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Abdulsattar Vs. Ismail and ors., Heirs of Abdulrehman (Deceased) - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 68 of 1954
Judge
Reported inAIR1958MP373
ActsSpecific Relief Act, 1877 - Sections 19 and 21; Contract Act, 1872 - Sections 64
AppellantAbdulsattar
Respondentismail and ors., Heirs of Abdulrehman (Deceased)
Appellant AdvocateR.B. Vora and ;S.R. Joshi, Advs.
Respondent AdvocateJ.D. Patel, Adv. for Respondents (Ismail, Rajibai and Kheranbai)
DispositionAppeal dismissed
Cases ReferredIn Alakhram v. Mt. Kulwantin Bai
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - subba rao, air 1948 pc 95 (a). the decision clearly indicated, according to the learned.....v.r. newaskar, j. 1. this appeal arises out of a suit brought by plaintiff abdul sattar against his brother abdul rehman and the latter's son ismail for specific performance ofagreement dated 23-11-1931 entered into between abdul sattar and abdul rehman the latter acting as' she guardian of his minor son ismail. the suit was dismissed by the trial court and plaintiff now appeals, 2. plaintiff came to court with the allegationsthat he owned a house in moholla rangrcjoki sadak in the town of ratlam. some time in 1931, the plaintiff got into financial difficulties. he became indebted to the people in the bazar and was placed in a situation which compelled him to sell his house. with a view to save the house for the family the plaintiff decided to effect a sale of the house in the name of his.....
Judgment:

V.R. Newaskar, J.

1. This appeal arises out of a suit brought by plaintiff Abdul Sattar against his brother Abdul Rehman and the latter's son Ismail for specific performance ofagreement dated 23-11-1931 entered into between Abdul Sattar and Abdul Rehman the latter acting as' she guardian of his minor son Ismail. The suit was dismissed by the trial Court and plaintiff now appeals,

2. Plaintiff came to Court with the allegationsthat he owned a house in Moholla Rangrcjoki Sadak in the town of Ratlam. Some time in 1931, the plaintiff got into financial difficulties. He became indebted to the people in the Bazar and was placed in a situation which compelled him to sell his house. With a view to save the house for the family the plaintiff decided to effect a sale of the house in the name of his minor nephew Ismail at the suggestion of hisbrother Abdul Rchman who induced him to believe in case the house were sold in the name of Is-mail for a consideration of Rs. 2.051/- by executing a duly registered deed of sale the house would be resold back to the plaintiff at any time subsequently on his repaying the amount of consideration received;that relying upon this representation the plaintiff effected a registered deed of sale in the name of Ismail and obtained consideration for the sale.

At the same time another agreement was executed by Abdul Rehman acting as the guardian of his minor son agreeing to re-sell the house whenever either the plaintiff or his children would pay the price received by him and would desire the house to be re-sold. The plaintiff thereafter went away from Ratlam. He returned to Ratlam in 1947 and after securing the original agreement from the Registration Office required the defendants to re-sell the house to him on payment of Rs. 2,051/- and to deliver back possession of the: same; that the defendants first evaded and ultimately refused to comply.

Notices were given to both the defendants through counsel and ultimately the present suit is brought. Plaintiff stated that the present value of the house was Rs. 8,000/- and that the defendants were bound to restore the house to him under the agreement but that in ease for any reason that relief were not granted the plaintiff ought to be paid damages measured by the difference between the present value of the house and the price at which it was sold on 23-11-1931. The suit was brought in forma pauperis. There is no specific averment in the plaint showing plaintiff's readiness and willingness to perform his part of the contract under the agreement sued upon. Nor is it made clear therein what, under the agreement, the plaintiff was liable to do, besides paying back the price.

