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Ghanta Lakshmayya Vs. Ghanta Venkateswarlu Being Minor by Next Friend and Guardian Narra Pitchayya and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported inAIR1947Mad67; (1946)2MLJ207
AppellantGhanta Lakshmayya
RespondentGhanta Venkateswarlu Being Minor by Next Friend and Guardian Narra Pitchayya and anr.
Cases ReferredNripendra Chandra v. Ekbarali Joardar I.L.R.
Excerpt:
- - so far as alienations by guardians of minors are concerned it is now well established that specific performance of such a contract can be refused in the discretion of the court if the minor should object to it on the ground that there is no mutuality......father of the only other defendant, namely the second defendant, who was also the manager of the joint family. the properties which were agreed to be sold were properties belonging to the joint family. under the terms of the agreement, 4 acres and 5 cents of land which was the only property which the family had then was to be sold for rs. 1,350. rs. 350 was received in advance and rs. 1,000 was to be paid subsequently. the amount of rs. 350 received in advance was paid to a creditor of the family and rs. 875 out of the rs. 1,000 went to discharge a decree debt obtained against the father and the balance of rs. 125 was paid into court along with the plaint in the suit. the father was ex parte and the second defendant contended that the father was leading a reckless life, that he was.....
Judgment:

Kuppuswami Ayyar, J.

1. The plaintiff is the appellant and the appeal arises out of a suit for specific performance of a contract entered into by the first defendant, the father of the only other defendant, namely the second defendant, who was also the manager of the joint family. The properties which were agreed to be sold were properties belonging to the joint family. Under the terms of the agreement, 4 acres and 5 cents of land which was the only property which the family had then was to be sold for Rs. 1,350. Rs. 350 was received in advance and Rs. 1,000 was to be paid subsequently. The amount of Rs. 350 received in advance was paid to a creditor of the family and Rs. 875 out of the Rs. 1,000 went to discharge a decree debt obtained against the father and the balance of Rs. 125 was paid into Court along with the plaint in the suit. The father was ex parte and the second defendant contended that the father was leading a reckless life, that he was keeping a widow and had children by her and that the debts were illegal and immoral and were not binding on the family and that the transaction was not binding on him. The first Court decreed the suit. The Subordinate Judge who heard the appeal found that the decree was capable of being enforced only as against the father's share and not as against the son's share. He also found that specific performance ought not to be granted against the son's share and hence granted a money decree for the money paid by the plaintiff, in pursuance of the contract holding that to that extent the liability was binding on the son. The plaintiff has therefore filed this second appeal and the second defendant, the son, has filed a memorandum of cross objections against the decree directing him to pay the money paid by the plaintiff in respect of the debts of the father which he held to be binding.

2. The memorandum of objections is not pressed before me and is accordingly dismissed.

3. So far as the appeal is concerned, the learned Subordinate Judge has held that as it is a discretionary relief that was prayed for, the Court in its exercise of discretion can direct the plaintiff to receive the money paid by him in respect of the debts binding on the son, but refused to direct the alienation of the property.

4. The learned Subordinate Judge has relied upon two rulings of this Court in. support of his contention that in such cases he could refuse specific performance. The two cases relied on by him, namely, Remakrishna Reddiar v. Kasivasi Chidambara Swamigal (1927) 54 M.L.J. 412 and Sri Kakulam Subramanyam v. Kurra Subbarao (1944) 1 M.L.J. 147 are both cases of two contracts to alienate properties entered into with the guardian of a minor. It is not a case in which the manager of a joint Hindu family entered into any such contract which was sought to be enforced against the other junior members of the family. The decision in Nripendra Chandra v. Ekbarali Joardar I.L.R. (1929)Cal. 268 is no doubt a case in point. The Calcutta High Court has held a view which is not followed by some of the other High Courts including this High Court. In Ramachandra Aiyar v. Sundara-murthi Mudali (1893) 4 M.L.J. 9, Krishna Aiyar v. Shamanna : (1912)23MLJ610 , Adinarayana v. Venkatasubbayya, 6 and Narayanan Chetty v. Muthiah Chetty : (1924)46MLJ575 this question had to be considered and it was held in all these cases that in the case of contracts entered into by a manager by a joint Hindu family on behalf of the family, the contract could be specifically enforced even against the minor members of the family. In Hari Charan Kuar v. Kaula Rai (1917) 2 Pat.L.J. 513 at page 517 the Full Bench of the Patna High Court has held that such a contract can be enforced. The same was the view' taken by the Allahabad High Court in Dhapo v.Ram Chandra I.L.R. (1934) All. 374. The Privy Council decision in Mir Sanvarjan v. Fakhruddin Mahomed Chowdhun (1911) 21 M.L.J. 1156: L.R. 3911.A. 1 : I.L.R. 39 Cal. 232 is referred to in Hari Charan Kuar v. Kaula Rai (1917) 2 Pat.L.J. 513 and it was pointed out that the Privy Council decision did not apply to cases of alienations by joint Hindu family managers consisting of minors and adults and this was also pointed out by my learned brother Venkataramana Rao, J., in Adinarayana v. Venkatasubbayya : AIR1937Mad869 . This matter was taken in Letters Patent Appeal, vide Adinarayana v. Venlatasubbayya : AIR1940Mad625 but the appellate Court had no occasion to deal with this point. So far as alienations by guardians of minors are concerned it is now well established that specific performance of such a contract can be refused in the discretion of the Court if the minor should object to it on the ground that there is no mutuality. But such objection cannot be raised in respect of contracts entered into by persons on behalf of joint Hindu-families even though some of the members of the joint Hindu family were minors. This was pointed out in all these cases cited above both by this Court and by the Allahabad High Court and Patna High Court. In these circumstances, I do not think the learned Judge was justified in finding that on the principles enunciated in Nripendra Chandra v. Ekbarali Joardar I.L.R. (1929) Cal. 268 he will be justified in exercising his discretion and refusing specific performance.

5. It is next urged before me that there is nothing to indicate that there was any family necessity which would justify the alienation. As already pointed out above there is the finding of both the Courts below that out of the Rs. 1,350 the price agreed to be paid--and there is no evidence to show that on the date of the agreement the price was inadequate--Rs. 350 was received as advance and that the amount was paid to meet the claim of a creditor of the family. There is also evidence that Rs. 875 out of the amount of Rs. 1,000 received in cash went to discharge the decree debt binding on the family. It therefore follows that according to the findings of both the Courts except to the extent of Rs. 125 the entire amount of consideration was for a purpose which would justify the father alienating the properties. It cannot be said that this is a transaction for which there was no necessity. It must also be remembered that the family owned only one item of property of 4 acres 5 cents and consequently it must be held that the contract was one entered into for a necessity binding on the family. If that be so the contract could be specifically enforced. It is true that subsequent to the filing of the suit the property appreciated in value and that was exactly the reason why the minor was prepared to have a decree for the money though he filed a memorandum of objections which is not now pressed. In these circumstances, I do not think I will be justified in agreeing with the learned Subordinate Judge and finding that this is a case in which the specific performance ought to be refused.

6. The appeal is accordingly allowed, the decree of the Subordinate Judge is set aside and the decree of the first Court restored. The second defendant will pay the costs of the plaintiff both in this Court and in the lower appellate Court. The memorandum of objections is dismissed but without costs.

7. Leave refused.


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