1. The facts of this case so far as they are necessary for the disposal of this Second Appeal are as follows:-In 1905 the managers of the defendants' undivided family sold certain land to the testamentary guardians of the plaintiff, who was then a minor, the consideration being the discharge of a certain mortgage debt then due by the defendant's family under a mortgage deed executed in favour of the plaintiff's adoptive father. In accordance with the agreement of sale possession was then given of the property and the plaintiff claims to have held possession ever since. A sale deed was also drawn up but not registered on account of some verbal defects. A suit to enforce registration would now be long out of time if brought under Section 77 of the Indian Registration , Act (Act XVI of 1908), This suit was instituted in January 1915; for specific performance, the prayer in the plaint being that the defendants be directed to execute a proper registered sale deed in favour of the plaintiff in respect of the immoveable property mentioned in the schedule and to pay the plaintiff's costs of the suit.
2. Before the institution of this suit the plaintiff attained his majority. The defence to the suit inter alia were that specific performance could not be enforced against the defendants for want of mutuality and that the suit was time-barred. The District Munsif found for the defendants on these two points and dismissed the suit. On appeal the Temporary Subordinate Judge reversed the District Munsif's decision and entered judgment for the plaintiff.
3. On the first point I think that the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri I.L.R (1911) Cal. 232 is applicable to the facts of this case and decisive. Their Lordships observed, at page 237, that it was not within the competence of a guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immoveable property and they were further of opinion that as the minor in that case was not bound by the contract, there was no mutuality, and that the minor who had at the time of the suit reached his majority could not obtain specific performance.
4. Section 23 of the Specific Relief Act (I of 1877) declares who may obtain specific performance of a contract and includes in the list any party to the contract and the representative in interest or the principal of any party thereto. The plaintiff in this case was not a party to the contract for purchase nor is he the representative in interest of his guardians, nor can they be strictly called his agents because agency implies contracting power in the principal, and the plaintiff, being a minor was incompetent to contract at the time of the contract being made by his guardians.
5. An attempt has been made in this Court to distinguish Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) I.L.R. 39 Cal. 232 (P.C.) on the grounds (1) that the guardian in that case was the de facto guardian of a Mahomedan and (2) that the performance that is sought to be enforced in the present case is the performance of a statutory duty under Section 55(d) of the Transfer of Property Act (IV of 1882) rather than the terms of any particular contract. The answer to this is that the want of mutuality between the parties to the suit and not any want of validity in the guardian's appointment was the ground of Lord Macnaugten's decision, and secondly, although certain liabilities are imposed by statute upon buyers and sellers, these are obligations that flow from the contractual relations between the parties and do not exist independently of their contract. These provisions are intended by the legislature to be terms implied in every contract of this description unless there is anything stated to the contrary. The case of Mir Sarwarjun v. Fakhruddin Mohomed Chowdhury I.L.R (1911) C. 232 has been considered in a decision of this Court in Krishna Iyer v. Shamanna : (1912)23MLJ610 . With due respect, 1 confess I am unable to follow the reasoning of the learned Judges who decided that case. I do not consider that any analogy can be drawn between a contract made by the guardian of a minor and one made by the manager of a joint family who has the power in case of family necessity to convey away the interests of himself and other members of the family. A contract made by the manager of a joint family may be specifically enforced against him and he may be compelled to exercise his power of conveyance with- out the other members of the family being parties to the contract or to the conveyance. A completed contract in a minor's favour stands on a different footing. A minor may enforce a sale or a mortgage executed in his favour. See Hari Mohun Mondal v. Mohini Mohan Bannerji 22 C.W.N. 130 and Ragavachariar v. Srinivasa Ragavachariar I.L.R (1916) Mad. 308 although as pointed out by the learned Chief Justice the minor may not be entitled to sue the mortgagor on the personal covenant to pay. That a minor's guardian cannot impose a personal liability on his ward by contract was again emphasised in the judgment of the learned Chief justice in Ramajogayya v. Jaganvatham I.L.R (1918) Mad. 185 and there can be no doubt that the covenants, the specific enforcement of which is intended in the Specific Relief Act, are all personal. In the present case the Subordinate Judge was undoubtedly wrong in treating the transfer as complete even before the execution of a registered document. He said it was 'completed for all practical purposes ' by the payment of the price and delivery of possession. The provision in the second paragraph of Section 54 of the Transfer of Property Act (IV of 1882) cannot be so easily avoided. On the above ground alone I think that the present suit must fail and I do not think it necessary to express an opinion on the question of limitation. I have only to observe that Section 55(d) of the Transfer of Property Act makes it the duty of the buyer to first tender to the seller a proper conveyance for execution at a proper time and place and on the findings of fact which are before us in second appeal, it is impossible to say that this has ever been done. The appeal must be allowed and the decree of the District Munsif restored with costs here and in the Lower Appellate Court.
6. I agree.