2A. Both the defendants filed separate written statements. Defendant 1. Abdul Rchman contended that the plaintiff had sold the house to Ismail by his own free will and obtained consideration. Subsequent agreement entered into by him for and on behalf of his minor son for its re-sale was neither for the benefit of the minor nor with proper authority and was therefore void. It was also contended that the deed suffered from want of mutuality, The claim for damages was also not admitted. The defence put up by Ismail was practically similar although he disclaimed knowledge on his part regarding the execution of the agreement. The agreement was said to be unilateral and conferred no corresponding obligation of purchase at any point of time. It was also contended that defendant No. 2 after its purchase had spent Rs. 1,000/- for its repairs and that the plaintiff cannot claim specific performance unless he is prepared to pay the aforesaid sum with interest at I per cent per month.

3. Issues, bearing on the questions of execution of the suit agreement, its binding character so far as defendant No. 2 was concerned, the liability of defendant No. 1 under that agreement, the market value of the house in suit being Rs. 8.000/-, right of the plaintiff to obtain re-sale or damage and limitation, were framed.

4. The trial Cour0t found the execution of the suit agreement by defendant No. 1 for and on behalf of defendant No. 2 established. He however held that the document was not binding upon defendant No. 2 on various grounds including want of mutuality, delay in suing for specific performance, unreasonable character of the term entitling the plaintiff or his 'sons to sue the defendant or his sons at any time on offering the initial price although the prices might have soared to any height in the meanwhile and the constant restraint put on defendant No. 2's power of alienation. It was also found that R,s. 500/- to Rs. 600/- had been spent for repairs during this period when the plaintiff was bound to repay under the termsof the agreement. He further held that defendant No. 2 could not be hold personally liable for the breach as he was minor at the time of the agreement nor was Abdul Rehman liable. The trial Court on these findings dismissed plaintiffs suit in its entirety.

5. This appeal is preferred on behalf of the plaintiff against that decision.

6. Mr. Joshi for the plaintiff-appellant contended that the Court below did not take sufficient account of the decision of the Privy Council reported in Subrahmanyam v. Subba Rao, AIR 1948 PC 95 (A). The decision clearly indicated, according to the learned counsel, that the doctrine of mutuality, as regards contracts for and on behalf of minors, is no longer applicable and that it is competent for a guardian of a minor to bind the minor by means of an agreement to transfer minor's property provided the guardian had 'authority to do so and further provided that it was for the benefit of the minor. Strong reliance was sought to be placed upon the observations of Viswanatha Sastri J. in Ramalingam v. Babanambal Ammal, AIR 1951 Mad 431 (B), wherein the learned Judge had criticised the view of the Privy Council in Mir Sarwarjan v. Fakhruddin, 39 Ind App 1 (C).

The learned counsel further contended that the transaction of sale to the minor and the agreement to recovery the property whenever the price is offered cannot be considered as two distinct transactions. The minor in that event cannot take benefit under one part of the transaction and escape the liability under the other part. Minor, it is said, could, if he so desired, avoid the transaction as a whole. In that event all that the minor would be entitled to was refund of price paid for the transaction of sale to the plaintiff. Reliance was placed upon the decisions reported in Vishweshwar v. Durgappa, AIR 1940 Bom 339 (D) and Sitarama Rao v. Venkatarama, (S) AIR 1956 Mad 261 (FB) (E), in this connection.

7. On the other hand Mr. Patel for the respondents contended that in the first place there is no averment in the plaint that the plaintiff bad been ready and willing to perform his part of the contract, lie pointed out that the plaintiff had brought the suit in forma pauperis and when in the witness-box he was put a question how was he in a position to pay the price he stated that he would purchase the house after obtaining money by mortgaging the same. The learned counsel further relied upon the decision of the Pirvy Council in AIR 1948 PC 95 (A), and urged that in this ease none of the conditions which authorised a Muhammadan guardian to agree to sell the minor's property as indicated in S. 362 of Mulla's Muhammadan Law (Fourteenth Edition page 301) are present.

It is further pointed out that no benefit could possibly accrue to the minor by this transaction of sale. Doctrine of mutuality, according to him, is applicable in this case and that neither the plaintiff nor Ismail can sue the other for specific performance. Lastly he urged that since the plaintiff has not averred readiness and willingness to perform his part of the contract and had no capacity to do it he cannot claim compensation under Section 19 of the Specific Relief Act. The breach in this ease is really his and' not of the defendant.

