1. This appeal has been filed by the plaintiff-appellants against the judgment passed by the Addl. District Judge, Vidisha, in Original Suit No. 2-A of 1968 wherein the plaintiff-appellants' suit was dismissed. The plaintiff-appellants filed the present suit for specific performance of contract for sale in respect of immovable property. The contract initially was executed by Prembai (since deceased) sister of respondent No. 1 and this contract was in favour of appellant No. 1 minor through next friend hislather appellant No. 2. The properties in-cluded agricultural land and a house for Rs. 11,000/-, out of which Rs. 2,000/- were paid in advance and Rs. 9,000/- were to be paid at the time of the sale. This contract was executed in writing and was registered on 25th October 1966. After the suit was filed the respondent defendants contested the suit on the ground that there was no privity of contract between him and the minor, but this plea raised by the defendant-respondent was interpreted by the learned trial Court as want of mutuality between the contracting parties as one of the contracting party was minor and on that ground applying Section 22 of the Sepcific Relief Act dismissed the suit on preliminary question and hence this appeal.
2. Two issues were framed by the learned trial Court:--
(1) Whether there was privity of contract between the deceased Prembai and the minor plaintiff and if, so, is the plaintiff entitled to file the present suit ?
(2) Has the plaintiff-guardian of the minor obtained permission from the District Judge for acquiring this property for the benefit of the minor The learned trial Court found both the issues against the plaintiff-appellants and dismissed the suit.
3. As regards the second issue about obtaining permission from the District Court both the sides frankly conceded before us that this view taken by the learned Courts below is absolutely unjustified. There is no question of obtaining permission of the District Court for the father guardian of minor plaintiff to acquire property for the benefit of the minor. Apparently, there is no such law where such permission was necessary when a father-guardian acquires property for the benefit of his minor son. Consequently, the decision on this issue of the learned Courts below cannot be maintained.
4. As regards the question of mutuality, it is also strange that after the amendment of the Specific Relief Act still the learned trial Court went on discussing the question under Section 22 of the old Specific Relief Act, and various decisions under that provision about the doctrine of mutuality. Both the learned counsel frankly conceded that it appears that the counsel of both sides as well as the learned Judge of the trial Court lost sight of the fact that the Specific Relief Act has been amended and old Section 22 wherein the doctrine of mutuality had created a lot of controversy has not been incorporated in the new Act. Not only that under the new Act Section 20(4) provides:--
'20. Discretion as to decreeing specific performance-
(4) The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.'
By adding this provision it has been specifically provided that merely on the ground that the contract is not enforceable at the instance of the other party specific performance cannot be refused. This new Specific Relief Act was enacted in the year 1963 and was published in the Gazette of India after the assent of the President on 13th December, 1963. The Act came into force on 1st March, 1964 vide notification No. S. O. 189 dated 13-1-1964, published in the Gazette of India, dated 18-1-1964, Part II, Section 3(ii), Page 214. The contract in question was executed on 25th October, 1966, and the suit for enforcement of the contract was filed on July 1, 1968. Apparently, therefore, it was the Act of 1963 which has to be applied and the learned Court below was in error in applying the provisions of the old Specific Relief Act and dismissing the suit of the plaintiffs.
5. It was contended before us by the learned counsel for the appellants that the introduction of Sub-clause (4) in Section 20 clearly goes to show what the Legislature intended leaving aside the doctrine of mutuality altogether. The learned counsel Shri B. D. Gupta also referred to the Select Committee's report where it was observed that the controversy about the doctrine of mutuality under the British law was no longer considered suitable for India and consequently an amendment in law was incorporated whereby the doctrine of mutuality was left aside as a necessary test for specific performance of the contract. The learned counsel Shri H. G. Mishra for the respondent, however, contended that although so far as Sub-clause (4) of Section 20 is concerned there are no decisions so far but the learned authors have noted their own views in the matter, and, therefore, he contended that the language of Section 20(4) goes to show that the doctrine of mutuality has not been left out of consideration completely. But this clause indicates that only on this ground specific performance cannot be refused, In this connection he referred the observations made by Shri G. C. Subba Rao in his Law of Specific Relief (Second Edition). Shri G. C. Subba Rao in his commentary under the scope of Sub-clause (4) of Section 20 observed at page 447 as under:--
'Section 20, Clause (4) precludes the refusal of specific performance 'merely' on the ground of want of mutuality. The use of the word 'merely' suggests that if want of mutuality is not the only factor, it may be taken into account along with other factors and the Court may decline specific performance as a result of the cumulative effect of all the factors of which want of mutuality may be one.'
Whereas in the Indian Contract and Specific Relief Acts (Ninth Edition) of Pollock and Mulla edited by J. L. Kapur about this Sub-clause (4) of Section 20 it has been observed at page 878 as under:--
'It is a little difficult to appreciate the necessity for this sub-section, having regard to Section 12, which clearly discards the doctrine of mutuality. Subsection (4) clearly postulates that there must be a contract, and where there is no contract, there can be no case for specific performance.'
The Indian Law Commission in its report on the Specific Relief Act observed :--
'We do not consider it necessary to import the doctrine of mutuality into our codified law of specific performance. On the contrary we could do away with the doctrine in Sarwarjan's case (39 I. A. 1) by inserting in Section 22, a provision embodying the law as stated in American Restatement as follows :-- 'The fact that the remedy of specific enforcement is not available to one party is not a sufficient reason for refusing it to the other party'. '
It is clear that it was this recommendation of the Law Commission that has now been incorporated in Sub-clause (4) of Section 20. The language used in this sub-clause, in our opinion, does not justify the inference that the doctrine of mutuality has completely been thrown out of consideration. The use of the word 'merely' in this sub-section clear-ly goes to show that on this ground alone a relief of specific performance cannot be refused. This clearly goes to show that if there are other circumstances which could be considered for refusal of specific performance along with them this doctrine also could be considered. In our view, therefore, the only interpretation possible of this sub-section appears to be that merely on the ground of want of mutuality a suit for specific performance cannot be thrown out. In the present case the learned trial Judge has chosen to throw out the suit only on this ground, consequently, the decision passed by the learned trial Court cannot be maintained.
6. It appears that after this controversy before the Courts below in viewof the old Specific Relief Act the plaintiff-appellants chose to move an application for amendment seeking to introduce father or guardian as plaintiff himself on the ground that he had entered into the contract Benami in the name of the minor. This application for amendment was also refused by the learned trial Court. However, we feel that in view of the conclusions arrived at by us such an amendment may not be necessary and the plaintiffs themselves may abandon this application. However, without going into the controversy as to whether the application was rightly rejected or not, we would set aside the rejection of the application and leave it open before the trial Court for the plaintiffs to press that application if it is thought necessary in the changed circumstances and if so the trial Court shall afresh decide that application independently,
7. In the light of the discussion above, the appeal is allowed, the judgments and decrees passed by the Courts below are set aside. The case is sent back to the trial Court for its disposal in accordance with law. As the suit was dismissed on a preliminary ground and this appeal has been perferred the appellants are entitled to a certificate for refund of court-fees. But in the circumstances of the case none of the parties bothered to bring to the notice of the Court, the provisions of the new Specific Relief Act, and hence, they are directed to bear their own costs and the plaintiff-appellants shall be given a certificate for refund of the court-fees.