Viswanatha Sastri, J.
1. Defendants 1 and 3, a Hindu minor and his mother, are the appellants in this second appeal, defendant 2, an infant brother of defendant 1, having died pendente lite. The plaintiff, a Hindu widow, sued for specific performance of a contract for sale of 3 acres 7 cents of dryland entered into between her and the defendants and embodied in a compromise, Ex. P-3 dated 19-1-1914, and filed in S. 0. s. No. 65 of 1943. The land belonged to the plaintiff's deceased husband who sold it to her father on 9-1-1940. In S. o. S. No. 65 of 1943 the present defendants land 2, the grandsons and legal representatives of the vendee represented by their mother, the present defendant 3, as their next friend sued the present plaintiff for rent, alleging an oral lease under which the plaintiff's deceased husband had been let into possession of the land. In defence to that suit the plaintiff denied the tenancy and stated that she was in possession under an agreement for reconveyance of the land entered into between' the parties to the original sale dated 9-1-1940. The dispute between the parties was settled by by a compromise, Ex. P-3, arrived at as the result of a mediation. Exhibit P-3, dated 19-1-1944 provided inter alia (1) that the plaintiff should pay Rs. 2700 to the defendants within two months, with interest at 6 per cent. of which Rs. 700 was to be taken in adjustment of the claim in S. C. S. No. 65 of 1943 and Rs. 2000 as the price of the suit land; (2) that on receipt of Rs. 2000 from the plaintiff, defendant 3 as guardian of her minor sons, defendants 1 and 2 should convey the land to the plaintiff; (3) thattime was to be of the essence of the agreement; and (4) that on default of payment plaintiff should surrender possession of the land to the defendants. The Small Cause Court granted leave to defendant 3 to compromise the suit on behalf of the minor defendants 1 and 2 on the above terms which, in its opinion, were beneficial to the minors. A decree was also passed in S. C. S. No. 65 of 1943 on the compromise so far as it related to that suit.
2. The amount of Rs. 700 with interest was paid in time and satisfaction of the small cause decree was recorded. Plaintiff's case was that she sent the sum of Rs. 2000 with interest at 6 per cent. per annum to defendant 3 on 15-3-1944 and wanted a conveyance to be executed in her favour, but defendant 3 declined to do so. The plaintiff deposited in Court Rs. 2000 with interest at 6 per cent. on 18-3-1944 and tiled this suit for specific performance which has been decreed by the Courts below.
3. Mr. T. R. Srinivasan, the learned advocate for the appellant, argued that an agreement for sale of the property of a Hindu minor entered into on his behalf by his guardian, even assuming the agreement to be beneficial to the minor, was not capable of being specifically enforced against him for want of mutuality. He relied upon the decisions of this Court in Narayana Rao v. Venkatasubba Rao, 38 M. L. J. 77 : A. I. R. 1920 Mad. 423; Ramakrishna Reddiar v. Chidambaraswamigal, 54 M. L. J. 412 : A.i.r. 1928 Mad. 407; Venkatachalam Pillai v. Sethuramarao, 56 Mad. 433 : A. I. R. 1933 Mad. 322 and Sirgara Mudali v. Ibrahim Baig Sahib : AIR1947Mad94 which purported to follow the well known decision of the Privy Council in Mir Sarwarjan v. Fakruddin Mahomed, 39 Cal. 232 : 39 I. A. 1 P. C.. The result of these and the other decisions is stated in Mayne's Hindu Law (11th Edn.) para. 236 as follows :
'It is not within the competence of a manager of a minor's estate or of a guardian of a minor to bind the minor or the minor's estate by a contract for the purchase or for the sale of immoveable property; and as the minor is not bound by the contract, there is no mutuality and the minor cannot obtain specific performance of contract. Nor is he liable to return a sum of money paid to his guardian as earnest money in respect of a contract of sale of immoveable property since the amount can only be treated as having been paid as security for the performance of a contract which in law is no contract at all.'