8. Questions which arise for consideration on these facts and submissions are :

(1) Is the contract for sale not specifically enforceable on the ground that it relates to the property of a minor and had been entered into by his father?

Will the principle of mutuality apply in- this case?

(2) Are the transactions of sale and agreement to, reconvey part of the same transaction and if socan the defendant who was minor at the time of the transaction accept sale and repudiate the agreement to reconvey?

(3) What is the effect of absence of averment in the plaint regarding plaintiff's readiness and willingness to perform his part of the contract?

(4) Assuming that the defendant Ismail, who was minor at the time of the transaction having accepted sale cannot repudiate the agreement to reconvey, arc there reasons why specific performance ought not to be granted in this case?

(5) Can the plaintiff ask for compensation under Section 19 of the Specific Relief Act in ease the relief of specific performance ought not to be granted in this case?

9. As regards the first question, after the decision of the Privy Council in 39 Ind App 1 (C), general view appeared to prevail that the doctrine of mutuality applied to an agreement of sale no less than to that of purchase and that an agreement of sale of immovable property of a minor could not be specifically enforced by a minor inasmuch as such a contract cannot be specifically enforced against him.

10. In Krishna Chancre v Rishabha Kumar, AIR 1939 Nag 265 (F), this Court held relying upon the decisions in Narayanan Chetty v. Muthiah Chetty, ILK 47 Mad 692: (AIR 1924 Mad 680) (G), Swaratha Ham Ram Satan v. Ram Ballabh, ILR 47 All 784: (AIR 1925 All 595) (H), Nripendra Chandra v. Ekhet-ali, AIR 1930 Cal 457 (I) and Abdul Haq v Yehia Khan, AIR 1924 Pat 81 (J), that even a contract for the sale of minor's property entered into by the guardian even for the purposes of legal necessity or for minor's benelit is not specifically enforceable. The decision to the contrary in Brahamdeo v. Haro Singh, AIR 1935 Pat 237 (K) of Wort J. was not approved on the ground that the learned judge in that case had not taken into account the distinction existing between an alienation which is at an executory stage and one which is a completed one. Niyogi J. who decided the Nagpur case referred to above observed as follows :

'The relief of specific performance is a relief in equity and the question which the Court is faced with is whether it should compel the minor to perform the onerous act of alienating his property in consequence of a contractual obligation incurred by his guardian.'

11. However the later decision of the Privy Council reported in AIR 1948 PC 95 (A), has again disturbed what was, prior to it, considered as settled view on the subject. In that case an agreement in writing for the sale of a Hindu minor's property was entered into by his mother who acted as his guardian. The sale was intended for the purpose of legal necessity viz. the payment of the debts incurred by his father. After the contract had been entered into possession was delivered to the purchaser on receipt of consideration. No sale-deed was however executed. Minor then filed a suit for possession contending that the agreement entered into by the mother for sale of his property was not binding upon him.

Defence to that suit was that Section 53A of the Transfer of Property Act applied as the minor was a 'transferor' within the meaning of the term as used in that Section. The suit was dismissed by the trial Court upholding the defence. But on first appeal the decision was reversed and a decree for possession was granted. Second appeal to the High Court was unsuccessful. On appeal by the defendant to the Privy Council the decision of the trial Court was restored. Their Lordships approved of the following observations in Mulla's Indian Contract and Specific Relief Act 7th Edition Page 70 viz :

'It is, however, different with regard to contracts entered into on behalf of a minor by his guardian orby a manager of his estate. In such a case, it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council, that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all.'

Their Lordships further said :

'In the present case neither of the two conditions mentioned is wanting, having regard to the findings in the Courts in India. It would appear, therefore, that the contract in the present case was binding upon the respondent from the time when it was executed. If the sale had been completed by a transfer, the transfer would have been a transfer of property of which the respondent, and not his mother, was the owner. If an action had been brought for specific performance of the contract, it would have been brought by or against the respondent and not by or against his mother.'

