Rachhpal Singh, J.
1. This is a Letters Patent appeal against the decision of a learned Judge of this Court under which a suit instituted by the respondents against the appellants was decreed. Reoti and Khawani who is a minor, are brothers and are joint in estate. They owned one-half share in a house. Mt. Dhapo owns the other half. Reoti acting for himself and for his minor brother Khawani entered into a contract with. Ram Chandra Lal, Munshi Lal and Ranjit Lal, plaintiffs, under which he contracted to sell to them the aforesaid half share in the house for a sum of Rs. 950, and he was paid Rs. 50 as earnest money. He however did not abide by this agreement and later on sold the above mentioned property to one Bulaki Dass for a sum of Rs. 850. The plaintiffs filed a suit for the specific performance of the contract for sale made by Reoti. Bulaki Dass the purchaser was also impleaded as a defendant in that suit. The suit was decreed. It was ordered that Reoti and Khawani should obtain partition of their one-half share in the house and then to execute a sale deed in favour of the plaintiffs. The decree further ordered that in case Reoti and Khawani failed to do so, then it was open to the plaintiffs to sue for partition themselves : Reoti and Khawani did not file a partition suit to have their one-half share separated by partition. So the plaintiffs sued for partition of one-half share in respect of which Reoti had entered into a contract for sale with them. The trial Court gave plaintiffs decree for partition of one-fourth share. The Court of first appeal dismissed the suit in toto. The principal ground taken in defence and which was accepted by the first appellate Court was that the Court could not order specific performance of a contract against a minor. The learned Single Judge of this Court who heard the second appeal came to a different conclusion and held that in this a decree for the specific performance of a contract could be passed against the minor. He accordingly decreed the appeal of the plaintiffs and granted them a decree for the partition of one-half share in the suit. Now, Khawani, minor and Mt. Dhapo, the owners of the remaining one-half share, have preferred this Letters Patent appeal. It may be pointed out that on the question as to whether or not the contract of sale was entered into by Reoti for family necessity the finding is against the appellants. It has been held that the contract was made for the purpose of satisfying a family necessity.
2. The sole question for the determination in this appeal is whether specific performance of a contract for the sale of ancestral property entered into between a manager of a joint family for himself and on behalf of a minor member of the joint family can be decreed against the minor or the manager. The case for the appellants has been argued with great ability before us by Mr.Chandra Bhan Agarwala. On behalf of the appellants reliance is placed on a ruling of their Lordships of the Privy Council in Mir Sarwar Jan v. Fakharuddin Mohammad (1912) 39 Cal 232 reported in 9 A.L.J. 33. That was a case in which a minor, after attaining majority, sued to enforce the specific performance of a contract made by his guardian daring his minority. Two points were decided by their Lordships in that case. The first was that they were unable to accept the view of the learned Judges of the Divisional Bench of the Calcutta High Court, Mir Sarwar Jan v. Fakharuddin Mohammad (1907) 34 Cal. 163, that there was no difference between the position and power of a manager and those of a guardian. The other was that it was not within the competence of a manager of a minor's estate or within the competence of a guardian of a minor to bind the minor or minor's estate by a contract for the purchase of immovable property. They also held that in the case before them a minor on attaining majority could not enforce the contract for want of mutuality. The contention raised by the learned Counsel appearing for the appellants is that the above rule laid down by their Lordships was a rule of universal application and governed all cases were a minor was a party to the contract and that it governed contracts entered into by the manager of a joint family also. That is the principal question for consideration before us.
3. The learned Single Judge of this Court held that the rule Laid down in Mir Sarwar Jan v. Fakharuddin Mohammad (1921) 39 Cal 232, is not applicable to contracts made by the head of a Hindu joint family consisting of himself and minor coparceners. After a consideration of the question lam of opinion that the view taken by him is correct and must therefore be affirmed. The point under consideration came up for decision in Haricharan Kuar v. Kaula Rae 1917 Pat. 478, before a Full Bench. Chamier, C.J., who delivered the judgment of the Full Bench in that case made the following remarks:.I apprehend that the decisions of their Lordships in Mohri Bibi v. Dharam Das (1903) 30 Cal. 539 do not apply to contracts made by the managing members of a joint Hindu family for family necessities or for : the benefit of the joint family, i.e., contracts made by the managing members which bind the minor members of the family. Such contracts can be enforced on behalf of the family by persons who made them and I find nothing in the decisions of their Lordships which require us to hold that such contracts cannot be enforced against the family. Contracts made not by minors but by persons who have power to make contracts on behalf of the joint family do not appear to come within those decisions. I am not prepared to dismiss the suit on the ground that the contract lacks mutuality having been made by or on behalf of minors who are not competent to contract.