The first proposition is based on the decisions cited above and the second is based on the authority of Raghunathan v. Ravutha Kanni, I.L.R. (1938) Mad. 928 : A.I.R. 1938 Mad. 765.
4. This doctrine of 'mutuality' found its place in English decisions rather from a desire for symmetry than from its inherent utility' and was discarded by the Specific Relief Act which defined and amended the law relating to Specific Relief in India : see Whitley Stockes Anglo-Indian Codes, vol. I, p. 931. Even in England the want of mutuality did not stand in the way of specific performance of a contract by the grant of an injunction, James Jones & Sons v. Earl of Tankerville, (1909) 2 Ch. 440. The objection on the score of mutuality may also be waived--Pry on Specific Performance, 6th Edn., para. 468. In Leake on Contracts (8th Edn. at pp. 410 and 4ll), the rule is thus stated :
'A contract which is voidable by an infant is binding on the other contracting party until avoided; the privilege of avoidance being that of the infant only. . . An infant may sue upon the contract during his minority. But a Court of equity will not, in general, grant specific performance at the suit of the infant, because the remedy is not mutual until he has come of age.'
That this doctrine of 'mutuality' is a conventional rule evolved gradually by the decisions of the English Courts of Equity and does not rest on any logical or fundamental principle appears from the following passage in Pollock on Contracts (12th Edn. by Professor Winfield) at pp. 46 and 47 :
'An infant is not absolutely incapable of binding himself, but is generally speaking incapable of absolutely binding himself by contract. His acts and contracts are voidable at his option, subject to certain statutory and other exceptions. Where the obligation is incident to an interest (or at all events to a beneficial interest) in property it cannot be avoided while that interest is retained. An infant's express contract may be valid if it appears to the Court to be beneficial to the infant.'
In Salisbury v. Hatcher, (1842) 2 Y & C. C. C. 54 : 12 L. J. ch. 68, Kinght Bruce V. c. observed :
'In oases of specific performance the want of mutuality is a consideration generally material, but it is contrary to principle and authority to say that perfect mutuality is required in order to call a Court of equity into action. There are cases in which plaintiffs have had a decree for specific performance against defendants, who when the bill was filed were not in a condition to enforce specific performance in their own favour. Where no legal invalidity affects the contract the enforcement of it in this Court is a matter oi judicial discretion.'
Learned Judges of the English Courts have found it difficult to define precisely the metes and bounds of this doctrine of mutuality.
5. It is true that in India a minor has him self no capacity to enter into a contract, and a contract entered into by him is void: Section 11, Contract Act; Mohori Bibi v. Dharmodas Ghose, 30 cal. 539 : 30 I. A. 114 When however, the guardian of a minor enters into a contract on his behalf there is no want of capacity at all. If the law were otherwise, nosale or mortgage of a minor's property could beeffected by a guardian however necessary or beneficial to the minor the transaction might be. The decisions in Bamakrishna Beddiar v.Chidambara Swamigal, 54 M. L. J. 412 : A.I.R. 1928 Mad. 407; Venkatachalam Pillai v. Sethurama Rao, 56 Mad. 433 : A.I.B. 1933 Mad. 322 and Raghunathan v. Ravutha Kanni, I. L. R. (1938) Mad. 928 : A. I. R. (25) 1938 Mad. 765 in so far as they proceed on the basis that an executory contract entered into by the guardian of a Hindu minor is void, are with all deference unsupportable. Under Section 30,Guardians and Wards Act, a disposal of the ward's property in excess of the guardian's powers is only voidable at the instance of the person affected thereby. A guardian's contract is not hit at by Section 11, Contract Act, and itsenforceability depends on the rules of Hindu iaw defining his powers and the provisions of the Specific Belief Act regulating the grant of relief by way of specific performance. Section 21, Specific Relief Act, dealing with contracts whichcannot be specifically enforced, does not include a guardian's contracts among them. Distinguishing a guardian's contract from a contractentered into by the minor himself the Judicial Committee in Subramanyam v. Subba Rao .95) cited with approval the following passage from Pollock and Mulla's Contract Act, Edn. 7 at pp. 70 and 71 :
'It is however different with regard to contractsentered into on behalf of a minor, by his guardian or by 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 decision of the Judicial Committee(Mohini Bibi v. Dhurmadas Ghose, 30 Cal. 539 : 30 I. A. 114 that the contract can be specificallyenforced by or against the minor if the contract is one which it is within the competence of the guardian, toenter into on his behalf so as to bind him by it and further if it is for benefit of the minor. But if eitherof these two conditions is wanting the contract cannot be specifically enforced at all.'
