1. This second appeal which has been referred to the Division Bench for disposal raises the question :
'Whether a contract for transfer of property entered into by a marfatdar is specifically enforceable against the deity.'
2. To appreciate the point, the facts need be briefly stated :
The plaintiff asserts that property in question is the nominal private debottar of defendant No. 1, a private deity of defendants 2 and 3. In partition, the deity and the disputed property fell to the share of defendants Nos. 1 and 2. For meeting the expenses of repairs, eviction of trespassers and undesirable persons and for completion of the construction of the temple, defendants Nos. 1 and 2 on 11-12-1961 entered into an agreement to sell the disputed property in respect of which the plaintiff was a tenant, for Rupees 843/-. The property, having belonged to the Khasmahal, permission was sought from the Khasmahal authorities. Since defendants Nos. 1 and 2 did not honour the agreement by executing the sale deed in spite of repeated requests by the plaintiff but made a gift of the property in favour of defendant No. 4, Durga Thakurani represented by defendants Nos. 5 and 6, the suit for specific performance of contract has been filed.
Contest has been made on behalf of the deity through defendant No. 5. Others have been set ex parte. It has been controverted that the property was nominal debottar and there was agreement as alleged. It is said that the plaintiff was guilty of breach of promise. The suit after having had a chequered course through different courts and remand is now before this Court in second appeal. The concluded findings of fact now are:
(a) the deity is a private deity;
(b) the properties are real debottar;
(c) there was legal necessity; and
(d) there was a completed agreement for sale.
The courts below have concurrently decreed the suit.
3. It is urged on behalf of the appellants (defendants Nos. 4, 5 and 6) that the deity being a perpetual minor, the law applicable to contract executed by guardian of minor for sale of property of the minor is applicable to contract entered into by Marfatdar or trustee for sale of the property of the deity. It is submitted that a contract for sale entered into by the guardian on behalf of minor not being specifically enforceable even though it may be for legal necessity or for benefit of the minor, on the same reasoning the contract in dispute is not enforceable. Reliance is placed on a decision of a Division Bench of this Court in the case of Suresh v. Ganesh, (AIR 1951 Orissa 351).
4. Mr. Das submits that the decision in the case of Suresh v. Ganesh (supra) has no application as the law applicable to minor cannot by analogy be applied to a deity and relies upon a decision of the Division Bench of the Calcutta High Court reported in (1933) ILR 60 Cal 111: (AIR 1933 Cal 109) : Gopal Shreedhar Mahadeb v Shasheebhusan Sarkar. It was held therein :
'It has been argued that the deities are perpetual minors and so no contract made on their behalf should be specifically enforced- The analogy of minority of deities, in our judgment, is a pure fiction, for which no authority is to be found in Hindu law itself and we can conceive of no principle on which on such analogy a contract, otherwise good and valid, can be taken out of the class of contracts of which specific performance may be granted under the law.'
We are in agreement with the aforesaid exposition of law and that meets the objection raised by Mr. Rao for the appellants.
5. Coming to the principle decided by this Court in the case of Suresh v. Ganesh, (AIR 1951 Orissa 351) (supra), we find that the Division Bench placed reliance on a decision of the Privy Council in Mir Sarwarjan v. Fakhruddin, (1911) ILR 39 Cal 232 : (39 Ind App 16). In that case, the guardian entered into a contract on behalf of the minor for purchase of certain land. Though it was found that it was to the advantage of the minor and was intended to bind the minor's estate, their Lordships of the Privy Council held that the minor could not take advantage of the contract and enforce the same specifically. It was observed therein :
'Their Lordships are of the opinion that it is not 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 immoveable property and they are further of the opinion that as the minor in the present case was not bound by the contract, there was no mutuality and that the minor who has now reached his majority cannot obtain specific performance of the contract.'
6. The Division Bench held : 'This is an unequivocal recognition by the P. C. of the position that a contract by a guardian on behalf of the minor seeking to bind the minor's estate is invalid.'
The argument that in Sarwarjan's case the contract was for purchase of property and so, prima facie could not be one for the necessity or benefit of the estate of the minor, was repelled and attempt at distinguishing Sarwarjan's case was unsuccessful. The Division Bench followed AIR 1926 Cal 445 (Srinath v. Jatindra); Ramakrishna v. K. Chidambara, (AIR 1928 Mad 407); Venkatachalam v. Sethuramarao, (AIR 1933 Mad 322) (FB); Swartharam Ramsaran v. Ramballabh (AIR 1925 All 595) and Krishnachandra v. Rishabha Kumar, (AIR 1939 Nag 265) which refused to see in Sarwarjan's case the distinction urged. The Division Bench held that Sarwarjan's case was based on the view :
'Firstly, that the contract by the guardian though for the benefit of the minor is not enforceable and secondly, that since it is not enforceable against the minor's estate, it cannot be enforced in his favour for lack of mutuality.' This decision of the Division Bench was given on 2-9-1949. By then the Privy Council had rendered decision on 26th Feb. 1948 in Subrahmanyam's case reported in AIR 1948 PC 95, reversing the decision of the Madras High Court in AIR 1944 Mad 337.
