three parts.
Validity of the suit agreement- The Court observed that the D/f No. 2 was not legally competent to enter into a contract for the sale of immovable property on behalf of the minors (D/f No. 4 to 6) as under the Mohammedan Law, the legal guardianship of the property of the minor is vested only in the father or grandfather. The father and grandfather are further entitled to appoint a person as the executor by will and, in that case, such executor becomes the legal guardian, however, as the defendants deny the existence of the said Will and the Plaintiff failed to produce any cogent evidence to prove otherwise, the said suit agreement is void qua the interest of D/f No. 4 to 6. However, the suit agreement remains enforceable qua the interest of the D/f No. 1 to 3 as the property is susceptible to partition and the D/f No. 1 to 3 are competent to enter into a contract on their own.
Whether time was the essence of the contract- The Defendants urged that time was the essence of the contract as clause 3 of the contract provided that the parties shall complete the sale within two weeks after the appropriate authority under the Income Tax Act cleared the proposal. Since, NOC was granted by appropriate authority on 1.11.1993, the failure of the plaintiff to pay the balance consideration was stated to be flagrant breach of the contract and hence, plaintiff is not entitled to claim specific performance.
Placing reliance on Smt. Chandrani (Dead) by LRs. vs. Smt. Kamalrani (Dead) by Lrs. (1993) 1 SCC 591, the Court noted that “mere stipulation of period within which the contract of sale of immovable property is to be performed by itself does not make the time so specified essence of the contract. The stipulation of time for performance is not of conclusive significance in ascertaining as to whether the said constitutes the essence of contract. On the contrary, there is a presumption that normally in a contract of sale of immovable property, time is not the essence of contract. The emphasis is on the substance of contract and not the time within which the contract is to be performed.”
The Court thereafter noted that reading the suit agreement as a whole, it becomes explicitly clear that the delivery of the vacant possession of the suit premises was the prime condition of the completion of sale. The stipulation of time for performance of contract was thus made conditional to and dependent upon the vendors obtaining the delivery of the vacant possession of the entire suit premises and the parties were open to the possibility of extending time if the vendors fail to vacant the premises within three months. Therefore, time was not the essence of the present suit agreement.
Whether the Plaintiff was ready and willing to perform his part of the contract- The Court answered this in the negative as the condition put by the plaintiff that the vendors should obtain clear and vacant portion of the suit premises before the sum of Rs. 45 Lakhs is released to them is contrary to the terms of the suit agreement and does not reflect readiness on his part, when in fact, the amount of Rs. 45 Lakhs was to be used by the Defendants to obtain vacant possession of the suit premises.
The Court therefore held that the Plaintiff is not entitled to relief of specific performance against the defendant Nos. 1 to 3 qua their respective right, title and interest in the suit premises, only the refund of the earnest amount.