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Krishnaswami by His Mother Savithri Ammal and anr. Vs. Sundrappa Aiyar - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported in(1895)5MLJ164
AppellantKrishnaswami by His Mother Savithri Ammal and anr.
RespondentSundrappa Aiyar
Cases ReferredMokund Loll v. Ghotay Lal I.L.R.
Excerpt:
- - the district munsif ought to have called upon the plaintiff to pay the deficient court fees, as he failed to do so, the subordinate judge was not in error in entertaining the appeal and dealing with it. we have to-.observe, however, that the court fees should have been collected before passing the decree and the decree is clearly irregular in directing that in default of payment of the fees, the prayer for possession alone would be disallowed instead of saying that the suit would stand dismissed. , misjoinder of parties, we do not consider it to be well founded.1. several objections have been argued in support of this appeal.2. the first of them is that specific performance cannot be decreed against a minor.8 of the specific relief act mentions the persons against whom specific performance cannot be decreed and a minor is not mentioned as one of them.3. no doubt section 11 of the contract act mentions persons who have attained majority as persons competent to enter into contracts. but this does not exclude the power of a guardian of a minor to represent him and enter into contrasts on his behalf either beneficial or necessary to the minor.4. the english law is, it is true, that a minor cannot claim specific performance and this proceeds on the ground of want of mutuality. it is on this ground that mr. justice norris acted in fatima bibi v......
Judgment:

1. Several objections have been argued in support of this appeal.

2. The first of them is that specific performance cannot be decreed against a minor.8 of the Specific Relief Act mentions the persons against whom specific performance cannot be decreed and a minor is not mentioned as one of them.

3. No doubt Section 11 of the Contract Act mentions persons who have attained majority as persons competent to enter into contracts. But this does not exclude the power of a guardian of a minor to represent him and enter into contrasts on his behalf either beneficial or necessary to the minor.

4. The English law is, it is true, that a minor cannot claim specific performance and this proceeds on the ground of want of mutuality. It is on this ground that Mr. Justice Norris acted in Fatima Bibi v. Debnauth Shah I.L.R. (1893) C. 508 citing as his authority Flight v. Bolland (1828) 4 Russ 298 But there is reason to believe that Flight v. Bolland (1828) 4 Russ 298 was a case in which the contract was made with the minor himself who was also himself seeking to enforce it. In Fatima Bibi v. Debnauth Shah I.L.R. (1893) C. 508 the judge has not noticed the provision of Hindu Law that a guardian is competent to act for a minor and bind him by contract within certain limits.

5. Moreover, as pointed out by Mr. Whitley Stokes, the doctrine of mutuality on which Flight v. Bolland proceeded (1828) 4 Russ 298 has no application in this country.

6. We agree with the ruling in Mahamed Arif v. Saraswati Debya I.L.R. (1891) C. 259 that a contract with a minor is merely voidable by him and that this principle is not affected by 11 of the Indian Contract Act.

7. The next objection is that there is no finding that the contract now sought to be enforced is binding on the minor. This is a mistake. This Subordinate Judge has found the contract to be both true and valid.

8. The third objection pressed upon us is that as plaintiff did not pay the deficient court fees as soon as the first issue was decided against him, the Subordinate Judge should have held that the suit had been properly dismissed. The District Munsif ought to have called upon the plaintiff to pay the deficient court fees, as he failed to do so, the Subordinate Judge was not in error in entertaining the appeal and dealing with it. It appears that the requisite court fees have since been paid. We do not there-;: fore think this objection is entitled to weight. We have to-.; observe, however, that the court fees should have been collected before passing the decree and the decree is clearly irregular in directing that in default of payment of the fees, the prayer for possession alone would be disallowed instead of saying that the suit would stand dismissed.

9. As to the last objection viz., misjoinder of parties, we do not consider it to be well founded. The cause of action, namely, the right to obtain a/sale deed and possession of the property purchased concerns both the defendants and entitles plaintiff to relief against both.

10. The case cited in Luckumsey Ookerda v. Fazulla Cassum bhoy I.L.R. (1880) B. 177 is distinguishable in that unity of title did not exist in that case. A case more in paint is to be found in Mokund Loll v. Ghotay Lal I.L.R. (1884) C. 1061

11. We dismiss this appeal with costs.


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