12. The question as to the true effect of the later decision of the -Privy Council in AIR 1948 PC 95 (A) was considered by Viswanatha Sastri J. in AIR 1951 Mad 431 (B). The learned Judge expressed his opinion that the doctrine of mutuality as applied in the earlier Privy Council decision in 39 Ind App 1 (C) did not represent the correct principle and that the later Privy Council decision in AIR 1948 PC 95 (A) discards the same. The learned Judge reasoned in the alternative that even on assumption that the view expressed in Mir Sarwarjan's case (C) survives in spite of the later decision there is no necessity to extend the principle of that decision to the contract for sale of ward's property by his guardian in as much as the vital question with regard to existence of legal necessity or the benefit to the estate cannot arise in the Case of transactions of purchase.

It would, according to the learned Judge, be anomalous to hold that specific performance cannot be had of a contract of sale which usually and normally precedes such a sale by guardian and that if the alienation is good it is good whatever may be the stage at which it may be. It may be either a completed transaction or it may be at an executory stage. However its binding character will have to be determined not with reference to the stage at which it is but with reference to the question whether the person who acts for the ward had legal capacity to do it and whether he acts either on consideration of legal necessity or benefit to the minor.

13. This question was later considered by two Full Bench decisions of the Madras and Andhra High Courts. Their decisions arc reported in (S) AIR ] 956 Mad 261 (FB) (E) and Suryapiakasam v. Gangaraiu, (S) AIR 1956 Andhra 33 (FB) (L).

14. In the Madras Full Bench case the facts are as follows :

A sale-deed was executed in favour of two brothers A and B of whom A was major and B a minor. On the same date vendees A and B executed a deed in favour of the vendor whereby A and B, acting through A, agreed to reconvey the property to the vendors after B attains majority, the consideration being the same as mentioned in the sale-deed. The vendors transferred the benefit under the agreement to C, who sued A and B for specific performance. It was contended on behalf of the defendants that the agreement of reconveyance was not binding upon B and A was not the manager of the family, as the agreement imposed onerous burden upon the minor, and further because the contract being executory was violated by want of mutuality.

15. Govinda Menon J. who delivered the majority judgment again considered the true effect of the two Privy Council decisions. According to his view the authority of 39 Ind App 1 (C) is not shaken by the later decision in AIR 1948 PC 95 (A). He held that the later Privy Council decision should be understood in the sense that a contract for sale of property by a guardian which is partly performed should be put on the same footing as a completed sale and that the transferor contemplated under Section 53A of the Transfer of Property Act was the minor and not the guardian.

The learned Judge was not prepared to accept strong dissent expressed by Viswanatha Sastri J. of the view of Lord Macnaghten in Mir Sarwarjan's ease (C). He however agreed with his view that a contract for sale of property being an essential preliminary to-the sale itself, its enforceability against the minor has to be judged by the same tests as are applicable to the transfer of ward's property by a guardian where it fructifies into a sale which can be upheld on the basis of necessity or benefit to the minor's estate. He further held that the import of two kinds of contracts of purchase and safe of a ward's property by the guardian are distinct and different and mat the principle of mutuality is applicable in the former and inapplicable in the latter case.

16. As to the contracts entered into by an individual on his own behalf and as guardian of a minor with respect to property belonging to both of them-it was held by him that the doctrine of mutuality cannot apply. Reliance in this connection was placed by him upon the decision of Varadachariar J. in Chinnakkal v. Chinnathambi, AIR 1934 Mad 703 (M); and that of the Privy Council reported in Sakalaguna v. Munnuswami, AIR 1926 PC 174 (N). The former was a case of sale by the mother of the property of herself and her minor son and a contract for reconveyance in their favour entered into on the same date. Mother sought specific performance.

Defence of want of mutuality was raised but was negative. In the latter case a Hindu father sold property belonging to himself and his minor son and the purchaser agreed to reconvey the property for the-same consideration later. In that case it was held that the option created by the agreement could be enforced not only by the father and his son personally but also by the assignees.