7. This decision of the Privy Council turned on the scope of Section 53A of the T. P. Act. The facts were :
The respondent, a minor, agreed to sell through guardian and mother certain land to the appellants, the consideration was to be applied in liquidating the debt incurred by the father of the minor. Possession was handed over to the appellants; but the sale deed was not executed. A suit was filed by the minor for recovery of possession. The defendants-appellants relied upon Section 53A of the T. P. Act. Their Lordships observed:--
'Their Lordships entertain no doubt that it was within the powers of the mother as guardian to enter into the contract of sale of 29-11-1935, on behalf the respondent for the purpose of discharging the father's debt, and that, if the sale had been completed by the execution and registration of a deed of sale, the respondent would have been bound under Hindu Law.........'
After noticing the provisions contained in Section 11 of the Contract Act, their Lordships said :
'.........It is clear that, if the mother and guardian had taken no part at all in the transaction, the respondent could not have entered into a valid contract to sell the land in suit to the appellants, but it is equally clear that such a contract could and did come into existence in the present case.........'
Their Lordships further approved a passage from Pollock and Mulla's Indian Contract and Specific Relief Acts :
'A minor's agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinction following English authorities which were applicable only on the view now overruled by the Privy Council.'
A distinction is drawn between void contract entered into by minors in England and contracts entered into by guardians of minors in India for purpose binding on the estate. The next passage silences all doubts ;
'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.'
Appreciating independently, the question decided in this decision of the Privy Council, there is no doubt that the Privy Council recognised that in India the guardian had legal competency to enter into contract to sell the property of at minor for purpose binding on the estate and in such a case if a default was made, the vendee or the guardian representing; the minor could file a suit for specific performance of the contract.
8. It is unfortunate that the decision of the Privy Council in Subrahmanyam's case, (AIR 1948 PC 95) (supra) was not cited before the Division Bench which decided Suresh v. Ganesh, (AIR 1951 Orissa 351) (supra).
In Ramalingam v. Babanambal, AIR 1951 Mad 431, Viswanatha Sastri, J., in a learned and illuminating judgment exhaustively treated the doctrine of mutuality as developed by English decisions His Lordship criticised the import of the doctrine into India by Lord Macnaghten in Mir Sarwarjan's case ((1911') ILR 39 Cal 232) (supra). His Lordship traced the history of the doctrine and judicial thinking by reference to decided cases and pointed out the difficulty faced over by English Judges in defining precisely the metes and bounds of the doctrine His Lordship finally observed :
'............I submit that the doctrine of 'mutuality' illogical in form and in substance unjust, has now been discarded by the very tribunal which was responsible for its introduction in India and it need no longer cast its spell on Indian Courts and sterilise contracts of sale entered into by a guardian on behalf of his ward for the latter's interest or benefit.........'
In Vadakattu Suryaprakasam v. Ake Gangaraju, (AIR 1956 Andh Pra 33), a similar question was posed before a Full Bench of the Andhra Pradesh High Court. Chief Justice Subba Rao (as his Lordship then was), upon review of various decisions of the High Courts and of the Privy Council opined (Para 19) :
'If the contract for sale was for necessity or benefit of the minor, it would be valid and enforceable.'
'A minor has no legal competency to enter into a contract or authorise another to do so on his behalf. A guardian therefore steps in to supplement the minor's defective capacity. Capacity is the creation of law whereas authority is derived from the act of parties. The limit and extent of his capacity are conditioned by Hindu Law. He can only function within the doctrine of legal necessity or benefit. The validity of the transaction is judged with reference to the scope of his power to enter into a contract on behalf of the minor. Even then personal liability arising out of the guardian's contract is liability of the minor's estate only.'
The Full Bench held that the decision in Subramanyam's case (supra) gave a complete go-by to the rule laid down in Sarwarjan's case ((1911) ILR 39 Cal 232). It is worthwhile to note that Sarwarjan's case was quoted and relied upon by the Madras High Court in AIR 1944 Mad 337 and was reversed by the Privy Council in AIR 1948 PC 95.
Mudholkar, J. in Gujoba Tulsiram v. Nilkanth (AIR 1958 Bom 202) held (as per the head note) :
'Where a minor had received benefit from a contract of sale entered into on his behalf by his father in respect of property solely belonging to them, the vendee was entitled to specific performance of the contract.'