This decision of the Judicial Committee goes much further than Varadachariar J. in Jeebunissa Begum v. Mrs. H. B. Danagher, 59 Mad. 942 : A. I. R. 1936 Mad. 564 who felt bound by Mir Sarwarjan v. FaJcruddin Mahomed, '39 Cal. 232 : 39 I. A. 1 P. C. to assume that a guardian's executory contract cannot be specifically enforced by or against the minor, though His Lordship was prepared to hold that a minor could sue for rents due under a lease deed granted by his guardian. Dealing with a contract of sale entered into by the mother and guardian of a Hindu minor on his behalf, theJudicial Committee observed in Subramanyam v. Subbarao as follows :
'The contract in the present case was binding on the respondent (minor) 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 (the minor) and not his mother (guardian) 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.'
It was held in that case that a vendee who had been put in possession of the minor's property under his guardian's contract of sale was entitled to be maintained in possession of the property agreed to be sold as against the minor, by resort to the doctrine of part performance, even though no conveyance had been executed. Section 53A, T. P. Act, dealing with part performance postulates a valid contract between the parties for the transfer of immovable property.
6. The doctrine of mutuality as developed by English decisions with its deceptive appear, ance of symmetry and simplicity but having no foundation in reason or logic, was imported in India by the decision of the Judicial Committee in Mir Sarwarjan v. FaJcruddin Mahamad, 39 Cal. 232 :39 I. A. 1 P. C. delivered by Lord Macnaghten. Though his Lordship's opinion must command the respect due to that great master of the law, I may be forgiven for remembering that occasionally 'dermitat Home-rus.' Mir Sarwarjan v. FaJciruddin Ahmed, 39 Cal. 232:39 I. A. 1 P. C. is 'Mutuality' run riot, if I may be permitted to say so. This decision was relied upon in the arguments before the Board in Subramanyam v. Subbarao . In the judgment of this Court in Subramanyam v. Subbarao reversed on appeal by the Judicial Committee, reference had been made to the decisions of this Court where specific per. formance had been refused of a guardian's con. tract for sale of the ward's property on the ground of want of mutuality in suits by or against the minor. .Yet their Lordships in Subramanyam v. Sabbarao upheld the contention that a guardian's contract for sale of the immovable property of the ward was specifically enforceable, if the contract was beneficial to the minor. Principles laid down for the protection or benefit of minors had been applied in this country to their prejudice by invoking this artificial doctrine of mutuality. If the guardian has made an advantageous contract for the . sale or lease of the property of the ward there is no reason why the ward should be disabled from enforcing it against the other party to the contract. I submit that the doctrine of 'mutuality', illogical inform 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. The statement in Mayne's Hindu Law, 1950 Edn., para. 236, which does not take account of Subramanyam v. Subbarao decided early in 1948, cannot therefore be accepted as an authoritative statement of the law. I need not refer to the decisions of the other High Courts beyond noticing that in Malla v. Muhammad Sharif, 8 Lah. 212: A.I.E. 1927 Lab.. 355, Srinath Bhattacharya v. Jatindra Mohan, 30 C. W. N. 263: : AIR1926Cal445 and Sohan Lal v. Atal Nath : AIR1933All846 those Courts took the same view of the effect of Mir Sarwarjan v. Fakiruddin Mohamad, 89 cal. 232: 89 I. A. 1 P. C. as this Court did in the decisions already cited.