17. This question with regard to specific enforcement or contract entered into by a guardian of a Hindu minor was considered by the Full Bench of Andhra High Court in the case reported in AIR 1956 Andhra 33 (FB) (L). Viswanatha Sastri J., was a-member of this Bench. Subba Rao C. J., who delivered the judgment, reviewed the entire case law and practically confirmed the view expressed by Viswanatha Sastri J., that the decision in AIR 1948 PC 95 (A) overruled the decision in 39 Ind App I (C) and those Indian decisions which were based on it. According to the learned Judge there cannot be essential distinction between a contract of purchase and a contract of sale.

He broadly stated that a contract of sale or purchase entered into by a guardian of a Hindu minor is specifically enforceable against the minor provided' it is for legal necessity or minor's benefit. But a valid and enforceable contract cannot in itself deprive the-Court of its discretionary power to refuse to enforce the contract if the supervening circumstances obviously affect the interest of the minor.

18. Thus the two Full Bench decisions appear to take different view as to the applicability of principle of mutuality to the contracts for the purchase or property made by a guardian. Whereas the Madras Full Bench holds that the authority in 39 Ind App 1(C) is not shaken by the later decision in AIR 1948 PC 95 (A) the decision in the Andhra Full Bench case (L) takes the view that Mir Sarwarjan's case (C) is practically overruled by the later Privy Council case (A).

19. Both the Full Bench decisions however are one as regards agreement for sale of minor's property entered into by his guardian. Such contracts, according to them, are specifically enforceable provided they are for purposes of legal necessity or benefit to the estate and that no distinction can be drawn whether the contract is partly or wholly executory. Madras Full Bench further holds that where the transfer is of property jointly owned by the minor and another who acts as his guardian in the transaction, doctrine of mutuality cannot be applied and in case the transaction is one for legal necessity or benefit to the estate it is specifically enforceable.

20. It was also held that where a sale is followed by an agreement of reconveyance both should be treated as one transaction and it is not open for the minor to repudiate the liability to reconvey at the same time retaining to himself the advantage gained by the purchase.

21. I shall deal with the last mentioned statement of law later when I shall consider question No, 2.

22. On consideration of the principle deducible from the aforesaid two Privy Council decisions read in the light of the two Full Bench decisions referred to above. I am inclined to the view that the decision of the Privy Council in Mir Surwarjan's case (C) is not overruled by the later decision in AIR 1948 PC 95 (A) and that where a guardian of a minor enters into contract for the purchase of an immoveable property the contract is one which is not binding upon the minor and consequently neither the minor nor the vendor can specifically enforce the same and the principle of mutuality applied.

23. But the case is different where the guardian enters into a contract for alienating the immoveable property of his ward. In that case the binding character of the contract depends upon two conditions namely (1) that the guardian or in the case of a Hindu minor the manager of his estate has legal capacity to enter into such a contract on behalf of the minor so as to bind him by it and (2) the contract is for minor's benefit. If either of these two conditions is wanting the contract cannot be specifically enforced. It is also clear that where both these conditions are fulfilled the contract is binding at the inception and no question as to whether the same is executed or executory arises.

24. In the present suit the question relates to a contract to sell the minor's property entered into by the father where the parties are Mohammedans. The plaintiff has not based his suit on the ground either that the minor is not the real owner and that the transaction is benami, the real owner being the father, or that the transaction is one of mortgage. We will therefore have to assume for the purpose of this suit that there was sale of the house in question to minor Ismail and an agreement was executed by the minor's father Abdul Rehman for the sale of minor's property for the same consideration which was paid at the time of its purchase at any time when a demand is made by the plaintiff for the purpose.

25. Abdul Rehrnan was no doubt de jure guardian of the minor son Ismail. But even a de jure guardian of the property of a minor amongst Mohammedans, has no power to sell or agree to sell the immoveable property of the minor except under one or more of the seven conditions mentioned in Section 362 of the Mulla's Mohammedan Law, 14th Edition p. 301-and also vide Ameerali's Mohammedan Law, Volume II pages 594-95, Third Edition. None of these condi-tions existed in this case and therefore it cannot be said that the father could agree to sell the property of the minor so as to bind him. Moreover it cannot be said that the agreement of sale was for the benefit of die minor in case the question of benefit is considered independently of the Initial transaction of purchase whereby the minor acquired the property. Viewed in that light there appears to be no benefit to the minor to sell his property irrespective of the possible rise in the general level of prices or special rise due to its peculiar situation.