A similar question came up for consideration before a Division Bench of the Patna High Court in Bhageran Rai v. Bhagwan Singh, (AIR 1962 Patna 319) Their Lordships endorsed and followed the opinion of Viswanatha Sastri, J. in AIR 1951 Mad 431 and held that the doctrine of mutuality as introduced by Mir Sarwarjan's case had no application and observed (at p. 324) :
'Where the manager or karta of a Hindu joint family enters into a contract for the sale of immoveable property belonging to the family for a legal necessity, the purchaser is entitled in law to obtain a decree for specific performance of contract though some of the members of the joint family are minors, in case the manager subsequently refuses to complete the transaction of sale............In the eye of law, there is no distinction between a contract of sale and a contract for purchase, and if the purchaser can enforce specific performance of contract against the minor sellers, there is no reason why the minor sellers cannot similarly enforce the same against the minor purchasers.........To accept this argument will be tantamount to in1 reducing a qualification in the aforesaid principle of law laid down by their Lordships of the Privy Council in the case of Subramanyam, 75 Ind App 115 : (AIR 1948 PC 95), in that that principle will not come into operation when some of the purchasers happened to be minors a contract can be specifically enforced by or against the minor.'
9. In our humble opinion, the decision in Sarwarjan's case and in Subramanyam's case cannot stand together and the former decision must be held to be no longer good law and deemed to be overruled by the latter decision. The principles laid down in both the cases are irreconcilable and in our opinion Subrahmanyam's case lays down clearly and unequivocally the rule.
10. Mr. M.N. Das, learned counsel for the respondents, contends that the doctrine of 'mutuality' has been given a burial so far as India is concerned by the provision contained in Sub-section (4) of Section 20 of the Specific Relief Act, 1963 and the divergence of opinion prevailing in various High Courts had been laid to rest. Sub-section (4) of Section 20 is as follows :--
'(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.'
He submits that the Division Bench decision of this Court before which the decision in Subramanyam's case, (AIR 1948 PC 95) was not cited and which gave its decision in ignorance of the said case which was binding on it should be treated as a decision rendered per incuriam and held not binding as authority. He relied upon State of Bombay v. Chhaganlal, (AIR 1955 Bom 1) where Chief Justice Chagla on behalf of the Full Bench observed :
'So long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon High Courts.'
In Kishan Chand v. Ram Babu, (AIR 1965 All 65 (FB)), it has been held :
'The decision of the Privy Council was a declaration of the law within the meaning of Section 212 of the Government of India Act and was binding upon all courts in India. It was the law when the Constitution came into force, with effect from 26-1-1950. Under Article 372 the law in force continued to be in force until altered or repealed. Even after Constitution the law declared by the Judicial Committee continues to be the law by virtue of Article 372, so long as the Supreme Court does not lay down a different law.'
In Srinivas v. Narayan, (AIR 1954 SC 379), the Supreme Court observed that the decision of the Privy Council was binding on the Indian Courts and they cannot refuse to follow it and are obliged to discover a distinction. However, the Supreme Court itself was not hampered by any such limitation.
11. Mr. Das further contends that in view of the law, the decision in Subraha-manyam's case was binding on this Court and the decision in the case of Suresh v. Gsnesh, (AIR 1951 Orissa 351) given by this Court relying upon Sarwarjan's case which was impliedly overruled by the Privy Council in its later decision, is not binding on this Division Bench. He relied upon the passage from Jaisri Sahu v. Rajdewan, (AIR 1962 SC 83), where exceptions to the general rule of binding nature of precedents are enumerated:
1. The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow;
2. The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannol in its opinion, stand with a decision of the House of Lords (now Supreme Court); and
3. The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow and in the latter it is bound by the decision of the House of Lords.
A decision may also be given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. A decision should not be treated as given per incuriam however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the court of appeal must follow its previous decision and leave the House of Lords to rectify the mistake.'
This passage from the Halsbury's Laws of England was cited with approval by the Supreme Court, substituting the Privy Council for the House of Lords. We are of the opinion that the decision in the case of Suresh v. Ganesh given in ignorance of Subrahmanyam's case which was binding on this Court was given per incuriam and is not binding on us. The law laid down by the Privy Council in Subrahmanyam's case is clear and we have had the further advantage of the learned opinions of Subba Rao, C. J. and Viswanatha Sastri, J. We hold that a contract for transfer of property entered into by a guardian is specifically enforceable against the minor if the same is by a guardian competent in law and the transfer is for legal necessity or for benefit of the minor.
12. In the result, the contract in question is specifically enforceable on the findings as rendered by the courts below which have been extracted in paragraph 2 of this judgment and the suit has been rightly decreed. II has, however, been brought to our notice that the property belonged to the Khasmahal and permission from Khasmahal is necessary before execution of the sale deed. Hence to the decree passed by the courts below, it shall be added that defendants 2 and 3 do pursue, and take necessary steps for disposal of the application for sanction already filed and in the event the application is no longer pending, make the necessary application to the Khasmahal for sanction within one month from today, and within one month from the receipt of the sanction, the property shall be conveyed to the plaintiff. As permission of the Khasmahal was essential, the sale deed executed by the court below on failure of defendants 2 and 3 to execute is not in accordance with law. The sale deed is, therefore, cancelled. In the result, the appeal has no merit and is dismissed. In the circumstances, no costs.
13. I agree.