7. The present case is not, however, a case of a contract for the purchase of immovable property on behalf of a minor by his guardian. It was with reference to such a contract that the Judicial Committee held that a guardian had no power to bind the minor and the minor was not entitled to specific performance of the contract in Mir Sarwarjan v. Fakiruddin Mahomed, 39 cal. 232: 39 I.A. 1 P. C. Assuming that this decision survives today in full force, there is no necessity to extend the principle of this decision to contracts for sale of a ward's property by his guardian. It is obvious that the question which is vital to sales by a guardian, namely, necessity cannot arise in a contract for the purchase, not for the sale of immovable property. The decision in Narayana Rao v. Venkatasubba Rao, 38 M. L. J. 77 : A. I. R. 1920 Mad. 423 was a case of a contract for purchase entered into by a guardian and the decisions in Venkatachalam Pillai v. Sethurama Rao, 56 Mad. 433 : A. I. R. 1933 Mad. 322 and Singara Mudali v. Ibrahim Baig : AIR1947Mad94 related to a contract for reconveyance of land contained in a sale deed of the minor's property executed by his guardian. In all these three cases, suits by the minor, instituted after attaining majority for specific performance of the contract of purchase or repurchase, were dismissed on the ground of want of mutuality irrespective of the question of benefit to the minor. In Bamakrishna Beddiar v. Chidambaraswamigal, 54 M. L. J. 412 : A. I. R. 1928 Mad. 407 and Baghunathan v. Ravuth Kanni, I. L. R. (1938) Mad. 928 : A. I. R. 1938 Mad. 765 this Court held that that a guardian's contract for sale, though supported by necessity or benefit cannot be specifically enforced against the minor. In the opinion of the-learned Judges who decided these two cases,, it made no difference whether the guardians, contract bound the minor to sell his property or to purchase the property of the other party to the contract. In Adinarayana v. Venkatasubbayya, I. L. E. (1940) Mad. 852 : A.I.R. 1940 Mad. 625 it was held that a minor who had attained majority could specifically enforce a contract of sale entered into by his guardian when the purchaser had entered into possession of the property under the contract but had not paid the consideration. Even after the decisions of the Judicial Committee in Mir Sartvarjan v. Fakruddin Mahomed, 39 cal. 232: 39 I. A.1 P.c.. Courts in India enforced a guardian's contract, for sale of the ward's property if the transaction was supported by necessity or was beneficial to the minor, Innatunnssa Bibi v. Janakinath, 22 C. W. N. 477: A. I. R. 1918 Cal. 877 and Babu Bam v. Said-un-nissa, 35 ALL. 499 : 20 I. C. 916. These decisions no doubt related to contracts for sale by guardians appointed under the Guardians and Wards Act with the sanction of the Court, but that circumstance was only evidence of the guardian's authority and the propriety of the sale and did not affect the question of mutuality. If the law is that a contract for sale of a minor's property by his guardian cannot be enforced however necessary or beneficial the sale might be, it will have a serious effect on Hindu families where the father, and in his absence, the mother, usually act as natural guardians of their minor children and manage their property. It is conceded on all hands that under the Hindu law a natural guardian has authority to effect a sale of the ward's property for the necessities or benefit of the ward. It would be anomalous to hold that specific performance cannot be had on a contract for sale which usually and normally precedes such a sale by the guardian. In Subramaniam v. Subba Rao , the Judicial Committee held that a contract for sale of the ward's property concluded by a guardian competent to act and being for the ward's benefit is enforceable against the minor. The decisions in Ramakrishna Beddiar v. Chidambaraswamigal, 54 M. L. J. 412: A. I. R. 1928 Mad. 407 and Baghunathan v. Ravutha Kanni, I. L. R. (1938) Mad. 928 : A. I. R. (25) 1938 Mad. 765 ,. cannot, therefore, be accepted as correct statements of the law.