26. Thus applying the tests laid down in AIR 1948 PC 95 (A) the father had neither the legal capacity to enter into agreement for sale nor was the agreement considered independently or' the transaction of purchase for minor's benefit. The agreement therefore regarded purely as one of sale is not specifically enforceable.

27. The second question which we have now toconsider is how defendant Ismail's defence in this-case is affected by the doctrine of approbate and reprobate i.e. whether the minor, having obtained the-property by means of a purchase made by the guardian, can repudiate his liability to sell when the-transaction of purchase formed a consideration for the agreement of sale. The two transactions of purchase and sale are in this case simultaneous and it is reasonable to assume that' the transaction of purchase was subject to the obligation to sell.

28. This question has been considered in number of cases latest decision being the Madras Full Bench case reported in (S) AIR 1956 Mad 261 (E) referred to above.

29. In Sohanlal v. Atal Nath, AIR 1933 All 843 (O), question involved was regarding binding character of an agreement of sale entered into by a leading member of a joint Hindu family for the sale of property which was acquired simultaneously with it. The learned Chief Justice Sulaiman held as follows :

'The property which is in dispute in this suit was one-third share in three villages which had never belonged to the family at all and in which the minor Bad no interest. The leading members were going to-acquire the shares for the first time and were in need of raising money for the purpose. They were in no sense jeopardising the interest of the minor in the family property or imposing any personal liability on the minor for the payment of this amount. What happened was that they wanted to raise money for the acquisition of fresh property and agreed that if they were unable to pay the amount borrowed to the creditor he should have that property instead. We do not think that a'minor member of the family can take a share in the property so acquired and at the same time repudiate the authority of the other members to enter into such a contract. If he wishes to repudiate such a contract he must repudiate the whole of it and not take a benefit under it'

30. In Sriniyasalu v. Raju Naicker, (S) AIR 1955 Mad 635 (P), Chief Justice and Rajagopala Ayyangar J., confirmed the decision of Viswanatha Sastri J., who held that the sale and agreement to reconvey should be considered as parts of the same transaction and that both of them were executed in fulfilment of a single contract. It was further held by him that in such a case it would be impossible to prove necessity, or benefit for the agreement to reconvey standing by itself and that the agreement to reconvey need not' be justified by legal necessity or benefit any more than the sale to the family.

31. In the later Full Bench decision in (S) AIR 1956 Madras 261 (E), Govinda Menon, T. approved of the view taken in (S) AIR 1955 Mad 635 (P) and held that if the agreement to reconvey was the part of the bargaining which brought about the sale then;the agreement could be supported on the ground of benefit.

32. It was further held by him that if the minor defendant docs not want to take advantage of the purchase he can disclaim the purchase and claim consideration paid for it but that he will not be allowed to approbate and reprobate at the' same time.

33. It therefore follows from these decisions that although the agreement to sell standing by itself be subject to objection on the score of want of benefit to the minor yet in as much as the property had not been owned by the minor prior to its purchase in the course of very transaction he cannot be allowed to accept the sale and repudiate the liability to reconvey on the ground that the latter conferred no benefit.

34. However it may be mentioned here that the plaintiff arid his brother Abdul Rehman who acted for his minor son Isrnail both had agreed that the property should belong to the minor, A registered deed was executed for the consideration moving from Abdul Rehman. The property legally vested in minor Ismail. Second transaction of re-sale from its very nature premised the completion of the first and the question then regarding capacity of Abdul Rehman to sell the property in the absence of any of the seven conditions mentioned in Section 362 of Mulla's Muham-madan Law, still survived.

This want of capacity or power to sell cannot be supplied by any resort to the doctrine of approbate and reprobate although no objection regarding benefit to the estate could be raised in view of the aforesaid authorities. In AIR 1933 All 846 (O) and (S) AIR 1955 Mad 635 (P), the person acting for the minor possessed legal capacity to act for the minor while in (S) AIR 1956 Mad 261 (FB) (E) the major defendant acted as de facto guardian and his capacity was linked with the question of benefit to the estate.