4. I agree, if I may say with great respect, with the view taken in the above mentioned Full Bench case decided by the Patna High Court. It appears to me that a contract made by the manager of a joint family stands on a different footing from a contract made by a mere guardian of the minor or a manager of the minor's estate. A Hindu woman may be a guardian of a minor or a manager of an estate of a Hindu minor. Now, a mere guardian or a manager cannot make a contract which can be enforced against a minor for want of mutuality. A minor cannot enforce a contract specifically which has been made by his guardian or by the manager of his estate. So on the same principle such a contract cannot be enforced against him. But where a contract is made by a karta of a joint family then the position is different. Unlike the case of a guardian or a manager of the estate of a minor, he has his own interest in the joint family estate. To the outside world he represents the entire joint family consisting of himself and other major and minor coparceners. Unlike the guardian or a manager of a minor's estate he can enter into binding contracts on behalf of the whole family. As pointed out by Chamier, C.J. in Haricharan Kuar v. Kaula Rae 1917 Pat 478:
The interest of a member of a joint Hindu family in the family property is not individual property at all. The manager of such a family is not an agent of the other members nor is he a mere manager. He is much more like a trustee for the other members. It is settled law that a father or a managing member of a joint Hindu family may under, certain circumstances and subject to certain conditions enter into agreements which may be binding on the minor members of the family.
5. The distinction between contracts made by a guardian of a minor or a manager of the estate of a minor on the one hand and the contracts made by a managing member of a joint Hindu family consisting of minors is clear. In the first case such a contract cannot be specifically enforced for lack of mutuality, while in the second case there is no want of mutuality because a manager of a joint Hindu family has power to make binding contracts on behalf of the joint family.
6. According to the law, as it stands now, the manager of a joint Hindu family may sue or be sued as representing the family in respect of transactions entered into by him as manager of the family or in respect of joint family property, and a decree passed against him would bind all other members of the family. The only limitation to his power is that it must be shown that he acted for the benefit of the joint family. In the case before us, it was open to the plaintiffs to have sued Reoti alone for the specific performance of the contract as representing the joint family. If a decree had been passed, it would have been binding on the other members of the joint family of the minor. The only ground on which he could have challenged that decree would have been that the transaction was not for his benefit. Now, we see that in the case before us a suit was instituted for the specific performance of a contract by the plaintiffs. It was open to them to have sued only the manager as representing the entire family but somehow, in my opinion, unnecessarily, they made the minor a party to the suit. The suit was decreed ex parte against the minor. It appears that the minor can avoid that decree against him only by showing that the transaction was not for the benefit of the estate and as that point has been decided against him he cannot now avoid that decree. If the contention raised by the learned Counsel for the appellants were accepted then the logical consequence of it would be that a manager of a joint Hindu family would never be able to enter into contracts, even if they be for the benefit of the estate, which could be specifically enforced against the members of a joint family. The result would be that the powers of the karta of the family to make binding contracts for the benefit of the joint family would be curtailed.
7. Another ruling on which reliance was placed by the learned Counsel for the appellants is Sri Nath v. Jutendra Mohan 1926 Cal. 445. That case is clearly distinguishable. There the contract was made by several persons who were adults and a guardian of a minor. It was not a case where the contract sought to be specifically enforced had been made by a manager of the joint Hindu family. The learned Judges who decided the case held that there could be no specific performance of contract for want of mutuality. In the case before us, as I have shown above, mutuality is not lacking because the head of the joint family was competent to make a binding contract in his capacity as a manager, for himself as well as for the minor. The learned Counsel appearing for the appellant has laid particular stress on the following observations made by their Lordships of the Privy Council in Hunooman Pershad Pande v. Babooee Mundraj Kunwari (1854-57) 6 M.I.A. 393:
The powers of the manager for an infant heir to charge the estate not his own is under the Hindu law a limited and qualified power. It can only be exercised in case of need, or for the benefit of the estate.
8. The appellants' learned Counsel contends that as there is no difference between the powers of a guardian of a minor or a manager of the minor's estate on the one hand and the karta of a joint family on the other hand so the contracts made by a manager of the same family stand on the same footing as those made by a manager of a minor's estate or by a guardian of an infant heir. I do not think that there is anything in the above cited judgment of their Lordships of the Privy Council to support the contention put forward by the learned Counsel appearing for the appellants. I may point out that their Lordships of the Privy Council in Mir Sarwar Jan v. Fakharuddin Mohamnmad (1912) 39 Cal. 232, clearly stated that they were unable to accept the view that there was no difference between the position and powers of a manager and those of a guardian. I would go further and add, for the reasons given by me above, that there is difference between the position and powers of a manager of the minor's estate and the powers of a manager of a joint Hindu family. In the case of contracts made by a guardian of a minor or manager of minor's estate there is lack of mutuality while in the second case there is no want of mutuality because the manager of a Hindu family has powers to make contracts which would bind the entire family subject to certain limitation. In Hunooman Pershad Pande v. Babooee Mundraj Kunwari (1854-57) 6 M.I.A. 393, their Lordships were only considering the question as regards the extent of the power of a manager of the estate of the minor to make an alienation. The question which has to be decided here did not come up for consideration before their Lordships of the Privy Council. For the reasons given above I am of opinion that where a manager of a joint Hindu family makes a contract for himself and on behalf of a minor coparcener then such a contract can be specifically enforced against the minor if it is proved that it was made for family necessity or for the benefit of the minor.