8. Further questions arise, namely, whether it is within the competence of the guardian of a Hindu minor to enter into a contract for asale of land so as to bind the minor and whether the contract is for the benefit of the minor in this case. From Hanooman Persaud's case, 6 M. I. A. 393 : 18 W. R. 81 , down to the recent decisions of the Federal Court in Sreeramulu v. PundarikaJcshayya, (1949) F.L.J. 288: A. I. R. 1949 P. C. 218) and Bapayya v. Pundarikakshayya, (1949) P. L. J. 318 : (A. I. R. (36) 1949 P. C. 218 at p. 239), the extent of a Hindu guardian's power to bind his minor ward by contracts and alienations has been the subject of frequent judicial consideration. That under the Hindu law a guardian has the power to sell or mortgage the estate of his minor ward for the necessities or benefit of the minor, is too well established to require any citation of authority. This Court has taken the view that in respect of liabilities imposed by personal law, a decree could be passed against the minor's estate on a contract by the guardian entered into on behalf of the minor even though no charge had been created on the estate of the minor. See Ramajogayya v. Jagannathan, 42 Mad. 185 : A. I. R. 1919 Mad. 641 ; Natesa Nattar v. Manicka Nattar : AIR1938Mad398 ; Satyanarayanamurti v. Gopalan : AIR1939Mad891 ; Bamanathan v. Palaniappa, I. L. R. (1939) Mad. 776: A. I. R. 1939 Mad. 531); Annamalai Chetty Jointfirm v. Muthuswami, I. L. R. (1939) Mad. 891: A. I. R. (26) 1939 Mad. 538) and Sudarsana Rao v. Dalayya, I. L. R. (1944) Mad. 218 : A. I. R. 1943 Mad. 487.
9. The decisions of this and other High Courts were exhaustively reviewed by their Lordships of the Federal Court in Sreeramulu v. Pundarikakshayya , and Bapayya v. Pundarikakshayya , and though their reasoning and conclusions were not identical, I might summarise them as follows:
10. All their Lordships agreed that a guardian has no power to bind a minor or his estate by executing a promissory note containing an unconditional undertaking to pay a debt or loan for, the liability of the minor's estate is conditional upon the guardian's contract being for a purpose necessary or beneficial to the minor. Since a party to a negotiable instrument is liable to a holder in due course until the instrument is duly discharged and since a subsequent holder in due course may recover the amount due from any party to the instrument, even if it was executed without consideration, it was held that a minor would not be liable on such an onerous contract entered into by his guardian. With reference to the liability of a minor in respect of other contracts entered into by a guardian Kania C. J., stated the rule in these terms:
'The law as it stands permits a de facto manager to borrow money for the necessity or benefit of the minor's estate so as to make the minor's estate liable for the loan when he can do so without making out a contract between the minor and the creditor '. (P. 294).
Earlier in his judgment His Lordship had stated that the powers of a guardian de jure and de facto were the same in this respect. According to the learned Chief Justice, the guardian cannot do indirectly what the minor cannot do directly by entering into a contract and the creditor can make the minor's estate liable not on the contract of the guardian, but on the principle of subrogation to the guardian's right of reimbursement or indemnity. This was the view of Wallis C. J., in Bama Jogayya v. Jagannathan, 42 Mad. 185: A. I. R. 1919 Mad. 641 , Fazl Ali J. (at p. 299), was also of the opinion that the guardian of a Hindu minor could not make contracts on behalf of the minor so as to involve the minor and his estate in obligations or liabilities and the creditor could only look to the right of subrogation. Mukherjee J. (at pp. 311 and 315) took the view that except in the case of necessaries supplied to a minor within the meaning of Section 68, Contract Act, the creditor cannot obtain a decree against the estate of a minor on the basis of a contract entered into by the guardian and could only avail himself of the right of subrogation. Mahajan J. (at pp. 330 and 341) however, took the view that a creditor had a right of direct recourse against the minor's estate on a guardian's contract without being obliged to depend on a subrogation to the guardian's right of indemnity or reimbursement, whether the contract was one for necessaries supplied to the minor or whether the liability under the contract was one to which the minor's estate was liable under Hindu Law.