35. I may now proceed to the third question. The plaint in this case does not contain specific averment regarding plaintiff's readiness and willingness to perform his part of the contract. The contract contained stipulation to repay the price paid to the plaintiff at the time of purchase and further to pay whatever amount which might be spent over the property from the date of purchase upto the date when it is reconveyed. The agreement therefore envisaged performance of both these conditions. Nowhere in the plaint there is any reference to this second condition.

Although plaintiff averred having made a demand for reselling the properly to defendant Ismaii it did not appear that he was in a position to pay the price to the defendant. He brought the suit in forma pauperis and when he was asked from the witness-box as to how he would fulfil performance of his part 'he stated that he would mortgage the house and obtain money for the purpose. It is further found by the Court below that not less than Rs. 500/- had been spent over the house by the defendants. There was never any averment regarding plaintiff's readiness and willingness to pay this sum or any sum which the Court might find to have been spent.

36. In Ardeshir v. Flora Sassoon, AIR 1928 PC 208 (Q) it is held that in a suit for specific performance of contract plaintiff has to allege and if the fact is traversed to prove a continuous readiness and willingness from the date of the contract to the time of hearing to perform the contract on his part and that failure on his part to make good the averment bring with it the inevitable dismissal of his suit.

37. In Alakhram v. Mt. Kulwantin Bai, AIR 1950 Nag 238 (R) Bose J. and Mangalmurti J. followed the observations of the Privy Council and heldthat where the expenses for the deed of sale were to be incurred by the purchaser it is for the plaintiff purchaser to express his readiness and willingness to pay the money and call upon the other side to execute the sale-deed.

38. It is therefore clear that the plaintiff neither averred nor showed his readiness and willingness to perform his part of the contract viz., payment of price at the time of sale and further payment of whatever might have been spent over the house after its sale to the defendant. In fact evidence indicated that he had no capacity to make the payment.

39. This takes us to the fourth question viz, assuming that defendant Isrnail cannot repudiate his liability to sell under the agreement are there reasons for not granting the relief of specific performance.

40. It appears from the terms of agreement to sell that no time is fixed before which the plaintiff should exercise his option to purchase. It was agreed that whenever the plaintiff or his sons (which may include grand-sons also) would pay back the price the house in question would be resold to him or them.

41. In Pomeroy's Jurisprudence Para 2196 page 4935 (Second Edition) it is stated in the concluding portion of the paragraph :

'Where the option is so worded that the exercise of the privilege may be delayed indefinitely specific performance is refused and the refusal is some times based on the lack of mutuality.'

42. In (S) AIR 1956 Andhra 33 (FB) (L) it was held by the Full Bench as indicated above that the existence of a valid enforceable contract cannot itself deprive the Court of its discretionary power to refuse specific performance if the supervening circumstances obviously affect the interest of the minor.

43. In this ease the agreement to resell contains terms whereby the exercise of privilege could be indefinitely delayed. Either the plaintiff or his son and perhaps his grand-sons etc. could enforce the contract. In such a case specific performance can be refused on that ground alone. It would be inequitable for the minor defendant to sell for a price prevailing in 1931 a property several years later either during the life time of the other party or that of his sons and grandsons when there may occur general and special rise in prices of that property and also general fall in the value of rupee. Although this may be the contract the Court ought not to exercise its discretionary power in such a case.

Apart from the aforesaid observations of Pomeroy there is no direct authority on this point which has come to my notice. But even assuming that this principle is too wide specific performance in this cast-; cannot be granted as a result of my findings on earlier two questions.

44. This brings us to the last question namely, can the plaintiff claim compensation under Section 19 of the Specific Relief Act either from Abdul Rehman or Ismail.