9. I wish to add that in the case before us there are other reasons for which the appeal must fail. The one-half in the house in suit has been sold by Reoti to a third party who is in possession under the terms of the second sale deed. The decree for the specific performance of the contract made in favour of the plaintiffs has already been passed against the minor and that decree can be set aside only by showing that the contract made by his brother was not for his benefit. In the case before us it has been found that there existed a family necessity for the sale in favour of the plaintiffs. For the reasons given above I hold that the decision of the learned Single Judge of this Court which is under appeal is correct and I would there, fore dismiss the appeal with costs.
10. I agree. If the case had been purely res integra there might have been something to be said for the contrary view, but the learned advocate for the appellants has to concede that while there is a Full Bench decision of the Patna High Court followed by the Nagpur Court against him which is directly in point, there is no case of any other High Court expressly in his favour. As pointed out by Iqbal Ahmad, J., there is a marked distinction between the position of a manager of a joint Hindu family and a mere guardian of a minor owner. In the former case the manager represents the whole family as one unit to the outside world and the property is vested in him jointly with the other members. In the case of a mere guardian the property of the minor is not vested in him at all and. he is acting merely as the agent of a minor who would not otherwise be capable of acting. In the case of the managing member the contracting party is the whole family as one unit acting through the manager, whereas in the case of a minor owner the contracting party is the minor who however acts through his guardian. That the Hindu family is a distinct unit which can sue and be sued and is not merely a group of independent individual members is quite clear. It can own property, it can acquire tenancy rights, sir rights, and it can be taxed under the Income-tax Act as a unit and not merely as a group of separate members. Another consideration makes the point clearer still. There may be a joint Hindu family which has not minor members at all but consists of junior members who are all adults. In such a case it would be incongruous to regard the manager of a joint Hindu family as guardian of the other coparceners, treating them as if they were his minor relations. Such a position would be wholly untenable. In the case of a minor on whose behalf his guardian acts, there may in certain eases be a lack of mutuality and if the contract cannot be enforced against the minor it may also not be allowed to be enforced on his behalf.
11. In the case of a managing member there are also some limitations and conditions. His authority to alienate family property is not absolute, bat is conditional on the existence of a legal necessity or the benefit of the family or in a case when he is the father of the other members the need for the payment of his antecedent debts. But when such conditions exist, then his authority to alienate property is complete and in ho way limited. The authority to alienate property necessarily implies authority to contract to alienate it first and then to fulfil the promise by alienating it.
12. The learned advocate for the appellants contends before us that although his clients would not have had any locus standi to challege the alienation after it had taken place when the existence of legal necessity was established, they are entitled to resile from it so long as there has been only a decree passed by the Court and actual separation of the share by partition or execution and registration of the sale deed has not been effected. Now in ordinary cases a person who has entered into a binding contract for which he had full authority is not allowed to resile from it. 'Whether the Court would enforce specific performance or mot is another matter, which is dependent on various circumstances. The question then is whether the junior members of a joint Hindu family of which there is a manager who for legal necessity entered into a contract for the sale of the family property, although he has received consideration, can avoid the transaction. As in my opinion there is a clear distinction between the position of the manager of a joint Hindu family and that of a guardian of a minor owner, the rulings relating to such guardians do not directly apply to the case of managing members. If the authority to alienate existed at the time of the contract then in my opinion a subsequent change of circumstances affecting the family should not make any differences far as the binding character of the contract is concerned. As pointed out by my learned brother, the manager represents the joint Hindu family to the outside world for the purposes of its dealings, and if the managing members are not allowed to enter into contracts on behalf of the families, which are within the scope of their authority, it would be impossible for the family to carry on any transactions. I may also add that the authority of the manager to alienate the property or the derived authority to enter into a contract to alienate is vested in the manager under the Hindu law, but once the transaction has matured into a binding agreement the case is really governed by the Indian Contract Act and its specific performance is governed by the Specific Belief Act. Courts have a discretion to refuse specific performance when they are satisfied that the case is not a fit and proper one in which such performance should be ordered. Obviously if it were established that there was no legal necessity for transfer or that it was not for the benefit of the minors concerned, the Court would decline to enforce it specifically. But where the contrary is the case and it has been affirmatively established that legal necessity existed or that it was for the benefit of the family, it is difficult to hold that the contract can be avoided simply because the Court has only passed a decree which has not yet been fully executed.
13. I may also like to add that I am not prepared to accept the contention urged on behalf of the respondents that the minor co-parcener has no locus standi to raise objections because there is a decree outstanding against him in which he had been impleaded under the guardianship of his elder brother and which has not yet been formally set aside. Section 44, Evidence Act, has no application to such a case. If the minor was not in reality properly represented in that suit then he was not a party to that judgment and it cannot stand in his way. The mere fact that he has not yet brought a suit to have it set aside does not debar him from raising the same objection as a defendant in the pie-sent suit. I therefore agree that the appeal should be dismissed.
14. The order of the Court is that the appeal is dismissed with costs,