11. The distinction between the liability of a minor's estate under a mortgage or charge created by a guardian and a liability arising out of a contract entered into by him has no foundation in any text of Hindu law, but has been developed by Judicial decisions. This distinction was not drawn by the Judicial Committee in Hanooman Persaud's case, 6 M. I. a. 393: 18 W. R. 81 P. C., though the actual case related to a mortgage executed by the mother and guardian of a minor. Their Lordships referred to the 'lender' the 'loan' and to the loan being 'for the benefit of the estate' and concluded by observing:
'It is obvious that money to be secrued or'any estate is likely to be obtained on easier terms than on a loan which rests on mere personal security, and that, there-fore, the mere creation of a charge securing a proper debt cannot be viewed as improvident management.'
In Watson & Co. v. Sham Lal, 15 Cal. 8: 14 I. A. 178 , the Judicial Committee held that an agreement by the guardian of a Hindu minor to pay enhanced rent for the property purchased on his behalf was binding on the minor, evidently because it was a proper contract for the guardian to enter into. In another case decided by the Judicial Committee at about the same time, Waghela Bajsangji v. Sheikh Masludin, 11 Bom. 551 P.C., the Judicial Committee held that it was a very improper thing to allow the guardian to make covenants in the name of the ward so as to impose a personal liability upon the ward. The case related to an onerous covenant framed so as to bind the infant to indemnify a vendee against any future claim of the Government to assess rent on the property sold. The Judicial Committee held that the minor had the right to say that he was not bound by such a covenant. It appears from pp. 561 to 562 of the report that the Judicial Committee regarded the argument of Mr. Mayne that it was competent for the guardian to make the property of the minor a security to the creditor against the loss in the event of the Government exacting rent 'as worthy of great consideration.' But they held that the talukdari estate offered as security could.not be charged by reason of the prohibition in Section 12, Ahmadabad Talukdari Act. In Indur Chunder Singh v. Radha Kishore, 19 Cal. 507 : 19 I. A. 90 P. C. a kabuliat containing a covenant for renewal was executed by the mother and grandmother of the mother in their own right and not in their capacity as guardians dealing with the estate of a minor. The. only relevant sentence in the judgment of the Judicial Committee ran as follows :
'The contention that the minor and widow of Gopi Mohan Ghose had power to bind the minor by contract was abandoned in the Court below and their Lordships are of opinion that such a contention could not be sustained.'
Taken out of its context, this passage is apt to mislead. The managers of the infants estate had taken a renewal of a lease which had expired and surrendered possession to the lessor before the expiry of the period of the renewed lease. The lessor brought a suit for recovery of the rent due under the contract for the period covered by the renewed lease against the minor on attaining majority. The Judicial Committee held that the contract of the adoptive mother and guardian was not binding on the adopted son and the lessor's suit for rent was dismissed on the ground that the guardian had no authority to bind the minor by an onerous covenant imposing a liability for rent on the minor.
Zamindar of Polavaram v. Maharajah of Pithapur in which I was among the counsel for the respondent, proceeded on the submission of Mr. De Gruyther K. C. that the respondent was entitled to a decree for enforcement of the vendor's charge for unpaid purchase money. This submission was accepted by the Judicial Committee and a mortgage decree was passed. A personal decree against the general assets of the minor appellant could not also be claimed at the same time, at any rate, before the charged properties were exhausted. The finding of the High Court that the defendant was not personally liable was not challenged before the Judicial Committee. The recent decision of the Judicial Committee in Subramanyam v. Subbarao clarifies the whole position and declares the law to be that a contract for the sale of the property of a minor entered into by his mother and guardian for the purposes considered necessary and proper in Hindu law would be binding on the minor from the time when the contract is entered into and is capable of being enforced against him.