45. As regards' this it is clear that in the first place the plaintiff has not averred and proved his readiness and willingness to perform his part of the contract. He cannot therefore hold the defendant responsible for the breach. Besides this since it is held that Abdul Rehman had no lawful authority or capacity to enter into the agreement for sale the contract is not binding upon Ismaii and he cannot be held liable for payment of compensation. Nor can Abdul Rehman be made liable because he had purported to act not in his individual capacity but for the minor.

46. As observed by their Lordships or.' the Privy Council in AIR 1948 PC 95 (A) :

'If an action had been brought for specific performance of the contract, it would have been broughtby or against the respondent (minor) and not by or against his mother.'

47. These observations indicate that the suit for specific performance would not lie against the guardian and consequently he cannot be held responsiple for payment of compensation under Section 19 of the Specific Relief Act.

48. The result of the foregoing discussion is that plaintiff's suit either for specific performance or for compensation under the circumstances of the case is not maintainable. The dismissal of the suit by the Court below is proper.

49. The appeal is therefore dismissed with costs.

T.C. Shrivastava J.

50. I concur in the judgment proposed to be delivered, for would like to add a few words.

In Mr. Sarwarjan's case '(C), the manager of a minor's estate had entered into a contract on behalf of the minor to purchase some property. The minor then filed a suit for specific performance of the contract on attaining majority. The Judicial Committee decided :

'It is not within the competence of the manager of a minor's estate or within the competence of the guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immovable property and they are further of opinion that as the minor in the present case was riot bound by the contract there was no mutuality and that the minor who has not reached majority cannot obtain specific performance of the contract.'

51. In Subramanian's case (A), the Judicial Committee agreed that in India the guardian of a minor is competent under certain circumstances to enter into valid contracts on behalf of the minor and in such cases the contract would be specifically enforceable. The two conditions under which such contracts would be binding are stated to be that the contract was within the competence of the guardian and that it was for the benefit of the minor. Their Lordships further laid down that the principle could be extended to executory contracts also and the transferee of a minor could take advantage of S. 53, Transfer of Property Act to support his possession over alienated property, if the agreement to transfer such property would be binding on the minor on the transfer being completed.

52. There has been a conflict of opinion on the. question whether the second decision over rules the first. One view is that this is so, sec AIR 1951 Mad 431 (B); (S) AIR 1956 Andhra 33 (FB) (L); Amir Ah-mad v. Meer Nizam AH, AIR 1952 Hyd 120 (FB) (S) and the other view is that the decision in the first case till applies to the cases of purchase of immovable property on behalf of the minor. See (S) AIR 1950 Mad 261 (FR) (E).

53. The principle on which the second ease is decided is that the contract by the guardian must IK: of such a nature as would bind a minor. The reasoning is not confined to cases of agreements of sale only and would extend to agreements to purchase properly also. It is normally difficult to support a contract of purchase on the ground of benefit to the minor but that does not make any difference so far PS the ratio decided of the second case is concerned I am therefore inclined to think that the authority of the observations in Mir Sarwarjan's case (C) in so far as it lays down that the guardian of a minor cannot bind him by a contract to purchase property under any circumstances is considerably shaken by the later decision. It appears to me that in every case where the question arises, it would be necessary to determine whether under the personal law applicable to the parties, the guardian had to enter into the con-tract on behalf of the minor, be it for purchase or sale of his property.

54. It is not however necessary for me to discuss the point in detail as it docs not really arise in the present case. The contract entered into for purchase was an integral part of the contract by which the minor's father purchased the property. The position of property which belongs to the minor prior to the contract to sell is different. Here the guardian had agreed to reconvey what never belonged to the minor and what came to him by that very transaction. Both the contracts formed one transaction and the minor would not get the property unless his father agreed to reconvey it to the vendor. The minor cannot in these circumstances accept one part of the transaction which is favourable to him and reject the other part which is unfavourable. He must accept the transaction as a whole or repudiate as a whole. That being the position, the agreement to reconvey is binding on the minor. See (S) AIR 1956 Mad 261 (FB) (E).

55. However, the claim for specific performancemust fail for want of the necessary averment on thepart of the plaintiff that he was at all times readyand willing to perform his part of the contract. Iagree that the suit was rightly dismissed by the trialCourt and the appeal must also fail.


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