1. This is a plaintiff's appeal from the decree of the Additional Civil Judge of Banda dismissing his suit for the specific performance of an agreement for the sale of three houses and four shops situate in the City of Banda. The parties are residents of that city. The plaintiff Bholanath was a minor both at the time of the execution of the alleged agreement of sale and the filing of the suit. The defendant Balbhadra Prasad is admittedly the owner of the property in dispute. The plaintiff alleged in his plaint that on the 4th of March 1948 the defendant promised to his father and guardian that he would execute a sale deed of the property in one month and simultaneously executed a written agreement incorporating his promise. The plaintiff complained that the defendant afterwards went back on his promise and his father had to serve a registered notice on the first of April 1948 requiring him to execute the sale deed in terms of the agreement, but the defendant did not do so. Finally another registered notice was served on the defendant on 5th January 1951 which was also of no avail; thereupon the plaintiff filed the present suit. He asked for a decree for specific performance and: in the alternative for the refund of a sum of Rs. 500/- alleged to have been paid by the plaintiff's father to the defendant as earnest money.
2. The suit was resisted by the defendant whofiled a written statement under the guardianshipof his wife. It was alleged that the defendant hadbeen a person of very weak intellect since childhoodand had been of unsound mind long before 1948.It was denied that the defendant executed anydeed as alleged by the plaintiff or received any amount as earnest money ft was further contended that the written agreement was obtainedby the plaintiff by fraud and therefore invalid. Thedefendant also alleged that it was without consideration.
3. Both parties led evidence. The plaintiff's father deposed that the agreement was executed in his presence and he paid Rs 500/- as earnest money to the defendant. He was subjected to a long cross-examination during which he admitted that he was the defendant's uncle-in-law. He further conceded that though there was an entry recording the payment of Rs. 500/- in his account book, he had not produced it in Court and explained this omission as due to the advice of his counsel. His other two witnesses for proving the agreement are Kamta Prasad and Patan Lal.
4. The Civil Surgeon of Banda Dr. Radha Mohan D. W. 2 deposed that he examined the defendant on 22nd July 1951 and found that his behaviour was abnormal and he formed an opinion that he was mentally defective. This opinion, he explained, was based on the fact that the defendant's answers to his questions were not intelligent. He also deposed that when he went to examine Balbhadra Prasad he was sleeping on his Chabutra but on being woken up he tried to run away. The defendant's wife Smt. Mannu D. W. 4 deposed that she had been married to him for fourteen years and that his behaviour was not that of a normal person. She related several instances and a large number of facts in support of her opinion of her husband's abnormal mental condition. Other witnesses on behalf of the defendant deposed that the property which the defendant is alleged to have agreed to sell for Rs. 11,000/- was worth double that amount. The learned Judge came to the conclusion that the defendant was not of sound mind when he executed the agreement and also disbelieved the plaintiff's story that he had paid any sum as earnest money. Accordingly he dismissed the suit and the plaintiff has come to this Court in appeal.
5. We have read the entire evidence and also heard the counsel for the parties. Learned counsel for the appellant argued that the finding of the trial Court that the defendant was of unsound mind at the time of the agreement is erroneous and that he had misunderstood the meaning if the phrases 'sound mind', 'unsound mind' in Section 12 of the Contract Act. Learned counsel argued that the Court had failed to draw a distinction between a person of unsound mind and one of weak intellect. He further argued that the onus was on the defendant who wanted to avoid the agreement to prove that he was not of sound mind at the time when he made it. It h not necessary for us to consider whether the trial Court's finding on this issue is correct or not as we are of the opinion that this case can be decided on another ground.
6. It is common ground that the plaintiff at the time of the agreement was a minor and the agreement could not have been enforced against him by the defendant. Thus there is a want of mutuality in the transaction and this defect disentitles the plaintiff to enforce the agreement for specific performance. Learned Counsel for the appellant contended that an agreement made on behalf of a minor by his guardian, if for the benefit of the minor, is binding and enforceable against the minor. We cannot agree. In Mir Sarwarjan v. Fakhruddin Mahomed, ILR 39 Cal 232 the 'Privy Council held:
'It is not within the competence, either of the manager of the minor's estate or of the guardian of the minor, to bind the minor or the minor's estate by a contract for the purchase of the immovable property; that as the minor (in the case before the Privy Council) was not bound by the contract, there was no mutuality; and that consequently he could not obtain specific performance of such a contract.'
In that case a contract for the sale of immovable property was sought to be enforced against a minor on the ground that it was made by hisguardian for his benefit and that the minor half ratified it and therefore there was ho want of mutuality. The Calcutta High Court accepted the plaintiff's argument and passed a decree for specific performance. Reversing this decision, the Judicial Committee made the observation quoted above and dismissed the plaintiff's suit. The principle enunciated in this case was followed by a Full Bench of the Madras High Court in Venkatachalam Pillai v. Selhuram Rao AIR 1933 Mad 322. We are of the opinion that even assuming that the defendant was of sound mind when he made the agreement, it cannot be enforced against him as a suffers from want of mutuality.
7. Learned counsel for the appellant then contended that the plaintiff at any rate is entitled to a refund of the earnest money paid by him. But the finding of the trial Court is that no money was actually paid and the plaintiff's evidence on this point was disbelieved. We have perused the evidence and are inclined to agree with the trial Court.
8. This appeal must fail and is dismissed withcosts.