12. The argument in terrorem that the minor's interest would be seriously prejudiced if contracts entered into by a guardian for the sale of his property were specifically enforced has no effect upon me, for, whether it is an executory contract or contract or an executed transfer by way of sale or mortgage, the enforceability of the contract or the transfer against the estate of the minor would depend upon whether the transaction is justified by necessity or benefit of the minor. If the guardian's contract is unsupported by necessity or benefit to the minor, it would be in excess of his powers as guardian and the contract would be unenforceable against the estate of the minor on that ground. A contract for the sale of property is an essential preliminary to the sale itself and its enforceability against the minor has to be judged by the same tests as are applicable to a transfer of the ward's property by the guardian.
13. According to the finding of the learned District Judge, in this case there was a contract for reconveyance to the plaintiff's husband even when the original sale was effected by him in 1940 in favour of the grandfather of defendants 1 and 2. In entering into the compromise, Ex. P-3, dated 19-1-1944 agreeing to convey the property which had devolved on the minors, their mother and guardian merely confirmed the prior arrangement. The Court had sanctioned the compromise as being beneficial to the minors. The agreement to pay the minorsRs. 700 in satisfaction of the claim in the small cause suit was, to use the language of the Court below, 'inextricably connected' with the agreement to convey the land on receipt of Rs. 2000. The compromise, Ex. P-3 is not sought to be avoided as a whole. The minors have received and retained the sum of Rs. 700 paid in pursuance of the compromise and entered satisfaction of their claim in Small Cause Suit No. 65 of 1943. They do not impugn the compromise as a whole as being beyond the authority of their guardian. They cannot be permitted to approbate the guardian's bargain by retaining the money paid under it and reprobate it by the plea that the contract for the conveyance of land was beyond the scope of their guardian's authority: see Sohanlal v. Atalnath : AIR1933All846 and per Cornish J. in Jeebunnissa Begum v. Mrs. H. B. Danaghar, 59 Mad. 942 : A.I.R. 1936 Mad. 564.
14. This case has given me more than usual anxiety not because of doubts in my mind as to what my conclusion should be, but because I have a natural feeling that any criticisms which I make of prior decisions might savour of a wish not to reconcile myself to precedents that are binding upon me. I would have felt bound, in spite of the pressure on judicial time in this Court, to place this case before his Lordship the Chief Justice, for directions as to its being heard by a Full Bench but for the recent decisions of the Judicial Committee in Subramanyam v. Subbarao which in my opinion, furnished authoritative guidance and indeed, rules this case. I hold that the guardian's contract for sale was within her authority, that it was necessary and beneficial to the minor and that the vendee should be given a decree for specific performance.
15. Two minor points raised in the course of the arguments remain to be noticed. I cannot agree with the lower appellate Court that though a period of two months was fixed under the compromise, Ex. P-3, for payment of the money and the execution of the conveyance, and time was expressly made the essence of the contract, still the principle enunciated in Jamshed Khaderam v. Burjorji Dhunjibhai, 40 Bom. 289 : A. I. R. 1915 P.C. 83 can be invoked and the stipulation as regards time disregarded as not being of the essence of the contract. I also consider that there was no proper tender of the purchase money by the plaintiff before the expiry of the time fixed for payment under the contract of sale. As, however, the full price had been deposited into Court before the expiry of the time fixed for payment by the contract, Ex. P-3, a suit for specific performance had also been filed withinthat period, the purchaser would be entitled toa decree for specific performance. Having regard to the fact that the plaintiff has not substantiated her plea of a tender before suit andan improper rejection thereof by the defendant,I direct that the parties do bear their respectivecosts throughout. No leave.